Gujarat High Court
State Of Gujarat vs Hasmukhbhai Gaurishankar Bhogaita & on 25 July, 2017
Author: Anant S. Dave
Bench: Anant S. Dave, R.P.Dholaria
R/CR.A/1487/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1487 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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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 or any order made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
HASMUKHBHAI GAURISHANKAR BHOGAITA &
12....Opponent(s)/Respondent(s)
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Appearance:
MR KP RAVAL, APP for the Appellant(s) No. 1
HCLS COMMITTEE, ADVOCATE for the Opponent(s)/Respondent(s) No. 4
MR PRAVIN GONDALIYA, ADVOCATE for the Opponent(s)/Respondent(s)
No. 1 - 3 , 6 - 9 , 11 - 13
MR. YOGENDRA THAKORE, ADVOCATE for the Opponent(s)/Respondent(s)
No. 4
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 5 , 10
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 25/07/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. By filing this appeal under Section 378 (1) (3) of the Code of Criminal Procedure, 1973 the appellant-State has challenged judgment and order dated 15.9.2005 passed by learned Presiding Officer, Fast Track Court No.10, Rajkot, in Sessions Case No.24 of 2005 acquitting the respondents from the charges of offences under Sections 489 (A), (B), (C), (D), 120- (B) and Section 201 of the Indian Penal Code.
2. As per the case of the prosecution, accused nos.1 and 2 were carrying fake currency notes of denomination of Rs.100/-. On 1.7.2003, accused no.1 gave a fake currency note to Jivtiben for purchasing vegetables. At that time, he was arrested. It is also the case of the prosecution that from the possession of accused no.2, 51 fake currency notes were recovered. Accordingly, by using the fake currency notes as genuine, the accused committed the offence under aforesaid Sections and on completion of investigation chargesheet was submitted before the Chief Judicial Magistrate. Thereafter, the case was committed to the Sessions Court and the accused faced trial and evidence was laid. At the end of trial the accused are acquitted by impugned judgment against which present appeal is preferred by the State.
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3. Shri Kartik P. Raval, learned APP appearing for the appellant-State of Gujarat has taken us through the oral as well as documentary evidence and contended that the learned trial Judge has not properly appreciated the evidence on record and committed an error while passing the impugned judgment and order acquitting the accused. He submitted that the accused were involved in a serious offence, which would upset the economic condition of the country and in such a serious crime, the accused could not have been acquitted only because of few contradictions in the statements of the witnesses. He further submitted that accused were arrested while using fake currency notes and this fact is proved by the evidence of investigating officer and there is no reason to disbelieved the investigating officer, who is an independent witness. He also submitted that the prosecution has proved its case beyond reasonable doubt against the accused and the learned trial Judge has not properly appreciated the evidence on record and wrongly acquitted the accused persons, therefore, it is prayed that this appeal may be allowed.
4. On the other hand, learned counsel Mr.Gondaliya and Mr.Yogendra Thakore appearing for the accused persons have supported the impugned judgment and submitted that learned trial Judge has not committed any error while acquitting the accused persons. It is submitted that the fake note was allegedly used for purchase of vegetable from PW-19, Jivtiben Thakarshibhai, however, this witness has not supported the case of the prosecution. It is also submitted that there are many contradictions regarding the possession of fake currency notes by the accused in the evidence of the prosecution witnesses including complainant and investigating officer. It is Page 3 of 6 HC-NIC Page 3 of 6 Created On Sun Aug 20 11:13:01 IST 2017 R/CR.A/1487/2006 JUDGMENT further submitted that proper procedure as per law is not followed while sealing the fake currency notes. In view of these, it is submitted that the trial Court has not committed any error while acquitting the accused persons and the impugned judgment and order of acquittal may be confirmed.
5. Having heard learned counsel appearing for the parties, viz. learned APP for the appellant-State, Shri Pravin Gondaliya, learned advocate for the accused other than accused no.4 and Mr.Y.M.Thakore, learned advocate for accused no.4, we are in agreement with the reasons given by learned trial Judge for not believing the case of the prosecution as it failed to prove its case beyond reasonable doubt. That basically if we carefully peruse the testimony of PW-19, Jivtiben Thakarshibhai, vegetable vendor, where the fake currency note was circulated, has turned hostile and do not support the case of the prosecution. PW-22, Mahebubbhai Harunbhai, the complainant, whose version is at Exh.112, nowhere identified the accused. About possession of fake currency notes with accused, major contradictions appear in testimonies of Jivtiben, the complainant and investigating officer, Sarvaiya, PW-23. In the cross-examination, complainant admits that he was informed by Jivtiben, PW-19, and only one note was given to police but at that time no search in person was made. That apart other than accused no.1 and accused no.2, no clue or link is available about involvement of other accused and even as per admission on the part of the investigating officer, Shri Sarvaiya, PW-23, even at the time of filing of complaint no case was made out against accused no.4. Even in his cross- examination, above witness further admits that he had no knowledge about possession of the currency notes with accused. About sealing of muddamal viz. fake currency notes Page 4 of 6 HC-NIC Page 4 of 6 Created On Sun Aug 20 11:13:01 IST 2017 R/CR.A/1487/2006 JUDGMENT no record was produced and for movement of muddamal again no procedure was followed. Further, there is a failure to follow the procedure under Section 27 of the Evidence Act and not an iota of evidence available attracting Section 120-B pertaining to conspiracy under the Indian Penal Code. All panch witnesses have turned hostile and not supported the case of prosecution. About destroying the evidence and taking panchas in a jeep at Kalavad road for collecting the evidence, except unused well and grass nothing was found. Even no clear case emerges on the record about currency note given to Jivtiben was of denomination of Rs.50 or Rs.100 and she was also not sure that out of three persons, who had approached her to purchase vegetables, and who had given such note. The investigating officer has not seized the computer allegedly used for printing fake currency notes and, therefore, no other forensic/scientific evidence appear on record except that notes forwarded to FSL, Gandhinagar, were found to be fake currency notes as per Exh.136.
6. Names of other accused disclosed by accused no.1 and accused no.2 about alleged conspiracy has no legs to stand under the law of evidence. The case consists of not major contradictions but total contradictions about scuffle which took place and fake currency note was put into circulation and accused was nabbed and was beaten by complainant about broken tooth while investigating officer has no such knowledge. There is no case absolutely about Section 489-(A) of IPC and the evidence so recorded and discussed by the trial Court, the prosecution failed to prove its case beyond reasonable doubt even for Section 489 (B) and (C) of IPC.
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7. About purchase of computer by accused no.2, as per the evidence of Samirbhai Anilbhai Desai, PW-12, Exh.81, except that bill was issued from his shop no other evidence comes on record including no identification. The height of failure on the part of the prosecution and casual approach adopted by the investigating officer becomes clear from the drawing of panchnama, Exh.68 of two witnesses, Samatbhai Laxmanbhai Gojiya and Desurbhai Laxmanbhai Gojiya and instead of Desurbhai Laxmanbhai Gojiya, who is in fact, Ranmal Karshan a resident of Village-Bankodi of Taluka-Jamkalyanpur, some other person had given testimony. Though an application was submitted on behalf of the accused to the trial Court finally it was considered in accordance with law but judgment, which has resulted into acquittal in this kind of investigation and prosecution warrant no interference.
8. For the foregoing reasons, this Criminal Appeal is dismissed. The impugned judgment and order of acquittal dated 15.9.2005 passed by learned Presiding Officer, Fast Track Court No.10, Rajkot, in Sessions Case No.24 of 2005 acquitting the respondents from the charges of offences under Sections 489 (A), (B), (C), (D), 120-(B) and Section 201 of the Indian Penal Code is confirmed. Bail bond, if any, of the accused stands cancelled. Record and proceedings be sent back to the Court below forthwith.
(ANANT S.DAVE, J.) (R.P.DHOLARIA,J.) *malek Page 6 of 6 HC-NIC Page 6 of 6 Created On Sun Aug 20 11:13:01 IST 2017