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CR.A/753/2004 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 753 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================================
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
DHANJIBHAI
CHANABHAI HARIJAN - Opponent(s)
=========================================================
Appearance
:
MR.
MAULIK NANAVATY, ADDL.PUBLIC
PROSECUTOR for
Appellant(s) : 1,
NOTICE SERVED for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 05/03/2010
ORAL
JUDGMENT
(1). The
State appellant herein above has preferred this appeal under Section
378 (1) (3) of the Code of Criminal Procedure,1973 against the order
dated 11.2.2004 passed by
the learned 3rd
Joint Judicial Magistrate, First Class, Gondal in Criminal Case
No.406 of 1994.
(2). Facts
in brief leading to file this appeal deserves to be set out as under:
(3). It
was a case of the prosecution that the accused-opponent herein above
was student of 10th
Standard old course and he appeared for English paper on 28th
March,1994 at 18:00 hours from Gurukul Vidhyalay, Gondal and his seat
no. was 50725. The accused after writing the paper did not handover
the answer book to the Invigilator/ Supervisor and left the seat with
the answer paper. At the end of the session, supervisor concerned
found that answer book of the student of seat no.50725 had not been
received, he informed the Director of examination of Gondal and the
Director of examination filed the complaint. On investigation, the
answer paper was recovered as per the say of the prosecution from the
respondent-accused by Investigating Officer. As the accused has
committed criminal breach of trust, the charge
sheet came to be filed. In the trial the accused pleaded not guilty
and trial began. The Court ultimately after appreciating the
evidence on record, came to the conclusion that the prosecution
failed in establishing its case against the accused so as to bring
about conviction. Hence acquitted the accused of the charge of
committing offense punishable under Section 406 of Indian Penal Code
vide its order dated 11.2.2004, which is impugned in this Acquittal
Appeal under Section 378 (1) (3) of the Code of Criminal
Procedure,1973.
(4). This
Court (Coram: Hon’ble Justice H.P. Antani, J.) by an order dated
7.3.2006 granted leave and admitted appeal and bailable warrant in
sum of Rs.5,000/- was ordered to be issued to the respondent. The
record and the remarks on the board indicates that the respondent is
duly served as could be seen from the report of the Principal Senior
Civil Judge & Addl. Chief Judicial Magistrate, Gondal on
10.9.2006. Though served, none appears for the respondent.
(5).
Learned A.P.P. , Shri Maulik Nanavaty contended that the reasoning
adopted by the Trial Court for recording acquittal being contrary to
law, the order suffers from vulnerability and the same is required
to be quashed and set aside.
(6). However,
Shri Nanavaty could not controvert and make any other submissions in
respect of the recording of the finding by the Court in respect of
the lacuna in case of the prosecution so far as the recovery of the
documents in questions as well as the missing of link in the
testimony of the invigilator / supervisor who has also not clearly
deposed with regard to the action of the examinee taking away answer
sheet from the examination hall.
(7).
One more aspect which needs to be considered is that though the
prosecution has attributed the handing over of the answer sheet to
the examinee i.e. accused having seat no.50725, but the record
indicates that no evidence of handing over this answer sheet to the
accused has come on record except that the answer sheet bears the
seat number of the accused.
(8) There
is a presumption available in respect of accused being in the
examination hall, but merely presumption cannot take the place of
proof especially when serious offence punishable under Section 406 is
sought to be proved. The same being a material aspect, ought to have
been proved beyond doubt for bringing home guilt on the part of the
accused.
(9). This
Court is of the view that as this being a glaring lacuna in case of
the prosecution especially when the Panchnama of recovering those
examination admission card as well as answer sheet have remained to
be proved in view of the fact that the Panchas have not supported
Panchnama except qua the signature and the Investigating Officer’s
testimony not unequivocally indicating drawing of Panchnama or the
contents thereof, which remained to be proved would go to show that
the order impugned cannot be said to be so perverse, as to call for
any interference. The Court hasten here to add that the recording of
acquittal on those grounds have to be appreciated. While
appreciating this, the Court would not countenance the observation of
the Trial Court with regard to penalty aspect by the board so as to
attract the provisions of Section 405 are not approved. The Court
therefore of the view that the appeal does not deserve acceptance,
the same is hereby rejected. Bail bonds stand canceled.
(S.R.BRAHMBHATT,J.)
Vahid
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