[1] The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the Judgment and order of acquittal dated 15.09.1997 passed by the learned Special Judge, Panchmahals at Godhra, in Special (Corruption) Case No.11 of 1993, whereby the learned Judge has acquitted the respondent – accused from the charges levelled against him.
[2] The brief facts of the case of prosecution are that complainant Hirabhai Meghabhai, resident of Village : Methan, Taluka : Limkheda, District: Panchmahals had 7 acres of land, out of which about 2 acres of land was sold to one Parsing Narsing by Motibhai, the brother of the complainant Hirabhai, before about 10 years. Since then, the said piece of land is cultivated by said Parsing Narsing. The complainant had an impression that the land handed over to the said Parsing Narsing was having area more than 2 acres and, therefore, since last three years, some arguments regarding measurement thereof was taking place, but said Parsing Narsing did not show any inclination to do so and therefore the complainant had told his son Laxman to cultivate the excess land resulting into the complaint filed by Parsing Narsing in Randhikpur Outpost against the complainant and his son. It is alleged in the complaint that the accused who was serving as Head Constable in Randhikpur outpost, had called him and his son on last Tuestday (before the date of complaint 19.10.1992) and had made them to sit in the outpost. The accused also threatened them that there is evidence that the land was sold by them and therefore they would have to go in jail and that he would not release them. The complainant had requested the accused who demanded an amount of Rs.500/- from him. It is also alleged in the complaint that he apprehended that the accused would imprison them on the same day and therefore, he gave Rs.400/- to the accused and some writings were prepared and thereafter they were released. It is also alleged in the complaint that the accused had told to give the remaining amount of Rs.100/- within one week and only on payment of that amount, everything will be over. It was apprehended by the complainant that if he would not pay the remaining amount of Rs.100/-, the accused would harass him again. It is alleged that the complainant, however, was not willing to pay such amount and hence, the complainant lodged complaint against the accused – respondents for the offences punishable under Sections 7 and 13 (1) (d) read with section 13(2) of the Prevention of Corruption Act, 1947 against the accused before the A.C.B Office, Godhra on 19.10.1992.
[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 respondent – accused from the charges levelled against him.
[5] Being aggrieved and dissatisfied with the Judgment and order passed by the Special Judge the appellant – State has preferred the present Appeal.
[6] Heard learned A.P.P. on behalf of the appellant – State. Learned APP has contended that the prosecution has successfully proved the demand, acceptance and recovery of bribe amount, but the learned Judge has observed that the prosecution has not proved the demand, acceptance and recovery. She has contended that the complainant, panch witness No.1 and Investigating Officer have supported the prosecution case. 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] Learned advocate for the respondent has supported the judgment and order of the trial Court and contended that looking to the facts of the case the learned Judge has rightly not believed the case of the prosecution and, therefore, no interference may be called for. He has contended that there are material contradiction which are already proved from the oral version of the Investigating Officer. He has contended that the conduct of the complainant has created some doubt. He has contended that in the case of corruption, demand and acceptance is required to be proved beyond reasonable doubt. He has contended that when demand, recovery and acceptance is not proved by the prosecution, the learned Judge has not committed any error in acquitting the respondent from the charges levelled against him. He has therefore prayed that the present appeal deserves to be dismissed and the impugned judgment and order deserves to be confirmed.
[8] 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 Special Judge 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 judgement 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.”
[9] 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.”
[10] 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.
[11] 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.”
[12] 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.
[13] It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment 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.”
[14] 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.
[15] 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 advocate for the respective parties. 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 respondent in his 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 respondent of the charges levelled against him. 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. The learned Special Judge has observed in paragraph No.45 which reads as under:-
“45. In view of what is stated above, it becomes clear to this court that the charges levelled against the accused have not been brought home successfully by the prosecution and therefore the accused deserves to be acquitted. This Court does not see any reason to repeat the main points which are going against the prosecution because they are well discussed above. However, in order to show as to mainly on which the accused has been acquitted, it is necessary to reproduce and they are as under :-
* The prosecution case regarding the first incident dated 13.10.1992 is not established. It is proved that there was no demand or acceptance of the amount of Rs.400/- as alleged on that day in the outpost by the accused because the accused is proved to be present at Limkheda Government Hospital on that day.
* It is also clear that the writings (panch karar) categorically show that it had already taken place in the presence of Sarpanch Bhurabhai who has not uttered a single word or regarding the presence of the accused in the outpost and demand of bribe etc.
* The other persons who had accompanied the complainant on that day to go to the accused in the outpost have not been examined.
* The complainant was not told by the accused the date and the time about the payment of remaining amount of bribe.
* The complainant had no idea what to do and in face, he has improved his story regarding the demand one cock from him by the accused.
* He has also tried to say that there was no direct demand from him by the accused, but one of the neighbours had told him that the accused had demanded one cock and Rs.100/-.
* It was Ramsinghbhai Ravat who had accompanied the complainant, when the complainant went to lodge the complaint in aCB Office. This Ramsinghbhai had grievance against the accused Head Constable because latter had requested for “B” summary in a complaint filed by Ramsingbhai.
* There was no recovery of currency notes from the accused and it is also note the prosecution's case that they were recovered from him. The notes were lying on the towel which was lying just near the complainant and the panch No.1, P.W.1, Natvarbhai has admitted that he did not know as to where the hands were moving.
* There was no reason for the accused to demand money from the complainant because the settlement of the dispute had already taken place and the terms were reduced in to writing in presence of the panchas and Sarpanch. According to the terms the complainant was supposed to handover the possession in next ensuing May 1993. Under these circumstances, the accused was not in a position to arrest the complainant in future.
* There was no signature on any of the documents alleged to have been recovered by the I.O. Mr. Pathan from the outpost. It, therefore, established that the accused had never obtained any complaint against the complainant.
* There is contradictory evidence in respect of the panch and the complainant regarding going in the outpost and coming out twice without waking – the accused who was admittedly sleeping on a cot because he was sick.
[16] 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.
[17] 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.
[18] 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.
[19] 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.
[20] In view of above the Appeal is dismissed. The judgment and order of dated 15.09.1997 passed by the learned Special Judge, Panchmahals at Godhra, in Special (Corruption) Case No.11 of 1993 acquitting the respondent – 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