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Judgment
Z.K. Saiyed, J.—The present appeal, u/s 378 of the Code of Criminal Procedure, 1973, is directed against the Judgment and order of
acquittal dated 04.11.1993 passed by the learned JMFC, Kalavad, in Criminal Case No. 542 of 1992, whereby the learned Magistrate has
acquitted the respondents - accused from the charges levelled against them.
The brief facts of the case of prosecution is that on 14.08.1991 at about 8.30 at Village: Dabhali the accused told the complainant to remove the
bundal of karatha, but the complainant refused to remove the same. Thereupon, the accused persons abused the complainant and inflicted the
injury by bricks. Therefore, the complainant lodged complaint against the accused - respondents for the offences punishable under Sections 323,
504 and 114 of I.P. Code and Section 135 of the Bombay Police Act. After investigation, the Police filed charge-sheet against the accused in the
Court of learned Magistrate.
To prove the case against the present respondent - accused, the prosecution has examined in all eight witnesses and also produced
documentary evidence.
At the end of trial, after recording the statement of the accused u/s 313 of Cr.P.C., and after hearing the arguments on behalf of the prosecution
and the defence, the learned Magistrate has acquitted the accused of all the charges levelled against them by judgment and order dated
25.05.1993 in passed by learned 3rd Judicial Magistrate, First Class, Bharuch in Criminal Case No. 41813 of 1991.
Being aggrieved by and dissatisfied with the Judgment and order passed by the trial Court the appellant - State has preferred the present
Appeal.
I have heard learned A.P.P. Ms. Mini Nair on behalf of the appellant - State. I have also gone through the papers and also the Judgment and
order of the trial Court. It has been contended by the learned APP that the Judgment and order of the trial Court is against the provisions of law;
the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law, it is established that the
prosecution has proved all the ingredients of the evidence against the present respondents. Learned APP has also taken this Court through the oral
as well as the entire documentary evidence.
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 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.
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, reappreciate 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.
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 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.
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 SCW 5553 and in Girja Prasad (Dead) by LRs v. State of M.P. reported in 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, 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.
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 Advocate for the appellant.
The trial court has, after appreciating the oral as well as documentary evidence, has found that the witnesses have not supported the case of
prosecution. The trial Court has also found that there are serious lacunae in the evidence of the witnesses. Nothing is produced on record to rebut
the concrete findings of the trial Court.
Thus, the appellant could not bring home the charge against the respondent - accused in the present Appeal. The prosecution has miserably
failed to prove the charge levelled against the respondent - accused. Thus, from the evidence itself it is established that the prosecution has not
proved its case as alleged against the accused beyond reasonable doubt.
Learned APP 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 respondents of the
charges leveled against them. 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.
In view of above the Appeal is dismissed. Bail bonds, if any, shall stand cancelled. Record & Proceeding may be sent back to the trial Court.