Gujarat High Court
The vs Pranlal on 12 March, 2009
Author: K.S.Jhaveri
Bench: Ks Jhaveri, Z.K.Saiyed
CR.A/119/1994 12/ 12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 119 of 1994 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 ? ========================================================= THE STATE OF GUJARAT - Appellant(s) Versus PRANLAL ZAVERDAS DOSHI - Opponent(s) ========================================================= Appearance : MR RC KODEKAR, APP for Appellant(s) : 1, MR KR BRAHMBHATT for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 12/03/2009 ORAL JUDGMENT
(Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 30.04.1993 passed by the learned Special Judge, Court No.2, City Sessions Court, Ahmedabad, in Special Case No. 32 of 1990, whereby the respondent - accused has been acquitted of the charges leveled against him.
2.0 The brief facts of the prosecution case are as under:
2.1 It is the case of the prosecution that on 2nd November, 1985, one Akbarali Velsibhai Khoja lodged complaint with the Anti-corruption Bureau at Ahmedabad to the effect that on 17th July, 1985, his real sister Sugarabibi wd/o Kasamali Valibhai had died due to bullet injuries received by her during the Anti-Reservation riots which took place in Ahmedabad city and due to the bullet injuries sustained by her in the said police firing she succumbed to the said bullet injury instantaneously, for which a claim for compensation was lodged with the Government of Gujarat for her death and the deceased being the real sister of the complainant and a widow having no child, the complainant is entitled to claim and receive the compensation in the sum of Rs.20,000/- as announced by the Government under a scheme for granting such compensation to victim of police firing in the said riots. It is the case of the prosecution that for getting compensation from the Government the complainant started correspondence with the Office of District Collector, Ahmedabad. It is alleged that since last three months he has been attending the Ahmedabad Collectorate for the said purpose and nothing fruitful could be achieved. It is alleged that on 1.11.1985 a peon from the Collector Office had come to his place and stated that the complainant is called in the Collectorate and thereupon the complainant and his son Alirazak Akbarali had gone to the office of Mamlatdar (Relief) on the same day at 6.00 P.M. The accused (respondent herein) was in-charge of the payment of compensation to the next kins of the person who died in agitation. It is alleged that he was told by the accused that the complainant would be entitled to receive Rs.20,000/- as compensation from the Government and he is capable of getting the same sanctioned from the Government, provided the complainant promises the accused to make gratification of Rs.5,000/- in lieu thereof. The complainant told the accused that the amount demanded was too high and he cannot afford and, therefore, the accused agreed to accept Rs.3,000/- as gratification and the said sum would be deducted instantaneously from the compensation as and when the said amount is to be paid to him and for that the complainant should execute full receipt for Rs.20,000/-.
It is alleged that the complainant agreed to this proposition although he was never willing party to pay any such gratification. On 2.11.1985 he approached the A.C.B. Office and lodged complaint. The investigating Officer in-charge of A.C.B. took down said complaint, the I.O. immediately requisitioned the services of two panch witnesses and arranged for the raid of the accused in Ahmedabad Dictrict Collectorate. The complainant along with his son and one decoy panch witness was advised to proceed with further by going to the accused whereas the investigating Officer, along with another panch witness waited out-side the office so as to carry out the raid after getting signal from the panch who accompanied the complainant into the office. At last the complainant in the company of decoy panch witness reached the table of the accused, who again asked the complainant to bring one panch witness for drawing the panchnama whose signature were to be obtained for making the payment of compensation of Rs.20,000/-. The accused obtained receipt for Rs.20,000/- and allegedly paid Rs.17,500/- stating that Rs.500/- may be required to be paid to the lawyer, viz. as against Rs.3,000/- originally demanded as gratification the accused allegedly collected Rs.2,500/- from the compensation amount of Rs.20,000/- after obtaining signatures of complainant and the panch witness (who signed it in fictitious name) along another witness as witnesses of making payment of compensation. Thus, it is alleged that the accused has accepted illegal gratification of Rs.2,500/- from the complainant. After that the complainant went out and gave the pre-arranged signal to the raiding party who were waiting out-side the office. On receiving such signal the A.C.B. raiding party reached the spot and the amount of Rs.17,500/- received by the complainant from the accused was recovered from him along with Rs.12,540/- which were recovered from the accused which includes the alleged gratification amount of Rs.2500/-. Thereafter, the complaint was registered and the investigation was set in motion. On completion of investigation relevant papers were transmitted to the competent Authority for obtaining sanction to prosecute the accused. Though the accused has since October 31, 1987, was going to retire from Government service, the requisite sanction has been obtained for prosecuting the accused for the aforesaid offence. Ultimately the charge-sheet against the accused came to be submitted on 17.9.1990, after obtaining the sanction on 22.4.1990, by which the accused was sought to be charged for the alleged offence under Section 161 of I.P. Code and under Section 5(1)(d) and Section 5(2) of the Prevention of Corruption Act, 1947.
2.2 Thereafter the charge was framed by the learned Special Judge, against the accused respondent. The accused pleaded not guilty to the charge and claimed to be tried. Thereafter, the trial was conducted against the respondent. The prosecution has examined in all 03 witnesses and relied upon the documents to prove the case against the respondent accused. Thereafter, the statement of the accused under Section 313 Cr. P. C. was recorded in which also the accused denied the charges leveled against him. After considering the oral as well as documentary evidence and after hearing arguments on behalf of prosecution and the defence, the learned Special Judge, Court No.2, City Sessions Court, Ahmedabad, has acquitted the accused of the offences alleged against him.
2.3 Being aggrieved by and dissatisfied with the Judgment and Order dated 30.04.1993 passed by the learned Special Judge, Court No. 2, Ahmedabad in Special Case No.32 1990, the appellant State has filed this Appeal.
3.0 Heard learned APP Mr. Kodekar on behalf of appellant State. He has also taken us through the papers of R & P. It was contended by learned APP that the judgment and order of the learned trial Judge is against the provisions of law; the learned Judge has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the ingredients of the commission of offence by leading evidence against the present respondent - accused. Learned APP has also taken this court through the oral as well as the entire documentary evidence. Learned APP has contended that the learned Judge ought to have considered the fact that the complainant had no enmity or grudge against the accused and he was so harassed by the accused that he had no option but to file complaint against the accused with A.C.B.; and that the learned Judge ought to have considered the fact that the Panch, who is an independent witness has fully supported the case of the prosecution. He also contended that looking to the seriousness and gravity of offence the learned Judge should not have adopted casual, callous and routine approach. He, therefore, submitted that the Judgment of learned Judge is erroneous and bad in eye of law.
4.0 In this case, Records & Proceedings from the trial Court is received. We have gone through the Judgment of the trial Court. We have also perused the reasons assigned by the learned Special Judge. We have also gone through the papers from Records & Proceedings. After perusing the Records & Proceedings we found that the learned Judge has not committed any error in the Judgment. Apart from that the learned Judge in Para 8 & 9 of the Judge has observed that incident is of 2.11.1985 whereas the charge-sheet in the case has been submitted against the accused as late as on 17.9.1990 i.e. after a lapse of almost five years. This is too inordinate delay, although it is another point that there is no bar of limitation. This also depicts the lethargy exhibited by the P.I. in the case. It is not explained by the prosecution as to why it took such a long time for the P.I. to submit the charge-sheet. It is also to be noted that in between on 31st October, 1987, the accused retired from Government service too. As per the details given by the Additional P.P. the I.O. sent the investigation papers to the competent authority through the A.C.B. Directorate for obtaining sanction on 9.4.1989, viz. on the date when the accused was already retired from the service. When he retired, there was no question of obtaining any such sanction at all. This lethargy on the part of the P.I. is not explained at all. The learned Judge has also observed in Para 9 that ........The resultant effect was that at the time of framing the charges against the accused, for want of materials, no charge could be framed against him under Section 5(1)(e) of the P.C. Act, 1947. On the contrary it was in answer to court's query as to what documents were seized by the P.I. apart from the amount seized from the office of the accused and that such startling and revealing information came out pursuant to which a box was produced containing certain securities and documents as stated above. When the I.O. was put the question as to why these facts were suppressed from the Court, his say was that for the purpose sanction was necessary for the Superintendent of Police as per Section 17 of P.C. Act, 1988. However, the fact remains that the alleged offences against the accused relate back to 2.11.1985 and hence P.C. Act, 1988 would not govern the subject and it is only the P.C. Act, 1947, which would have application to this case, and that being so no such sanction would be necessary. This again depicts the absolute lack of knowledge and expertise on the part of the P.I. in dealing with such serious crimes. Thus, it seems that the P.I. has deliberately neglected his duty which has resulted in floppy investigation in a very serious case. It is really shocking that on one hand A.C. Bureau should profess that it is striving to weed out corruption as soon as possible in the public offices, whereas its own senior officer should show this much lethargy and neglect in his paramount duty.
4.1 Therefore, in our view, the learned trial Judge has not committed any error in the impugned Judgment.
5.0 At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006)6 SCC, 39, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:
54.
In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.
5.1 Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 415 the Apex Court laid down the following principles:
42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
[1] An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
[3] Various expressions, such as, substantial and compelling reasons , good and sufficient grounds , very strong circumstances , distorted conclusions , glaring mistakes , etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
[4] An appellate court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
5.2 Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
5.3 Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:
16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgement delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record.
A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.
5.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
5.5 It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgement or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under:
& This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.
5.6 Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.
6.0 We have gone through the judgment and order passed by the trial court.
We have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned A.P.P. for the appellant. The trial court has, after observing the above, clearly recorded a finding that no offence is proved to have been committed by the accused either under Section 161 of the I.P. Code or under Section 5(1)(d) of the Prevention of Corruption Act, 1947.
6.1 Apart from that the prosecution has not proved its case beyond reasonable doubt. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. Mr. Kodekar learned APP is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.
7.0 In above view of the matter, we are of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him. We find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
7.1 We are, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed.
8.0 In view of above the Appeal is dismissed. The judgment and order dated 30.4.1993 passed by the learned Special Judge, Court No.2, City Sessions Court, Ahmedabad in Special Case No.32 of 1990, acquitting the respondent-accused is hereby confirmed. Bail bonds, if any, shall stand cancelled.
(K.S.JHAVERI,J.) (Z.K.SAIYED, J.) sas