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2009 DIGILAW 432 (GUJ)

State of Gujarat v. Kalpanaben B. Khandheriya

2009-07-02

K.S.JHAVERI, Z.K.SAIYED

body2009
JUDGMENT : K.S. Jhaveri, J. The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 10.5.1990 passed by the learned Special Judge, Junagadh, in Special Case No. 5 of 1986 whereby the respondent-accused have been acquitted of the charges levelled against him. 2. The brief facts of the prosecution case are as under: 2.1 It is the case of the prosecution that between 4.7.1985 and 9.7.1985 the respondent - accused Dr. Kalpanaben Khanderiya was the Chief Medical Officer at Rupadiba Zanana Hospital at Junagadh, and thus she was a public servant being serving in Government Hospital. It is further the case of the prosecution that on or about 4.7.85 Dr. Kalpanaben asked illegal gratification of Rs.400/- for the treatment and operation of Pushpaben from the complainant and ultimately on 9.7.1985 the accused accepted Rs.300/- from the complainant. It was also stated that unless the amount is paid, Pushpaben will not be discharged from the hospital and this forced the complainant to pay Rs.300/- to the accused. On these facts the complaint was filed against the respondent - accused. Investigation was carried out against the accused and after completing the investigation the charge-sheet was filed against the accused for the offence punishable under Section 161 I.P. Code and under Section 5(2) of the Prevention of Anti-Corruption Act. 2.2 Thereafter, the charge (Exh.9) was framed against the respondent - accused. The accused pleaded not guilty to the charge and claimed to be tried. Thereafter, the trial was conducted against the respondents. 2.3 The prosecution has examined following witnesses to proves its case : 1. Complainant Maheshkumar Girjashanker, Ex. 12; 2. Godavariben Gopalji, Exh. 14; 3. Vinodrai Durgashanker, Exh. 16; 4. Devendrabhai Babubhai, Ex. 17; 5. Bharatsinh Kanubha Jhala, Ex. 23; 6. R.S. Rathod, Ex. 25; 2.4 The defence has examined the following witness : 1. DW 1 Dineshchandra Bansilal, Ex. 27 2.5 The prosecution has produced following documents to prove its case against the respondent - accused : 1. Complaint, Exh. 20; 2. Panchnama Ex. 15 3. Case papers of Pushpaben at Exh. 19; 4. Letter of Deputy Director, Exh. 21; 5. Sanction letter dated 28.5.1986 of Health Department, Exh. 24; 2.6 Thereafter, the statement of accused under Section 313 Cr. P.C. was recorded. Complaint, Exh. 20; 2. Panchnama Ex. 15 3. Case papers of Pushpaben at Exh. 19; 4. Letter of Deputy Director, Exh. 21; 5. Sanction letter dated 28.5.1986 of Health Department, Exh. 24; 2.6 Thereafter, the statement of accused under Section 313 Cr. P.C. was recorded. After considering the oral as well as documentary evidence and after hearing arguments on behalf of prosecution and the defence, the learned Special Judge, by Judgment and order dated 10.5.1990 in Special Case No. 5 of 1986, has acquitted the respondents - accused. 2.7 Being aggrieved by and dissatisfied with the Judgment and Order dated 10.5.1990 passed by the learned Special Judge, Junagadh, in Special Case No. 5 of 1986, the appellant - State has filed this Appeal. 3. Heard learned APP Mrs. Manisha Lavkumar Shah on behalf of appellant - State and learned Advocate, appearing, on behalf of respondents - accused. It was contended by learned APP that the judgment and order of the Special Judge is against the provisions of law; the learned Special 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 respondent. She has also contended that the learned Judge has erred in be living the defence version that the amount was for paying the chemist bill, which was Rs.308/-. 3.1 Learned Advocate for the respondents - accused has supported the Judgment of the Court below. He has contended that the learned Judge has not committed any error in his Judgment. 4. We have gone through the Judgment of the trial Court. We have also perused the reasons assigned by the learned Special Judge. 5. 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 v. 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 the case of M.S. Narayana Menon @ Mani v. 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." 5.1 Further, in the case of Chandrappa v. 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, 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. [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 & Anr. reported in (2007) 3 SCC 755 , 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 characterised 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. 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 & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs v. State of M.P., reported in 2007 AIR 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 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 v. 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." 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. 7. We have gone through the judgment and order passed by the trial court. We have also perused the oral as well as documentary evidence led before the trial court and also considered the submissions made by learned Advocate for the appellant. 7. We have gone through the judgment and order passed by the trial court. We have also perused the oral as well as documentary evidence led before the trial court and also considered the submissions made by learned Advocate for the appellant. 7.1 The trial court has observed that from the deposition of witnesses the story put-forward by the prosecution is not believable. The prosecution has not proved the case that the accused has asked Rs.500/- from the complainant for the treatment or the operation. The complainant has also admitted that when he gave Rs.400/- to the accused the accused gave Rs.100/- and kept Rs.300/- with her. It has come in evidence that on 5.7.1985 injection was required to be given to Pushpaben and at that time the complainant or Vinodbhai were not present and, therefore, the doctor at her responsibility purchased the injection. 7.2 The respondent - accused has also examined witness Dineshchandra Manilal at Exh. 27. 7.3 While appreciating the evidence the trial Court has clearly found that the prosecution witnesses have not supported the case qua demand and acceptance. The amount which was received by the accused was to be paid to the chemist for purchase of medicine. The trial Court has also found that the demand, acceptance and bribe is not proved. The trial Court has, after properly appreciating the deposition of witnesses as well as the evidence on record, clearly observed that the prosecution has miserably failed to prove its case beyond reasonable doubt. 7.6 Ms. Manisha Shah, 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. 8. In 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 levelled 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. 8.1 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. 8.1 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. 9. In view of above the Appeal is dismissed. The judgment and order dated 10.5.1990 passed by the learned Special Judge, Junagadh, in Special Case No. 5 of 1986 acquitting the respondent-accused is hereby confirmed. Bail bonds, if any, shall stand cancelled. Record & Proceeding may be sent back to the trial Court. Appeal allowed.