[1] The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the Judgment and order of acquittal dated 15.12.1999 passed by the learned Special Judge, Panchmahal at Godhra, in Special (Corruption) Case No.4 of 1994, whereby the learned Judge has acquitted the respondents – accused from the charges levelled against them.
[2] The brief facts of the case of prosecution are that complainant – Parvat Mathur lodged a complaint against the respondents - accused on 30.08.1993 alleging that the accused while discharging his duty as police constable has demanded Rs.2,000/- as illegal gratification from the complainant and against the aforesaid amount Rs.1,500/- was given by the complainant and remaining amount of Rs.500/- was to be given during the raid. The aforesaid illegal gratification of Rs.500/- was accepted by the accused No.1 and accused No.1 gave it to accused No.2 in presence of panch witnesses which was accepted as illegal gratification. Therefore, the complaint was lodged against the accused for the offence under Sections 7, 13(1)(D) and 13(2) of the Prevention of Corruption Act before the A.C.B Office, on 30.08.1993.
[3] Thereafter, the concerned officer, after completing the necessary procedure arranged the trap. The raid was carried out and the respondent accused was caught red-handed. After completion of investigation, the charge-sheet is filed. Thereafter, the charge was framed against the respondent – accused. The respondent – accused pleaded not guilty to the charge and claimed to be tried.
[4] To prove the case against the accused, the prosecution has examined the witnesses and relied upon certain documents. At the end of trial, after recording the statements of the respondents – accused, under Section 313 Cr. P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Special Judge vide the impugned Judgment and order, has acquitted the respondents – accused from the charges levelled against them.
[5] Being aggrieved and dissatisfied with the Judgment and order passed by the Special Judge the appellant – State has preferred the present Appeal.
[6] Learned APP has contended that the learned Judge has given undue importance to the minor contradictions in the evidence of the complainant forgetting that the FIR was lodged on 30.08.1993, while the complainant gave his deposition on 06.10.1998 after five years. Hence, there is some contradictions between what he stated in the FIR and his say after five years before the Court. She has contended that the learned Judge ought to have seen that the respondents accused while discharging his duty as police constable has demanded Rs.2,000/- as illegal gratification from the complainant and against the aforesaid amount Rs.1,500/- was given by the complainant and remaining amount of Rs.500/- was to be given during the raid. The aforesaid illegal gratification of Rs.500/- was accepted by the accused No.1 and accused No.1 gave it to accused No.2 in presence of panch witnesses which was accepted as illegal gratification other than legal remuneration in performing his duty as public servant and thereby committed offence under sections 7, 13(1)(D) r/w. section 13(2) of the Prevention of Corruption Act. She has contended that the learned Judge has committed an error in holding that use of anthrecene powder has been disapproved by the Hon'ble Supreme Court in many cases and thereafter in subsequent cases by this Court even though the same is used by the prosecution. She has contended that the learned Judge has committed an error in holding that in the present case raid was carried out by P.I. Shri Pande and investigation is also carried out by the P.I., therefore, no independent investigation is done in the case, if the investigation is carried out by the raiding officer, generally they are trying to make the raid successfully and therefore prosecution is doubtful. She has contended that the prosecution has proved its case beyond reasonable doubt and the judgment and order of the Special Judge is required to be quashed and set aside. It has been contended by the learned APP that the Judgment and order of the Special Judge is against the provisions of law; the Special Judge has not properly considered the evidence led by the prosecution and looking to the provisions of law, it is established that the prosecution has proved all the ingredients of the evidence against the present respondents. Learned APP has also taken this Court through the oral as well as the entire documentary evidence.
[7] Though served, nobody appears on behalf of the respondents – accused.
[8] 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.”
[9] 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.
[10] 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.”
[11] 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.
[12] I have gone through the judgment and order passed by the Special Judge. I have also perused the oral as well as documentary evidence led before the Special Judge and also considered the submissions made by learned APP for the appellant - State. Looking to the facts and circumstances of the case, three ingredients i.e demand, acceptance and recovery are completely lacking in the present case. So far as the demand, acceptance and recovery are concerned, the panch witness who is a public servant, examined by the prosecution, has disclosed before the learned Judge that it is true that no demand is made by the respondents in their presence. It also appears that the evidence of the complainant and the panch witnesses are contradictory about the place where the first demand was made. Looking to the evidence, in present case, when the demand is not proved and recovery is also not proved, then the learned Judge has not committed any mistake in not believing the case of the prosecution. Looking to the facts and circumstances and evidence on record, I am of the opinion that the learned Special Judge after appreciating the oral as well as documentary evidence has rightly acquitted the respondents of the charges levelled against them. The learned Special Judge has, after appreciating the oral as well as documentary evidence, has found that the witnesses have not supported the case of prosecution. The learned Special Judge has also found that there are serious lacunae in the evidence of the witnesses. Nothing is produced on record to rebut the concrete findings of the Special Judge.
[13] Thus, the appellant could not bring home the charge against the respondent – accused in the present Appeal. The prosecution has miserably failed to prove the charge levelled against the respondent – accused. Thus, from the evidence itself it is established that the prosecution has not proved its case as alleged against the accused beyond reasonable doubt.
[14] Learned APP is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Special Judge is vitiated by some manifest illegality or that the decision is perverse or that the Special Judge has ignored the material evidence on record.
[15] In above view of the matter, I am of the considered opinion that the Special Judge was completely justified in acquitting the respondent of the charges leveled against him. I find that the findings recorded by the Special Judge are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
[16] 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. Hence the appeal deserves to be dismissed.
[17] In view of above the Appeal is dismissed. The judgment and order of dated 15.12.1999 passed by the learned Special Judge, Panchmahal at Godhra, in Special (Corruption) Case No.4 of 1994 acquitting the respondents – accused of the offences charged against him is hereby confirmed. Bail bonds, if any, shall stand cancelled. Record & Proceeding may be sent back to the Special Judge.
[ Z. K. SAIYED, J. ] vijay