Gujarat High Court
State Ofguj vs Mohamad Aslam Abdul & ... on 27 February, 2015
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/929/1994 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 929 of 1994
With
SPECIAL CRIMINAL APPLICATION NO. 1021 of 1999
In
CRIMINAL APPEAL NO. 929 of 1994
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER
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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 or any order
made thereunder ?
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STATE OFGUJ....Appellant(s)
Versus
MOHAMAD ASLAM ABDUL & 1....Opponent(s)/Respondent(s)
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Appearance:
MS MONALI BHATT, APP for the Appellant(s) No. 1
APPEARANCE DELETED for the Opponent(s)/Respondent(s) No. 1
RULE UNSERVED for the Opponent(s)/Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 27/02/2015
ORAL JUDGMENT
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CRIMINAL APPEAL/929/1994 06/03/2015 12:39:25 AM R/CR.A/929/1994 JUDGMENT
1. By way of this appeal, the appellant-State has challenged the judgment and order of the learned Additional City Sessions Judge, Court No.20, Ahmedabad dated 01.03.1994 rendered in Sessions Case No.233 of 1992, whereby the learned Trial Judge acquitted the original accused- opponents herein of the charges for the alleged offences.
2. The brief facts of the prosecution case are that a complaint was lodged by the complainant with Shaherkotda Police Station, wherein on information that accused no.2-Mohamadkamil Mohanmadhusain Pinjara was keeping charas balls weighing 670 grams at Saraspur Potaliya Cross Road and doing his business of the same without pass or permit, the Police Inspector-Mr.G.J. Chowdhary along with his staff and panchas went to the aforesaid place and on reading the said place, they found charas balls weighing 670 grams worth Rs.40,000/-. It is further case of the prosecution that after he weighed the said balls keeping the said balls as they were in the Page 2 of 15 CRIMINAL APPEAL/929/1994 06/03/2015 12:39:25 AM R/CR.A/929/1994 JUDGMENT respective plastic packets containing the said chargas balls were placed in the said bag and thereafter, that bag containing the said charas balls in the plastic packets was placed in an iron tin and a slip containing signatures of panchas and P.I. Mr.G.J. Chaudhary was put inside the tin, and thereafter, that tin was covered by threads and upon this thread, it was sealed by means of sealing wax and upon that seal, the seal of Inspector of Police was affixed and charas balls were seized after completing the detailed panchnama. Thereafter, a complaint was lodged.
3. After completion of the investigation, the chargesheet was filed before the learned Magistrate Court. As the case was exclusively triable by the Court of Sessions, learned Magistrate Court, Ahmedabad under Section 209 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") committed the said case to the learned Additional City Sessions Judge, Court No.20, Ahmedabad which was, thereafter, numbered as Page 3 of 15 CRIMINAL APPEAL/929/1994 06/03/2015 12:39:25 AM R/CR.A/929/1994 JUDGMENT Sessions Case No.233/1992. Since the opponents- accused did not plead guilty and claimed to be tried, they were tried for the alleged offences.
4. At the time of trial, in order to bring home the charges leveled against the original accused, the prosecution examined 9 witnesses as well as the prosecution also produced 12 documentary evidences.
5. At the end of the Trial and after recording the statement of the accused under Section 313 of Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, the learned learned Additional City Sessions Judge, Court No.20, Ahmedabad acquitted the accused of all the charges leveled against them. On completion of the trial, the Sessions Court passed the judgment and order acquitting the opponents-accused.
6. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Sessions Court, the appellant-State has Page 4 of 15 CRIMINAL APPEAL/929/1994 06/03/2015 12:39:25 AM R/CR.A/929/1994 JUDGMENT preferred the present Criminal Appeal.
7. Learned APP, vehemently, submitted that the learned Trial Court has erred in holding that accused no.2-Mohammadkalim Mohamadhusain Pinjara was found in possession of the muddamal charge without holding a pass or permit and thereby, has erred in passing the impugned judgment and order of acquittal. She further submitted that witness Ratanji Chaudhary and P.I. Govindbhai Chaudhary and PSI Kumbharwadia have given all details of the whole incident and have supported the case of the prosecution. She further submitted that this Criminal Appeal is required to be allowed and the impugned judgment and order passed by the learned Trial Court is required to be quashed and set aside.
8. I have heard learned APP for the appellant- State and perused the material on record with their assistance.
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R/CR.A/929/1994 JUDGMENT
9. In view of the above, I have to appreciate the facts in this case from the touchstone of the decisions of the Hon'ble Apex Court laying down guidelines for hearing acquittal appeals.
10. The principles which would govern and regulate 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 catena of decisions. In the case of M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR (2006) 6 S.C.C. 39, the Apex Court has narrated 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 view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."
11. Further, in the case of CHANDRAPPA VS. STATE Page 6 of 15 CRIMINAL APPEAL/929/1994 06/03/2015 12:39:25 AM R/CR.A/929/1994 JUDGMENT OF KARNATAKA reported in (2007) 4 S.C.C. 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 fact 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. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the 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 principle 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 Page 7 of 15 CRIMINAL APPEAL/929/1994 06/03/2015 12:39:25 AM R/CR.A/929/1994 JUDGMENT 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."
12. Thus, it is a settled principle that while exercising appellate powers, 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.
13. Even in the case of STATE OF GOA Vs. SANJAY THAKRAN & ANR. reported in (2007) 3 S.C.C. 75, the Apex 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 characterized as perverse. Merely because Page 8 of 15 CRIMINAL APPEAL/929/1994 06/03/2015 12:39:25 AM R/CR.A/929/1994 JUDGMENT 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."
14. Similar principle has been laid down by the Apex Court in cases of STATE OF UTTAR PRADESH VS. RAM VEER SINGH & ORS. (2007 A.I.R. S.C.W. 5553) and in GIRJA PRASAD (DEAD) BY L.R.s VS. STATE OF MP (2007 A.I.R. S.C.W. 5589). Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.
15. In the case of LUNA RAM VS. BHUPAT SINGH AND ORS. ((2009) SCC 749), the Apex Court in Paras-10 and 11 has held as under;
"10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were Page 9 of 15 CRIMINAL APPEAL/929/1994 06/03/2015 12:39:25 AM R/CR.A/929/1994 JUDGMENT thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.
11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence."
16. Even in a recent decision of the Apex Court in the case of MOOKKIAH AND ANR. VS. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU (AIR 2013 SC 321), the Apex Court in Para-4 has held as under:
"4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a Page 10 of 15 CRIMINAL APPEAL/929/1994 06/03/2015 12:39:25 AM R/CR.A/929/1994 JUDGMENT different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573]"
17. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite 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 (AIR 1981 SC 1417), wherein it is held as under;
"...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate 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."
18. In the recent decision, the Hon'ble Apex Court in Shivasharanappa & ors. v/s. State of Karnataka (JT 2013 (7) SC 66) has held as under:
"That appellate Court is empowered to re-appreciate the entire evidence, though, certain other principles are also to be adhered to and it has to Page 11 of 15 CRIMINAL APPEAL/929/1994 06/03/2015 12:39:25 AM R/CR.A/929/1994 JUDGMENT be kept in mind that acquittal results into double presumption of innocence."
19. In light of these facts, the seal on the muddamal at the time of taking them has not been properly mentioned. The documentary evidence is also not properly proved. The provisions of Section 50 of the NDPS Act and the Prohibition Act have not been properly followed and the learned Trial Judge has properly scrutinized the section. Though the case of the prosecution and evidence of the witnesses is that these persons were searched in presence of these panchas Kanubhai Desai and Ishwarbhai Desai, these two panchas, who were examined in this case before the Trial Court, have not supported the case of the prosecution and they were declared hostile. The writ petition was also moved by the State seeking directions which were given by the Court. I am unable to accept the submission of the learned APP that this is a case where I would like to up-turn the judgment of the learned trial Page 12 of 15 CRIMINAL APPEAL/929/1994 06/03/2015 12:39:25 AM R/CR.A/929/1994 JUDGMENT Judge which is a well reasoned judgment, and there is no perversity in the same. The evidence of the witnesses also will not permit this Court to take a different view than the one taken by the Trial Court. The learned Trial Court, while discussing the issue in Paragraph-19 and on appreciation of evidence on record, has rightly acquitted the accused. It emerges that there is no perversity in the judgment. I am unable to accept the submission made by the learned APP that the judgment lacks appreciation of proper evidence and she has taken this Court through the ground urged in the appeal. Therefore, this appeal deserves to be dismissed.
20. I find that the Trial Court, while considering the evidence on record, has rightly acquitted the accused persons. The Trial Court has observed that there are various discrepancies in the evidence produced by the prosecution. The Trial Court has doubted the veracity of the investigation. There are loopholes in the evidence and investigation which has been Page 13 of 15 CRIMINAL APPEAL/929/1994 06/03/2015 12:39:25 AM R/CR.A/929/1994 JUDGMENT observed by the Trial Court. Moreover, the incident is of the year 1992 and I do not find any strong ground to reverse the decision of the Trial Court. In that view of the matter, the view taken by the Trial Court is not required to be disturbed.
21. I am, therefore, of the considered opinion that the findings recorded by the Trial Court in acquitting the accused of the charge leveled against them are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. I am in complete agreement with the reasonings given and the findings arrived at by the Trial Court. No interference is warranted with the judgment and order of the Trial Court.
22. In view of the above discussions, I am of the opinion that the learned Judge committed no error in passing the impugned judgment and order. Hence, the present appeal deserves to be dismissed.
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23. In the result, the appeal fails and is
dismissed. The judgment and order of the Trial Court dated 01.03.1994 stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. R & P be sent back to the concerned trial Court, forthwith.
24. In view of the disposal of the main appeal, Special Criminal Application No.1021/1999 does not survive. Accordingly, disposed of.
(K.J.THAKER, J) rakesh/ Page 15 of 15 CRIMINAL APPEAL/929/1994 06/03/2015 12:39:25 AM