1. The present acquittal Appeal has been filed by the appellant – original complainant, State of Gujarat under Section 378 Cr. P.C., against the Judgment and order dated 29.11.1997 rendered by the learned Additional Sessions Judge, Palanpur, in Special Case No.77 of 1996 whereby the learned Judge acquitted the accused persons of the charges levelled against them. The said case was registered against the present respondents original accused for the offence under Sections 17 and 58(2) read with Section 29 of the N.D.P.S. Act.
2. According to the prosecution case, the accused persons buried Opium in the field of Malabhai Sagrabhai with intention to rope Malabhai Sagrabhai in the offence punishable under the N.D.P.S. Act. The said act was committed in collusion with accused persons to take revenge of murder of Bhema Petha. On 18.1.1996 at 2:00 O'clock raiding in the field of Malabhai Sagrabhai the raiding party found Opium and, therefore, Malabhai Sagrabhai was arrested. In this way, the accused persons have committed offence punishable under Sections 17 and 58(2) read with Section 29 of the N.D.P.S. Act. Hence the complaint came to be lodged.
3. Thereafter, investigation was carried out and statements of several witnesses were recorded. During the course of the investigation, accused were arrested and, ultimately, chargesheet came to be filed against them in the Court of learned Special Judge.
4. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried.
5. In order to bring home the charges against the accused persons, prosecution has examined several witnesses and also produced documentary evidence.
6. Thereafter, after filing closing pursis by the prosecution, further statement of accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused persons have denied the case of the prosecution and submitted that a false case is filed against them.
7. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondents – accused.
8. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 29.11.1997 rendered by the learned Additional Sessions Judge, Palanpur, in Special Case No.77 of 1996, the appellant – State has preferred the present appeal before this Court.
9. Heard Learned APP Mr.L.B.Dabhi, appearing on behalf of the appellant – State. He has contended that the judgment and order passed by the learned Judge is contrary to law and evidence on record. He has contended that the learned Judge has not properly appreciated the oral as well as documentary evidence adduced by the parties in its proper perspectives.
10. He has contended that the learned Judge has not properly appreciated the fact that the nephew of the respondent – accused No.1 Bhema Petha Patel residing at Raya was murdered and, therefore, due to enmity between the respondent – accused No.1 and complainant Mala Sagram, the respondent – accused No.1 gave money to the respondent – accused No.2 for purchasing opium without pass and permit and the respondents – accused have purchased 58(2) read with Section 29 of the N.D.P.S. Act.
11. He has contended that the learned Judge ought to have appreciated that the evidence of P.S.I. Shri V.K.Jadeja and L.C.B. other staff members are supporting the case of prosecution that the raid was carried out and accused were found guilty as they have kept the opium in the field of Mala Sagram with clear intention to involve Mala Sagram falsely in this case. The opium was taken out which was kept in plastic bags. Sample was taken out from the bag for the purpose of sending the same to F.S.L. and on arrival of the F.S.L. report chargesheet was filed against the present respondents – accused.
12. He has contended that the learned Judge has miserably failed to appreciate the documentary evidence produced on record which are panchnama of the seized muddamal at Ex.22, F.S.L. report at Ex.50 and copy of an abstract of N.D.P.S. Register at Ex.36, copy of receipt of muddamal received in F.S.L. at Ex.37 and other various panchnama. Lastly, he has read the observations of the learned Judge and contended that observations made by the learned Judge are not proper in the eye of law and therefore, judgment and order of the learned Judge is required to be set aside.
13. Notice is served to the other side. Mr.D.M.Devnani, learned advocate appearing for Mr.Kapur, for the respondent No.1 and Mr.B.P.Munshi, learned advocate appearing for respondent Nos.2 and 3.
14. Mr.Devnani and Mr.Munshi, learned advocates appearing for the respective respondents contended that no primafacie case is made out against the respondents. They have read the observations of the learned Judge and contended that no interference is required in the judgment and order passed by the learned Judge and appeal of the appellant State is required to be dismissed.
15. Heard learned advocate for both the parties. I have gone through the papers produced in the case. The circumstantial evidence to the effect that the accused had committed acts amounting to criminal conspiracy should be brought on the record. However, no substantive circumstantial evidence has been adduced on record on behalf of the prosecution.
16. In a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & 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:
“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 reappreciate 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 the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
18. It is settled legal position that in an acquittal Appeal, the Appellate Court is not required to rewrite 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 as well as 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.
19. In the result, the Appeal is hereby dismissed. The impugned Judgment and order dated 29.11.1997 rendered by the learned Additional Sessions Judge, Palanpur, in Special Case No.77 of 1996, acquitting the respondents – accused, is hereby confirmed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. Bail bond, if any, shall stand cancelled.
(Z.K.SAIYED, J.) kks