Gujarat High Court
State Of Gujarat vs Sisodiya Mamaiya on 4 April, 2016
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/438/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO.438 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER Sd/
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1 Whether Reporters of Local Papers may
be allowed to see the judgment ? NO
2 To be referred to the Reporter or not
? NO
3 Whether their Lordships wish to see
the fair copy of the judgment ? NO
4 Whether this case involves a
substantial question of law as to the NO
interpretation of the Constitution of
India or any order made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
SISODIYA MAMAIYA
BABULAL....Opponent(s)/Respondent(s)
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Appearance:
MR RASHESH A. RINDANI, APP for Appellant(s) No. 1
MR HARSH K THAKAR, ADVOCATE for Respondent No. 1
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 04/04/2016
ORAL JUDGMENT
(1) The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 30.11.2005 passed by learned Chief Judicial Magistrate, Junagadh, in Criminal Case No.2167/1996, whereby the learned Judge Page 1 of 13 HC-NIC Page 1 of 13 Created On Thu Apr 07 01:56:33 IST 2016 R/CR.A/438/2006 JUDGMENT acquitted the present respondentoriginal accused, who was facing charges against Sections 468, 471 and 465 of the Indian Penal Code, 1860 (the IPC).
(2) The brief facts of the prosecution case are that the respondentaccused in the year 198385 for getting a job as clerk fabricated the S.S.C. certificate and a false marksheet was produced, which was unearthed and, therefore, he has committed the aforesaid offences. The accused had produced the mark sheet and he was selected on the basis of the said document. It was alleged that the documents attached with the application were forged and fabricated. Original marksheet and the original leaving certificate were sent by Mamlatdar, Maliya Hatina to Collector, which was sent to Vadodara S.C.C. Board. It was stated by the Secretary SSC Board that the marksheet was not correct. That is how the investigation started and, therefore, PW1 had lodged complaint in the year 1995 of forgery against the accused. Necessary investigation was carried out and statements of several witnesses were recorded and chargesheet was filed against him in the Court of learned Chief Judicial Magistrate, Junagadh, which was numbered as Criminal Case No.2167/1996. The trial was initiated against the respondentaccused.
(3) To prove the case against the present accused, Page 2 of 13 HC-NIC Page 2 of 13 Created On Thu Apr 07 01:56:33 IST 2016 R/CR.A/438/2006 JUDGMENT the prosecution has examined several witnesses and also produced many documentary evidence.
(4) At the end of trial, after recording the statement of the accused under section 313 of the Code of Criminal Procedure, 1973, and hearing the arguments on behalf of the prosecution and the defence, the trial Court acquitted the respondent of the charges leveled against him by judgment and order dated 30.11.2005.
(5) Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court, the appellantState has preferred the present appeal.
(6) Prosecution examined PW1, Shri Manishankar Mulji Joshi, who was serving as chitnis to the Collector Office where the accused had applied for getting a job. Nothing much turns in the testimony of this witness, except the fact that there was finding by the S.S.C. Board that the marksheet may not be the correct marksheet. He had in his crossexamination accepted that he had no personal knowledge about the incident.
(7) PW2, Rajnikant Chimanlal Raval, who was the Mamlatdar, was examined. Nothing much turns in Page 3 of 13 HC-NIC Page 3 of 13 Created On Thu Apr 07 01:56:33 IST 2016 R/CR.A/438/2006 JUDGMENT the testimony of the said witness.
(8) The main witness, on which reliance is placed by the State, is PW4, Shri Suryasinh Virsinh Nisar, officer of the S.C.C. Board, who had earlier opined that it was not the correct marksheet. In his crossexamination he has accepted that the marksheet was not correct. However, he has stated that the marksheet may or may not be reflecting the correctness and it may be mistake on part of the computer operator.
(9) Mr.Rindani, learned APP appearing for the State, has submitted that the trial Court has misread the provisions of Sections 468, 465 and 471 of the IPC, whereas it was held that once the concerned officer said that it was not the correct marksheet the Court ought to have convicted the accused. According to him the judgment of the trial Court is perverse and, therefore, this appeal, according to him requires to be allowed and the accused is required to be convicted. It is submitted that the judgment and order of the trial Court is against the provisions of law and the Court has not properly considered the evidence led by the prosecution before the trial Court and looking to the provisions of law itself it is established that the prosecution has proved all Page 4 of 13 HC-NIC Page 4 of 13 Created On Thu Apr 07 01:56:33 IST 2016 R/CR.A/438/2006 JUDGMENT the ingredients of the alleged charges against the present respondentaccused. Learned APP has also taken this court through the oral as well as the entire documentary evidence and submitted that the present appeal deserves to be allowed.
(10) Per contra, learned Advocate appearing for the respondentaccused has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the trial Court is just and proper. It is further submitted that in view of the evidence on record, it cannot be said that the trial Court has committed any error in allowing the appeal and acquitting the accused. It is further submitted that considering the overall factual scenario this Court may not interfere with the well reasoned order of the trial Court whereby in Paragraph NO.13 the entire evidence has been threadbare discussed and once this Court agrees with the findings of fact, it needs not reiterate the findings again. Lastly, it was submitted that considering the aforesaid factual position, the present appeal deserves to be dismissed.
(11) The principles which would govern and regulate the hearing of an appeal by this Court, against Page 5 of 13 HC-NIC Page 5 of 13 Created On Thu Apr 07 01:56:33 IST 2016 R/CR.A/438/2006 JUDGMENT an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of "M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR", (2006) 6 S.C.C. 39, the Apex Court has narrated 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."
(12) Further, in the case of "CHANDRAPPA Vs. STATE OF KARNATAKA", reported in (2007) 4 S.C.C. 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 Page 6 of 13 HC-NIC Page 6 of 13 Created On Thu Apr 07 01:56:33 IST 2016 R/CR.A/438/2006 JUDGMENT 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."
(13) Thus, it is a settled principle that while exercising appellate powers, even if two reasonable views / 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.
(14) Even in the case of "STATE OF GOA Vs. SANJAY THAKRAN & ANR.", reported in (2007) 3 S.C.C. 75, the Apex 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 Page 7 of 13 HC-NIC Page 7 of 13 Created On Thu Apr 07 01:56:33 IST 2016 R/CR.A/438/2006 JUDGMENT 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 reappreciate 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."
(15) Similar principle has been laid down by the Apex Court in cases of "STATE OF UTTAR PRADESH VS. RAM VEER SINGH & ORS.", 2007 A.I.R. S.C.W. 5553 and in "GIRJA PRASAD (DEAD) BY L.R.s VS. STATE OF MP", 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.
(16) In the case of "LUNA RAM VS. BHUPAT SINGH AND ORS.", reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under:
"10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.
11.Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence."
(17) Even in a decision of the Apex Court in the case of "MOOKKIAH AND ANR. VS. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU", reported in AIR 2013 SC 321, the Apex Court in para 4 Page 8 of 13 HC-NIC Page 8 of 13 Created On Thu Apr 07 01:56:33 IST 2016 R/CR.A/438/2006 JUDGMENT has held as under:
"4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC573]"
(18) It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite 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", AIR 1981, SC 1417, wherein it is held as under:
"...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate 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."Page 9 of 13
HC-NIC Page 9 of 13 Created On Thu Apr 07 01:56:33 IST 2016 R/CR.A/438/2006 JUDGMENT (19) In a decision, the Hon'ble Apex Court in "SHIVASHARANAPPA & ORS. VS. STATE OF KARNATAKA", JT 2013 (7) SC 66 has held as under:
"That appellate Court is empowered to reappreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence."
(20) 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.
(21) I have gone through the judgment and order passed by the trial court. I 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 appellantState and learned advocate for the respondentaccused. On going through the entire evidence, it cannot be said that the provisions of the aforesaid sections of the IPC can be attracted in the facts of this case. (22) The trial Court, after appreciating the factual scenario, acquitted the accused. This Court is called upon to examine the correctness of the judgment of the trial Court. While reiterating I held that the main witness has been properly Page 10 of 13 HC-NIC Page 10 of 13 Created On Thu Apr 07 01:56:33 IST 2016 R/CR.A/438/2006 JUDGMENT crossexamined and in his crossexamination he has said that the marksheet may or may not be reflecting the correctness and it may be mistake on the part of the computer operator, for which the respondent cannot be held guilty just on the basis of anonymous complaint. Thus, the main ingredients of Section 465 of the IPC having not been fulfilled in the facts of the present case. It goes without saying that the main edifice of fabricated or making of false documents would fall and, therefore, no conviction could have been recorded under Sections 468 and 471 of the IPC.
(23) The reasonings given by the trial Court for the alleged offences would not permit this Court to take a different view than that taken by the trial Court, and therefore, this court on the touchstone of the decisions of the Apex Court narrated hereinabove, cannot accept the submission of learned APP that the accused be held guilty and the judgment of the trial Court be upturned. I do not find any infirmity in the order passed by the trial Court so as to interfere in this case. The judgment and order of acquittal passed by the trial Court is just and proper. The evidence on record will not permit this court to take a different view than that taken by the trial Court. Even in the present appeal, nothing is produced or pointed Page 11 of 13 HC-NIC Page 11 of 13 Created On Thu Apr 07 01:56:33 IST 2016 R/CR.A/438/2006 JUDGMENT out to rebut the conclusion of the trial Court. Even looking to the evidence on record, ld. APP is not able to bring home the charge levelled against the accused and persuaded this Court to take a different view than that taken by the trial Court. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
(24) In the above view of the matter, I am of the considered opinion that the trial Court was completely justified in acquitting the respondent of the charges leveled against him. I find that the findings recorded by trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. I am, 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.
(25) In the result, the present appeal is hereby dismissed. R & P to be sent back to the trial Court. Bail and bail bond, if any, stands cancelled. Surety also, if any given, stands discharged.
Sd/
[K.J.THAKER, J]
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Bhavesh*
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