[1] The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the Judgment and order of acquittal dated 24.06.1993 passed by the learned Special Judge, Vadodara, in Special Case No.2 of 1988, whereby the learned Judge has acquitted the respondent – accused from the charges levelled against him.
[2] The brief facts of the case of prosecution is that complainant Mothishin Parmar, Resident of Village : Vasad, Taluka : Anand, District : Kheda is doing the work of agriculture. According to him, his marriage had taken place at Gotri with Kantaben, daughter of Mathurbhai Mangalbhai and as there is nobody in the family of his in- laws, except his wife and as his mother-in-law had entered into the second marriage with his uncle-in-law Chhotabhai Mangalbhai, there was only an ancestral property of his father-in-law which his wife got in succession and the stands in the name of his wife. According to the complainant, his mother-in-law has entered into second marriage with uncle-in-law Chhotabhai had gone to the City Survey Officer along with Chhotabhai for getting transferred the said house any how in their names from the name of his wife. Therefore, on 04.06.1984, he was called by the City Survey Officer with the vidence regarding the said house which stands in the name of his wife. Therefore, the case regarding the said house wsa conducted by City Survey Officer Shri Vithalbhai. During the trial, he had met Shri Patel and had narrated the true facts before him and requested him to pass the order in his favour whereby Shri Patel told him to understand and, therefore, the complainant had replied in the affirmative. According to the complainant, on 21.02.1985, the said case was completed and he had met Shri Patel whereupon he was told to meet him afterwards and he would complete his work. Thereafter, on 11.03.1985 in the morning at about 9.45 A.M., he had gone to the City Survey in the office of Shri Vithalbhai and had requested to give the order in his favour whereupon Shri Patel told him that he would work in his favour, but on that day at about 2.00 p.m., the complainant should come to his office and give him Rs.1000/- and then work will be done. According to the complainant, the complainant had come from Vasad to meet Shri Patel and he had immediately asked for Rs.1000/- for which he was not in a position to massage and as his son had to come from his house he will bring the same and thereafter he will produce the same. According to him, the legal action should be taken against Shri Patel and, therefore, he has come to file this complaint. Therefore, the complainant lodged complaint against the accused – respondents for the offences punishable under Section 161 of I.P. Code and under Section 5(2) of the Prevention of Corruption Act, 1947. Therefore, the complaint was lodged against the accused for the offence under Section 161 of I.P. Code and under Section 5(2) of the Prevention of Corruption Act before the A.C.B Office, Vadodara.
[3] Necessary investigation was carried out, statements of the witnesses were recorded. Thereafter, after completion of investigation, the charge-sheet was filed against the respondents – accused in the Court of learned J.M.F.C. Thereafter, as the case was triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. Thereafter, the charge was framed against the respondents – accused. The respondents – 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 Vadodara vide the impugned Judgment and order, has acquitted the respondent – accused from the charges levelled against him.
[5] Being aggrieved by 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. Ms.Hansa Punani on behalf of the appellant – State. I have also gone through the papers and also the Judgment and order of the Special Judge . She has contended that on the date of incident, the accused was serving as Superintendent in the City Survey Office of Vadodara. It has also been contended by the APP that the accused had demanded illegal gratification in sum of Rs.1000/- from the complainant. She has contended that the evidence of Police Inspector, A.C.B., who has no enmity with the accused had deposed in his deposition before the Court on oath that and given details of raid. It appears that the evidence of the Police Inspector, A.C.B., is trustworthy and credible, is discarded by the trial Court. She has contended that the Special Judge has unnecessarily emphasized on facts which are not material. Some discrepancies which ought to have been included have been given undue weight, and acquitted the accused for the offences with which he was charged. She has contended that the Special Judge has committed an error in holding that from the evidence of prosecution witnesses, it is not clear about the demand, acceptance and recovery aspect. All the three elements are completely lacking in the instant case. She has also contended that the Special Judge has discarded the evidence of the complainant Harisinh Motisinh Parmar on the ground that he is a wrong doer and he has given false version before the City Survey Officer that his wife is the only heir in succession of his father-in-law. In fact his mother-in- law is alive and, therefore, his evidence is discarded. She has contended that the Special Judge has committed an error in considering that the complainant is willing to give bribe and the accused after seeing the same placed it on the table. Therefore, it cannot be said to be acceptance of bribe money. She has contended that the panchnama at Ex.21 is proved by the prosecution beyond reasonable doubt. She has contended that regarding the demand and acceptance of the bribe is proved by the prosecution. 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] 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.”
[8] 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.”
[9] 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.
[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 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.”
[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 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.”
[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 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 appellant. Looking to the facts and circumstances of the case, the three ingredients i.e demand, acceptance and recovery are completely lacking in the present case. It also appears that the evidence of the complainant and the complaint are contradictory about the place where the first demand was made. The Special Judge has observed that regarding second demand, there are similar versions of complainant and panchas that there was no demand but the amount was voluntarily and willingly offered by the complainant himself to the accused. Therefore, it cannot be said to be the acceptance of bribe by the accused. The Special Judge has also observed that there is no reason to disbelieve the explanation that he has been entangled or entrapped in his office by offering the currency notes of Rs.1000/- which he has never counted but after seeing the same he gave them back to the complainant which were refused by the complainant and therefore he was compelled to place the same on the table itself. The Special Judge has further observed that the evidence adduced by the prosecution is unreliable and untrustworthy to base a conviction against the accused. On the contrary, the explanation offered by the accused appears to be quite in consonance with the evidence tendered by the prosecution witnesses. Looking to the aforesaid observation, the prosecution has failed to prove the case against the accused beyond reasonable doubt. The learned Special Judge has also observed that experiment of anthrance power did not show to the panchas,otherwise panch No.1 cannot depose that the finger print marks were seen on the currency notes which were smeared with the anthrance powder, which is basicially incorrect version. The learned Special Judge also observed that there is no evidence produced by the Investigating Agency about the supply of currency notes from the office of ACB. From the observation of the learned Special Judge, it appears that the learned Special Judge disbelieved the explanation offered by the accused in his further statement which was given in writing vide Ex.26 and as per the explanation, he has been entangled or entrapped in his office by offering the currency notes of Rs.1,000/- which he has never counted but after seeing the same he gave them back to the complainant which were refused by the complainant and, therefore, he was compelled to place the same on the table itself beneath the plastic beg. Looking to the facts and circumstances and evidence on record, I am of the opinion that the Special Judge after appreciating the oral as well as documentary evidence has rightly acquitted the respondent of the charges levelled against him.
[15] The 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 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.
CR.A/1150/1993 10/10 JUDGMENT
[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 is hereby dismissed.
[20] In view of above the Appeal is dismissed. The judgment and order of dated 24.06.1993 passed by the learned Special Judge, Vadodara, in Special Case No.2 of 1988 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