State of Gujarat vs Rambalak Kumarshri Dhobi Mahanto

Z.K. Saiyed, J.

1.0 The State has filed this acquittal appeal against the judgment and order passed by the learned Special Judge, 4th Fast Track Court, Gadhidham - Kachchh in Special Case No. 36/2006 dated 18.07.2008.

2.0 The brief facts of the prosecution case are as under:

2.1 Police Inspector, Dilipchandra Agravat of Local Crime Branch (LCB) of Bhuj - Kachchh filed his complaint and stated that on 24.06.2006, at around 12.15 am, while he and other staff members, i.e. P.S.I. - Shri Desai and other Police Constables, were patrolling in a Government vehicle for night combing in the Adipur area, they noticed a stranger passing by, with a suitcase in his hands, near the 80 Bazaar area. As he felt something suspicious from his movement, he immediately called him. However, at that time, the said stranger did not stop and tried to escape from the said place. Immediately, the entire police team followed him and caught hold of him. The suitcase which the stranger was carrying was inspected by the police personnel. On such inspection, they found that the suitcase contained the contraband substance - ''Ganja''.

2.2 Therefore, further investigation was done and necessary preliminary procedure was carried out as required under the provisions of the N.D.P.S. Act, 1985. An option was also given to the stranger, i.e. the respondent-accused, as to whether he desired to be searched in presence of an Executive Magistrate or a Gazetted Officer. However, the respondent-accused waived the said right available to him under the authority of law.

2.3 Consequently, necessary search was carried out by the police personnel and the alleged contraband substance was seized from him. After following necessary procedure, the competent authority of the F.S.L. opined that the contraband substance weighed about 2,875/- grams having value of Rs. 14,375/-.

2.4 Therefore, a complaint with respect to the aforesaid offence was filed against the respondent-accused with Adipur Police Station, which was registered as C.R. I-No. 2/2006. Necessary investigation was carried out and statements of several witnesses, including the members of the raiding party, were recorded. F.S.L. Report was also obtained.

2.5 After completion of investigation, charge-sheet was filed against the respondent-accused before the Court of learned Special Judge, Gandhidham. Thereafter, charge was framed against the respondent and as the responded pleaded not guilty to the charges leveled against him, trial was initiated. During the course of trial, the prosecution had examined nine witnesses and had placed reliance upon eleven documentary evidence. At the end of trial and after recording the statement of the respondent-accused u/s 313 of Cr.P.C., the learned trial Judge came to the conclusion that the prosecution has not proved its case beyond reasonable doubt and consequently, acquitted him from the alleged offence.

2.6 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant - State has preferred the present appeal.

3.0 Mr. R.C. Kodekar, learned APP, has contented that the judgment and order of the Court below is not proper and legal in the eyes of law. He has contented that the Court below has not properly considered the oral as well as documentary evidence on record in its true perspective and that from the entire evidence, it is established that the prosecution has proved the ingredients of the offence beyond reasonable doubt.

4.0 At the outset, it is required to be noted that 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 a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala and Another, , 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:

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 judgement 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.

4.1 Further, in the case of Chandrappa and Others Vs. State of Karnataka, the Apex Court laid down the following principles;

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 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.

4.2 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.

4.3 Even in a recent decision in the case of State of Goa v. Sanjay Thakran and 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;

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 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.

4.4 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 AIR 2007 S.C.W. 5553 and in Girja Prasad (Dead) by LRs v. State of MP reported in AIR 2007 S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.

4.5 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 the 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.

4.6 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.

5.0 Before us, today, R & P has been produced pursuant to the order dated 03.02.2009 passed by this Court. Both of us have perused the R & P, the impugned judgment passed by the trial Court and the oral as well as documentary evidence on record. We have also considered the submissions made by learned APP for the appellant-State. From the record, we find that to prove the guilt of the respondent-accused, the prosecution has examined only the members of the raiding party and that no independent witness/s have been examined. Looking to the facts of the case, we are of the opinion that the evidence of only the police authority, i.e. the raiding party, would not be sufficient to prove the guilt of the respondent. Only on the say of the complainant, an accused person could not be convicted and the evidence of independent witness/s is required.

6.0 We find that the prosecution has failed to establish as to from which place the respondent-accused has been arrested. One version states that the respondent-accused was arrested from a place near to the Home Guard Office while the other version states that the respondent-accused was arrested from Adipur Chakrava. The prosecution has not been able to prove the actual location / place from where the respondent-accused was detained and arrested and the muddamal article was seized. It also transpires from the record that the arrest and seizure memos were not sent to the higher authority by the complainant, as required under the provisions of the Act. Moreover, it also appears that the procedure required for applying seal on the muddamal article has also not been followed.

7.0 Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. Mr. Kodekar, learned APP, 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.

8.0 In the above view of the matter, we are of the considered opinion that the trial Court was completely justified in acquitting the respondent of the charges leveled against him. We 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. We are, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the Court below and hence, find no reasons to interfere with the same.

9.0 The appeal is, accordingly, dismissed. Bail bonds, if any, shall stand cancelled. Office to sent back the R & P to the trial Court concerned forthwith.