CR.A/90/1999 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 90 of 1999 For Approval and Signature : HONOURABLE MR. JUSTICE Z.K.SAIYED 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 IBRAHIM UMARJI ISAP VORA PATEL - Opponent(s) ========================================================= Appearance : MR MR MENGDE, APP, for Appellant(s) : 1, MR KN SARVAIYA for MR SHAKEEL A QURESHI for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 14/03/2008 ORAL JUDGMENT 1. The present acquittal Appeal has been filed by the State, under Section 378(1)(3) of the Code CR.A/90/1999 2/9 JUDGMENT of Criminal Procedure, against the Judgment and order dated 10.11.1998, rendered by the learned Judicial Magistrate, First Class, Bharuch, in Criminal Case No.27821 of 1996 whereby the learned Magistrate has acquitted the respondent – accused from the offences punishable under Sections 25(ib)(A) & 27 of the Arms Act. The said Judgment of the trial Court has been challenged by the State on the ground that the Judgment and order passed by the learned Magistrate is against the law and evidence on record. 2. According to the prosecution case, on 9.4.1996 LCB P.I. Mr. Rathod, with Staff members, were in night petroling and at that time LCB PI Mr. Rathod received an information that near Varediya Patia one person is coming with the prohibited weapon and at around 6.00 O'clock at Viradiya Patia, near National Highway No.8, the respondent – accused was arrested by the police and on interrogation it was found that the said person is having in his illegal possession Single Bore .22 Riffle. Thereafter, two panchas were called at the place and in their possession of said weapons were obtained from the respondent – accused. Thereafter, LCB P.I. Mr. Rathod has filed complaint against the present respondent – accused. Thereafter, the police has carried out the investigation, sanction was obtained from the competent Authority and the CR.A/90/1999 3/9 JUDGMENT statement of the witnesses were recorded and after completion of investigation the charge- sheet was filed against the present respondent in the trial Court. The trial Court framed the charges against the respondent in which he pleaded not guilty. Then the prosecution led oral as well as documentary evidence of the witnesses and also the panch witnesses. The Panchas were turned hostile before the trial Court. The sanction which was obtained by the Investigating Officer from the District Magistrate and Collector, Bharuch, which is at Ex.11, and it was found by the trial Court that in the sanction order instead of seizure of weapon Riffle it was mentioned as “Cycle”. Then at the conclusion of the trial, the learned trial Judge has observed that the prosecution has failed to establish its case beyond reasonable doubt and has found no substance in the prosecution case and, therefore, acquitted the respondent – accused from the said offence vide impugned judgment and order. The said judgment of the trial Court has been challenged by the State on the ground that the judgment and order passed by the learned Magistrate is against law and evidence on record. 3. I have heard learned A.P.P. Mr. Mengde on behalf of the appellant – State Government and Mr. K.N.Sarvaiya, appearing on behalf of the respondent – accused. I have also gone through CR.A/90/1999 4/9 JUDGMENT the Judgment and order passed by the trial Court. 4. Learned A.P.P. Mr. Mengde has contended that the trial Court has not properly considered the evidence, oral as well as documentary, in a legal manner. He contended that no doubt there may be some contradictory evidence of the members of raiding party, but it can not be presumed that due to contradictory evidence the prosecution has not proved its case beyond reasonable doubt. It is also contended that though the panch witnesses have turned hostile, it is fact that the Muddamal articles were recovered from the possession of the respondent – accused. He has fairly admitted that the sanction was given by the District Magistrate u/s. 25(c) of the Arms Act, but the police has not filed charge-sheet under the said Section. He, therefore, contended that the Judgment and order passed by the trial Court is required to be set aside. 5. Learned Advocate Mr. Sarvaiya for the respondent has contended that the Judgment and order passed by the trial Court is legal and proper. He has also drawn the attention of the oral as well as documentary evidence of the prosecution witnesses and the reason assigned by the trial Court. Mr. Sarvaiya has also contended that the District Magistrate & Collector, being I.A.S. CR.A/90/1999 5/9 JUDGMENT Officer, has committed a serious mistake and has not applied his mind in giving Sanction order in which it is mentioned that the “Cycle was seized” and the Panchas who were independent witnesses did not support the prosecution case. 6. I have gone through the entire evidence of prosecution and appreciated the documentary as well as oral evidence and also gone through the Judgment of the trial Court and also the legal submissions made by both the learned Advocates. It is true that from Sanction Order Ex.11, it appears that Sanctioning Authority has not applied his mind while granting sanction. Even he has not bothered to read it that what he has mentioned in the said Sanction order, in which in place of “Riffle” the word “Cycle” is used. In a serious offence the District Magistrate & Collector, who is I.A.S., should have properly read before granting/issuing the sanction order. The prosecution witnesses, who are the members of the raiding party, have deposed a totally contradictory version and the trial Court has observed everything in the Judgment and sound reasoning are given by the learned Magistrate. Looking to the Sanction Order Exh.11, it is clear that it suffers from non-application of mind. Further, as discussed by ld. JMFC, the offence for which sanction is granted is different i.e. Section 25(c) of the Arms Act, whereas the Investigating Agency has filed CR.A/90/1999 6/9 JUDGMENT charge-sheet for other offences under the Arms Act. Thus, there is totally non-application of mind. Further, the panch witnesses have also not supported the prosecution case and though declared hostile the prosecution failed to trace out the truth from their mouth during cross examination. Hence, learned Magistrate has rightly acquitted the respondent – accused and no interference is called for by this Court as the Judgment and order being absolutely just, legal and supported by sound reasons. 7. The Hon'ble Apex Court in the case of STATE OF KARNATAKA v/s. HEMAREDDY, reported in AIR 1981 SC 1417, has observed that when the Appellate Court agrees with the reasons and the opinion given by the lower Court then the re-discussion of evidence is not necessary. In CHANDRAPPA & ORS. v/s. STATE OF KARNATAKA, reported in (2007) 4 SCC 415, it has been observed by the Hon'ble Supreme Court that where two views are possible on evidence on record, one taken by trial Court in favour of accused should not be disturbed by appellate Court. In the said decision the Hon'ble Apex Court has highlighted the powers of the Appellate Court while dealing with the Appeal against the order of acquittal and has observed as under: “42. From the above decisions, in our considered view, the following general CR.A/90/1999 7/9 JUDGMENT 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, mboth on questions of facts 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 curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise 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 CR.A/90/1999 8/9 JUDGMENT 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.” 8. In the case of KALLU v/s. STATE OF M.P., reported in (2006) 10 SCC 313, the Hon'ble Court has observed, as under : “8. While deciding an appeal against acquittal, the power of the appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial Court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial Court merely because a different view is possible. The appellate Court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial Court.” 9. From the above discussion it appears that the CR.A/90/1999 9/9 JUDGMENT prosecution has failed to establish its case and in light of the above decision of the Hon'ble Supreme Court the present Appeal has no merit and the same is required to be dismissed. 10.It is 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 Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondents – accused and adopting the said reasons and for the reasons aforesaid, in my view, the impugned judgment is just, legal and proper and requires no interference by this Court at this stage. Hence, this Appeal requires to be dismissed. 11.In the result, the Appeal is hereby dismissed. The impugned Judgment and order dated 9.6.1999 passed by the learned J.M.F.C., Bharuch, in Criminal Case No.27821 of 1996, acquitting the respondents – accused, is hereby confirmed. Bail Bond, if any, shall stands discharged. (Z.K.SAIYED,J.) sas