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Gujarat High Court · body

2015 DIGILAW 433 (GUJ)

K. H. Goel v. Chandrakant Ishwarlal

2015-04-15

K.J.THAKER

body2015
ORDER : Kaushal Jayendra Thaker, J. 1. When the matter is called out, none appears for opponent Nos. 1 and 2. By way of this appeal, the appellant-State has challenged the judgment and order of the learned Chief Judicial Magistrate Court, Bhavnagar dated 27.04.1993 rendered in Criminal Case No. 4347 of 1993, 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 on 07.06.1985, the smuggled goods is to be transported which has landed at Gadhada sea coast, by trucks, the Police Sub Inspector Mahuva immediately left for Gadhada Village with his Police Party. On cross way of Gadhada-Khared, he saw a truck coming from Gadhada side towards Mahuva and he gave a signal to stop the said truck. The driver of the truck stopped it. There were four persons sitting in the truck including the driver. It is further case of the prosecution that on inquiry, they disclosed their names as (1) Ravjibhai Ambalal Thakor, driver (2) Pravin Himatlal Acharya (3) Chandrakant Ishwarlal Acharya and (4) Dilip Bachubhai Gandhi. The Police Sub Inspector examined the contents of the truck and it was found that the truck was loaded with packages of smuggled goods concealed below the onion bags. Therefore, the aforesaid truck along with aforesaid four persons was brought to Mahuva Police Station for detailed search. Meanwhile, the local customs Authorities were also informed about the same and they arrived at Police Station, Mahuva immediately. The Police Sub Inspector, Mahuva handed over the said loaded truck to Customs Officer for further action under the Customs Act, 1962 and called the panchas for detailed examination of the goods loaded in said truck No. GRN3880. Upon inquiry, Mahesh Ishwarlal Ramavatalias Acharya made his truck available for transporting the smuggled goods which was found abandoned near Gadhada Village which was found to be carrying 48 packages of smuggled goods valued at Rs. 49,76,700/- which were seized under proper panchnama by Customs Officer. After the necessary procedures, a complaint was lodged. 3. After completion of the investigation, the chargesheet was filed before the learned Magistrate Court. Since the opponents-accused did not plead guilty and claimed to be tried, they were tried for the alleged offences. 4. 49,76,700/- which were seized under proper panchnama by Customs Officer. After the necessary procedures, a complaint was lodged. 3. After completion of the investigation, the chargesheet was filed before the learned Magistrate Court. 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 several witnesses as well as the prosecution also produced documentary evidences on record. 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 Chief Judicial Magistrate Court, Bhavnagar 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 preferred the present Criminal Appeal. 7. Learned Counsel for the appellant submitted that the learned Magistrate Court erred in not accepting the evidence of the prosecution witnesses and the conclusion reached by him of acquitting the accused Nos. 1 to 3 is contrary to the evidence of the prosecution witnesses and other evidence produced by the prosecution. He further submitted that the Trial Court ought to have come to the conclusion that the seizure panchnama was prepared in the presence of the accused Nos. 1 to 3 were required to be convicted as they were found in the truck bearing Registration No. GRN-3880 wherein 120 packages of contraband goods were found. He further submitted that the case against the accused Nos. 1 to 3 is very clear and apparent from the fact that the accused No. 3 was driving the truck and accused Nos. 1 and 2 were the occupants of the truck. When the truck was intercepted by the Police Sub Inspector, Mahuva and the contraband goods worth Rs. 1,34,28,298/- were found from the said truck which was seized by the Officers of the Customs Department. The learned Counsel 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. 1,34,28,298/- were found from the said truck which was seized by the Officers of the Customs Department. The learned Counsel 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. Learned APP for respondent No. 4-State adopts the arguments of the learned Counsel for the appellant. Therefore, 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. 9. As against that, learned Counsel for the accused-opponent Nos. 1 to 3 supported the judgment and order of the Trial Court submitting that the same was passed after appreciating the evidence adduced on record by the prosecution. Hence, no interference is called for with the same at the hands of this Court. Therefore, the criminal appeal is required to be dismissed and the impugned judgment and order passed by the learned Trial Court is required to be confirmed. 10. I have heard learned Counsel for the parties and perused the material on record. 11. As far as accused No. 3-present opponent No. 3 is concerned, he died during the pendency of the trial. Therefore, his case is ordered to be abated. 12. 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 having acquittal appeals. 13. 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 v. 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. 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." 14. Further, in the case of Chandrappa v. State of Karnataka ( 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 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." 15. 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." 15. 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. 16. Even in the case of State of Goa v. Sanjay Thakran & Anr. (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 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." 17. Similar principle has been laid down by the Apex Court in cases of State of Uttar Pradesh v. Ram Veer Singh & Ors. (2007 A.I.R. S.C.W. 5553) and in Girja Prasad (Dead) By L.R.S v. 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. 18. In the case of Luna Ram v. Bhupat Singh And Ors. (2007 A.I.R. S.C.W. 5553) and in Girja Prasad (Dead) By L.R.S v. 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. 18. In the case of Luna Ram v. 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 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." 19. Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. v. 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. 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 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 v. Sohan Lal and Others, (2004) 5 SCC 573 ]." 20. 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 v. 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." 21. In the recent decision, the Hon'ble Apex Court in Shivasharanappa and Others v. 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 be kept in mind that acquittal results into double presumption of innocence." 22. I find that the Trial Court, while considering the evidence on record, has rightly acquitted the accused persons. Some of the witnesses have turned hostile. In view of the decisions of the Apex Court cited by the learned Trial Court, this appeal deserves to be dismissed. Further, the learned Trial Court, while discussing the issue in Paragraphs-26 to 29 and on appreciating evidence on record, has rightly acquitted the present accused. The statement under Section 108 is not proper and believable on the factual scenario of this case. No independent witness has been examined by the prosecution. 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 observed by the Trial Court. Moreover, the incident is of the year 1985 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. 23. 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. 24. 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. In the result, the appeal fails and is dismissed. The judgment and order of the Trial Court dated 27.04.1993 stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. R & P be sent back to the concerned Trial Court, forthwith.