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CR.A/209/1997 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 209 of 1997
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
PARSHOTTAM
SADARAM & 1 - Opponent(s)
=========================================================
Appearance
:
MRS
MANISHABEN L. SHAH Ld. APP for Appellant(s) : 1,
MR HN JOSHI for
M/S THAKKAR ASSOC. for Opponent(s) : 1 -
2.
=========================================================
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)
1.0 The
present appeal, under section 378 of the Code of Criminal Procedure,
1973, is directed against the judgment and order of acquittal dated
4.1.1997 passed by the learned Special Judge, Kutchh at Bhuj in
Special Case No. 12/1986 whereby the accused has been acquitted of
the charges under sec. 161 read with sec. 114 of IPC and under sec.
5(1)(d) read with sec. 5(2) of Prevention of Corruption Act, leveled
against them.
2.0 The
brief facts of the prosecution case are as under:
2.1 It
is the case of the prosecution that the accused no. 1 had illegally
as well as unauthorisedly demanded Rs. 26/- only from Mr. Swaroopaji
Ratanji Jadeja i.e. Rs.25/- only as bribe and Rs. 1/- only as the
cost of the application form for the loan to be obtained by him,
which is being alleged as bribe money other than legal remuneration
for issuing the certificate and the extract of 7/12 of the
agricultural land being owned and occupied by him, before a week on
13.8.84. It is further alleged that the accused had accepted the said
bribe money other than legal remuneration from the informant Mr.
Swaroopji Ratanji Jadeja of village Zura which was found from the
accused no. 2 who was sitting in the office of Zura Gram Panchayat
near the Chair of the accused no. 1 on 13.8.84, while he was
discharging his official duty as a public servant in the capacity of
Talati and Secretary of Zura Gram Panchayat, it is alleged that the
accused nos. 1 and 2 in abetment of each other, have committed
misconduct as alleged.
2.2 Therefore,
a complaint with respect to the aforesaid offence was filed against
the respondents with the ACB Police Station, Bhuj. Thereafter, PI
with staff members of ACB along with panchas carried out the raid
and ultimately, it was found that the accused have committed the said
misconduct in abetment of each other and committed the offence under
sec. 161 read with sec. 114 of IPC and sec. 5(1)(d) read with sec.
5(2) of Prevention of Corruption Act. During the course of
investigation, respondents were arrested and, ultimately,
charge-sheet was filed against them, which was numbered as Special
Case No. 12/1986. The trial was initiated against the respondents.
2.3 To
prove the case against the present accused, the prosecution has
examined the following witnesses:
PW-1
Swaroopji Ratanji Jadeja Ex. 20
PW-2
Hiralal Kantilal Thacker Ex. 22
PW-3
Abdul Kadar Ismail Memon Ex. 27
PW-4
Devjibhai Hamirbhai Sanjot Ex. 29
PW-5
Hardattrai Jivantrai Gor Ex. 35
Hakemchandra
Dharamdas Sharma, PI, Ex. 44
To
prove the case, the prosecution has also produced the following
documentary evidence.
Complaint
Ex. 45
Panchnama
of muddaml Ex. 26
Office
order Ex. 31
Seizure
memo Ex. 23 & 24
Seizure
Memo Ex. 25
Abstract
of Gram Panchayat No. 11 ex. 36
Abstract
of 8-A of village panchayat Ex. 37
Abstract
of 7/12 Ex. 39
Certificate
of talati Ex. 40
2.4 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 the defence, the learned Special Judge acquitted the
respondents of all the charges leveled against them by judgment and
order dated 4.1.1997.
2.5 Being
aggrieved by and dissatisfied with the aforesaid judgment and order
passed by the Sessions Court the appellant State has preferred the
present appeal.
3.0 It
was contended by learned APP that the judgment and order of the
Sessions Court is against the provisions of law; the Sessions 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.
4.0 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 court below.
4.1 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, reappreciate 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.
4.2 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.
4.3 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.
4.4 Similar
principle has been laid down by the Apex Court in the cases 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.
4.5 It
is also a settled legal position 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 Vs. 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 expression of general agreement
with the reasons given by the Court the decision of which is under
appeal, will ordinarily suffice.
4.6 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.
5.0 We
have gone through the judgment and order passed by the trial court.
We have also perused the oral as well as documentary evidence led by
the trial court and also considered the submissions made by learned
APP for the appellant-State. While appreciating the evidence of
complainant and Police Officer, the trial Court has observed that
there is contradictory version to each other and, therefore, it can
be said that it does not inspire any confidence. At the time of
taking into consideration and appreciation of evidence, the trial
Court has observed that the same is found contradictory one and it
can be said that there would not be proper and reasonable ground for
disbelieving and/or discarding the explanation made by the accused
no. 1. The prosecution has miserably failed to prove demand and
acceptance and the recovery was also doubtful. In that view of the
matter, the prosecution has failed to prove its case beyond
reasonable doubt against the respondents-accused. Thus, from the
evidence itself it is established that the prosecution has not proved
its case beyond reasonable doubt.
6.0 Mrs
Manishaben L. Shah Learned APP is not in a position to show any
evidence to take a contrary view of the matter or that the approach
of the 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.
6.0 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.
7.0 We
find that the findings recorded by the trial court are absolutely
just and proper and in recording the said findings, no illegality or
infirmity has been committed by it.
8.0 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.)
mandora/
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