Gujarat High Court
State Of Gujarat vs Rajeshbhai Ramniklal ... on 20 March, 2015
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/663/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 663 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER
================================================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
================================================================
STATE OF GUJARAT....Appellant(s)
Versus
RAJESHBHAI RAMNIKLAL SANGANI....Opponent(s)/Respondent(s)
================================================================
Appearance:
MS MONALI BHATT, APP for the Appellant
MR AY KOGJE, ADVOCATE for the Opponent(s)/Respondent(s)
================================================================
CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 20/03/2015
ORAL JUDGMENT
1. The present appeal, under Section 378 of the Page 1 of 21 R/CR.A/663/2003 JUDGMENT Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 13.03.2003 passed by the learned Additional Special Judge, Second Fast Track Court, Amreli in Special Case No.28/1997, whereby the learned Trial Judge acquitted the original accused- respondents herein, of the charges for the alleged offences.
2. The brief facts of the prosecution case are that the complainant-J.G. Chavda, Police Inspector, Anti Corruption Bureau, Amreli received information to the effect that the local police and the staff of the R.T.O. are collecting entry fees from the vehicle owners passing on the roads of Bhavnagar, Talaja, Mahuva, Aschana Chokdi, Rajula, Nageshri, Timbi, Una Highways. According to the information, they were collecting entry fees illegally to the tune of Rs.10/- to Rs.300/- per vehicle, which were passing on the aforesaid roads. It is further case of the prosecution that The complainant, Page 2 of 21 R/CR.A/663/2003 JUDGMENT after verifying the said information, decided to arrange a trap on 13.08.1996. Accordingly, he met the local ACB PSI-Shri Pancholi and arranged the trap. It is further case of the prosecution that he called three persons; one to act as owner of the vehicle and two panchas. One Dilipbhai Natvarlal Brahman and Pravinkumar Amrutlal Darji was prepared to act as panchas. It is further case of the prosecution that one Damjibhai Shivabhai Nakia was selected to act as an owner of the vehicle. The first panchnama in this connection was drawn between 2:00 and 2:30 p.m. on the day of the trap. The accused accepted the amount of bribe of Rs.20/- from the person, who had acted as owner of the vehicle i.e. truck. However, on seeing the members of the raiding party, he threw away the amount and ran away from the place of the incident. However, the Police found that it was accused who had accepted the amount of bribe and disappeared from the scene of the offence. He was in his uniform. The amount was accepted as entry fees and also as overload Page 3 of 21 R/CR.A/663/2003 JUDGMENT charges. On these facts, a complaint being I-C.R No.6/1996 was lodged against the accused with ACB Amreli Police Station.
3. After completion of the investigation, the chargesheet was filed before the learned Magistrate Court. As the case was exclusively triable by the Court of Sessions, learned Magistrate Court under Section 209 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") committed the said case to the Court of learned Additional Special Judge, Second Fast Track Court, Amreli, which was, thereafter, numbered as Special Case No.28 of 1997. Since opponent- accused did not plead guilty and claimed to be tried, he was tried for the alleged offences.
4. At the time of trial, in order to bring home the charges leveled against the original accused, the prosecution examined 6 witnesses as well as the prosecution also produced 10 documentary evidences.
Page 4 of 21
R/CR.A/663/2003 JUDGMENT
5. At the end of the Trial and after recording the statement of the accused under Section 313 of Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, the learned Additional Special Judge, Second Fast Track Court, Amreli acquitted the accused of all the charges leveled against him. On completion of the trial, the Sessions Court passed the judgment and order acquitting opponent-accused.
6. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Sessions Court, the appellant-State has preferred the present Criminal Appeal.
7. Leaned APP submitted that the judgment and order of the Trial Court is against the provisions of law; 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 all the ingredients of alleged charges Page 5 of 21 R/CR.A/663/2003 JUDGMENT against the present respondent-accused. She has also relied on the evidence of the Investigating Officer-complainant and panchas. She further submitted that the trial was conducted against the accused pursuant to the charges against the accused. She further submitted that all the panchas have supported the case of the complainant and the complainant stated in his deposition that the demand was made by the accused-respondent. She further submitted that all the procedures were followed by the police personnel and the demand and acceptance were proved as stated by the complainant and accused accepted the bribe amount. She further submitted that the learned Trial Judge ought to have believed the evidence of panch no.1-Dilipbhai Natvarlal Brahman who was examined at Exh:11 and he clearly stated in his deposition that at the time of incident, the accused had received Rs.20/- as bribe from the witness who had acted as an owner of the truck, Damjibhai Shivabhai Nakia. She further submitted that the learned Page 6 of 21 R/CR.A/663/2003 JUDGMENT Trial Judge ought to have considered the fact that panch no.1 of the trap has given evidence as per the panchnama, which is at Exh:12 and therefore, the learned Trial Judge had committed a grave error in not believing the evidence of the said panch. She further submitted that the learned Trial Judge ought to have believed the evidence of witness Damjibhai Shivabhai Nakia, who was examined at Exh:15 and he stated in his deposition that the accused had demanded Rs.20/- as bribe and on giving the said amount, the accused had received and accepted it and therefore, the said witness has given the evidence supporting the evidence of panch no.1. She further submitted that the learned Trial Judge erred in not considering the fact that the demand, acceptance and recovery of the illegal gratification made by the accused are not proved. Learned APP has also taken this Court through the oral as well as the entire documentary evidence and submitted that the present appeal deserves to be allowed and the impugned judgment and order Page 7 of 21 R/CR.A/663/2003 JUDGMENT passed by the learned Trial Court is required to be quashed and set aside.
8. As against that, learned counsel for the respondent-accused submitted that the respondent- accused has never demanded the amount. The finding of fact cannot be found fault with. According to the learned counsel that very foundation of the fact that the accused was demanding money, is not correct. He further submitted that there are serious contradictions and there is no question of demand. He supported the judgment and order of the Trial Court submitting that the same was passed after appreciating the evidence adduced on record by the prosecution. Hence, no interference is called for with the same at the hands of this Court. He further submitted that the present appeal deserves to be dismissed and the impugned judgment and order passed by the learned Trial Court is required to be confirmed.
9. I have heard learned APP for the appellant- Page 8 of 21
R/CR.A/663/2003 JUDGMENT State and the learned advocate for the accused- respondent and perused the material on record.
10. The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR, (2006) 6 S.C.C. 39, the Apex Court has narrated 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."
11. 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; Page 9 of 21
R/CR.A/663/2003 JUDGMENT
"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."
12. Thus, it is a settled principle that while exercising appellate powers, even if two Page 10 of 21 R/CR.A/663/2003 JUDGMENT reasonable views/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.
13. Even in the case of STATE OF GOA Vs. 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."
14. Similar principle has been laid down by the Apex Court in cases of STATE OF UTTAR PRADESH VS. Page 11 of 21
R/CR.A/663/2003 JUDGMENT RAM VEER SINGH & ORS., 2007 A.I.R. S.C.W. 5553 and in GIRJA PRASAD (DEAD) BY L.R.s VS. STATE OF MP, 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.
15. In the case of LUNA RAM VS. BHUPAT SINGH AND ORS., reported in (2009) SCC 749, the Apex Court in Paras-10 and 11 has held as under;
"10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.
11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence."
16. Even in a recent decision of the Apex Court in the case of MOOKKIAH AND ANR. VS. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU, reported in AIR 2013 SC 321, the Apex Court in Para-4 has Page 12 of 21 R/CR.A/663/2003 JUDGMENT held as under:
"4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC573]"
17. It is also a settled legal position that in acquittal appeals, the Appellate Court is not required to rewrite 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 Page 13 of 21 R/CR.A/663/2003 JUDGMENT case of STATE OF KARNATAKA VS. HEMAREDDY, AIR 1981, SC 1417, wherein it is held as under;
"...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate 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."
18. In a recent decision, the Honble Apex Court in SHIVASHARANAPPA & ORS. VS. STATE OF KARNATAKA, JT 2013 (7) SC 66 has held as under;
"That appellate Court is empowered to re- appreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence."
19. 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.
20. I have gone through the judgment and order passed by the Trial Court. I have also perused the oral as well as documentary evidence led by the Trial Court and also considered the submissions made by learned APP for the Page 14 of 21 R/CR.A/663/2003 JUDGMENT appellant-State. The complainant no doubt has supported the case of the prosecution, however, from his evidence, it has nowhere brought out that there was a pre-demand by accused. The accused asked the amount towards entry fees. In view of the ratio laid in the case of M.R. Purushotham Vs. State of Karnataka (2015 Cri.L.J.
72), which will have to be applied to the facts of this case, the present criminal appeal deserves to be dismissed and the impugned judgment and order passed by the learned Trial Judge is required to be confirmed. The demand of illegal gratification by the accused has not been proved and some currency notes were handed over to the accused to make it as acceptance of gratification; prosecution has a further duty to prove that what was paid amounted to gratification and such a question does not rise for consideration in this case. In this case, it is not in dispute that the muddamal currency notes were not found from the possession of accused. There was no demand, acceptance and Page 15 of 21 R/CR.A/663/2003 JUDGMENT recovery of the amount from accused. The learned Trial Court, while discussing the issue in Paragraphs-22, 23 and 24 and on appreciation of evidence on record, has rightly acquitted the accused. It emerges that there is no perversity in the judgment. I am unable to accept the submission made by the learned APP that the judgment lacks appreciation of proper evidence and she has taken this Court through the grounds urged in the appeal. Therefore, this appeal deserves to be dismissed. Panchas have not supported the case of the complainant. As far as Section 7 of the Act is concerned, the possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7 of the Act. So far as the offence under Section 13(1)(d) of the Act is concerned, 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 Page 16 of 21 R/CR.A/663/2003 JUDGMENT established and the possession and recovery of currency notes from the accused without proof of demand will not bring home the offnece under Section 3(1)(d) of the Act. It is not proved that accused had made any demand. On going through the entire evidence, the finding of facts cannot be interfered with and cannot be said to be perverse. The judgment of the learned Trial Judge cannot be found fault with. The learned Trial Judge has given cogent and convincing reasons, more particularly, the main fact that the prosecution has examined several witnesses and it goes without saying that the accused is Government Servant. Some of the witnessess have turned hostile and they have not supported the case of the complainant. The charges levelled against accused have not been brought home by the prosecution successfully even before this Court. Learned APP has relied on the decision of this Court in the case of State of Gujarat v. Kalusinh Rahevar, reported in 2014(3) GLH 76 and requested that this Court should at least upturn the Page 17 of 21 R/CR.A/663/2003 JUDGMENT judgment of the Trial Court as he was found accepting the bribe money. It goes without saying that the learned Trial Judge, while dealing with the discrepancy which has come on record, has rightly discussed the same in the impugned judgment and order and the learned Trial Judge has very elaborately discussed that there was no acceptance. This takes this Court to the main aspect whether the accused had demanded and accepted the money and the said amount was recovered from his possession. The learned Trial Judge has given its finding in the impugned judgment and order. In Paras-22, 23 and 24 of the impugned judgment and order of the learned Trial Court, no case is made out against the accused. There is discrepancy in recording the evidence of complainant. The learned Trial Judge has, in my opinion, rightly acquitted the accused. Further, the place from where the currency notes were found, has been deliberately added. Further, the learned Trial Judge has rightly held that the complainant has improved his version which was Page 18 of 21 R/CR.A/663/2003 JUDGMENT never there in the complaint naming that he has given money to accused, which is concocted one. On the touchstone of the decision of the Apex Court in the case of Murlidhar alias Gidda and another vs. State of Karnataka, reported in AIR 2014 SC 2200, wherein parameters to interfere in acquittal appeals are reiterated, are kept in mind by this Court, and therefore, when there was no demand, no acceptance and no evidence against the accused, the present appeal deserves to be dismissed. I am fortified in my view by the decisions of the Honble Apex Court in the case of Muralidhar alias Gidda and another v. State of Karnataka reported in AIR 2014 SC 2200, and in the case of Satvir Singh v. State of Delhi thru CBI, reported in AIR 2014 SC 3798.
21. In light of the decision of this Court in the case of Bhanushankar Popatlal vs. State of Gujarat rendered in Criminal Appeal No. 463 of 1978, I do not find any merits in the submissions made by the learned APP to upturn the judgment of the Page 19 of 21 R/CR.A/663/2003 JUDGMENT learned Trial Judge. The impugned judgment being in consonance with the principles of Indian Evidence Act also cannot be found fault with. The documentary evidence on record will not permit this Court to take a different view than that taken by the learned Trial Judge. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the Trial Court. Even looking to the evidence on record, learned APP is not able to bring home the charge levelled against the accused and persuaded this Court to take a different view than that taken by the learned Trial Judge. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. Therefore, the present appeal deserves to be dismissed.
22. In the above view of the matter, I am of the considered opinion that the Trial Court was completely justified in acquitting the respondents of the charges leveled against them. Page 20 of 21
R/CR.A/663/2003 JUDGMENT I 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. I am, 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.
23. In the result, the present appeal is hereby dismissed. The impugned judgment and order of acquittal is confirmed. The respondent-accused is acquitted of all the charges levelled against him. R & P to be sent back to the Trial Court. Bail and bail bond, if any, stands cancelled. Surety also, if any given, stands discharged.
(K.J.THAKER, J) rakesh/ Page 21 of 21