[1] The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 16.03.1992 passed by the learned Sessions Judge, Ahmedabad (Rural), Ahmedabad in Criminal Appeal No.12/1991 whereby the accused has been acquitted of the charge under Section 420 of the Indian Penal Code, leveled against him and reversed the judgment and order dated 30.04.1991 passed by the learned Additional Chief Judicial Magistrate, Ahmedabad (Rural) in Special C.B.I. Case No.5/1987 whereby the learned Magistrate has convicted the respondent and sentenced to undergo one year and six months simple imprisonment and fine of Rs.2,000/-, in default to undergo imprisonment of three months simple imprisonment.
[2] The brief facts of the prosecution case are as under:
[2.1] It is the case of the prosecution that the accused obtained certificate from Mamlatdar, Veraval to the effect that he is residing at Village : Devalia – Nesh, Taluka : Talala, District : Junagadh and Government has recognized those persons, residing at Devalia – Nesh falling Rabari Community as Scheduled Caste. He obtained such certificate from Mamlatdar, Veraval and on the basis of that he got the appointment as Telephone Operation, Class – III in the office of Divisional Engineer, Telegraph, Amreli Division. It is the case of the prosecution that he was resident of Veraval and not village Devalia – Nesh. The charge sheet was submitted under Sections 465, 420 and 471 of the Indian Penal Code. At the time of trial, evidence was led before the trial Court. The documents were produced and oral evidence of the witnesses were also recorded by the trial Court and after considering the oral as well as documentary evidence, the learned Magistrate has held the respondent guilty of the charged alleged against him and awarded the sentence, as aforesaid.
[3] The Learned Chief Judicial Magistrate, Ahmedabad (Rural) convicted the respondent for the offence under Section 420 of the Indian Penal Code acquitting the respondent for the offences punishable under Sections 465 and 471 of the Indian Penal Code.
[4] At the end of trial, after recording the statement of the accused under Section 313 of Cr.P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Magistrate has held the accused guilty of the charge as stated above and awarded the sentence.
[5] Being aggrieved and dissatisfied with the order of conviction and sentence passed by the learned Chief Judicial Magistrate, Ahmedabad, the respondent – accused preferred Criminal Appeal No.12/1991 in the Court of learned Sessions Judge, Ahmedabad. The learned Sessions Judge has quashed the judgment of the learned Magistrate and acquitted the respondent.
[6] Against the said judgment and order passed by the learned Sessions Judge, the appellant -State has preferred this appeal.
[7] Learned advocate Mr.Ravani has contended that the learned Magistrate has after considering the oral and documentary evidence rightly held the accused guilty of the charges levelled against him, but the learned Sessions Judge has without considering the same has quashed and set aside the judgment of the trial Court. It has been contended by learned advocate Mr.Ravani that the prosecution has proved its case beyond reasonable doubt, but the learned Judge has not considered the same. It has been contended by the learned advocate that the Appellate Court ought to have given due weight to the evidence of Chandulal Jairambhai Thakker (Ex.31) who was at relevant time Mamlatdar at Veraval and has given the certificate Ex.32 that the accused belonged to Scheduled Caste. It is the case of the prosecution that Chandulal Jairambhai Thakker has specifically stated that he issued certificate in prescribed form only on the basis of the certificate has issued by the District Social Welfare Officer. He has further stated that Devalia – Nesh does not fall under his jurisdiction. Thus, this shows that the Mamlatdar is not competent to issue certificate and the accused did not obtain certificate from competent authority. He knows that he belongs to Veraval and not Devalia – Nesh and, therefore, he was not entitled to get that certificate as a person belong to Scheduled Caste. He has contended that the learned Judge ought to have seen that P.W.3 Shri Amrutlal Shantilal who was Mamlatdar at Talala and was only competent to issue such certificate. He has contended that the prosecution has proved that the copy of Electro roll prepared in the year 1975-1980 for the persons belonging to Devalia Nesh and it has specifically stated that there is no person of such surname i.e. Kataria nor there is name of accused or any of his family members in the electrol roll. He further stated in his deposition that persons belonging to Devalia Nesh was considered to be a member of S.T. and before issuing such certificates in their favour, Sarpanch, Up Sarpanch, Talti-Cum-Mantri and Forest Range Officer etc., are to be contacted and obtained their certificates and on that basis only this certificate of S.T is issued. Therefore, the person whose name is not in the electrol roll of that area cannot get certificate of S.T which has happened in this case. He has contended that the Sessions Court has not given due weight to the evidence of Jayantilal Chhotalal Modi, Ex.35, who has specifically stated that those persons who, are residing in Devalia Nesh I.e., Gir Forest and who belongs to that area can be considered as member of S.T and only those persons are entitled to get S.T certificate. He has contended that the trial Court has not considered the evidence of P.W.5 at Ex.47, who, in his deposition, has stated that scene of the persons living in Devalia Nesh was done in the year 1971 with a view to rehabilitate those persons residing in the Gir Forest area. This witness also stated that the person who claimed to be inhabitant of that area will have to produce reliable evidence i.e. the receipt of Neswadi fee for five years and those persons only be given the benefits of the scheme of steelment. He has contended that the trial Court ought to have seen that the present respondent has neither produced any document during the investigation nor during the trial showing that he or his father were inhabitant of Devalia Nesh and, therefore, he was not entitled to get S.T. Certificate. He has contended that the trial Court ought to have seen that the accused belonging to Rabari Community is within his knowledge and therefore it was his duty to produce evidence to satisfy the Court that he is residing at Devalia Nesh and belonging to Rabari Community. He has contended that the trial Court has wrongly interpreted the statement of Investigating Officer who has given his statement during the cross- examination about the method through which certificate has been obtained. Mr.Y. N. Ravani, learned advocate for the appellant has submitted that originally complaint was filed by the Police Officer Mr.H. L. Jani in connection with the information collected by him and statements of the witnesses were recorded and documents were also recovered and in result against present respondent, charge-sheet was filed for the offence punishable under Sections 420 and 471 of the Indian Penal Code and that was challenged by the present respondent before the learned Sessions Court by way of filing Criminal Revision Application and the said Revision Application was allowed by the learned Appellate Judge and the learned Appellate Judge has observed that the offence punishable under Section 420 of the Indian Penal Code is prima facie established against the present respondent, the charge was framed. He has further contended that during the investigation of the said case, complainant Police Inspector Mr.Jani who has collected certain documents regarding the caste of the present respondent who was not from that particular area which was issued by the Officer of the Social Welfare Department. He further contended that as per the document which is recovered by the Investigating Officer, prima facie it establishes before the learned Judge that by way of fraud, bogus document was obtained for getting the post in Post and Telegram Department. He contended that when from the documents, it is proved that it was wrongly issued and just to cheat the department of the post of Telegram, the present accused has furnished that document which shows that the ingredients of section 415 of the I.P.C is proved and the learned Judicial Magistrate, has rightly convicted the respondent for the offence punishable under Section 420 of the Indian Penal Code. It is also argued that the learned Additional Chief Judicial Magistrate has properly considered the evidence and there was sufficient chance to cross-examine the witnesses, but the respondent has failed to prove the same and therefore learned Magistrate has rightly convicted the respondent for the offence punishable under section 420 of the Indian Penal Code. He has contended that the Sessions Court has wrongly acquitted the respondent for the aforesaid offences. Therefore, the order impugned in this appeal passed by the Sessions Court requires to be quashed and set aside.
[8] Mr.Ketan Shah, learned advocate for the respondent has contended that P.W.9 - Shri H. L. Jani, P.I., has admitted in his cross- examination that the respondent had produced the caste certificate issued by the Welfare Officer, Jungadh. This witness has further admitted in his cross-examination that he has neither visited the Welfare Officer, who issued the caste certificate not has taken the statement. He has contended that the prosecution has failed to establish that the accused has obtained the bogus caste certificate. He has contended that even Investigating Officer has neither visited the Welfare Office nor tried to collect any material, in support of his evidence. He has contended that when the prosecution has failed to prove main ingredients of Sections 415 and 420 of the Indian Penal Code, it cannot be said the said documents is bogus or forged. He has contended that the Sessions Court has rightly set aside the order passed by the learned Additional Chief Judicial Magistrate and acquitted the respondent from the charges levelled against him. He has, therefore, prayed that the present appeal deserves to be dismissed.
[9] It is a settled legal position that in acquittal appeal, the Appellate Court is not required to re-write the judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondents- accused and adopting the said reasons and for the reasons aforesaid, in my view, the impugned judgment is just, legal and proper and requires no interference by this Court at this stage. Hence, this appeal requires to be dismissed.
[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 judgment 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] 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.
[12] 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 reasonings, 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.”
[13] 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.
[14] I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led by the court below and also considered the submissions made by learned advocate for the appellant. From the record and the judgment of the trial Court, it clearly appears that without properly considering the evidence, the trial Court has wrongly convicted the accused. I am, therefore, of the opinion that the Sessions Court has not committed any error in acquitting the respondent - accused. Therefore, the prosecution has failed to prove its case beyond reasonable doubt. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the trial Court. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
[15] Learned advocate for the appellant is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.
[16] In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him.
[17] I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
[18] I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the Sessions Court and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed. The judgment and order dated 16.03.1992 passed by the learned Sessions Judge, Ahmedabad (Rural), Ahmedabad in Criminal Appeal No.12/1991 is hereby confirmed. R & P to be sent back to the trial Court, forthwith. Bail bond, if any, stands cancelled.
(vijay) ( Z. K. SAIYED, J. )