[1] The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the Judgment and order of acquittal dated 12.01.1994 passed by the learned Special Judge, Godhra, in Special Case No.5 of 1990, whereby the learned Special Judge has acquitted the respondent – accused from the charges levelled against him.
[2] The brief facts of the case of prosecution are that Vijaysinh Anopsinh Gohil of Kandach Village, Taluka : Kalol, District :
Panchmahal was doing business of distributing films (movies) on rental basis since 1990, in the name and style of “Divi Films”. It is alleged in the complaint that he was getting films from Baroda and Ahmedabad and was arranging the show of these films in different villages. He had all materials of business including projector. It is alleged in the complaint that on 01.01.1990, his Assistant Dahyabhai Somabhai Patel had gone to Vyasada for exhibiting the film – Jay Ranchhod, for the period from 9 p.m to 12 p.m. He started the exhibition of the said film. During the said show, the Head Constable of Adadara Outpost came there and detained two reels of that film and took away those two reels with him. He told the operator to send his master along with money. Therefore, he approached the Adadara Police Outpost in the morning, but the Head Constable was not available there. Therefore, he had gone to Kalol Police Station, where the Head Constable was not there. Hence, he returned to home. Therefore, the complaint was lodged against the accused for the offence under Sections 7, 13(1)(d), 13(2) of the Prevention of Corruption Act before the A.C.B Office, Godhra on 03.01.1990.
[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] 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 03.01.1990, while the complainant gave his deposition on 12.01.1994 after four years. Hence, there is some contradictions between what he stated in the FIR and his say after four years before the Court. She has contended that the learned Special Judge has committed in error in acquitting the respondent for the offences punishable under sections 7, 13(1)(d) and 12(2) of the Prevention of Corruption Act. She has contended that the learned Special Judge has committed an error in evaluating the evidence of complainant Vijaysinh at Ex.9, the evidence of PSI Rajesh Pathak at Ex.20 and evidence of Bariya at Ex.22. She has contended that the ingredients of sections 7, 13(1)(d) and 12(2) of the Prevention of Corruption Act is proved by the prosecution beyond reasonable doubt. She has contended that the learned Special Judge has committed an error in holding that the demand is not proved by the prosecution, it is submitted that evidence of raiding officer is trustworthy and reliable and their evidence could not have been rejected. She has contended that the demand, acceptance and recovery is proved by the prosecution beyond reasonable doubt. 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] The other side is served, but nobody is present.
[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. The learned Special Judge has observed that after completing the preliminary panchnama, raiding party started towards Adadara and they got down Nr.Tank, and from there, raiding party along with complainant had gone to the office of accused. The Learned Special Judge has further observed that the complainant asked the accused about his two reels and accused told him that the reels are to be sent to Kalol Police Station. During the process, the complainant put the notes in the drawer of table of the accused. It is clear from the evidence of panch No.1 that he is selected panch and ACB Office has called him many times as panch. Looking to the evidence as a whole, it is clear that demand of illegal gratification is not proved as the demand was made before Dahyabhai who was not examined by the prosecution. The accused had not made any demand from the complainant. It also appears that the evidence of the witnesses cannot be said to be reliable and trust worthy to convict the accused. From the evidence of the prosecution, it appears that bribe amount is recovered from the table of the accused and not from the possession of the accused. 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.
[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 12.01.1994 passed by the learned Special Judge, Godhra, in Special Case No.5 of 1990 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