Gujarat High Court
State vs Kalubhai on 23 July, 2009
Author: Ks Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
Print
CR.A/1237/1999 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1237 of 1999
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
KALUBHAI
TITABHAI VASAIYA - Opponent(s)
=========================================================
Appearance :
MR
RC KODEKAR APP for Appellant(s) : 1,
MR VIJAL N. DESAI for
Opponent(s) :
1,
=========================================================
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) At the request of the Court, Mr. Vijal Desai, learned Advocate, appears on behalf of the respondent-accused.
1.0 This appeal, under Section 378 of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 06.05.1999 passed by the learned Special Judge, Panchmahals, Godhra in Special (Corruption) Case No.2 of 1996, whereby, the respondent-accused has been acquitted from the charges leveled against him.
2.0 The brief facts of the prosecution case are as under:
2.1 On 19.09.1995 the brother-in-law of the complainant-Ramsubhai Dalabhai Hathila came to his house and informed him that a criminal complaint has been filed against him for a dispute with his neighbour before Limbdi Police Station and that in connection with the said complaint, the police of Limbdi Police Station had also come to his house for arresting him. He, therefore, requested the complainant to do something in the matter. Thereafter, the brother of the complainant and one of his friends went to Limbdi Police Station to collect the details. After returning from the Police Station, they informed the complainant that the respondent herein, who was serving as Head Constable at Limbdi Police Station at the relevant time, has demanded Rs.2000/- for settling the entire issue and that lastly, he has agreed to settle it for Rs.1000/-, out of which, an amount of Rs.600/- had already been paid. They also informed that the balance amount was to be paid on 23.09.1995. On 26.09.1995 the complainant went to Limbdi Police Station and paid another Rs.100/- to the respondent and agreed to pay the balance on a later date.
2.2 Thereafter, a complaint with respect to the aforesaid demand was filed against the respondent with the ACB and a trap was laid to catch the respondent accepting bribe red-handed, which was successful.
Necessary investigation was carried out and ultimately, charge-sheet was filed against him before the competent Court and trial was initiated.
2.3 On production of the accused, charge was framed against him but, as he pleaded not guilty, trial was initiated. To prove the case against the respondent, the prosecution had examined three witnesses, viz. PW-1 Ramsubhai Galabhai Hathila at Ex.20, PW-2 Ratansinh Jayasinh Baria at Ex.22 and PW-3 H. M. Pandey at Ex.29 and had placed reliance upon several documentary evidence, more particularly, the complaint at Ex.21, the panchnama of the trap at Ex.26, the abstract of the first page of service book of the respondent at Ex.4 and the sanction order at Ex.33. On submission of the closing purshis, the further statement of the accused under Section 313 of Cr.P.C. was recorded. Ultimately, the Court below acquitted the respondent of all the charges leveled against him, by impugned judgment and order. 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 Court below is against the provisions of law; the Court below has not properly considered the evidence led by the prosecution and that looking to the provisions of law, it is established that the prosecution has proved the ingredients of the offence against the respondent beyond doubt. Learned APP has taken us through the oral as well as the documentary evidence available on record.
4.0 Learned Advocate for the respondent-accused, has submitted that the prosecution had failed to establish the guilt of the respondent beyond doubt. He has submitted that on close scrutiny of the evidence of the witnesses, it is evident that the same do not support the case of the prosecution. Hence, the Court below was completely justified in acquitting the respondent and no interference is called for from this Court in this appeal.
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 S.C.C. 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 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 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 in the case of State of Goa V. 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 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 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 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 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 S.C. 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 gone through the judgment and order passed by the trial Court.
We have also perused the oral as well as documentary evidence led before the Court below and also considered the submissions made by learned counsel for the respective parties. After appreciating the evidence on record, the Court below found that the dispute between the brother-in-law of the complainant and the third party had already been settled by the prominent persons of the Village and that a written compromise deed in that regard had also been submitted to the P.S.I. of Limbdi Police Station, which was kept along with the complaint. Apart from that it is also not coming out from the record that the respondent was in charge of the case and that he was given the authority to arrest the brother-in-law of the complainant. Therefore, it is highly unbelievable that the respondent had demanded bribe and accept part thereof for settling the dispute. The prosecution had also suppressed material fact that on an earlier occasion, i.e. on 19.09.1995, a complaint was filed against the respondent by the complainant herein and that a trap was also laid but, the same was unsuccessful. It has also come on record that instead of phenolphalein, anthracene powder was used, for which no explanation has come from the prosecution. Moreover, there are serious contradictions in the evidence of the witnesses. Demand, acceptance and recovery has also not been established by the prosecution beyond reasonable doubt. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
7.0 Learned APP is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court blow has ignored the material evidence on record.
8.0 In above view of the matter, we are of the considered opinion that the Court below was completely justified in acquitting the respondent of the charges leveled against him. We find that the findings recorded by the Court below 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.
9.0 The appeal is, accordingly, dismissed. Bail bonds, if any, shall stand cancelled.
[K. S. JHAVERI, J.] [Z. K. SAIYED, J.] Pravin/* Top