Gujarat High Court
The State Of Gujarat vs Amrutbhai Jivanlal Patel on 6 March, 2023
Author: Rajendra M. Sareen
Bench: Rajendra M. Sareen
R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 589 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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THE STATE OF GUJARAT
Versus
AMRUTBHAI JIVANLAL PATEL & 1 other(s)
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Appearance:
MS CM SHAH APP for the Appellant(s) No. 1
MS AMRITA AJMERA(5204) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 06/03/2023
CAV JUDGMENT
1. This is an appeal preferred by the State of Gujarat under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order of acquittal dated 05.08.2005 recorded by the learned Special Judge, Surendranagar in Special (ACB) Case No.1 of 2002 whereby the learned Trial Judge acquitted Page 1 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023 R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 the respondents-accused, of the charges for the offence punishable under Sections 7, 12, 13(1)(d) and 15 of the Prevention of Corruption Act, 1988 (herein after referred to as "the Act").
2. Brief facts of the case are that accused No.1 was ASI and accused No.2 was Police Constable at Sara Outpost Police Station, Dist; Surendranagar, at the relevant point of time. The complainant Shri Rupabhai Raval has alleged that a complaint was registered against his son named Laljibhai at Sara Outpost Police Station for offences punishable under Sections 323 of the Indian Penal Code and Sections 183 and 184 of the Gujarat Panchayat Act. The said offence was investigated by respondent - accused No.1, wherein it is alleged that accused No.1 had gone to the residence of the Laljibhai to arrest him. Thereafter, in connection with such complaint against his son, complainant met the accused No.1, who asked the complainant to come with Rs.10,000/- for release of his son. As the complainant was not willing to pay such bribe, he consulted the Police Inspector, ACB, Surendranagar. Accordingly, a trap was arranged and complainant along with his son and a panch went to Sara Police Station, Muli. At that time, accused No.1 demanded an amount of Rs.5000/- as bribe and asked the complainant to hand over the bribe amount to accused No.2. However, when respondent - accused No.2 was leaving for Page 2 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023 R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 collecting bribe money, a doubt was raised in the mind of accused No.1 and he immediately called back accused No.2 from collecting bribe money. Therefore, a report with resepect to an attempt to commit an offence was registered under Sections 7, 12, 13(1) (C) and 15 of the Act.
3. After collecting necessary evidence, investigation was carried out and statements of witnesses were recorded and as there was sufficient material available against the respondents - accused, charge-sheet was filed and submitted the same before the learned Special Judge, Surendranagar where the case was registered as Special Case No.1 of 2002. The trial was initiated against the respondents-accused.
4. To prove the case against the present respondents-accused, the prosecution has examined six witnesses and also produced several documentary evidence.
5. 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 trial Judge acquitted the respondents - accused of all the charges leveled against him by the impugned judgment and order.
6. Being aggrieved by and dissatisfied with the aforesaid Page 3 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023 R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 judgment and order passed by the trial Court, the appellantState has preferred the present appeal.
7. This Court has heard learned APP Ms. C. M. Shah for the appellant - State and learned advocate Ms. Amrita Ajmera for the respondents - accused.
8. Learned APP has taken this Court through the entire paper book and read over the evidence of material witnesses and has argued that though it is clearly stated in the complaint that the accused demanded money of illegal gratification, the prosecution has successfully established one main and the vital ingredient of demand. She has further submitted that during the trap as accused No.1 has some doubt and therefore, remaining two ingredients of acceptance and recovery could not be there. Otherwise, there was a demand of money by accused No.1. The learned Trial Court is carried away with the fact emerging during the course of trial that the complainant and his son - both turned hostile during their deposition and they have stated that they have some misunderstanding regarding bail amount and therefore, wrongly acquitted the respondents - accused. She has further argued that though complainant and his son turned hostile, it is undisputed fact that complainant has given complaint against the respondents accused and his thumb impression is there on the complaint, Page 4 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023 R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 which was identified by his son. But, the learned trial court has not appreciated the same in its proper perspective and wrongly acquitted the accused which requires to be reversed as such. It is contended by learned APP that the judgment and order of the trial Court is against the provisions of law as the trial 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 case against the present respondents - accused. Learned APP has taken this court through the oral as well as entire documentary evidences. It is further contended by learned APP that the judgment and order of acquittal passed by the learned Judge is based on inferences not warranted by facts of the case and also on presumption not permitted by law. It is also contended by him that the learned Judge has not properly appreciated oral as well as documentary evidence and thereby committed error by acquitting the respondent for the alleged offence under Sections 7, 12, 13(1)(c) and 15 of the Prevention of Corruption Act, 1988 which requires to be reversed as such and the respondent-accused is required to be convicted.
9. On the other hand, learned advocate Ms. Amrita Ajmera for the respondents - accused has supported the judgment of acquittal and has argued that evidence of the complainant itself proves that there is no case against respondents -
Page 5 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 accused. He has further argued that complainant and his son - both turned hostile before the Court. Panch witness is not supporting the case of prosecution. Therefore, from his evidence also, nothing is revealing against the present respondents - accused. It is also argued that complainant has admitted in his deposition that he has some misunderstaing regarding the money and therefore, he has registered a complaint. However, accused No.1 has told him about the amount for bail of his son and not demanded any bribe money and therefore, even one ingredient of demand is not proved in the present case and therefore, his evidence carries no further the case of the prosecution. In view of the aforesaid nature of evidence, he has argued that the findings recorded by the learned Special Judge is in accordance with the evidence available on record and there appears no material on record to reverse the finding of learned Special Judge consequently therefore, the finding recorded by the learned trial court does not require any interference by this Court. He has, therefore, urged to dismiss the appeal as such.
9.1 Learned advocates for the respondents has relied upon following decisions in support of her case; (1) K. Shanthamma vs. State of Telangana reported in 2022 (4) SCC 574 (2) B. Jayaraj vs. State of A. P. Reported in 2014 (2) GLH 149 Page 6 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023 R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 (3) A. Subair vs. State of Kerala reported in 2009 (6) SCC 587
10. This Court has minutely perused the oral as well as documentary evidence available on record and gone through the impugned judgment and order passed by the trial court as well as paper book and evidence adduced by the prosecution in its entirety and has also considered the submissions made by learned APP for the appellant-State and learned advocate for the respondent.
11. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(c) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.
12. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in acquittal appeals. It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice in favour of the accused, firstly, the Page 7 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023 R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 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 reaffirmed and strengthened by the trial Court.
12.1 Further, 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. Further, 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 arrive at would not be arrived at by any reasonable person, and therefore, the decision is to be characterized as perverse.
12.2 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. That the duty is cast Page 8 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023 R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 upon the the appellate Court, in such circumstances, to re- appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged.
12.3 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that, "The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court".
12.4 Yet in another decision in Chaman Lal v. The State of Page 9 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023 R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 Himachal Pradesh, rendered in Criminal Appeal No. 1229 of 2017 on 03.12.2020, 2020 SCC OnLine SC 988 the Apex Court has observed as under:
"9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:
12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law.
Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Page 10 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023 R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)
13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p.
404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)
15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) Page 11 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023 R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 "(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 curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise 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, Page 12 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023 R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 the appellate court should not disturb the finding of acquittal recorded by the trial court."
16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."
18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;
(ii) The High Court's conclusions are contrary to evidence and documents on record;
Page 13 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023
(iii)The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
(v) This Court must always give proper weight and consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
13. Having heard learned advocate for the respective parties to the present proceedings and having perused the impugned judgment as well as records and proceedings, as per the prosecution version, it clearly reveals that respondents -
Page 14 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 accused were serving as ASI and Police Constable respectively Sara Police Station, Dist; Surendranagar and there was a complaint registered against complainant's son in such police station and respondent No.1 was investigating the same.
13.1 Complainant and his son both were examined at PW 1 and PW 2. In their deposition, they have described the procedure done by the ACB. However, they both have not supported the case of prosecution and both declared hostile.
13.2 PW-3 Popatbhai Merubhai Mundhva, who has gone with the complainant and his son to the respondents' police station has stated that he has not heard the talk between complainant and respondent No.1. He is declared hostile by the prosecution.
13.3 PW-4 Gambhirsinh Amarsinh Zala, who is also panch witness. He has stated in his deposition that he is not knowing anything about giving or receiving any money.
14. On overall scrutinization of the evidence on record, when complainant and other panch witnesses are not supporting the case of prosecution and when consequently, not establishing the vital ingredients of demand, acceptance or recovery, the same do not help the prosecution to prove the case beyound Page 15 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023 R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 reasonable doubt.
15. Considering the entire evidence on record, as stated above, no iota of evidence in form of deposition of Panch Witnesses and other witnesses has come on record regarding any demand or acceptance of bribe by the respondent - accused. As such for establishing the offence under section 7 of the Prevention of Corruption Act, proof of demand and acceptance is sine quo non, as observed in the case of K. Shanthamma Versus State Of Telangana, reported in 2022 (4) SCC 574.
16. Demand which is sine quo non for establishing offence under section 7 is not established. Here in this case, the complainant has not stated that there was demand of bribe by the respondent - accused. On the contrary, the complainant has stated that it was the bail amount which was referred by the respondent accused but he misunderstood that amount to be the demand of illegal gratification.
17. The Hon'ble Supreme Court in the case of P.Satyanarayana Murthy Versus District Inspector of Police, reported in 2015 (10) SCC 152, considering the case of State of Kerala and another Versus C.P. Rao, reported in (2011) 6 SCC 450, has observed and held that mere recovery by itself, Page 16 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023 R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
It is further held by the Hon'ble Supreme Court in the aforesaid decision in para 20 that in a recent enunciation by this Court to discern the imperative pre-requisites of Section 7 and 13 of the Act, it has been underline in B. Jayaraj Vs./ State of Andhra Pradesh reported in (2014) 13 SCC 55 in unequivocal terms that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under section 7 as well as 13(1)
(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be indispensable essentially and of permeating mandate for an offence under section 7 and 13 of the Act. Qua section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under section 7 and not to those under section 13(1)(d)(i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of Page 17 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023 R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under section 20 of the Act would also not arise.
It is further held by the Hon'ble Supreme Court in the aforesaid decision in para 21 that proof of demand of illegal gratification, thus, is the gravamen of the offence under section 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.
It is further held by the Hon'ble Supreme Court in the aforesaid decision in para 22 that As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under sections 7 or 13 of the Act would not entail his conviction there under.
18. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in Page 18 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023 R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:-
"6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 :
"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed:
"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the Page 19 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023 R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition:
"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."Page 20 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023
R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023
28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:
"Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."
"9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."
8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under:
"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial Page 21 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023 R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 court is either perverse or wholly unsustainable in law."
19. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
20. For the reasons recorded as above, it appears that the learned trial court has rightly appreciated the evidence on record and rightly acquitted the respondents - accused from the charges leveled against them which calls for no interference by this Court. This Court is of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges leveled against them. This Court find that the findings recorded by the Trial Court are absolutely just and proper and in recording the said Page 22 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023 R/CR.A/589/2006 CAV JUDGMENT DATED: 06/03/2023 findings, no illegality or infirmity has been committed by it. This Court is, 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. 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. Accordingly, present appeal is devoid of any merits and requires dismissal.
21. In the result, the present appeal is hereby dismissed. Record and Proceedings to be sent back to the trial Court, forthwith. Bail bond and bail, if any, stands cancelled. Surety also, if any given, stands discharged. Fine, if any paid, be refunded forthwith.
Sd/-
(RAJENDRA M. SAREEN,J) R.H. PARMAR Page 23 of 23 Downloaded on : Mon Mar 06 20:46:59 IST 2023