CR.A/74919/1991 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 749 of 1991 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= 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 KABHAI JIBHAI CHAUHAN - Opponent(s) ========================================================= Appearance : MR PD BHATE, APP for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, MR NK MAJMUDAR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 16/12/2008 ORAL JUDGMENT 1. This appeal preferred under Section 378 of Criminal CR.A/74919/1991 2/5 JUDGMENT Procedure Code is directed against the judgment and order of acquittal passed by learned JMFC (2nd Court), Vadodara in Criminal Case No.6038 of 1985 on 15.7.1991. As per the prosecution case, the charge against the respondent was framed by the learned JMFC for the offence punishable under Section 201 and 224 of the Indian Penal Code. As per the prosecution case, the respondent was working as Head Constable in the Vadi Police Station at Vadodara. On 14.6.85 he was found in a drunken condition and therefore, the offence punishable under Section 66(1)(B) as well as 85(1)(3) of the Bombay Prohibition Act was registered and he was sent to SSG Hospital for the purpose of taking blood sample. When he was taken to the Hospital instead of giving blood sample, he fled from the Hospital and therefore, the offence under Sections 201 and 224 of IPC was registered against the respondent. The charge against the appellant has been framed by the learned JMFC on 14.6.1985 and he pleaded not guilty to the charge levelled against him. 2. The prosecution has with a view to prove the involvement of the respondent in the commission of offence, examined as many as 8 witnesses and produced the documentary evidence such as complaint given by Narendrasinh Trikamsinh vide Exh.7, the panchnama of the P.S.I., Janaksinh Jaywantsinh vide Exh.9, the panchnama of the muddamal article vide Exh.12, the panchnama of the scene of offence vide Exh.18, etc. to the present case. 3. At the conclusion of the trial, further statement of CR.A/74919/1991 3/5 JUDGMENT the respondent was recorded under Section 313 of Criminal Procedure Code and the respondent submitted that false case was foisted on him. 4. The learned JMFC after recording the evidence the oral deposition as well as documentary evidence held that prosecution has miserably failed to prove involvement of the respondent in the commission of offence punishable under Sections 201 and 224 of the IPC. The learned Judge held that material witnesses have not supported the prosecution case and some of the panch-witnesses have turned hostile. Therefore, the prosecution has miserably failed to prove the involvement of the respondent in the commission of offence. He, therefore, acquitted the respondent for the offence punishable under Sections 201 and 224 of the IPC. 5. The learned APP, Shri P.D.Bhate, representing the State submitted that learned Judge has not considered the oral deposition and the documentary evidence in its proper perspective while acquitting the respondent for the offence punishable under Sections 201 and 224 of IPC. The learned APP submitted that even otherwise the order of acquittal recorded by learned Judge is contrary to the evidence on record of the case and therefore, it requires to be quashed and set aside and respondent be convicted for the offence punishable under Sections 201 and 224 of the IPC. 6. Learned advocate, Shri N.K.Majmudar, for the respondent submitted that the learned Judge has CR.A/74919/1991 4/5 JUDGMENT appreciated the entire gamut of oral deposition and the documentary evidence in its true and proper perspective and no interference is called for in an appeal preferred by the State under Section 378 of Criminal Procedure Code. The learned advocate submitted that even power of re-appreciation and reevaluation the evidence on record of the case of this Court under Section 378 is very limited and therefore, no interference is called for in an appeal preferred by the State and the appeal deserves to be dismissed. 7. I have considered the entire evidence on record of the case as discussed by the learned JMFC. Considering the same, I do not see any reason to interfere with the finding given by the learned Judge while acquitting the respondent for the offence punishable under Sections 201 and 224 of the IPC. The material witnesses examined by the prosecution have turned hostile and not supported the prosecution case. Thus, the prosecution has miserably failed to prove the entire link connecting the respondent with the commission of offence punishable under Sections 201 and 224 of IPC. 8. This is an acquittal appeal in which the Court would be slow to interfere with the order of acquittal. Infirmities in the prosecution case go to the root of the matter and strike a vital blow on the prosecution case. In such a case, it would not be safe to set aside the order of acquittal, more particularly when the evidence has not inspired confidence of the learned Magistrate who had the CR.A/74919/1991 5/5 JUDGMENT opportunity to observe demeanour of the witnesses. As this Court is in general agreement with the view expressed by the learned Magistrate, the Court does not think it necessary either to reiterate the evidence of prosecution witnesses or to restate the reasons for acquittal given by the learned Magistrate and this Court is of the opinion that expression of general agreement with the view taken by the learned Magistrate would be sufficient in the facts of the case. This is so in view of the decisions rendered by the Supreme Court in the cases of (1) Girija Nandini Devi & Others Vs. Bijendra Narain Chaudhari, AIR 1967 SC 1124, and (2) State of Karnataka Vs. Hema Reddy and Another, AIR 1981 SC 1417. 9. For the foregoing reasons, there is not substance in the appeal preferred by the State and as the same is devoid of merit, it is liable to be rejected. Hence, the same is rejected. (H.B.ANTANI, J.) ashish//