[1] The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 28.02.1995 passed by the learned Special Judge, Ahmedabad, in Special Case No.13/1989, whereby the learned Judge has acquitted the respondents – accused from the charges levelled against him.
[2] The brief facts of the case of the prosecution are that on 19.06.1988, at Village : Nabhoi, Taluka Gandhinagar, some cows were entered into the field of Ramanji Maganji. When Ramanji was trying to take the cows from his field at that time, Bharwads were trespassing the fields of Thakors and thereupon, the quarrel took place between Bharwads community and Thakors community. Therefore, cross complaints were filed by two communities and the cognizable offence was registered against the Bharwad before Adajan Police Station. Bharwad community had also lodged the complaint against Laxmanji Maganji Thakor, Khodaji Nathaji, Ramanji Maganji. It is alleged that the accused No.1 investigated the offence, registered against the Bharwads. Accused No.2 was serving as writer of the accused No.1. According to the complaint lodged by Bharwads, all the three accused got gathered with 15-20 persons of Thakor community under the pretext that in furtherance of application given by the persons of Bharward community 21 persons of Thakor community are likely to be arrested, they collected bribe amount of Rs.200/- from each of the person of Thakor community. Accused No.1 took bribe amount of Rs.2,250/- i.e. Rs.150/- from 15 persons. At the same time, accused demanded Rs.150/- from Prabhatji and Shakraji Shivaji for not beating them and thus, they made demand of illegal gratification amount. Therefore, the complaint was lodged against the accused for the offence under Sections 161, 165A and 34 of I.P. Code and under Section 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1947 before the A.C.B Office, on 23.06.1988.
[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] I have heard learned A.P.P. on behalf of the appellant – State. I have also gone through the papers and also the Judgment and order of the Special Judge. Learned APP has contended that so far as the allegations against the accused are concerned, they have committed the offence punishable under sections 161, 165A and 34 of the Indian Penal Code and under Section 5(1)(d), 5(2) of the Prevention of Corruption Act and the prosecution has proved its case beyond reasonable doubt. She has contended that the learned Special Judge has not properly appreciated the depositions of the prosecution witnesses. She has also contended that the prosecution has proved the demand and acceptance of illegal gratification by the accused, but the learned Special Judge has not considered the same. Learned APP has contended that the learned Special Judge has given undue importance to the minor omissions and contradictions as major. Learned APP has contended that the learned Special Judge has not considered the deposition of the independent witness namely Laxmanbhai Thakore Kodaji Vaghela, Khodaji Nathaji Vaghela and also not considered the fact that there was enough corroboration to the complaint and to the deposition of the complainant. She has contended that the ingredients of Section 34 of the Indian Penal Code is also proved by the prosecution beyond reasonable doubt to the oral version of the panch witnesses. She has contended that the learned Special Judge has wrongly observed that the demand is not proved by the prosecution. She has contended that the prosecution has proved its case beyond reasonable doubt and the judgment and order of the learned 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 learned Special Judge is against the provisions of law; the learned 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. She has contended that there are material contradiction which are already proved from the oral version of the Investigating Officer. She has contended that the conduct of the complainant has created some doubt. She has contended that in the case of corruption, demand, recovery and acceptance is required to be proved beyond reasonable doubt. She has contended that the panch witness No.1 who has no knowledge about recovery and demand made by the accused. She has contended that even from the cross-examination of the panch witness No.1, he has never disclosed anything that in the presence of panchas, the accused has made any demand for illegal gratification. She 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. She 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. It appears from the evidence of the complainant that he is not available when the demand is made by the accused and he was also not present at the relevant period also. In absence of personal knowledge of demand, the accused has only obtained some instruction from the other persons and in that connection, he has visited A.C.B. Office and filed the complaint against the respondents. It appears from the evidence of panch witness No.2 that the present respondent has made demand of illegal gratification from the complainant. 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.
[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 28.02.1995 passed by the learned Special Judge, Ahmedabad, in Special Case No.13/1989 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