State vs Ashwinkumar on 23 July, 2009

Gujarat High Court
State vs Ashwinkumar on 23 July, 2009
Author: Ks Jhaveri,&Nbsp;Honourable Z.K.Saiyed,&Nbsp;
   Gujarat High Court Case Information System 

  
  
    

 
 
    	      
         
	    
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CR.A/1258/1999	 12/ 12	JUDGMENT 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CRIMINAL
APPEAL No. 1258 of 1999
 

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
 

ASHWINKUMAR
DITABHAI DAMOR - Opponent(s)
 

=========================================================
 
Appearance
: 
MR.
R.C.KODEKAR APP for Appellant(s) : 1, 
LD. ADVOCATE MR. KHARADI for
Opponent(s) :
1, 
=========================================================


 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE KS JHAVERI
		
	
	 
		 
		 
			 

and
		
	
	 
		 
		 
			 

HONOURABLE
			MR.JUSTICE Z.K.SAIYED
		
	

 

 
 


 

Date
: 23/07/2009 

 

 
 
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
31-08-1999 passed by the learned Special Judge, S.K. At Himatnagar
in Special Case No. 7 of 1994 whereby the accused has been acquitted
of the charges leveled against him.

2.0
The brief facts of the prosecution case are as under:

2.1
The complainant Vasantbhai Dhulabhai Patel is residing at Badoli,
having farm in Village Kukadiya in the name of his father. He had
taken loan of Rs. 1,90,000/- for Tractor against the said land from
State Bank of India. For the said loan he had applied for record of
the land from Revenue Department. The accused was working as Talati
cum Mantri in the said Revenue Department. He had demanded for Rs.
500/- as bribe for the record but the complainant was not in a
position to pay him, and hence he informed the accused that he will
pay the same on 15-01-1994. The complainant therefore lodged a
complaint with A.C.B. Office, Himatnagar and the accused was trapped
during the raid of A.C.B.

3.
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 .

4.
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. 7/1994. The trial was initiated against
the respondent.

5.
To prove the case against accused, the prosecution has examined
following documentary evidence

1.
Complaint Exb. 21

2.
Complainant’s acceptance towardsd Bank Exb. 22.

3.
Complainant’s loan details noted in Form 6 Exb. 23.

4.
Revenue Record of the complainant Exb. 24.

5.
Form 7/12 of Complainant’s block no. 132 Exb. 25.

6.
Yadi for the Panch Exb. 34

7.
Panchnama Exb.36

8.
Mudamal received from Accused Exb. 37.

9.
Service book record of the Accused Exb. 42-44

To prove the case
against accused, the prosecution has examine following witnesses.

Vasantbhai D. Patel
Exb. 20 Complainant

PW Manuprasad A.

BhattExb. 33.

Investigation
Officer Jamasa Exb. 40.

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
31-08-1999.

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.

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. There are no evidence to show that any demand was made
for bribe. There were major contradictions in the statement of
witnesses. Trial court had observed that prosecution is failed to
prove that the accused had demanded Rs. 500/- as bribe from the
complainant’s father. Further the trial court had discussed the
whole evidence in details in para 24,25 and 26 in the judgment.
Thus the prosecution has failed to prove the demand, acceptance
and recovery, the three pillars of the prosecution case. Thus,
from the evidence itself it is established that the prosecution
has not proved its case beyond reasonable doubt.

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.

In the above view of
the matter, we are of the considered opinion that the trial court
was completely justified in acquitting the respondent of the
charges leveled against him.

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.

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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