Gujarat High Court
Poonambhai Khodabhai Vaghri vs State Of Gujarat on 8 April, 2015
Author: N.V.Anjaria
Bench: N.V.Anjaria
R/CR.RA/557/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 557 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any order
made thereunder ?
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POONAMBHAI KHODABHAI VAGHRI....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR HARSHIL DATTANI FOR MR P P MAJMUDAR, ADVOCATE for the
Applicant(s) No. 1
MR KP RAVAL, LD. APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 08/04/2015
CAV JUDGMENT
Page 1 of 10
R/CR.RA/557/2014 CAV JUDGMENT
The challenge in the present Revision Application is addressed to judgment and order dated 05th September, 2014 passed by learned Additional Sessions Judge, Anand in Criminal Appeal No.13 of 2012, which arose from judgment and order passed by the trial court in Criminal Case No.739 of 2011.
2. In the aforesaid criminal case, the applicant-accused No.1, amongst the three accused persons, was tried for the offences punishable under Sections 465, 467, 471,120-B and 114 of the Indian Penal Code. Learned Judicial Magistrate (First Class), Petlad convicted all the three accused, including the applicant herein, and sentenced them. The applicant came to be convicted for the offences under Section 465 read with Section 114 read with Section 120-B, IPC and came to be sentenced to undergo two years simple imprisonment and to pay fine of Rs.03,000/- and on default of payment of fine, to undergo imprisonment for further two months. Conviction was recorded for the offences under Section 467 read with Section 114 read with Section 120-B, IPC and the sentence imposed was three years simple imprisonment, fine of Rs.03,000/- and two months' default imprisonment. In respect of conviction under Section 471 read with Section 114 read with Section 120-B, IPC, the same sentence and fine with default clause as was imposed for Section 465, IPC, was imposed. All the sentences were to be undergone concurrently with benefit of set- off, it was ordered. In the appeal before the Sessions Court, the conviction and sentence was modified. The conviction and sentence under Sections 465, 467 and Page 2 of 10 R/CR.RA/557/2014 CAV JUDGMENT 471, IPC were maintained, but conviction under Section 120-B, IPC was set aside.
3. The basic facts and the prosecution case may be usefully noted. As already stated, tehre were in all three accused who were tried for the said offences in the Criminal Case No.739 of 2011. It was pursuant to First Information Report being Crime Register No.I- 75 of 2010 registered at Sojitra Police Station for the offences punishable under Sections 465, 467, 471, 120-B and 114, IPC. The allegations were that land bearing Block No.636 in the sim of village was with the complainant's father under the Tenancy Law in capacity of tenant; the original ownwer of the land was one Navinbhai Harmanbhai Patel. The applicant herein-accused No.1 Poonambhai Kohdabhai Vaghari told and threatened the complainant that original owner Navinbhai had executed a Will; that it was later noticed that accused No.1 Poonambhai had created bogus Will and fabricated death certificate of the original owner; by forging documents including revenue record, conspired to grab the land. It was alleged that on the basis of such documents, finance was also obtained.
4. Learned advocate Mr.Dattani for learned advocate Mr.P.P. Majmudar for the applicant raised various grounds set out in the Memorandum of Appeal and assailed to impugned judgment and order of the Sessions Court. It was submitted that the original Will was not produced and that the applicant came to be acquitted for offence under Section 201 IPC. Learned advocate further referred to certain aspects Page 3 of 10 R/CR.RA/557/2014 CAV JUDGMENT from the cross-examination of the complainant by submitting that the original complainant was not able to state as to when his father got the land under the Bombay Tenancy and Agricultural Land Act, 1948. The evidence of Investigating Officer (Exh.50) was relied on to submit that even from his evidence, it was not established that the false document was created by the applicant.
4.1 Learned advocate for the applicant further submitted that the other two accused persons who were tried along with the applicant also preferred their respective Appeals before the Sessions Court. The Sessions Court acquitted them from the offences in question. It was therefore submitted that the conviction recorded against the applicant may not be allowed to sustain. It was submitted that applicant has been acquitted of offence under Section 120-B, IPC.
4.2 On the other hand, learned Additional Public Prosecutor Mr.K.P. Raval supported the impugned judgment and order. He submitted that both the Courts below reached concurrent finding and held the offences under Sections 465, 467, 471, IPC, proved against the applicant. Learned APP thereafter submitted that the scope of revisional powers of this Court under Section 397, Cr.PC does not extend to appreciate the evidence and unless a patent error of law or irregularity in appreciation of evidence resulting into denial of substantial justice was noticed, the impugned judgment may not be interfered with.
Page 4 of 10 R/CR.RA/557/2014 CAV JUDGMENT5. Having considered the facts of the case, submissions of learned advocates for the parties, and the impugned judgment, it may be recorded that the Trial Court convicted the applicant for the offences under Section 465, 467, 471 read with Section 120B of the Indian Penal Code. The allegation was about forgery committed by the applicant in creating the false Will of the original owner of the land and that on that basis, all the three accused acted with criminal conspiracy. Section 465, IPC, is about punishment for forgery, whereas Section 463, IPC, defines forgery to say that whoever makes any false document with intend to cause damage or injury to the public or to any person or to support any claim or title, to cause any person part with property or to enter a contract, expressed or implied, or acts with intend to commit fraud, is said to have committed forgery. Section 467 is about forgery of valuable Security, Will etc. Section 471 is an offence using as genuine a forged document. Section 120B provides punishment for criminal conspiracy. The criminal conspiracy is also defined.
5.1 As noted above, in the Criminal Case No.739 of 2011, in all three accused were tried together for the aforementioned offences. While the appeal preferred by the present applicant before the Sessions Court was numbered as Criminal Appeal No.13 of 2012, accused No.2-Laljibhai Gandabhai Shenva filed Criminal Appeal No.12 of 2012. Similarly, accused No.3-Mahendra preferred Criminal Appeal No.11 of 2012 before the Page 5 of 10 R/CR.RA/557/2014 CAV JUDGMENT Sessions Court, Anand. The said two criminal appeals by the co-accused came to be decided by separate judgments delivered by learned Additional Sessions Judge, Anand, being the same incumbent officer who decided Criminal Appeal No.13 of 2012 of the present applicant. In the two appeals decided as above on 05th September, 2014, learned Additional Sessions Judge, Anand acquitted accused Nos.2 and 3 of all the offences being offence under Sections 465, 467, 471, 120-B and 114, IPC. Present applicant-accused No.1 came to be acquitted in respect of offence under Section 120-B, IPC as per the judgment impugned in this Revision Application, while conviction and sentence for other offence under Sections 465, 467 and 471, IPC, were maintained by learned Additional Sessions Judge.
5.2 Therefore a situation emerges is that amongst three accused tried for same offences in respect of same set of facts, two of them have been acquitted of the offences in question. The same set of evidence governing the conviction and sentence or acquittal of the accused persons. As far as the present application is concerned, he is found not guilty of offence under Section 120-B, IPC that is in respect of criminal conspiracy. In light of this situation emerging, learned advocate for the applicant would legitimately contend that necessary effect would be that the applicant's conviction cannot stand; once the co-accused tried together with the applicant in respect of and for similar offence have been acquitted of all those offences and the charge for offence under Page 6 of 10 R/CR.RA/557/2014 CAV JUDGMENT Section 120-B, IPC against the applicant having been lifted and set aside, the conviction for the other offences deserves to be set aside. The submission could not be brushed aside lightly.
6. Even as the above situation arising, considering the impugned judgment of convicting the applicant with reference to the evidence on record, the prosecution case based on the complaint of Madhuben Khodabhai Solanki was inter alia that the accused persons had conspired to grab the land in question, which according to the complainant had come to her father under the tenancy rights. The case was that the applicant used to threaten her stating that her father had executed a Will in his favour. The Will was never executed and copy was fabricated, according to the allegations. It was also stated that name was sought to be mutated by the applicant by producing death certificate of the original owner which was also not genuine document. The complainant who filed complaint with her thumb impression thereon, stated that she knew all these facts from Ambalalbhai who happened to be her nephew and the complaint was filed.
6.1 Looking at the relevant evidence and the aspects emerging therefrom, the evidence of complainant Madhuben (Exh.6) or any other witness or evidence of the prosecution could not show in fortification as to in what manner and during which precise period the father of the complainant had got the land in question under the Tenancy Act. She stated that she was not able to say when the land was so Page 7 of 10 R/CR.RA/557/2014 CAV JUDGMENT received by her father. An aspect emerged from her cross-examination that her brother was suffering from Tuberculosis. In response to question she denied that their economic condition was stressful and further denied that they were in need of money and got Rs.04,00,000/- from applicant-accused No.1 Poonambhai and in return the land was given to Poonambhai. She admitted that house of the Poonambhai was situated on the land in question. The P.W. witness Samuben Solanki, sister-in-law of the complainant in her evidence (Exh.34) stated that his husband-brother of complainant never cultivated the land, he was agricultural labourer and he died of ailment of Tuberculosis after suffering for long time. She admitted that they were in need of money for the treatment. She denied that before the police she gave a statement that they had taken money from accused No.1 and that the accused No.1 had his shed/house on the land who was staying there and cultivating. Now, if the statement of the applicant recorded under Section 313, Cr.P.C. is seen, he has stated in his defence that complainant Madhuben and his brother were in need of money and having received the amount, the possession of the land was given to him. He requested time and again to get the land in his name. The circumstance figured out from the cross-examination of the complainant and the evidence (Exh.34) noted above was co-relatable to what the accused No.1 stated in his statement as above.
6.2 It further came into evidence including from evidence of Ambalal, nephew of complainant Page 8 of 10 R/CR.RA/557/2014 CAV JUDGMENT (Exh.20), who admitted that the applicant-accused had his small house on the land in question, and that there was also a bore-well on the land which was of the accused; evidence of Rajsingbhai Nathabhai (Exh.35) who had his land in the neighbourhood, Shanabhai Solanki (Exh.40) suggested the same thing. A conspicuous aspect emerged and highlighted by learned advocate for the applicant was that the alleged Will never came on record in its original, though the prosecution sought to vaguely suggest that the same was destroyed by the accused. It could be legitimately contend from the evidence of the Investigating Officer (Exh.50) that no serious attempt was made during the investigation to secure the original copy of the Will.
6.3 It further appears that during the trial, an application was made for getting opinion of hand- writing expert with reference to the hand writing on the disputed documents. The hand writing expert in his report (Exh.77) did not opine that the hand writing matched the hand writing of the accused.
7. Taking into account cumulative effect of all the aforesaid aspects and factors emerging from the evidence, coupled with the position that applicant has been acquitted from the charge of offence under Section 120-B, IPC and the co-accused have been fully acquitted from all the offences, the conviction and sentence recorded by the Sessions Court against the present applicant for the offence under Sections 465, 467 and 471, IPC cannot be sustained. The Revision Application deserves to be allowed.
Page 9 of 10 R/CR.RA/557/2014 CAV JUDGMENT8. Accordingly the present Revision Application is allowed. The impugned judgment and order dated 05th September, 2014 passed by learned Additional Sessions Judge, Anand in Criminal Appeal No.13 of 2012 is hereby set aside. Consequently the conviction and sentence recorded under the said judgment and order against the applicant stands annulled.
9. It was stated that applicant has been in jail. As a result of the above order, he shall be released from jail and set at liberty forthwith, if not required to be detained in any other offence.
10. Rule is made absolute.
Registry shall send back the Record and
Proceedings to the Court concerned.
Direct service is permitted.
(N.V.ANJARIA, J.)
Anup
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