State of Gujarat vs Jaysukh Gobar Savaliya

K.S. Jhaveri, J.—These appeals are directed against the judgment and order dated 08.12.2003 passed by the learned 2nd Fast Track Judge, Junagadh in Sessions Case No. 66/2001, whereby, original accused No. 1 has been convicted for the offences punishable u/s 489(a)(c) & (d) IPC whereas, original accused Nos. 2 & 3 have been acquitted from the offences punishable u/s 489(b)(c) & (d) and Section 120-B IPC.

1.1 Criminal Appeal No. 270/2004 has been preferred for enhancement of the sentence awarded to original accused No. 1, whereas, Criminal Appeal No. 271/2004 has been preferred against the acquittal of accused Nos. 2 & 3.

2.0 The brief facts of the prosecution case are as under;

2.1 On 28.05.2001 an information was received from DSP informing that on the Junagadh - Dhoraji Road, the owner of a plastic factory, one Jaysukh Patel, is involved in putting fake currency notes in the market. On getting the said information, arrangements were made to lay a raid. Thereafter, a raid was carried out at the factory premises and residence of original accused No. 1 and a large quantity of fake currency notes were seized.

2.2 Therefore, a complaint was lodged against original accused No. 1 and further investigation was carried out. During the course of investigation, accused Nos. 2 & 3 were arrested. At the end of investigation, charge-sheet was filed against all the three accused and the case was committed to the Sessions Court for trail. To prove the guilt of the accused, the prosecution had examined twenty four witnesses, viz. PW-1 Suresh Govind at Ex.12, PW-2 Gopal Thakarji at Ex.13, PW-3 Iqbal Isha at Ex.14, PW-4 Arif Dada at Ex.15, PW-5 Nazirkhan Rasulkhan at Ex.16, PW-6 Batuk Arjan at Ex.17, PW-7 Sheikh Aslam Sultan at Ex.18, PW-8 Dawoodkhan @ Kalu Kadarkhan at Ex.19, PW-9 Jitendra Laxmidas at Ex.20, PW-10 R.V. Gajjar at Ex.23, PW-11 Ketan Harsukhbhai at Ex.27, PW-12 Champrajbhai Pithabhai at Ex.29, PW-13 Rasikbharti Balwantbharti at Ex.30, PW-14 Dolargiri Kailashgiri at Ex.31, PW-15 Nathabhai Ugabhai at Ex.35, PW-16 Natwarsinh Jaymalji at Ex.40, PW-17 Bhimjibhai G. Limbachiya at Ex.42, PW-18 Kaushik A. Patel at Ex.44, PW-19 Arvindbhai Purshottamdas at Ex.45, PW-20 Amrabhai Kadarbhai at Ex.50, PW-21 H.M. Shah at Ex.52, PW-22 C.C. Vasava at Ex.54, PW-23 D.D. Gondalia at Ex.57 and PW-24 R.D. Ulva at Ex.62 and had placed reliance upon several documentary evidence, viz. the complaint at Ex.33, the yaadi at Ex.36, the complaint being I-C.R. No. 52/1998 at Ex.38, the copy of invoice at Ex.48, the copy of invoice at Ex.49, the panchnama of seizure of notes at Ex.55, the complaint being I.C.R. No. 62/2001 at Ex.58, the copy of station diary at Ex.59, the yaadi at Ex.60, the muddamal panchnama of raid at Ex.63, the complaint at Ex.64, the yaadi at Ex.65, the panchnama of currency notes at Ex.67, the discovery panchnama at Ex.76, the arrest panchnama at Ex.77, the yaadi sent to F.S.L. at Ex.79, the forwarding letter at Ex.80, the receipt of FSL at Ex.81, the FSL Report at Ex.83 and the yaadi at Ex.84. On submission of the closing purshis, the further statement of the accused u/s 313 of Cr.P.C. was recorded. Ultimately, the Court below passed the impugned judgment as narrated in the earlier part of this judgment. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant - State has preferred the present appeals.

3.0 Learned APP has submitted that looking to the seriousness of the offence, the Court below ought to have imposed the maximum sentence provided under IPC for conviction under the said Sections. The sentence imposed by the Court below is grossly inadequate and therefore, the same deserves to be enhanced.

3.1 Learned APP has further submitted that the judgment and order of the Court below qua acquitting accused Nos. 2 & 3 is against the provisions of law; the Court below has not properly considered the evidence led by the prosecution and that looking to the provisions of law, it is established that the prosecution has proved the ingredients of the offence against accused Nos. 2 & 3 beyond doubt. Learned APP has taken us through the oral as well as the documentary evidence available on record.

Learned Counsel for respondent-accused Nos. 2 & 3, has submitted that the prosecution had failed to establish the guilty of the accused beyond doubt. He has submitted that on close scrutiny of the evidence of the witnesses, it is evident that the same do not support the case of the prosecution. Hence, the Court below was completely justified in acquitting accused Nos. 2 & 3 and no interference is called for from this Court in this appeal.

We have gone through the impugned judgment passed by the Court below and the documents on record. We have also perused the oral as well as documentary evidence led before the Court below and also considered the submissions made by learned Counsel for the respective parties. So far as the appeal preferred by the appellant-State for enhancement of sentence imposed on accused No. 1 is concerned, we find the same to just and proportionate looking to the overall facts and circumstances of the case. We find that the Court below has exercised its jurisdiction and imposed the sentence in question and we do not find any reasons to enhance the same.

So far as the appeal preferred against the acquittal of accused Nos. 2 & 3 is concerned, 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 trial Court, 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 and Another, 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:

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.

6.1 Further, in the case of Chandrappa and Others Vs. State of Karnataka, the Apex Court laid down the following principles;

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, re-appreciate 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.

6.2 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.

6.3 Even in a recent decision in the case of State of Goa v. Sanjay Thakran and Anr. reported in (2007) 3 S.C.C. 75, the Apex 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;

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.

6.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh and Ors. reported in AIR 2007 S.C.W. 5553 and in Girja Prasad (Dead) by LRs. v. State of M.P. reported in AIR 2007 S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.

6.5 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 Alias Vemareddy and Another, wherein, it is held as under;

This Court has observed in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, 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.

6.6 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.

The prosecution has not been able to prove that accused Nos. 2 & 3 had played any role in the alleged offence. The prosecution has also not been able to prove beyond reasonable doubt that four fake currency notes of 100/- denomination were found from their possession. There was no cogent evidence on record to connect accused Nos. 2 & 3 with the alleged offence in question. Thus, from the evidence itself, it is established that the prosecution has not proved its case beyond reasonable doubt.

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 Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court blow has ignored the material evidence on record.

In above view of the matter, we are of the considered opinion that the Court below was completely justified in acquitting accused Nos. 2 & 3 of the charges leveled against them. We find that the findings recorded by the Court below are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are, 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.

Accordingly, both the appeals are dismissed. Bail bonds, if any, shall stand cancelled.