Gujarat High Court
State vs Kalubeg on 23 July, 2009
Author: Ks Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
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CR.A/1204/1997 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1204 of 1997
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
HONOURABLE
MR.JUSTICE Z.K.SAIYED
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ? Yes
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 ?
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STATE
OF GUJARAT - Appellant(s)
Versus
KALUBEG
MOSAMBAG MIRZA & 1 - Opponent(s)
=========================================
Appearance :
MR RC KODEKAR
APP for Appellant(s) : 1,
NOTICE SERVED for
Opponent(s) : 1 - 2.
MR CB DASTOOR for Opponent(s) : 1 -
2.
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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 judgement and order of acquittal dated 24.04.1997 passed by the learned Additional Sessions Judge, Kheda at Nadiad in Special (A.C.B) Case No.11 of 1992 whereby the accused were acquitted of the charges leveled against them. From the record and as per the order dated 07.11.2001 the appeal is abated qua accused No.2 Mahendrabhai Nanabhai Bhoi. Therefore, this appeal is heard and decided qua accused No. 1.
2.0 The brief facts of the prosecution case are as under:
2.1 The complainant received information that Dakor Town traffic police and R.T.O were used to stop the vehicles coming form Gandhinagar via Dehgam-Kapadvanja-Lasundra illegally and under the threat of filing false case were demanding bribe amount under the guise of entry fees.
Therefore on 23.09.1996 after following necessary procedure trap was arranged by the P.I., A.C.B.. The panchas were called and they were given information about the trap and panchas had agreed to act as panchas. The numbers of currency notes were recorded and experiment of anthracene powder was made. After carrying out the introduction parade with all the members of raiding party, panch members and complainant went to Ahmedabad in private jeep towards Kapadvanj town via Dehgam. At Dakor cross road traffic point the jeep was stopped by the accused. The accused told the driver Vikramsinh that as he had no driving license and there were 12 passengers in the jeep it should be kept in the police station. The driver requested not to do such thing. The accused demanded bribe amount of Rs. 50/- for not initiatating a false case. Thus, bribe amount was given and it was accepted by the accused in presence of panch No. 1. Bribe amount was recovered from the conscious possession of the accused No.1. Therefore, complaint was lodged on 23.09.1991 before A.C.B., Nadiad Police Station for the offence punishable under Section 7,12,13(1)(g), 1,2,3 read with Section 13(2) of the Prevention of Corruption Act, 1988. The same was registered as I-C.R. No. 11 of 1991.
2.3 Necessary investigation was carried out and statements of witnesses were recorded.
2.4 The case was numbered as Special (ACB) Case No.11 of 1992 in the Court of learned Additional Sessions Judge, Nadiad. The trial was initiated against the respondents.
2.5 To prove the guilt against the accused the prosecution has examined the following witnesses:
[1]Bhimsing Gulabsing-Exh. 15 [2] Nurmahammad Abdulkarim-Exh. 19 [3] Vikramsinh Nathusinh-Exh. 26 [4] Govabhai Mohanbhai-Exh. 27 [5] Dilip Premshankar Pandya-Exh. 32 [6] J.I. Patel-Exh. 34 2.6 In order to support the case, the prosecution has produced the following documents:
[1] A copy of the entry made in the service book of the accused-Exh. 16 [2] Entry made in the Station Diary at the time of incident- Exh. 17 [3] Muster roll of the month of the incident-Exh. 18 [4] Original approval-Exh. 20 [5] Letter of D.S.P., Kheda-Exh. 21 [6] A copy of service book of accused No. 1-Exh. 22 [7] A copy of the appointment order of accused No. 1-Exh. 23 [8] A certified copy of the receipt given to accused no. 1 for recovery of muddamal-Exh. 28 [9] Mark 13/2 of Panchnama Part II-Exh. 29 [10] Original complaint-Exh. 33 [11] Letter of Kapadvanj Town Police Station-Exh. 35 2.7 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 Additional Sessions Judge acquitted the respondent of all the charges leveled against him by judgement and order dated 24.04.1997.
2.8 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the learned Additional Sessions Judge the appellant State has preferred the present appeal.
3.0 Mr. RC Kodekar, learned APP contended that the judgement and order of the learned Judge is against the provisions of law; the learned Judge 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. He submitted that there were spots of anthracene powder on the finger of accused No. 1. Prosecution Witness No. 4 has supported the case of the prosecution during his examination and cross-examination. He further submitted that P.W.5 Dilip Premshankar Pandya at Exh. 32 who is discharging his duty as P.I. Of A.C.B, Ahmedabad supported the case of the prosecution. Learned APP further submitted that there was no reason for the learned Additional Sessions Judge to disbelieve the prosecution case and to acquit the respondent. Therefore, in the aforesaid facts and circumstances of the case there was ample material available on the record of the case to show that there was demand and acceptance of money by the respondent.
4.0 Mr. C.B. Dastoor, learned advocate for the respondent-accused supported the judgment and order passed by the learned trial Court. He submitted that appeal may be dismissed.
5.0 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 judgement 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.
5.1 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.
5.2 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.
5.3 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 judgement 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.
5.4 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.
5.5 It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgement 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.
5.6 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.
6.0 We have heard Mr. Kodekar, learned APP and Mr. C.B. Dastoor, learned advocate for the respondent and also gone through the judgement 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 advocates for the respective parties.
6.1 The trial Court after appreciation of the evidence held on the basis of the deposition that investigation officer that it is not reliable to convict the accused on the evidence on record. Panch witnesses who are the independent witnesses did not support the case of the prosecution. They turned hostile. In the cross-examination the abovementioned witnesses could not identify the accused. Driver Vikramsinh also did not support the case of the prosecution. The evidence of Investigation officer has miserably failed to prove the case of demand and acceptance of bribe. In this fact situation the learned Additional Sessions Judge has found that there are serious lacunae in the prosecution case and the prosecution has failed to establish the case against the respondents. There are contradictory statements in the complaint and the evidence of panch. Therefore the trial court has given the benefit of doubt to the accused and we do not find any reason to interfere with the said finding.
6.2 Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. Mrs. 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.
7.0 In the above view of the matter, we are of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges leveled against them. 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. 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. Bailbond stands cancelled.
[K.S. JHAVERI, J.] [Z.K. SAIYED, J.] niru* Top