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CR.A/32/1990 15/ 15 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 32 of 1990
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
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
PRAVINDAN
JIVANDAN GADHAVI - Opponent(s)
=========================================================
Appearance
:
MR.
R.C. KODEKAR APP for Appellant(s) : 1,
MR PM THAKKAR for
Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 06/08/2009
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE KS JHAVERI)
The present appeal,
under section 378 of the Code of the Criminal Procedure, 1973 is
directed against the judgment and order of acquittal dated
15-07-1989 passed by the learned Special Judge, Jamnagar in Special
Case No. 2 of 1985 whereby the accused have been acquitted of the
charges leveled against him.
The brief facts of
the prosecution case are as under:
The
complainant Bhurabhai Chanabhai Makwana residing at Nani Bhagedi
Village and doing agricultural work. The accused Pravindan Jivabhai
Gadhavi was serving as Gram Sevak under District Agriculture Officer
of District Panchayat, Jamnagar. On 8-6-1984 he had supplied
groundnut seeds weighting 20 K.G. Free of charge on behalf of the
Government under Government policy. He had demanded Rs. 50/- from
the complainant for the seeds of groundnut. Therefore the
complainant lodged a complainant with A.C.B. Office and on
3-9-1984 the accused was trapped during the raid of A.C.B.
Necessary
investigation was carried out and statements of several witnesses
were recorded. During the course of investigation, respondent was
arrested and, ultimately, chargesheet was filed against him .
Thereafter, as the
case was exclusively triable by the Special Court, the same was
committed to the Special Court, which was numbered as Special Case
No. 2/1985. The trial was initiated against the respondent.
5.
To prove the case against accused, the prosecution has examined
following witnesses
Bhurachana
Complainant Exb. 6.
Jagdish D. Trivedi Exb. 9. Anantray M. Dave Exb. 11. Nanjibhai S. Dodiya Exb. 17. P.I. Mr. B.P. Sarvvaiya Exb. 21. 5.1 To prove the case
against accused, the prosecution has examine following documentary
evidence.
Complaint Exb.
7.
Acknowledgment
of the receipt of seeds Exb.8.
Panchnama Exb.
10
True
copy of the Circular Exb. 12.
True
copy of confidential letter for selection Exb. 13.
of
Gram sevak
Office
order dated 2.6.1981 for Gramsevak Exb. 14.
True
copy of terms and conditions of Gram Exb.15.
sevak Sanction letter Exb. 16. memo dated 2.6.1984 Exb. 18. Statement
of different categories -mini kitesExb. 19.
Receipt dated 6.6.1984 Exb.20. At the end of
trial, after recording the statement of the accused under section
313 of Cr. P.C., and hearing arguments on behalf of prosecution
and defence, the learned Sessions Judge acquitted the respondent
of all the charges leveled against him by judgment and order dated
6.10.1989
Being aggrieved
by and dissatisfied with the aforesaid judgment and order passed
by the Special Court the appellant State has preferred the present
appeal.
It was contended
by learned APP that the judgment and order of the Special Court is
against the provisions of law, the Special Court has not properly
considered the evidence led by the prosecution and looking to the
provisions of law itself it is established that the prosecution
has proved the whole ingredients of the evidence against the
present respondent. Learned APP has also taken this court through
the oral as well as the entire documentary evidence.
At the outset it
is required to be noted that 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. In the case
of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr,
reported in (2006)6 SCC, 39, the Apex Court has narrated about
the powers of the High Court in appeal against the order of
acquittal. In para 54 of the decision, the Apex Court has observed
as under:
54.
In any event the High Court entertained an appeal treating to be
an appeal against acquittal, it was in fact exercising the
revisional jurisdiction. Even while exercising an appellate power
against a judgment of acquittal, the High Court should have borne
in mind the well-settled principles of law that where two view are
possible, the appellate court should not interfere with the
finding of acquittal recorded by the trial Court below.
Further,
in the case of Chandrappa Vs. State of Karnataka, reported in
(2007)4 SCC 415 the Apex Court laid down the following
principles:
42. From the above
decisions, in our considered view, the following general 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, re appreciate 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, both on questions of fact 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 curtain extensive powers of an appellate court in an
appeal against acquittal. Such phraseologies are more in the nature
of flourishes of language to emphasis 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
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.
Thus, it is a
settled principle that while exercising appellate power, even 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.
Even 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
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.
Similar principle
has been laid down by the Apex Court in the Case 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.
It is also a
settled legal provision that in acquittal appeal, the appellate
court is not required to re-write the judgment or to give fresh
reasonings, when the reasons assigned by the Court below are found
to be just and proper. Such principle is laid down by the Apex
Court in the case of State of Karnataka V.s Hemareddy, reported
in AIR 1981 SC 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 expressions of
general agreements with the reasons given by the Court the
decision of which is under appeal, will ordinarily suffice.
13.1 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.
We have gone
through the judgment and order passed by the trial court. We have
also perused the oral as well as documentary evidence adduced
before the trial court and also considered the submissions made by
learned Advocate for the appellant.
The trial court
has clearly recorded a finding that prosecution has miserably
failed to prove nexus between the appellant and alleged crime in
question. Further the trial court had discussed the whole
evidence in details in para 42 in the judgment. Para 42 of the
judgment reads as under:
There is no
dispute that the accused was a public servant at the relevant time
and the sanction to prosecute accorded by the District Agriculture
Officer, produced at Ex. 16, also appears to be quite legal and
learned advocate Mr. D.R.Joshi has also not to say anything against
this sanction to prosecute the accused, which is at Exb. 16 so, the
testimony of Nanjibhai Dodiya and the testimony of one other
Goyernment servant, namely, Anatray M. Dave who is examined at Exb.
11 regarding the appointment of the accused is Gram Sevak in the year
1981, proves that the accused was a public servant at the relevant
time, it has not been challenged by accused that he was appointed by
the order of the District panchyat Agriculture officer, having
headquarters at Jamnagar, who had accorded the sanction for his
prosecution. So, the testimony of Mr. Anatray Dave is also not so
much useful for our purpose, as he has not been examined in
connection with the proof of the trap laid. So far as the case of the
prosecution on the demand and acceptance of the alleged bribe by the
accused is concerned the prosecution case depends solely on the
evidence of the complainant, panch witness Jagdishbhai Trivedi and
P.I. Mr. Sarvaiya and as I have observed, the testimony of these
three witnesses is full of discrepancies and contradictions and it is
also unnatural and they differ from each other on all the material
parts of the story of the prosecution and so , in my view, the
accused cannot be convicted on the testimony of such witnesses having
so many contradictions and discrepancies.
16. Thus there
are serious lacunae in the prosecution case. The appellant in
this appeal has not produced any evidence to rebut the finding of
the Trial Court.
17. Mr. Kodekar
learned APP is not in a position to show any evidence to take a
contrary view of the matter or that the approach of a trial court
is vitiated by some manifest illegality or that the decision is
perverse or that the trial court has ignored the material evidence
on record.
18. In the above
view of the matter, we are of the considered opinion that the
trial court was completely justified in acquitting the respondents
of the charges leveled against them.
19. We find that
the findings recorded by the trial court are absolutely just and
proper and in recording the said finding, no illegality or
infirmity has been committed by it.
20. We are,
therefore, in complete agreement with the findings, ultimate
conclusion and the resultant order of acquittal recorded by the
court below and hence find no reasons to interfere with the same.
Hence the appeal is hereby dismissed.
(K.S.Jhaveri,J.)
(Z.K.Saiyed,J.)
*Himanshu
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