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State Of Gujarat vs Shrimati Nirmalaben Manubhai Jayswal Opponents

High Court Of Gujarat|09 July, 2012
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 887 of 1993 For Approval and Signature:
HONOURABLE MR.JUSTICE Z.K.SAIYED =========================================================
========================================================= STATE OF GUJARAT - Appellant(s) Versus SHRIMATI NIRMALABEN MANUBHAI JAYSWAL - Opponent(s) ========================================================= Appearance :
MS JIRGA JHAVERI, APP for Appellant(s) : 1, MS TANUJA N KACHCHHI for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 09/07/2012 ORAL JUDGMENT
1. By way of present appeal, filed under Section 378 of the Code of Criminal Procedure, 1973, the appellant has challenged the judgment and order of acquittal dated 30.3.1993 passed by the learned Special Judge, Vadodara, in Special Case No.1 of 1988. The said case was registered against the respondent–original accused for the offences punishable under Section 165(A) of the Indian Penal Code.
2. According to the prosecution case, in the area of Wadi Police Station in Baranpura locality Manu Jayswal @ Manu Khapatiya alongwith his wife were doing liquor business at their residence and Manu was a bootlegger. At that time he was suffering from cancer and therefore, his wife was very much active in the liquor business. She had told the complainant that she is dealing in liquor business and therefore, he should not interfere in the same and whatever money is to be given she will pay the same. He further states that as per her talk with him for continuance of her liquor business he had told her to give Rs.1,000/­ to Rs.1,500/­. Therefore, the wife of Manubhai Jayswal had offered him Rs.1,000/­ to Rs.1,500/­ for continuance of the liquor business. He further states that he does not want to accept such illegal gratification or any other thing. On receipt of the complaint the concerned Officer has arranged for trap. After completing necessary formalities the raid was carried out, accused was caught red­ handed and statement of the witnesses were recorded by the trapping officer and then before the learned Special Judge charge­ sheet was filed.
3. Thereafter, investigation was carried out and after following the necessary procedure, and on grant of sanction, the charge­sheet against the accused came to be submitted before the Court.
4. Thereafter, the charge was framed against the respondent to which the respondent – accused pleaded not guilty and claimed to be tried.
5. In order to bring home the charge levelled against the respondent ­ accused, the prosecution has examined witnesses and also produced documentary evidence on record of the trial Court.
6. After examining the witnesses, further statement of the respondent­accused under Sec. 313 of Cr PC was recorded wherein the respondent­accused has denied the case of the prosecution.
7. After considering the oral as well as documentary evidence and after hearing the parties, learned Special Judge, Vadodara, vide impugned judgment and order dated 30.3.1993, held the respondent – accused not guilty of the charge levelled against her and acquitted as stated herein above.
8. Being aggrieved by and dissatisfied with the impugned judgment and order of acquittal passed by the learned Special Judge, Vadodara, the present appellant – State has preferred this appeal.
9. Heard Ms.Jirga Jhaveri, learned APP for the appellant – State and Ms.Tanuja N. Kachchhi, learned advocate for the respondent.
10. Mr.Jhaveri has contended that the judgment and order passed by the learned Judge is contrary to law and evidence on record. She has contended that the learned Judge has not properly appreciated oral as well as documentary evidence adduced by the parties in its proper perspectives.
11. She has contended that the learned Judge ought to have seen that the accused was selling liquor and therefore, she had offered bribe to Police Inspector, complainant Shri Ganatra, who did not want to accept the bribe. The complainant lodged the complaint at Anti Corruption Bureu Office and trap was arranged. The accused lady came to the residence of P.I. Shri Ganatra and gave him Rs.1,800/­ as bribe. The Officer of the ACB prepared panchnama and seized the currency notes.
12. She has contended that the learned Judge ought to have considered that the complainant Shri Gantara has given detailed version on oath stating what has happened and how a trap was arranged and therefore, his evidence is reliable one, hence the accused is required to be convicted. But the learned Judge has erred in considering the minor discrepancies and in the result acquitted the accused.
13. She has contended that the learned Judge ought to have considered the evidence of panch witnesses. They have fully supported the prosecution version. The evidence of Dy.S.P. Rangrekar of Rajkot has been examined at Ex.15. He has also given details as to how Shri Ganatra went to the office and lodged a complaint and how the trap was arranged.
14. She has contended that the learned Judge ought to have considered the evidence of the prosecution witnesses as a whole and considering this evidence of witnesses and other evidences on records the Court could have convicted the accused on the basis of these evidences.
15. She has contended that the learned Judge has emphasized on small discrepancies. But it is required to be taken into consideration that the incident had taken place on 20.5.1986 and the depositions were recorded in the year 1993. Due to lapse of time such discrepancies were bound to be there and therefore, they were required to be discarded.
16. She has contended that the learned Judge has discarded the evidence of witness Rangrekar and complainant as they were Police Officers and took note of the fact that there was previous enmity between the accused and the complainant. Lastly, she has read observations of the learned Judge and contended that observations made by the learned Judge are not proper in the eye of law and therefore, judgment and order of the learned Judge is required to be set aside.
17. Heard Ms.Tanuja N. Kachchhi, learned advocate for the respondent – accused. She has read charge as well as documentary evidence and contended that looking to the evidence of the panch and trapping officer, panchas are selected panchas by the Investigating Officer. She has read observations of the learned Judge made in para 37, 40 and 41 of the judgment and contended that the learned Judge has rightly observed that the prosecution has failed to prove the case.
18. She has read judgment and order of the learned Judge and contended that so far as evidence of panchas and complainant is concerned, sufficient doubt is created even in examination­in­chief and the learned Judge has rightly acquitted the respondent – accused. She has contended that, prima­ facie, case of the appellant is not proved beyond reasonable doubt and therefore learned Judge has rightly acquitted the respondent ­ accused. She has prayed to dismiss the Appeal.
19. I have gone through the impugned judgment and order passed by the learned trial Judge and oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness­ complainant and also perused the charge framed against the accused. I have also considered the submissions advanced by the learned advocates for the respective parties.
20. The evidence of the prosecution witness viz. the complainant and panch witness No.1 suffers from grave infirmities. The panch No.1 is a selected panch and doubt is raised on the prosecution case as a whole. It is difficult to find out where the truth lies more particularly when evidence of Ragnekar and Mr.Khant, who are the members of the ACB office, is not trustworthy as they are interested witnesses.
21. In a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran 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 re­appreciate 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.”
22. 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.
23. It is settled legal position that in an acquittal Appeal, the Appellate Court is not required to re­write 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 respondent – accused and adopting the said reasons as well as 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.
24. In the result, the Appeal is hereby dismissed. The impugned Judgment and order dated 30.3.1993 passed by the learned Special Judge, Vadodara, in Special Case No.1 of 1988 acquitting the respondent – accused, is hereby confirmed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z.K.SAIYED, J.) kks
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Title

State Of Gujarat vs Shrimati Nirmalaben Manubhai Jayswal Opponents

Court

High Court Of Gujarat

JudgementDate
09 July, 2012
Judges
  • Z K Saiyed
Advocates
  • Ms Jirga Jhaveri