Gujarat High Court
State Of Gujarat vs Haresh Haribhai Luwana & on 26 March, 2013
Author: M.R. Shah
Bench: M.R. Shah
STATE OF GUJARAT....Applicant(s)V/SHARESH HARIBHAI LUWANA R/CR.MA/10674/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 10674 of 2012 In CRIMINAL APPEAL NO. 1088 of 2012 With CRIMINAL APPEAL NO. 1088 of 2012 ============================================= STATE OF GUJARAT....Applicant(s) Versus HARESH HARIBHAI LUWANA & 2....Respondent(s) ============================================= Appearance: MR. DABHI ADDL. PUBLIC PROSECUTOR for the Applicant(s) No. 1 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE S.H.VORA Date : 26/03/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. Present Criminal Miscellaneous Application under Section 378(1)(3) of the Code of Criminal Procedure has been preferred by the applicant- State of Gujarat challenging the impugned judgment and order dated 20.3.2012 passed by the learned Additional Sessions Judge, Morbi passed in Sessions Case No. 26 of 2011 acquitting the respondents herein original accused for the offences under Sections 304, 308 and 114 of the Indian Penal Code and Sections 66(B), 65(E) and 81 of the Prohibition Act.
2.0. That we have heard Mr. Dabhi, learned Additional Public Prosecutor for the applicant State and perused the impugned judgment and order as well as entire evidence on record received from the Record and Proceedings from the learned trial Court and considered in detail the evidence which are relied upon by prosecution. Mr. Dabhi, learned Additional Public Prosecutor for the applicant State has taken us to the entire evidence on record, more particularly, evidences which are relied upon by the prosecution and we have re-appreciated the evidence on record.
3.0. That the respondents herein-original accused came to be tried by the learned Sessions Court for the offences under Sections 304, 308 and 114 of the Indian Penal Code and Sections 66(B), 65(E) and 81 of the Prohibition Act and by impugned judgment and order and on appreciation of evidence the learned Judge has acquitted the respondents accused for the offences which they were tried observing that the prosecution has failed to prove that the accused persons have committed the offences for which they were tried.
4.0. That an FIR came to be lodged against the accused persons for the offences under Sections 304, 308 and 114 of the Indian Penal Code and Sections 66(B), 65(E) and 81 of the Prohibition Act with the Morbi City Police Station being CR-I- No. 254 of 1999 alleging inter alia that on 28.7.1999 at about 7.30 p.m the complainant Rajubhai Bharwad and his friend Mahesh @ Munno (deceased) were sitting outside at Navadel Road, Morbi and at that time their friends of Haresh Haribhai Luvana and Natubhai Soni (Accused nos. 1 and 2) came there and Haresh told that he has brought one bottle of English liquor from one Bharubha and invited them to take the liquor and force them to take the liquor and thereafter all of them were taking the liquor in the Surajbag. It was further alleged that at about 8.15 p.m. in the night Haresh sent Natubhai to bring nuts and at that time Haresh open the bottle and gave liquor to the complainant as well as Munno and on drinking the same they started vomiting and thereafter Munno was brought to the house of his maternal uncle (Mama) and thereafter he was treated there however during the treatment Munno died. Therefore, it was alleged that accused persons have committed the offences under Sections 304, 308 and 114 of the Indian Penal Code and Sections 66(B), 65(E) and 81 of the Prohibition Act. That on conclusion of the investigation, the Investigating Officer filed the chargsheet against the accused persons in the Court of learned JMFC, Morbi for the offences under Sections 304, 308 and 114 of the Indian Penal Code and Sections 66(B), 65(E) and 81 of the Prohibition Act. As the case was exclusively triable by the Court of Sessions, the learned JMFC committed the case to the Court of Sessions which was numbered as Sessions Case No. 26 of 1999. That the learned Sessions Court framed the charges against the accused at Exh. 9 and the charge was read over to the accused persons. However accused persons were pleaded not guilty and therefore, they came to be tried for the aforesaid offences.
5.0. To prove the case against the accused, the prosecution examined in all 5 witnesses and also led the documentary evidence. That after closing of the evidence of the prosecution, further statement of the accused came to be recorded under Section 313 of the Code of Criminal Procedure wherein the accused persons denied having committed any offences as alleged. That thereafter on appreciation of evidence on record, the learned Judge has held that prosecution has failed to prove that the accused persons brought the liquor containing intoxication substance and / or same was given to the deceased. The learned Judge has also given finding that even prosecution has failed to prove the presence of original accused no.3 at the time of incident. It has also come on record that as such no incriminating substance have been found from the possession of the accused persons. It is also required to be noted that even the body of the accused was also not sent to the laboratory to prove whether they have taken any liquor or not. Considering the aforesaid facts and circumstances of the case and on appreciation of evidence when the learned Judge has acquitted the accused for the offences under Sections 304, 308 and 114 of the Indian Penal Code and Sections 66(B), 65(E) and 81 of the Prohibition Act, it cannot be said that learned Judge has committed any error which calls for the interference of this Court in exercise of powers under Section 378 of the Code of Criminal Procedure. Considering the evidence on record, we are of the opinion that the view taken by the learned Judge is plausible and findings given by the learned Judge are on appreciation of evidence which are neither perverse nor contrary to the evidence on record. Under the circumstances, as such we see no reason to interfere with the impugned judgment and order of acquittal in exercise of powers under Section 378 of the Code of Criminal Procedure.
6.0. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal EVEN if other view is possible then also appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant case, the learned APP has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
7.0.
In the case of RAM KUMAR V. STATE OF HARYANA, reported in AIR 1995 SC 280, Supreme Court has held as under:
The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."
8.0. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
9.0. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal. .
10. In view of the above and for the reasons stated above, present application for leave to appeal fails and same deserves to be dismissed and is accordingly dismissed. In view of dismissal of the application for leave to appeal, Criminal Appeal also deserves to be dismissed and is accordingly dismissed.
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(M.R.SHAH, J.) Sd/-
(S.H.VORA, J.) Kaushik Page 5 of 5