Gujarat High Court
Ashwin vs Ashish on 25 January, 2010
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
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CR.A/525/2003 1/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 525 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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ASHWIN
H ACHARYA - Appellant(s)
Versus
ASHISH
VINODBHAI C/O ASHISH DAIRY FARM & 1 - Opponent(s)
=========================================
Appearance :
MR
HS MUNSHAW for the Appellant.
Mr. M.G.Nanavati, Additional PUBLIC
PROSECUTOR for respondent no.
2.
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 25/01/2010
ORAL
JUDGMENT
1. The Food Inspector, Rajkot Municipal Corporation-original complainant has filed the present appeal under section 378 of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 25.6.2002 passed by the learned Judicial Magistrate, First Class, Municipal Court, Rajkot in Criminal Case no. 541 of 1992 whereby the accused has been acquitted of the charges under sections 7 and 16 of the Prevention of Food Adulteration Act, 1954.
2. Brief facts of the prosecution case are that the complainant had visited the shop of the accused on 5th November, 1992 and had purchased 5 kgs. of Shikhand from the accused. Thereafter, after following due procedure, the sample was sent to Public Analyst for analysis and as per the report of the Public Analyst, the sample was found adulterated.
3. Therefore, a complaint with respect to the aforesaid offence was filed against the respondent in the Court of the learned Judicial Magistrate, First Class, Municipal Court, Rajkot. The plea of the complainant as well as that of the accused were recorded.
4. With a view to prove the case against the respondent-accused, the complainant has led oral as well as documentary evidence. After the trial, after recording statement of the accused person under section 313 of the Criminal Procedure Code, and after hearing arguments on behalf of complainant and the defence, the learned Judicial Magistrate, First Class, Municipal Court, Rajkot has acquitted the respondent-accused of all the charges levelled against him by the judgment an order dated 25.6.2002.
5. Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the learned ........ Judicial Magistrate, First Class, Rajkot, the appellant has preferred the present appeal.
6. Heard learned Advocate Mr. G.P.Baghel for learned advocate Mr. Munshaw for the appellant. He has contended that the complainant has proved the case against the respondent-accused beyond all reasonable doubt. It is also contended that the complainant has also proved documentary evidence to prove its case. He has also vehemently argued that the learned trial Judge has not considered the oral as well as documentary evidence produced by the complainant.
7. At the outset, it is required to be noted that the principles which would govern and regular the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S.Narayana Menon @ Mani vs. State of Kerala and Anr. reported in (2006) SCC 39, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:
"54: In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below."
8. Further, in the case of Chandrappa vs. State of Karnataka, reported in (2007) 4 SCC 415 the Apex Court laid down the following principles:
"42: From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of act and of law.
(3) Various expressions, such as "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Sych phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate court to interfere with acquittal than to curtain he power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.
Firstly,the presumption of innocence is available to him under the fundamental principles of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
9. Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
10. Even in a recent decision of the Apex Court in the case of State of Goa, vs. Sanjay Thakran and Anr. reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:
"16.
From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterised as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."
11. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh vs. Ram Veer Singh and Ors., reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRS vs. State of MP, reported in 2007 AIR SC 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
12. It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka vs. Hemareddy, reported in AIR 1981 SC 1417, wherein, it is held as under:
"...This Court has observed in Girija Nandini Devi vs. Bigendra Nandini Chaudhary (1967) SCR 93; (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with a view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."
13. Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.
14. I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led before the trial court and also considered the submissions made by the learned Advocate for the appellant-original complainant. The trial court while considering the oral as well as documentary evidence has clearly observed that the complainant has miserably failed to prove its case beyond reasonable doubt against the respondent. From the perusal of the oral evidence of the complainant, it appears that the prosecution has failed to prove that the consent which was given was with application of mind. It appears from the oral evidence that maker of consent never bothered to read documentary evidence which was produced before him. I have also perused exh. 43 and from the receipt which was produced before Local Health Authority, there was no signature of the accused Ashish Vinodbhai. He has also admitted that he has never bothered to verify whether prior to the consent, if any instruction regarding receipt was given or not. He has also admitted that as per the demand of the Food Inspector, consent was given. So from the oral as well as documentary evidence, it is apparent that the the complainant has never bothered to follow the provisions of law. When it is so, then the legal question of allowing the acquittal appeal does not arise at all. Even seizure and sampling is not done as per the procedure and in a proper manner. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the trial court. Thus, from the evidence itself, it is established that the prosecution has not proved its case beyond reasonable doubt.
15. Learned Additional Public Prosecutor is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.
16. In the above view of the matter, I am of the considered view that the trial court was completely justified in acquitting the respondent of the charges levelled against him.
17. I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
18. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reason to interfere with the same. Hence, the appeal preferred by the State is hereby dismissed. Record and Proceedings be sent back to the trial court forthwith. Bail bonds, if any, stand cancelled.
(Z.K.Saiyed,J) ***darji Top