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2014 DIGILAW 1538 (RAJ)

State of Rajasthan v. Mahendra Kumar Ojha

2014-09-18

NISHA GUPTA

body2014
JUDGMENT 1. - This criminal leave to appeal u/S.378(1)(3)Cr.P.C. has been filed by the State against the judgment & order dated 05/04/2012 passed by the court of learned Designated Court for Rajasthan, Ajmer whereby, the accused-respondent-Mahendra Kumar Ojha has been acquitted for offence under Section 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 188. 2. The contention of the learned Public Prosecutor is that judgment of the court court is dehors the merit. The court below has not appreciated the evidentiary value of the witnesses. The admitted case of the complainant before the court below was that the work was pending with the accused-respondent, Rs. 3,000/- was demanded for the same, mutation has not been opened and kept pending and bribe money has been recovered from the possession of the accused-respondent; in-spite of this, the presumption u/S.20 of the Evidence Act, 1872 has not been taken. The evidence of trap laying officer along with conversation of transcript has not been taken care of. Hence, leave to defend be granted. 3. Heard the learned Public Prosecutor and perused the impugned-judgment as well as original record of the case. 4. The FIR (Exh.P.2) has been lodged by complainant-Gopilal Jat with the assertion that the Patwari is asking money for Rs. 3,000/- for entering his name in the mutation and he do not want to give the bribe on which, the trap has been organised and money has been recovered from the shirt pocket of the accused-respondent and after usual investigation, charge-sheet has been filed against him. The accused-respondent has been charged for offence u/Ss.7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 188. He denied the charges and claimed for trial. Seven witnesses have been produced by the prosecution and got exhibited sixteen documents to support its case. The statements of the accused-respondent Mahendra Kumar Ojha have been recorded u/S.313 Cr.P.C. and in defence, two witnesses have been produced and nineteen documents and articles have been exhibited. After trial, the accused-respondent has been acquitted from the charge for offence u/Ss.7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 188. Hence, this criminal leave to appeal. 5. After trial, the accused-respondent has been acquitted from the charge for offence u/Ss.7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 188. Hence, this criminal leave to appeal. 5. The scanning of the evidence submitted before the court below goes to show that FIR has been lodged by complainant-Gopilal Jat (PW1) but during trial, he has not supported the prosecution story and his specific contention is that no bribe has been asked for from him and even the mutation was opened by the concerned Patwari, the accused-respondent and it has to be verified in panchayat meeting, which was taking time. Shankar Singh (PW5) has also stated that mutation was opened on 26/02/2008, whereas the FIR has been lodged much later then that. The complainant-Gopilal Jat (PW1) has further stated that the accused-respondent has never demanded any money from him and on the day of trap, he has not handed over the money to him. Per contra, he (the complainant) has put the money in the pocket shirt of the Patwari, which was lying on the rope without his knowledge. 6. The trap has been laid in the presence of Santosh Chandra (PW2), Heera Singh (PW3) and Prahlad Dutt Tripathi (PW4) and all these three witnesses have not supported the prosecution story and their contention is that no money has been accepted in their presence. They never went to the accused-respondent with the complainant and they could not hear the conversation between the two. Per contra, they have impressed upon the fact that the accused-respondent has categorically denied at the time of the trap that he has accepted any money and the court below was of the opinion that when demand and acceptance of bribe money has not been proved by the prosecution beyond reasonable doubt, there was no occasion to raise a presumption against the accused-respondent and acquitted him. The contention of the learned Public Prosecutor is that appreciation of evidence is completely improbable. When the bribe money has been recovered from the possession of the accused-respondent and hand-wash and pocket-wash also corroborate the recovery, it was sufficient evidence to raise the presumption and, therefore, the appellate court should re-assess the evidence. 7. The contention of the learned Public Prosecutor is that appreciation of evidence is completely improbable. When the bribe money has been recovered from the possession of the accused-respondent and hand-wash and pocket-wash also corroborate the recovery, it was sufficient evidence to raise the presumption and, therefore, the appellate court should re-assess the evidence. 7. There is no doubt about the powers of the appellate court that appellate court can re-assess or reappraise the evidence but any interference in the findings of acquittal should only be made when the findings of the court below are per verse or apparently unreasonable and reliance has been placed on Basappa v. State of Karnataka : (2014) 5 SCC 154 where guidelines have been explained regarding the powers of the appellate court dealing with an appeal against an order of acquittal and it was held as under:- "While dealing with the appeals against the judgment of acquittal passed by the trial courts, the appellate courts are required to take into consideration the following principles regarding powers of the appellate court dealing with an appeal against an order of acquittal: "(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, 173 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 curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologist are more in the nature of "flourishes of language" to emphasise 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." In the light of the above, when we scan the evidence produced before the court below and findings of the trial court, there is no non-consideration of the evidence or mis-appreciation of the evidence on record. The findings of the trial court are based on evidence and view taken by the court below is reasonable and plausible. There are no compelling or specific reasons to interfere in the findings of the court below. There is no reason to hold that the judgment of the trial court acquitting the accused is based on no material or it is perverse or the view taken by the trial court is wholly unreasonable or it is not a plausible view. Per contra, the court below has considered the evidence available on record and arrived at a reasonable conclusion and there is no reason to interfere in the findings of the court below fundamental principle of criminal jurisdiction is that every person is presumed to be innocent and in the case of acquittal by the trial court, the presumption further fortified by the judgment of the trial court. 8. In view of the above, no case is made out for grant of leave to appeal and hence, this criminal leave to appeal is dismissed.Leave to appeal dismissed. *******