(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) The matter was heard on 1st February 2012. It was adjourned to 2nd February 2012 to enable the learned Additional Public Prosecutor to find out the present position of Shri B.G. Nagori, Police Inspector, who, at the relevant time, was a member of the Squad. The learned APP, Mr.Pujari asked for time and the matter was adjourned to 6th February 2012. The learned APP produced a xerox copy of death certificate of said Shri B.G. Nagori.
2. The present appeal is filed by the State of Gujarat being aggrieved by judgement and order dated 30th April 1990 passed by the learned Additional City Sessions Judge, 16th Court, Ahmedabad in Sessions Case No.123 of 1989, whereby the learned Additional Sessions Judge was pleased to acquit the accused for the offence under section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act") and for the offence under section 66(1)(B) of the Bombay Prohibition Act. Learned APP Mr.Pujari submitted that the learned Judge has committed error in recording acquittal of the accused despite the fact that there was cogent and convincing evidence establishing the guilt of the accused.
3. The learned APP invited attention of the Court to the case of the prosecution as set out in para 2 of the judgement, which reads as under:
"The aforesaid two accused were arrested on 4.1.1989 in respect of offence that had occurred on that day at 0-10 hours (midnight of 3rd and 4th), the complaint whereof was filed on the same day at the same time and was registered as Prohibition Crime No.2/ 89 at Vatva Police Station. The offence took place partly on Ahmedabad-Narol road at Vatva turning on the outskirt of village Narol and also partly occurred in Bharwad Vas Shahvadi. The area falls within the limits of Ahmedabad Municipal Corporation. Both the accused have been in judicial custody since the day of arrest. On 3.4.1989 they were charge-sheeted for offence u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the said Act') and section 66:1:B of the Bombay Prohibition Act. Both the accused were committed to stand their trial before this Court as per order dated 24.4.1989."
As both the accused pleaded not guilty to the charge levelled against them, the prosecution led the following documentary and oral evidence. Besides that the following documentary evidence was also led to establish the guilt of the accused. The learned APP invited attention of the Court to charge, Exhibit 1 dated 15th May 1999, page 39. The learned APP also invited attention of the Court to the Seizure Panchnama (Page 109 of the Paper Book). Besides, the learned APP invited attention of the Court to Exh.29 - F.I.R., Exh.11- evidence of Police Inspector, Mr.Nagori and Exh.28, evidence of Baldevbhai L. Chaudhary, witness no.6, who were members of the raiding party.
4. The learned Judge has rightly considered the credibility of the evidence of the prosecution in para 27 of the judgement. For ready perusal para 27 is reproduced hereinbelow:
"I have given my utmost and careful consideration in respect of two documents that have been produced by the defence and which documents have a direct nexus with the entire movement and presence of the panch witness Rajnikant. It is true that person of home guard is not a police personnel and that mere act of a person of a home guard assisting the police in its work would not cover the credibility of a person of home guard akin to its weightage as a policemen and that even if in the past in one or two occasion, he had been panch witness and that therefore his credibility may not be doubted as such, yet when these two documents ex.43 and 45 are read in the contest of the actual incident that had happened in my conclusion, the defence has in fact been able to raise a probability of absence of this witness at the time when the said search and seizure was made, notwithstanding the fact that he has been found to be otherwise corroborating the police personnel on all particulars of search and seizure. Firstly when the document exh.43 is, it would be most significant to note that this diary is not a casually developed diary, which may be referable to a cursory event of day or two or week or two, but it is a diary which is recording the movement of person of home guard earliest on 27.11.88 to 8.7.89. It may be further relevant to mention that that diary records the places where the homeguards are posted, the time and also the duty assigned to the home guards. The diary reflects that almost in all places where postings have been made, two or three persons move at a time. On the day of the incident, i.e. midnight 3.1.89 and 4.1.89 three persons, i.e. Badge No.62005, 61063 and 61036 were posted to work at Vatva village. The certificate, exh.42 certifies that witness Rajnikant R. Patel bearing badge no.62005 along with other two i.e. bearing badge no.61036 and 61063 had presented themselves at 11 p.m. 3rd night at Vatva and after their presence being recorded, they were posted on duty at Vatva village point. When these two documents are read as a whole, as a matter of fact, it is very evident that the presence of witness Rajnikant at about 11 pm was at Vatva village police station. Vatva Police Station embrasses (sic., embraces) Narol, Vatva, Shahwadi and other villages. Village Narol is on the east of Narol Ahmedabad Highway road and about a furlong towards Ahmedabad a diversion takes place towards east from the Highway and that road leads to village Vatva. Thus, Narol village is almost between National Highway as also this diversion. Vatva village thus is about 5 to 7 Kms from Narol. Since according to the prosecution say and the say of the police officers, they had gathered at Vatva terminus and after detailing panchas, they had gone to Narol village; and that the time of the panchnama is said to be 23.15 hours. It obviously indicates that panchas were engaged earlier that time and therefore, meeting of the panchas, police would have been round about 11 or 11.05 at vatva turning point. Under that circumstance that the presence of panchas is said to be at vatva terminus point between 11 to 11.10, against which exh.42 in conformity with diary exh.43 records that the said panch witness Rajnikant along with other colleagues was at vatva police station at 11 wherein after the presence, duty was assigned and that duty was assigned at vatva village point, a very explicitly improbability of presence of this witness at vatva terminus emerges. True that the prosecution says that ex.42 is not seal or number and true how accused could get these documents, that shadow over these documents may at best show weakness of the administrative structure of home guards, but by that circumstance along, accused cannot be denied the benefit that emerges from these documents and wherein ti is immaterial to consider how he got or procured the same. Panch witness Rajnikant has in fact admitted that ex.43 is his diary. He has in fact admitted that on that night, he had performed his duty from 11 pm to 3.1.89 to 4 pm at vatva village and his badge number is 62005 and that entry in exh.43 is in his handwriting and that two other homeguard personnel bearing badge no.61036 and 61063 were with him when he was performing duty. He has also proved the truthfulness of the certificate exh.42 wherein it bears signature of his own Commandant. Therefore, when these two documents are read and whose credibility is proved by the prosecution witnesses itself and that not only these two documents but the oral evidence of the panch witnesses shows that on 3.1.1989 at night at 11 pm he was on duty at vatva village, it has to be accepted that the presence of the said witness at the time of search and seizure as per ex.13 recorded at 11.15 hours becomes doubtful which doubt is not dispelled by the prosecution by any circumstances whatsoever. It would not be insignificant at this stage that prosecution has also wavered little in accepting the credibility of this witness since during its restricted cross-examination (without declaring hostile) it alleged that document ex.42 was concoction by the witness. Therefore, for the reasons which I have stated hereinabove, the presence of this witness as per ex.13 at vatva terminus or Narol is mere improbable and rather impossible and is more probable and more possible far away at vatva village and which probability and possibility is not by mere words, but based on documents as such. The defence has not to prove a circumstance to the hilt as the prosecution has to do it, since defence has only to raise a probability and once that probability is raised and is so raised as reasoned above, about the improbability of the presence of the witness at the time of the panchnama, the authenticity of the raid and the search and the seizure and also the contents of ex.13 become shrewed, that doubt notwithstanding the fact that it is otherwise found to be consistent, corroborative and all other evidence crumbled down. And lastly this improbability of the presence of the witness at the place where he is said to have been present is revealed from the prosecution evidence itself, since there is very very material contradiction between the say of the panch witness Rajnikant and say of police personnel about the actual weighing that was done in respect of seized muddamal. Rajnikant has been very specific that weighing was done by Shri Pandya at village Narol. Both the police witnesses i.e. P.S.I. & P.I. Say that it was done at the place where second article was recovered i.e. at Shahwadi, since there the panchnama was completed. Shahwadi and Narol villages are at a distance of 1 k.m. This contradiction very significantly shows doubt that panch witness Rajnikant was at all present at the time when the search and seizure was made."
5. We have considered the contents of the said para and the discussion about the credibility of the evidence of the prosecution. We are in agreement with the view expressed by the learned Additional City Sessions Judge, 16th Court, Ahmedabad on the point. It is settled principle of law that if the evidence of the prosecution loses its credibility in light of the contents of Exhibits 42, 43 and 45, the learned Judge was justified in not relying upon the same and recording acquittal.
6. It is well settled principle of law that in acquittal appeal where there is a possibility of two views, the one which is favourable to the accused should be adopted. It is also well settled principle of law that the Appellate Court would be slow in interfering with an order of acquittal until and unless the judgement of the Trial Court is perverse or demonstrably unsustainable. In the present appeal, we find that the reasons given by the trial Court are plausible, cogent and convincing. Thus, in light of the evidence on record, it cannot be said that the Trial Court has committed any error in acquitting the accused.
It is a settled legal position that in acquittal appeal, the Appellate Court is neither required to re-write the judgment nor to give a fresh reasoning, when the reasons assigned by the court below are found just and proper. Such principle is laid down by the Hon'ble the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in A.I.R. 1981 SC 1417, wherein it is held as under:
" .. .. This Court has observed in Girija Nandini Devi Vs. Bigendra Nandini Chaudhary, (1967) 1 SCR 93 : (A.I.R. 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."
7. Thus, in case the Appellate Court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.
8. In view of the above, this Court finds no substance in the appeal. The Criminal Appeal is found without substance. The same is dismissed. The judgement and order dated 30th April 1990 passed by the learned Additional City Sessions Judge, 16th Court, Ahmedabad in Sessions Case No.123 of 1989 is upheld. Bail bonds issued against each of the respondent- accused are cancelled.
(RAVI R. TRIPATHI, J.) (G.B.
SHAH, J.) karim Top