State of Gujarat vs Kanaji Dahyaji Thakor

Z.K. Saiyed, J.—The present appeals, u/s 378 of the Code of Criminal Procedure, 1973, are directed against the Judgment and order of acquittal dated 31/3/1998 passed by the learned Additional Sessions Judge, Gandhinagar in Criminal Appeal No. 4 of 1998 and Criminal Appeal No. 6 of 1998 whereby the learned Additional Sessions Judge has quashed and set aside the judgment and order dated 22/1/1998 passed by the learned Judicial Magistrate First Court, Gandhinagar in Criminal Case No. 5682 of 1987 and acquitted the accused of the charges leveled against them.

The brief facts of the prosecution case are as under:

2.1 The accused Kanaji Dahyaji Thakor who is serving as Sarpanch of Gram Panchayat, Sonipur with another accused Shri Pruthvisinh Himmatsinh Vaghela who is working as Talati-cum-Mantri at village Bhat have misappropriated the amount of Gram Panchayat during the tenure of their service and thereby committed the offence punsihable u/s 409 read with Section 114 of the Indian Penal Code. The complainant has, therefore, filed a complaint before the Pethapur Police Station, District-Gandhinagar for the alleged commission of the offence. The said complaint was registered as C.R. No. I-82 of 1987.

2.2 Necessary investigation was carried out and statements of witnesses were recorded. Ultimately, charge sheet was filed against the respondents-accused before the court of learned Judicial Magistrate First Class, Gandhinagar which was numbered as Criminal Case No. 5682 of 1987. After considering the evidence on record and submissions made by the parties, learned Judicial Magistrate First Class, Gandhinagar on 22/1/1998 has passed order to suffer three years rigorous imprisonment to both the accused persons and fine of Rs. 2,000/- each and in default rigorous imprisonment of nine months.

2.3 Being aggrieved by the said judgment and order of conviction and sentence passed by the learned Judicial Magistrate First Class, Gandhinagar dated 22/1/1998, accused Kanaji Dahyaji Thakor has filed Criminal Appeal No. 4 of 1998 and accused Pruthvisinh Himmatsinh Vaghela has filed Criminal Appeal No. 6 of 1998 before the learned Additional Sessions Judge, Gandhinagar.

2.4 After considering the case at length, the learned Additional Sessions Judge, Gandhinagar has quashed and set aside the judgment and order dated 22/1/1998 passed by the learned Judicial Magistrate First Class Gandhinagar in Criminal Case No. 5682 of 1987 and acquitted the accused which is impugned in the present appeals.

Though served, the respondents-accused have not remained present.

Ms. Mini Nair, learned APP contended that the Judgment and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole 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. Learned APP submitted that the prosecution witness had clearly deposed in his deposition that the respondents-accused were found committing offence punishable u/s 409 read with Section 114 of the Indian Penal Code. Learned APP further submitted that there was no reason for the Sessions Judge to disbelieve the prosecution case and to acquit the respondents.

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 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 Judgment 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.

5.1 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, 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.

5.2 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.

5.3 Even in a recent decision of the Apex Court in the case of State of Goa v. Sanjay Thakran and 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:

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.

5.4 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 SCW 5553 and in Girja Prasad (Dead) by LRs v. State of MP reported in AIR 2007 SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.

5.5 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.

5.6 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.

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 Trial Court and also considered the submissions made by learned Advocate for the appellant.

6.1 The entire prosecution case rests on prosecution witnesses and oral as well as documentary evidences. No doubt the prosecution has produced sufficient evidences before the learned Judicial Magistrate First Class, Gandhinagar to prove the case but before the learned Additional Sessions Judge as regards the main issue of misappropriation of money of Gram Panchayat, the prosecution has failed to prove the case. Even today learned APP is unable to show that the respondents-accused persons who are public servants have committed any wrong during their service period. To prosecute public servants, the prosecution is required to follow the provisions of Section 197 of the Criminal Procedure Code which is not followed by the prosecution. Learned APP is also unable to obtain signature to prosecute original accused persons. It is also on record that the prosecution has not produced original pass-book but produced duplicate pass-book. To prove the validity of the pass-book also the prosecution has never bothered to examine responsible officer of the bank who can authorise the pass-book. It appears from the oral evidences of witnesses and documentary evidence produced before the Trial Court that the prosecution has failed to prove the case beyond reasonable doubt. Therefore it appears that there is serious lacuna in the prosecution case and the prosecution has failed to establish the case against the respondents-accused. Therefore the Trial Court has rightly passed the order of acquittal in favour of the accused persons and I do not find any reason to interfere with the said finding of the Trial Court.

6.2 Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. Ms. Mini Nair, learned APP 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.

In the above view of the matter, I am of the considered opinion that the Trial Court was completely justified in acquitting the respondents-accused of the charges leveled against them. 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. 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 both the appeals are hereby dismissed.