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CR.MA/979420/2008 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9794 of 2008
In
CRIMINAL
APPEAL No. 1993 of 2008
=========================================
STATE
OF GUJARAT - Applicant(s)
Versus
BHARATKUMAR
BALVANTRAY BRAHMBHATT - Respondent(s)
=========================================
Appearance
:
MR KP RAVAL, ADDL. PUBLIC
PROSECUTOR for Applicant(s) : 1,
None for
Respondent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
and
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 13/11/2008
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA)
This
application is filed seeking leave to appeal against the judgmental
and order dated 29.2.2008 passed by the learned Addl. Sessions Judge,
3rd Fast Track Court, Kheda at Nadiad in Special (ACB)
Case No. 21 of 2004.
2. Heard
learned APP Mr. K.P. Raval. The R&P were called for and the
learned APP has referred to the evidence, particularly the deposition
of the complainant-Sanjaykumar Ambalal Patel at Exh. 17 and
deposition of panch witnesses Rajendrakumar J. Patel PW 2 at Exh. 27
and Rajeshkumar Babubhai Parmar, PW 5, at Ex. 51. He has also
referred to the panchnama and has pointedly drawn the attention to
the observations made and conclusion arrived at for recording the
acquittal in para 36, in which it is recorded,
?STherefore,
the prosecution has not been successful to bring on the facts that
where the money was kept and whether it was given in the hands of
accused Bharatbhai or not, and whether the panch witness No. 2 took
money from the table or not.
Thus,
further, the prosecution has not brought the facts clearly on record
? whether the chair of the accused was placed nearby the table? or
whether near that table where the money were kept, was not there any
other customers? or persons? sitting? or standing? in the saloon?
etc. and, therefore, the prosecution has failed to prove CONSCIOUS
POSSESSION of, as well as RECOVERY PARTIAL or and/or WILFUL
ACCEPTANCE by the accused.??
3. The
learned APP has also further referred to the observations with regard
to the offence and the so-called discrepancy or contradictions in the
deposition of the panch witnesses as well as the complainant. He
referred to the observations,
?SHere
in the case on the hand before this Court also, it is shown that the
evidence does not support the case of the prosecution and deposition
given by the Panch Witnesses is found varied. Over and above, it
reveals that the complainant’s witness is not at all hostile witness,
and he has given ample evidence, which he can or average man can
give, and therefore the demand and acceptance cannot be proved in
view of the aforesaid citation, and further, when there are two views
available from the very same evidence, the prosecution cannot be said
to have proved its case beyond reasonable doubt.??
4. The
learned APP also submitted that on one hand this evidence of the
complainant is relied upon and believed and at the same time in para
39 it has been observed that one of the criteria which should be
considered while appreciating evidence which makes a prosecution case
doubtful is the chequered history of the complainant and referring
to that aspect, again, observations have been made that
?Sthe
original complaint had committed the offence under the Electricity
Act and his uncle Ramanbhai also got his electricity supply
disconnected because of theft committed by him and therefore the
incriminating circumstances appeared before this Court that, because
the complainant’s uncle’s connection was disconnected and because the
original complainant was asked to pay the fine whatever it may be, an
inference and presumption may be drawn in favour of the accused that
there are or there may be reasons for the complainant to cause any
harassment to the accused.??
5. The
learned APP also referred to the deposition of the
complainant-Sanjaykumar Ambalal Patel at Exh. 17 and referring to the
deposition which clearly states that the tainted currency notes of
Rs. 300 were offered by the complainant and as the accused asked the
complainant to place it on table, it was placed on table. However,
panch witness No. 1-Rajendrakumar Jashbhai Patel at Exh. 27 has
categorically stated about the acceptance of the tainted currency
notes by the accused. Similarly, panch witness no. 2 has also
supported the prosecution case with regard to this. Therefore, the
learned APP has submitted that the learned Judge has failed to
appreciate and consider the material evidence and has only picked up
some sentences while appreciating the evidence and not read the
evidence as a whole.
6. This
Court has, therefore, gone through the evidence which was made
available by the learned APP and on scrutiny of the evidence,
particularly the deposition of the complainant Sanjaykumar Exh. 17
and the panch witnesses, it clearly reveals that there may be some
minor discrepancy with regard to the acceptance inasmuch as the panch
witnesses have stated about the fact that the accused had accepted
the tainted currency notes, whereas the complainant has not clearly
stated about this aspect and has stated that he was asked to place it
on table. However, in the deposition of both the complainant as well
as the panch witnesses, it is clearly stated that when the accused
was asked to put his hand in the solution of phenolphthalein powder
to trace the presence, the colour had changed and had become pink
which itself suggests the presence of phenolphthalein
powder on the hands
of the accused which would not be possible unless he had touched the
tainted currency notes, suggesting the acceptance of bribe.
7. Though
this court is not required to deal with and appreciate the evidence
in detail at this stage, however, in view of the manner in which the
evidence has been appreciated to which the learned APP has drawn our
attention and highlighted it, the Court had to consider the same.
Prima facie, this court is of the opinion that the court below has
erred in appreciating the evidence and has, in fact, not read the
evidence as a whole, which is required to be considered and
appreciated. It is also well settled that the evidence has to be
read as a whole or deposition has to be read and appreciated as a
whole and one sentence here or there cannot be picked up and the
benefit of doubt cannot be easily extended to.
8. This
Court is also conscious about the scope of interference in an appeal
against the acquittal as laid down by the Hon’ble Apex Court in
judicial pronouncements including the judgment reported in AIR 2008
SC 2377 and 2349. However, as observed in the judgment reported in
AIR 2008 SC 2377, referring to the earlier judgment of Hon’ble Apex
Court reported in (2003) 8 SCC 180,
?SThe
paramount consideration of the court is to ensure that miscarriage of
justice is prevented. A miscarriage of justice, which may arise from
acquittal of the guilty, is no less than the conviction of an
innocent. Further, it is held that in a case where admissible
evidence is ignored, a duty is cast upon the appellate Court to
re-appreciate the evidence in a case where the accused has been
acquitted for the purpose of ascertaining as to whether any of the
accused committed any offence or not.??
9. Therefore,
without discussing on merits of the case at this stage, prima facie,
this Court is of the opinion that the matter requires consideration
and therefore leave to appeal deserves to be granted.
The
application is accordingly allowed. Leave to appeal is granted.
[Ravi R. Tripathi, J.]
[Rajesh H. Shukla, J.]
(hn)
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