Gujarat High Court
State Of Gujarat vs Pravinbhai Becharbhai Bhagat on 29 August, 2023
NEUTRAL CITATION
R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2664 of 2005
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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STATE OF GUJARAT
Versus
PRAVINBHAI BECHARBHAI BHAGAT & 2 other(s)
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Appearance:
MS CM SHAH APP for the Appellant(s) No. 1
MR HRIDAY BUCH(2372) for the Respondent(s) No. 1,2
MR. JAVED S QURESHI(6999) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 29/08/2023
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NEUTRAL CITATION
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ORAL JUDGMENT
1. The appellant - State of Gujarat has preferred the present appeal under Section 378(1)(3) of the Criminal Procedure Code against the impugned judgment and order of acquittal dated 10.06.2005 passed by the learned Special Judge, Fast Track Court No.5, Bharuch (hereinafter be referred to as "the Trial Court") in Special Corruption Case No.15 of 2000 whereby the original accused have been acquitted from the charges levelled against them under Sections 7, 12, 12(1(d), 13(2) of the Prevention of Corruption Act (hereinafter be referred to as "the Act").
2. Facts in brief giving rise to filing of the present appeal are as under:-
2.1 On 08.08.2000, the complainant has given an information that accused no.1 and 2 were serving as police constable at G.I.D.C. Ankleshwar Police Station at the relevant point of time in traffic department. That the complainant was plying the private jeep car as passenger vehicle in that area and, therefore, Page 2 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined accused no.1 and 2 have demanded illegal gratification for plying the vehicle in the area and also threatened the complainant and used abusive language against him and, therefore, the complainant decided to lodge the complaint against the accused.
It is alleged that the complainant was not willing to pay any bribe amount, he has lodged the complaint before the Bharuch A.C.B. Police Station. It is alleged that the Police Inspector, A.C.B. called panch witnesses and after preparing first part of panchnama and making the currency notes smeared with anthrecene powder and instructed both panchas and the complainant. Thereafter, the raid was carried out on 09.08.2000 and they all have started from ACB Police Station to Ankleshwar GIDC and reached near the place and met accused no.1 and 2 and in turn accused no.2 has made a demand from the complainant and on such demand, the complainant has offered amount of illegal gratification, but accused no.2 has not accepted the same and directed the complainant to pay such amount to accused no.3, who being a handcart was doing the business of fruit wending on the cross road of Ankleshwar G.I.D.C., has accepted the said amount and at that time, the trap was arranged and caught raid handed by Page 3 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined accepting the amount and therefore, the complaint came to be registered before the ACB Police Station, Bharuch. 2.2 After completion of investigation, the charge-sheet was led before the Special Court and the learned Special Judge has framed the charge against the accused wherein they have denied having committed any offence and pleaded for trial. Accordingly, the trial took place wherein the prosecution has examined three witnesses and produced certain documentary evidence. Thereafter, further statements of the accused under Section 313 of the Criminal Procedure Code were recorded by the Trial Court wherein the accused have denied having demanded or accepted any amount and pleaded that they are innocent. The accused side has neither examined any defence nor examined themselves.
2.3 After completion of the trial and having heard both the sides, the Trial Court has acquitted the accused from the charges levelled against them.
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3. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, the State has preferred the present appeal.
4. Heard Ms.C. M. Shah, learned Additional Public Prosecutor for the appellant - State, Mr.Hriday Buch, learned senior advocate for the respondents no.1 and 2 and Mr.Javed Qureshi, learned advocate for respondent no.3 at length. Perused the evidence on record as well as impugned judgment and order of the Trial Court.
5. Ms.Shah, learned Additional Public Prosecutor for the appellant - State of Gujarat has vehemently submitted the same facts which are narrated in the appeal memo and has also submitted that there is ample evidence on record in connecting the accused with the alleged crime. While reading the entire evidence on record, Ms.Shah, learned Additional Public Prosecutor for the appellant - State has submitted that in this case, the prosecution has proved three ingredients of offences viz. demand, acceptance and recovery of the amount from the Page 5 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined accused. While referring to the evidence of the complainant and panch, Ms.Shah, learned Additional Public Prosecutor has submitted that from the evidence of the witnesses, it is crystal clear that accused no.1 and 2 have demanded Rs.800/- from the complainant in presence of panch and they have directed the complainant to pay the amount to accused No.3 and at their instance, accused No.3 has accepted the amount and the same has been recovered from him as per the panchnama and the version of the police witness. According to Ms.Shah, learned Additional Public Prosecutor, there is cogent and reliable evidence on record to establish the fact that accused have demanded and accepted the amount through accused No.3 and accused No.3 has also involved in the said offence and the same has been proved beyond reasonable doubt by the prosecution. Ms.Shah, learned Additional Public Prosecutor has submitted that though the prosecution has proved the case beyond reasonable doubt by examining P.W.2 and P.W.3, however, the Trial Court has not considered the evidence of P.W.2 and P.W.3 in its true and proper perspective and acquitted the accused. She has submitted that though the evidence of P.W.1 is supported the Page 6 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined case of the prosecution in part and though he declared hostile during the course of the examination, despite of that his whole evidence cannot be brushed aside or discarded and the Trial Court has, while discarding the evidence of P.W.1, passed the impugned judgment and order of acquittal. She has submitted that though the evidence of the trapping officer i.e. P.W.3 is sufficient to prove the charge levelled against the accused in absence of any other cogent and material evidence, despite of this fact, the Trial Court has observed that there is material contradiction in the evidence of the witnesses and passed the impugned judgment and order of acquittal. She has submitted that the evidence of P.W.3 - trapping officer cannot be doubted as per the settled principles of law more particularly the decision of the Hon'ble Supreme Court in the case of Abdul Majid Abdul Hak Ansari Vs. State Of Gujarat reported in (2003) 10 SCC 198 and as per the said decision, the conviction can be passed relying upon the evidence of such officers, who supported the case of the prosecution. She has submitted that the Trial Court has miserably failed to appreciate the entire evidence in its true perspective and committed an error of law and facts. She has Page 7 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined submitted that the impugned judgment and order is bad in law and, therefore, the same deserves to be quash and set aside and to convict and punish the accused for the said offence. She has prayed to allow the present appeal.
6. Mr.Buch, learned senior advocate for the respondents - accused has objected the appeal and submitted the written submission. He has submitted that there is no clear cut evidence on record to connect accused with the alleged offence of bribe, especially, there is lacking of demand and acceptance on their part and on experiment of ultra violate lamp, no positive sign of anthrecene powder was found on the hands of the accused. He has submitted that the entire version of the prosecution is not believable and from the evidence of the complainant and panch witness, there is material contradictions regarding main ingredients of demand and acceptance. He has submitted that this being an appeal against the judgment and order of acquittal filed under Section 378(1)(3) of the Criminal Procedure Code, this Court has limited scope to interfere with the impugned judgment and order of acquittal. He has prayed to dismiss the appeal and Page 8 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined confirm the judgment and order of the Trial Court. He has submitted that though after considering the materials and the evidence led by the prosecution and examining the demeanor of the witnesses, the Trial Court has come to the prosecution that the prosecution has failed to establish the charge levelled against the accused, this Court cannot interfere and/or disturb the findings recorded by the Trial Court on any conjuncture and surmises. He has submitted that even the recovery of the currency notes are also not recovered from the accused or not at the instance of the accused. He has submitted that there is lacking of demand, acceptance and recovery at the instance of the accused. According to him, the Trial Court has properly appreciated the evidence and has rightly acquitted the accused from the charges levelled against them. He has submitted that the impugned judgment and order of the Trial Court is perfect one and there is no perversity and the same is required to be confirmed by this Court.
6.1 In support of his submissions, Mr.Buch, learned senior advocates has relied upon the following decisions:- Page 9 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023
NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined (1) State Of Gujarat Vs. Bhavjidan Chandidan Chara reported in 1984 GLH 572;
(2) Ravindra Mahadeo Kothamkar Vs. The State of Maharashtra reported in 2015 SCC OnLine Bom 6558;
(3) Ravi Sharma Vs. State (Government of NCT of Delhi) and another reported in (2022) 8 SCC 536;
(4) State of Gujarat Vs. Ambalal Kalabhai Parmar rendered in Criminal Appeal No.1009 of 2006 dated 12.04.2023;
(5) Vastabhai Joitaram Prajapati Vs. State of Gujarat reported in 2023 SCC OnLine Guj 2557;
7. It is well settled by catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court 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 Page 10 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined 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.
8. 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 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 Page 11 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined 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 with which he is charged.
9. In the case of Bhavjidan Chandidan Chara (supra), the Division Bench of this Court has held and observed in paragraph no.2 as under:-
"2............ Now what the Police Inspector did after recording the complaint was to find out or select the panchas. In a corruption case choosing of panchas is most material and most important aspect in the case. The reason is that the evidence of this witness alone ultimately makes or mars the whole future of a public servant. Normally the evidence of the complainant is not accepted without corroboration. Normally the police officers are not believed in toto in most of the cases because they are considered to be interested witnesses. Now, therefore, the whole case hangs on one individual and that individual is the panch and that, therefore, choosing of a panch is the most important aspect in a trap case and what the learned Special Judge found was that the Police Inspector chose the panch from Irrigation Department............."
10. In the case of Ravindra Mahadeo Kothamkar (supra), the Bombay High Court has held and observed in paragraphs no.16, 17 and 18 as under:-
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NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined "16. When the trap was being laid without verification of the demand, it was essential to have truly independent witnesses as panchas. However, admittedly, panch Godbole had previously acted as a panch for the ACB on about 3 to 4 occasions. Selecting such a panch casts doubt on the sincerity of the investigating agency, particularly, because the trap was laid hurriedly and without verification of the demand.
17. A perusal of the impugned judgment shows that the learned Special Judge has proceeded on the presumption of guilt as opposed to the presumption of innocence. He noticed some inconsistencies and variations in the versions of the complainant and the panch Godbole, but did not give any importance to those variations by observing that "it was likely that the panch witness either did not hear attentively what the accused actually spoke or did not remember." Regarding the other discrepancies between the evidence of the witnesses as to the spot where the appellant was apprehended, the learned Judge observed that 'having regard to the mental state of the witnesses, there was a likelihood of they being confused about the place of acceptance of the bribe and place of catching the appellant' (paragraphs 23, 25 and 26 of the impugned judgment). The learned Judge also reasoned that, that the complainant and panch Godbole had approached the appellant and that the appellant took them to the hotel, offered them lassi etc. was admitted. He thought this to be corroborating the evidence of the prosecution witnesses forgetting that corroboration was required not with respect to these happenings, but with respect to demand and acceptance of bribe. When as per the prosecution case the appellant had asked the complainant to pay the bribe to him in the office, that he did not demand it there and instead took the complainant out in a hotel, is actually a factor weakening the case of the prosecution, but the learned Judge has held the same aspect as favourable to the prosecution. The learned Judge posed a question as to, 'why the appellant found it necessary to take the complainant and panch to the hotel and offer them lassi and oblige them, was not explained', and that, 'mere fact of acquaintance was not sufficient to take him to the hotel.' The learned Special Judge observed that, the fact that the appellant took them to the hotel, itself creates Page 13 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined suspicion regarding the defence of the appellant.
18. In my opinion, the following factors -
(a) that, there had been no verification of the demand before laying of a trap;
(b) that, the trap was laid as soon as the complaint was made and rather hurriedly;
(c) that, the details regarding the manner and the place of acceptance of the bribe amount given by the prosecution witnesses differ, it was not safe to hold the appellant guilty of the alleged offences."
11. In the case of Ravi Sharma (supra), the Hon'ble Supreme Court has held and observed in paragraphs no.8 and 9 as under:-
"Before venturing into the merits of the case, we would like to reiterate the scope of Section 378 the Code of Criminal Procedure (for short 'Cr.P.C.') while deciding an appeal by the High Court, as the position of law is rather settled. We would like to quote the relevant portion of a recent judgment of this Court in Jafarudheen and Others Vs. State of Kerala (2022 SCC Online SC 495) as follows:
25. While dealing with an appeal against acquittal by invoking Section 378 the Cr.P.C, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened.
Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.
This Court in the aforesaid judgment has noted the following decision while laying down the law: Page 14 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023
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Mohan alias Srinivas alias Seena alias Tailor Seena v. State of Karnataka, [2021 SCC OnLine SC 1233] as hereunder:
"20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.
21. Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity, nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity.
22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional Page 15 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark.
23. This court, time and again has laid down the law on the scope of inquiry by an Appellate court while dealing with an appeal against acquittal under Section 378 CrPC. We do not wish to multiply the aforesaid principle except placing reliance on a recent decision of this court in Anwar Ali v.
State of Himanchal Pradesh, (2020) 10 SCC 166:
14.2. When can the findings of fact recorded by a court be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under: [Babu v. State of Kerala, [(2010) 9 SCC 189]:
"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635], Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [1992 Supp (2) SCC 312], Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665], Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501], Aruvelu v. State, [(2009) 10 SCC 206] and Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636])."
It is further observed, after following the decision of this Court in Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10], that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is Page 16 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined acceptable and which could be relied upon, the conclusions would not be treated as perverse, and the findings would not be interfered with.
14.3. In the recent decision of Vijay Mohan Singh v. State of Karnataka, [(2019) 5 SCC 436], this Court again had an occasion to consider the scope of Section 378 CrPC and the interference by the High Court [State of Karnataka v. Vijay Mohan Singh, 2013 SCC OnLine Kar 10732] in an appeal against acquittal. This Court considered a catena of decisions of this Court right from 1952 onwards. In para 31, it is observed and held as under:
"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai v. State of Gujarat, [(1978) 1 SCC 228]. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under:
'10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case.' 31.1. In Sambasivan v. State of Kerala, [(1998) 5 SCC 412], the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the Page 17 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) "8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Doshi case [Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225] viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well- considered judgment duly meeting all the contentions raised before it.
But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."
31.2. In K. Ramakrishnan Unnithan v. State of Kerala, Page 18 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined [(1999) 3 SCC 309], after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.
31.3. In Atley v. State of U.P., [AIR 1955 SC 807], in para 5, this Court observed and held as under: (AIR pp. 809-10) '5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.
It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well- established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the Page 19 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State [1951 SCC 1207]; Wilayat Khan v. State of U.P. [1951 SCC 898]. In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.' 31.4. In K. Gopal Reddy v. State of A.P., [(1979) 1 SCC 355], this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."
27. N. Vijayakumar v. State of T.N., [(2021) 3 SCC 687] as hereunder: (SCC pp. 695-99, paras 20-21 & 23-24) "20. Mainly it is contended by Shri Nagamuthu, learned Senior Counsel appearing for the appellant that the view taken by the trial court is a "possible view", having regard to the evidence on record. It is submitted that the trial court has recorded cogent and valid reasons in support of its findings for acquittal. Under Section 378 CrPC, no differentiation is made between an appeal against acquittal and the appeal against conviction. By considering Page 20 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined the long line of earlier cases this Court in the judgment in Chandrappa v. State of Karnataka, [(2007) 4 SCC 415] has laid down the general principles regarding the powers of the appellate Court while dealing with an appeal against an order of acquittal. Para 42 of the judgment which is relevant reads as under: (SCC p. 432) "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 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.
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NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined (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."
21. Further in the judgment in Murugesan v. State, [(2012) 10 SCC 383] relied on by the learned Senior Counsel for the appellant, this Court has considered the powers of the High Court in an appeal against acquittal recorded by the trial court. In the said judgment, it is categorically held by this Court that only in cases where conclusion recorded by the trial court is not a possible view, then only the High Court can interfere and reverse the acquittal to that of conviction. In the said judgment, distinction from that of "possible view" to "erroneous view" or "wrong view" is explained. In clear terms, this Court has held that if the view taken by the trial court is a "possible view", the High Court not to reverse the acquittal to that of the conviction. xxx xxx xxx
23. Further, in Hakeem Khan v. State of M.P., [(2017) 5 SCC 719] this Court has considered the powers of the appellate court for interference in cases where acquittal is recorded by the trial court. In the said judgment it is held that if the "possible view" of the trial court is not agreeable for the High Court, even then such "possible view"
recorded by the trial court cannot be interdicted. It is further held that so long as the view of the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, verdict of the trial court cannot be interdicted and the High Court cannot supplant over the view of the trial court. Para 9 of the judgment reads as under; (SCC pp.722-23) "9. Having heard the learned counsel for the parties, we are of the view that the trial court's judgment is more than just a possible view for arriving at the conclusion of acquittal, and that it would not be safe to convict seventeen persons accused of the crime of murder i.e. under Section 302 read with Section 149 of the Penal Code. The most important reason of the trial court, as has been stated above, was that, given the time of 6.30 p.m. to 7.00 p.m. of a winter evening, it would be dark, and, Page 22 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined therefore, identification of seventeen persons would be extremely difficult. This reason, coupled with the fact that the only independent witness turned hostile, and two other eyewitnesses who were independent were not examined, would certainly create a large hole in the prosecution story. Apart from this, the very fact that there were injuries on three of the accused party, two of them being deep injuries in the skull, would lead to the conclusion that nothing was premeditated and there was, in all probability, a scuffle that led to injuries on both sides. While the learned counsel for the respondent may be right in stating that the trial court went overboard in stating that the complainant party was the aggressor, but the trial court's ultimate conclusion leading to an acquittal is certainly a possible view on the facts of this case. This is coupled with the fact that the presence of the kingpin Sarpanch is itself doubtful in view of the fact that he attended the Court at some distance and arrived by bus after the incident took place."
24. By applying the abovesaid principles and the evidence on record in the case on hand, we are of the considered view that having regard to material contradictions which we have already noticed above and also as referred to in the trial court judgment, it can be said that acquittal is a "possible view". By applying the ratio as laid down by this Court in the judgments which are stated supra, even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged. From the evidence, it is clear that when the Inspecting Officer and other witnesses who are examined on behalf of the prosecution, went to the office of the appellant-accused, the appellant was not there in the office and office was open and people were moving out and in from the office of the appellant. It is also clear from the evidence of PWs 3, 5 and 11 that the currency and cellphone were taken out from the drawer of the table by the appellant at their instance. There is also no reason, when the tainted notes and the cellphone were given to the appellant at 5.45 p.m. no recordings were made and the appellant was not tested by PW 11 till 7.00 p.m."
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NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined
12. So far as the evidence of the complainant is concerned, he has not supported the version of the prosecution and declared hostile. So far as the evidence of the panch witness is concerned, he in his cross-examination has admitted that he was called upon by the trapping officer on specific instruction and chosen as a panch witness. He has deposed that the muddamal currency notes seized from accused no.3 were placed in a cover, which was not sealed by the trapping officer. The panch witness in his cross-examination has admitted that the trap was laid at a public place and due to lot of traffic and noise, he has not heard any conversation which took place between the complainant and the accused. So far as the evidence of trapping officer is concerned, he in his cross-examination has deposed that he has not verified genuineness of the allegations made by the complainant and not conducted any investigation. He has further admitted that on four different occasions including the present offence, the panches were called from the Taluka Development Office.
13. On perusal of the entire evidence on record, it clearly transpires that there is no clear cut evidence regarding demand Page 24 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined of any illegal gratification by the accused. Mere recovery is only made from accused No.3, but for that purpose also, there is contradiction in the evidence of the witnesses. It transpires that the acceptance of the amount is also doubtful. The fact which emerges from the evidence on record does not inspire any confidence for connecting the accused with the alleged crime. The ingredients of demand and acceptance are missing in the present case. The evidence on record is not sufficient to connect the accused with the alleged crime.
14. I have perused the original record and proceedings of the case and the evidence on record. I have gone through the impugned judgment and order of acquittal passed by the Trial Court. It appears that the prosecution has examined complainant, panch witness and trapping officer and except these three witnesses, no any other witnesses has been examined by the prosecution to prove the case beyond reasonable doubt. There are three opinion required to be considered while exercising the power under Section 378(1)(3) of the Criminal Procedure Code against the impugned judgment Page 25 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined and order of acquittal (i) whether there is any perversity or illegality or infirmity found in the impugned judgment and order, ifany then after considering the oral as well as documentary evidence, recording demeanor of the witnesses and considering the arguments advanced by both the sides, the Court can exercise the power (ii) whether the Trial Court has committed an error while appreciating the evidence of the prosecution witnesses, does prosecution witness have deposed to prove the charge levelled against the accused beyond reasonable doubt or not and if the charge is proved against the accused then in that case, whether the Court has committed any error or not; (iii) whether the Trial Court has committed any error while following principles of law or has committed any error while appreciating the ratio laid down by this Court or Hon'ble Supreme Court in the light of the facts of the case of the accused or not. Under the circumstances, the Appellate Court can interfere and entertain the appeal filed by the State against the judgment and order of acquittal. Herein the present case, I am of the opinion that neither of the circumstances which led to the fact that there is any requirement to alter the findings recorded by the Trial Court Page 26 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined after evaluating the evidence led by the prosecution and after considering the arguments advanced by all the parties in consonance with the settled principle of law and fact, the Trial Court has rightly recorded the findings in favour of the accused. While examining the evidence of the witnesses, it appears that the evidence of the panch witness, which has been relied upon by the learned Additional Public Prosecutor is not trustworthy and reliable and his evidence is not beyond the scope of Section 3 of the Indian Evidence Act. In the examination-in-chief, the panch witness has deposed that earlier, he never attended any proceedings and in the cross-examination, he has admitted that he went as panch witness in earlier proceedings / trap, which was not succeeded but he stood as panch in the trap. Therefore, it appears that the panch witness was very much aware of the process of the trap, however, he was not telling truth before the Court and hence the Trial Court has rightly disbelieved the evidence of the panch witness i.e. P.W.2. The quality of the witness is also one of the basic consideration while evaluating the evidence of the witnesses. Now, while appreciating the evidence of the panch witness i.e. P.W.2 in the present case, it is Page 27 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined appears that the evidence of the panch witness is not trustworthy and reliable and even quality of such evidence cannot be referred to and relied upon. The trapping officer examined who recorded the FIR, drew the panchnama, carried out the initial investigation and subsequently, handed over the investigation to the Investigating Officer, who has filed the charge-sheet. The trapping officer in his evidence has categorically admitted that he has not verified the fact that such demand was made by the accused or not and he has simply recorded the FIR and arranged the trap on the basis of such information. The method of investigation is also looked into, as the trapping officer himself has chosen the panch witness only in one offence, however, he has selected the very same witness as panch witness as many as 4-5 occasions. On perusal of the evidence of P.W.2 and P.W.3, it appears that the trapping officer has selected panch witness from the one office only which creates doubt and, therefore, the Trial Court has right observed that in such circumstances, if the trapping officer selected the panch witness from the one office or one particular department then for conducting the raid or trap is creating doubt and, Page 28 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined therefore, the Trial Court has rightly relied upon the decision of this Court in the case of Kishorchand Mansukhlal Joshi Vs. State of Gujarat reported in 1985 GLH 103 wherein this Court has observed that in case of corruption, the evidence of panch witness and the complainant is very material and important. The evidence of the panch witness is required to be some more care and caution to appreciate the evidence. Time and again, the Hon'ble Supreme Court has considered the quality of the evidence and not quantity of the evidence more particularly sterling quality of the witness who can certainly be referred to and relied upon evidence while passing the final order. In the present case, the evidence of the P.W.2 creates serious doubt and the story put forward by the prosecution goes to the route of the matter and, therefore, the Trial Court has rightly considered the evidence of the P.W.2 and P.W.3, while passing the impugned judgment and order which is absolutely perverse and settled principles of law and there is no any infirmity or illegality in the impugned judgment and order of the Trial Court. Now, it is well settled that once the findings recorded after appreciating the evidence and considering the arguments, the Court has Page 29 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined come to the conclusion and passed the order of acquittal which is presumption of innocence was already established before the Court by the accused and in normal circumstances this presumption cannot be brushed aside.
15. It is worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415. The relevant paragraph of the decision of the Hon'ble Supreme Court in the case of Chandrappa (supra) reads as under:-
"The following general principles regarding powers of 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 curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize 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.Page 30 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023
NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined (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 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."
16. It would be worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116 wherein the Hon'ble Supreme Court has held and observed in paragraphs No.151 and 153 as under:-
"151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court.
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :Page 31 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023
NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade V/s. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made : [SCC para 19, p. 807 : SCC (Cri.) p. 1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
16. It is also worthwhile to refer to and relied upon the decision of the Hon'ble Supreme Court in the case of C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala reported in 2010 (1) GLH 142 : (2009) 3 SCC 779. The relevant paragraphs of this decision reads as under:-
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NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined "It is well settled that the presumption to be drawn under Sec. 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross- examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification.
It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Sec. 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt.
["It is well established that where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence of proof his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Sec. 4 under the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur verdict of guilt. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden shifts to prosecution which still has to discharge its original onus that never shifts, i.e.; that of establishing on the whole case the guilt of the accused beyond a reasonable doubt. " (See Jhangan V/s. State, 1966 3 SCR 736). (Emphasis supplied)]"
17. Even otherwise, considering the ratio laid down by the Hon'ble Supreme Court as well as this Court in the case of A. Subair Vs. State of Kerala, reported in (2009) 6 SCC 587, State of Kerala and another Vs. C. P. Rao, reported in Page 33 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined (2011) 6 SCC 450 and Neeraj Datta Vs. State (Govt. of N.C.T. of Delhi) reported in AIR 2023 SC 330, this Court is of the opinion that the present appeal being meritless deserves to be dismissed.
18. On perusal of entire evidence on record and on re- appreciating the evidence, it clearly transpires that the prosecution has miserably failed to prove all the three ingredients of the offences of corruption viz. namely demand, acceptance and recovery. The evidence on record is not sufficient to connect the accused with the alleged crime. The prosecution failed in establishing the guilt of the accused beyond reasonable doubt that the respondents - accused received any gratification.
19. On perusal of the impugned judgment and order of the learned Special Judge, it clearly transpires that the learned Special Judge has taken into consideration all the facts while acquitting the accused. It also appears from the impugned judgment and order that the learned Special Judge has appreciated the entire evidence in its true perspective and has Page 34 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023 NEUTRAL CITATION R/CR.A/2664/2005 JUDGMENT DATED: 29/08/2023 undefined come to the right conclusion in acquitting the accused. The impugned judgment and order of the learned Special Judge is not perverse one and it is based on the evidence on record. The same does not warrant any interference at the hands of this Court and the same is sustainable in the eyes of law. This Court is in complete agreement with the impugned judgment and order of the learned Special Judge.
20. For the foregoing reasons, the present appeal is devoid of merits and it deserves to be dismissed. Resultantly, it is dismissed. The impugned judgment and order dated 10.06.2005 passed by the learned Special Judge, Fast Track Court No.5, Bharuch in Special Corruption Case No.15 of 2000 is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 35 of 35 Downloaded on : Sun Sep 17 02:52:20 IST 2023