State of Gujarat vs Sureshbhai S. Patel

Z.K. Saiyed, J.—The Appellant-State of Gujarat, has preferred the present Appeal u/s 378 of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 05th May 1993 passed by the learned Judicial Magistrate First Class, Pardi, in Summary Case No. 2549 of 1992, whereby the learned Magistrate was pleased to acquit the Respondent-accused of the charges levelled against him.

The short facts of the prosecution case is that the complainant-Police Sub Inspector, Pardi, was on duty at night hours and while he was on patrolling, he received an information that Truck bearing No. 17T-3309 is proceeding from Daman and the Truck is carrying prohibited goods. On the basis of information received, the complainant along with his staff members had gone towards village Saran and kept watch on that road. It is also the case of the complainant that when the said Truck arrived, it was stopped by the complainant in presence of panchas. It is also the case of the complainant that the drive and the person sitting with the driver ran away on the spot. It was found that the Truck was carrying 309 boxes of imported liquor worth Rs. 03,24,440/-.

Therefore, a complainant with respect to the aforesaid offences was filed against the Respondent. Necessary investigation was carried out and statements of Panchas were recorded. Ultimately, the Respondent-accused was charge-sheeted before the Court of learned Judicial Magistrate First Class, Pardi, which was numbered as Criminal Case No. 2549 of 1992. Thereafter, trial was initiated against the Respondent-accused.

To prove the case of the prosecution, prosecution has produced oral as well as documentary evidence. After considering the oral as well as documentary evidence, the learned Magistrate has acquitted the Respondent-accused of the charges levelled against him by the judgment and order dated 05th May 1993.

Being aggrieved and dissatisfied with the said judgment and order dated 05th May 1993 passed by the learned Judicial Magistrate First Class, Pardi in Criminal Case No. 2549 of 1992, the Appellant-State of Gujarat, has preferred the above mentioned Criminal Appeal.

Heard Mr. H.L. Jani, learned Additional Public Prosecutor, appearing on behalf of the Appellant-State. I have also gone through the papers produced on record and the judgment and order passed by the Trial Court.

Mr. H.L. Jani, learned Additional Public Prosecutor for the Appellant, has taken me through the evidence of prosecution witnesses and the documentary evidence and submitted that from the above evidence it is established that the prosecution has successfully proved its case beyond reasonable doubt. He has contended that the witnesses have supported the case of the prosecution and the learned Magistrate has committed grave error in disbelieving and discarding the evidence of witnesses. He, therefore, contended that the judgment and order passed by the learned Magistrate is without appreciating the facts and evidence on record and therefore, is liable to set aside.

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.

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. (2007) 3 SCC 75, the Court has reiterated the powers of the High Court in such cases.

Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh and Ors. AIR2007 SCW 5553 and in Girja Prasad (Dead) by L. Rs. v. state of MP. AIR 2007 SCW 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 reasoning, 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,

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. I have also perused the oral as well as documentary evidence led before the Trial Court and also considered the submissions made by learned Counsel for the Appellant.

The Trial Court has, after appreciating the oral as well as documentary evidence, found that pancha witness - Kantibhai Kikabhai declared hostile. It is also observed by the learned Magistrate that panch witness Kantibhai did not support the Panchnama at Exhibit 7. It is also observed by the learned Magistrate that the complainant has not mentioned as to how many bottles of which brand he has seized. It is also observed by the learned Magistrate that when panchas are turned hostile and did not support the case of the complainant, it would not be appropriate to solely rely upon the evidence of complainant. Thus, the prosecution has failed to prove its case beyond reasonable doubt against the Respondent-accused. The Trial Court has observed that there are serious lacuna in the oral as well as documentary evidence of prosecution. Nothing is produced on record of this appeal to rebut the concrete findings of the Trial Court.

Thus,the Appellant could not bring home the charges against the Respondent-accused in the present appeal. The prosecution has miserably failed to prove the case against the Respondent-accused. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.

Mr. H.L. Jani, learned Additional Public Prosecutor, is not in a position to show any evidence to take a contrary view in 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.

In above view of the matter, I am of the considered opinion that the Trial Court was completely justified in acquitting the Respondent-accused 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 reasons to interfere with the same. Hence the appeal is hereby dismissed. The judgment and Order of acquittal dated 05th May 1993 passed by the learned Judicial Magistrate First Class, Pardi, in Criminal Case No. 2549 of 1992 is hereby confirmed. Bail bond, if any, shall stand discharged. Record and Proceedings, if any, be sent back to the trial Court concerned forthwith.