CR.A/226/1989 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 226 of 1989 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI : ======================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ======================================================= STATE OF GUJARAT - Appellant(s) Versus THA ASSOCIATED CEMENT CO. LTD. & 2 - Opponent(s) ======================================================= Appearance : MS MS PANCHAL APP for Appellant(s) : 1, NOTICE UNSERVED for Opponent(s) : 1 - 3. ======================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 29/11/2007 ORAL JUDGMENT 1. This appeal is directed against the judgment and order dated 07.01.1989 passed by the learned Judicial Magistrate, First Class, Thasra in CR.A/226/1989 2/6 JUDGMENT Criminal Case No.131/1984 whereby, the complaint was dismissed and the respondents–accused were acquitted of the charges levelled against him. 2. The brief facts of the prosecution case are as under; 2.1 When the respondent-accused no.1, the Company was dispatching the cement bag from its premises, the Inspector intercepted the truck in the factory premises itself loaded with cement bag. Upon weightment each of the bag, which was supposed to contain 50 Kgs. of cement, contained less cement and that some of the bags were found having less than 50 Kgs. of cement in truck and shortage in weight varied from 300 grams to 3 Kgs. Thereafter, appropriate panchnama was prepared and the complaint came to be lodged. 2.2 As the accused denied the charges, the matter proceeded further. The Learned Magistrate has examined two witnesses viz., P.W.No.1 viz., Shaileshkumar Premanand at Ex.18 and P.W.No.2 viz., Rohitkumar Mohanlal at Exh.27 has also relied upon several documentary evidence. 2.3 At the end of trial, the learned Magistrate acquitted the respondents-accused of the charges levelled against them. Hence, this appeal. 3. Learned Additional Public Prosecutor, Ms.Panchal CR.A/226/1989 3/6 JUDGMENT for the appellant has contended that the trial Court has committed an error in not believing the prosecution witnesses and has wrongly acquitted the accused of the charges levelled against him. He has also contended that the trial court ought to have believed the version of the prosecution witnesses who were present at the relevant point of time. 4. Heard learned counsel for the respective parties and perused the entire documents on record. 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. This Court has the power to re- consider the whole issue involved in the appeal, re-appraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial Court, if the said findings are against the weight of the evidence on record or, in other words, perverse. 5. In a recent decision of the Apex Court in the case of State of Goa v. Sanjay Thakran & anr. reported in (2007) 3 S.C.C. 755, the Court has reiterated the powers of this Court in such cases. In Para-16 of the said decision, the Court has observed as CR.A/226/1989 4/6 JUDGMENT 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”. [Emphasis supplied] 6. Similar principle has been reiterated by the Hon'ble Apex Court in two recent decisions in the cases of State of Uttar Pradesh v. Ram Veer Singh & ors. reported in 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by L.Rs. v. State of M.P. reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled. 7. In the present case, the trial court has considered CR.A/226/1989 5/6 JUDGMENT the evidence in details and the reasons for acquittal are assigned in paragraph 4 of the judgment. The trial court has found that though sufficient opportunities were given to the prosecution, except Rohitkumar, no independent witness or panch witness has been examined by the prosecution and for want of evidence, the benefit of doubt are required to be given to the respondents-accused. Taking the overall view evidence, oral as well as documentary, the trial court has acquitted the respondents-accused. 8. In above view of the matter, I am of the opinion that the trial Court was completely justified in acquitting the respondent of the charges levelled against him. In my view, 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 in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the trial Court and, hence, find no reasons to interfere with the same. 9. It is also required to be noted that in the case of State of Maharashtra V/s. M/s Gopalprasad Govindprasad Agarwal, reported in AIR 1999 SC 1507, having regard to the fact that the offences were CR.A/226/1989 6/6 JUDGMENT committed almost 20 years ago, the Apex Court refrained from setting aside the acquittal order. In the present case the incident is of 21st September, 1983 and almost 24 years have elapsed. Therefore, even on this ground, I am of the view that it is not desirable to interfere with the findings of the trial court. 10. I am not discussing the evidence of each witness/s in detail in view of the observations made by the Apex Court in the case of State of Karnataka Vs. Hemareddy reported in A.I.R. 1981 S.C. 1417 wherein it is held as under: “... This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) 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.” 11. In the result, the appeal is dismissed. (K.S.JHAVERI, J.) /patil