State of Gujarat vs Kishorchander Devshankar Joshi

K.S. Jhaveri, J.—The present appeal, u/s 378 of the Code of Criminal Procedure, 1973, is directed against the judgement and order of acquittal dated 27.06.1997 passed by the learned Special Judge, Bharuch in Special Corruption Case No. 3 of 1996 whereby the accused was acquitted of the charges leveled against him.

The brief facts of the prosecution case are as under:

2.1 Complainant Nileshbhai Kishorbhai Patel is doing the business of transport and running luxury buses for passengers. At the relevant time ten buses were running. His main office was situated on Nadiad S.T. Stand, in Anand branch office. Out of ten luxury buses he has obtained All India Permit for four luxury buses and remaining luxury buses are running for tourists. Formarly luxury buses who were possessing All India Permit used to go to Bombay and other cities. At the relevant time luxury bus No. GJ 7T 4025 was on the same root. It is case of the prosecution that bus No. GJ 7 T 4041 was going on contract carriage from Bombay to Ahmedabad. It is a case of prosecution that when both buses were going on Bharuch Highway, R.T.O Inspector Bharuch Shri Joshi, his staff and employees of the R.T.O were stopping the buses and demanding the money for each bus Rs. 1000/- again and again and hence the complainant thought that he will give the money otherwise R.T.O Inspector Mr Joshi his staff members and officers will harass him. Therefore, he decided that for two buses he will give Rs. 2000/- upto 10.10.1990 but he has not sent the money on time and therfore on 15.11.1990 Mr. Joshi informed his driver to send money. So the driver conveyed the message to the complainant and complainant sent message to Mr. Joshi that he was going to Bombay for two to three days and thereafter he will give him money. Thereafter the complainant thought that Mr. Joshi demanded the money towards bribe so he has filed the complaint against the accused before ACB office, Ahmedabad.

2.2 After lodging complaint and after following necessary procedure trap was arranged. The numbers of currency notes were recorded and experiment of anthracene powder was made. After carrying out the introduction parade with all the members of raiding party, panch members and complainant with each other whole procedure were completed. Thereafter complainant, two panchas and members of the A.C.B came in the vehicle of the complainant at 2.30 at night but the accused and his employees were not available. Thereafter on the next date in the morning at 7.35 a.m as per the instruction they reached the house of the accused in Gayatri Society. Mr. Amaliyar identified him to the accused as Police Inspector asked his name and address and thereafter he took details from panch No. 1 and he had written all the details in the panchnama and in the presence of the panchas they have signed on the panchnama. The accused had accepted money. Spots of anthracene powder was found on the hand of the accused at the time of conducting the experiment of ultra violet lamp. The numbers of currency notes recovered from the accused was tallied with the numbers of currency note at the time of drawing the preliminary panchnama. The bribe amount was recovered from the conscious possession of the accused person. Thereafter, the case was registered against the accused before the ACB Police Station against the accused for the offence punishable under Sections 7, 13(1)(g) and 13(2) of the Prevention of Corruption Act.

2.3 Necessary investigation was carried out and statements of witnesses were recorded. The same is registered as C.R. No. 8 of 1990.

2.4 The case was numbered as Special Corruption Case No. 3 of 1996 in the Court of learned Special Judge, Bharuch. The trial was initiated against the respondent.

2.5 To prove the guilt against the accused the prosecution has examined the following witnesses:

[1] Nileshbhai Kishorbhai Patil- Exh.10

[2] Kumar Manaklal - Exh.12

[3] Virsingbhai Kalubhai Amaliya- Exh.15

2.6 In order to support the case, the prosecution has produced the following documents:

[1] Chargesheet - Exh.6,7

[2] Statement of accused - Exh.7

[3] Complaint - Exh.11

[4] Panchnama - Exh.13

[5] List of muddamal- Exh.16

[6] Closing purshis- Exh.17

2.7 At the end of trial, after recording the statement of the accused u/s 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Special Judge acquitted the respondent of all the charges leveled against him by judgement and order dated 27.06.1997.

2.8 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the learned Special Judge the appellant State has preferred the present appeal.

3.0 Mr. RC Kodekar, learned APP contended that the judgement and order of the learned Special Judge is against the provisions of law; the learned Judge 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. He submitted that demand, acceptance and recovery of bribe amount of Rs. 2000/- is proved by the prosecution without any reasonable doubt as the money accepted by the accused towards bribe was kept in the diary which was kept on table wherein dots of the anthracene powder was appeared and also spots of the anthracene powder was found on the hands of the accused. He submitted that Panch No. 1 Ranchhodbhai who was a material witness and was present with the complainant at the time of effective incident have already expired. Learned APP further submitted that there was no reason for the learned Special Judge to disbelieve the prosecution case and to acquit the respondent. Therefore, in the aforesaid facts and circumstances of the case there was ample material available on the record of the case to show that there was demand and acceptance and recovery of money by the respondent.

Mr. V.M. Pancholi, learned advocate for the respondent has supported the impugned judgment and order of the learned trial Court.

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 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.

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 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.

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 judgement 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.

We have gone through the judgement and order passed by the trial court. We 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 trial Court after appreciation of the evidence held that panch witness Kirshankumar Naniklal has turned hostile. He did not support the case of the prosecution. He only admitted his signature in the panchnama as the panch witness. There is material contradiction as narrated by the complainant in his deposition and say of Mr. Amaliya. Mr. Amaliya is the interested witness. It is further found that panch No. 1 Ranchhodbhai who accompanied the complainant has expired and second Panch witness Krishnakumar Maniklal has specifically admited that he did not know that the accused has accepted the money and amount was paid by the complainant. Thus this witness did not support the case of the prosecution. Thus material witness Ranchhodbhai who was present with the complainant at the time of effective incident has expired. It is also held that bribe amount was recovered from the accused but it is not sufficient to convict the accused-respondent.

6.2 In this fact situation the learned Special Judge has found that there are serious lacuna in the prosecution case and the prosecution has failed to establish the case against the respondent. There are contradictory statements in the complaint and the evidence of panch. Therefore the trial court has given the benefit of doubt to the accused and we do not find any reason to interfere with the said finding.

6.3 Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. Mr. Kodekar, 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, we are of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him. We 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.

6.1 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. Hence the appeal is hereby dismissed. Bail bond stands cancelled.