State of Gujarat vs Kamleshbhai Natvarlal Modi

Z.K. Saiyed, J.—The present appeal u/s 378(1)(3) of the Code of Criminal Procedure, 1973 is directed against the judgment and order of acquittal dated 2.6.2008 passed by the learned Metro Magistrate Court No. 23, Ahmedabad in Criminal Case No. 1384 of 2008 whereby the respondents-accused has been acquitted of the charges u/s 92 of the Factories Act,1948.

Brief facts of the prosecution case are that the respondent - accused is owner of the factory running in the name and style of Parikh Enterprise Ltd., registered u/s 2(m)(i) of the Factories Act. On 16.12.1999, an incident was taken place wherein one worker received injuries and during the course of treatment, he succumbed to the injuries. Therefore, respondent - accused committed offence u/s 92 of the Factories Act. On these facts, the complaint was filed before the Court against the respondents. Against the respondent, charge-sheet came to be filed before the learned trial Court. At the time of the trial, evidence was led before the trial Court. The documents were produced and oral evidence of the witnesses was also recorded by the trial Court and after considering the oral as well as documentary evidence, the learned Magistrate has passed the order of acquittal which is impugned in this appeal.

It was contended by the learned APP Mr. M.G. Nanavati for the appellant that the judgment and order of the learned Magistrate is not proper, legal and it is erroneous. He has also argued that the learned Magistrate has not considered the evidence of prosecution. Therefore, the order impugned in this appeal passed by the learned Magistrate requires to be quashed and set aside.

I have heard learned advocate Ms. Falguni Trivedi appearing for Ms. Amee Yajnik on behalf of the respondent. She has vehemently that the original complainant was not examined by the prosecution before the learned trial Court and even the documentary evidence is not produced in support of the case of the prosecution, which shows the negligence on the part of the respondent - accused. Even the panchnama has not been produced before the learned trial Court.

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 v. 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.

Further, in the case of Chandrappa and Others Vs. State of Karnataka, 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.

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.

Even in a recent decision of the Apex Court in the case of State of Goa, v. 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:

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.

Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh and Ors. reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRS v. State of MP reported in AIR 2007 SC 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.

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 Alias Vemareddy and Another, wherein, it is held as under:

...This Court has observed in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, 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.

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.

I have gone through the judgment and order passed by the trial court and also considered the submissions made by the learned advocates for the parties. From the perusal of the papers, it appears that just to prove negligence of the respondent - original accused, the prosecution has not produced any documentary evidence just like of Panchnama or other documents. Even it also appears from papers that original complainant was not examined only due to retirement and in place of original complainant, the prosecution witness No. 1 has no personal knowledge and in absence of original complainant. Learned APP Mr. Nanavati is not in a position to convince this Court that the respondent - original accused has committed any offence. Thus, from the evidence itself, it is established that the prosecution has not proved its case beyond reasonable doubt.

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.

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.

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 appellant is hereby dismissed. Record and Proceedings be sent back to the trial court forthwith. Bail bonds, if any, stand cancelled.