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2015 DIGILAW 1121 (GUJ)

State of Gujarat v. Jivabhai Naranbhai Solanki

2015-10-29

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT K.S. Jhaveri, J. 1. The present appeals assail the judgment and order dated 31/07/2008 passed by the learned Additional Sessions Judge and Presiding Officer, 5th Fast Track Court, Veraval in Sessions Case Nos. 27 of 2006 and 13 of 2007, whereby, while acquitting the original accused Nos. 3 and 4 for the offence punishable under Section 489C of the Indian Penal Code, 1860 (for brevity, 'the IPC'), the original accused Nos. 1 and 2 have been convicted and sentenced to undergo rigorous imprisonment for 30 months and a fine of Rs. 3,000/- each, and in default of payment of fine, to undergo further simple imprisonment for three months. Further, all the accused were acquitted of the charges levelled against them for the offence punishable under Sections 489A, 489D and 120B of the IPC. Accordingly, Criminal Appeal No. 2546 of 2008 has been filed by the State for enhancement of sentence of original accused Nos. 1 and 2, whereas, Criminal Appeal No. 2541 of 2008 has been filed by the State against acquittal of original accused Nos. 3 and 4. 2. Brief facts of the prosecution case are that on 20/01/2006 at about 16:55 hours in Veraval City, near Bhalka Chowky, the original accused Nos. 1 and 2 conspired to infiltrate the fake Indian currency notes, allegedly made by the original accused Nos. 3 and 4 and caught with the fake currency notes worth Rs. 1,550/- and Rs. 140/- in the denomination of Rs. 500/-, Rs. 100/-, Rs. 50/- Rs. 20 and Rs. 10/- and for the said alleged offence, a complaint came to be lodged against the accused. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court, Veraval. 2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 2.3 In order to bring home the charge against the original accused, the prosecution has examined following witnesses and also produced following documentary evidence, as under Sr. Name Exh. 1. Dilipbhai Mohanbhai 10 2. Mukeshbhai Anandbhai Davda 12 3. Mulchand Kherajmal 13 4. Mansukhbhai Muljibhai Chavda 15 5. Bhavesh Ashokbhai Joshi 26 6. Hanifbhai Alifbhai Belim 30 7. Pravinbhai Tejabhai Vaghela 34 8. Name Exh. 1. Dilipbhai Mohanbhai 10 2. Mukeshbhai Anandbhai Davda 12 3. Mulchand Kherajmal 13 4. Mansukhbhai Muljibhai Chavda 15 5. Bhavesh Ashokbhai Joshi 26 6. Hanifbhai Alifbhai Belim 30 7. Pravinbhai Tejabhai Vaghela 34 8. Samatbhai Shardulbhai Babariya 35 9. Ashokbhai Laxmanbhai Barot 36 10. Chandrakant Dayaram Bapodara, FSL Official 39 11. Vasantray Chandulal Vyas, Police Constable 42 12. Arvindsinh Sajubhai Jhala, PI 46 13. Dilipkumar Dhirajlala Bhatt, PSI 54 14. Rajendra Maganlala Joshi, PSI 55 15. Haji Nizamkhan Alamkhan Pathan 56 DOCUMENTARY EVIDENCE 1. Panchnama of place of offence 11 2. Panchnama of seizure of muddamal 14 3. Bill of colour printer, the muddamal article 27 4. Transport Receipt of muddamal 28 5. Bill of colour printer 29 6. Papers of muddamal auto-rickshaw 31 7. Sale Deed of muddamalrickshaw 32 8. TTO Form No.30 of muddamal rickshaw 33 9. Arrest panchnama of accused 38 10. FSL Report of visit of place of offence 40 11. FIR of I-CR No.4/06 43 12. Extract of Station Diary 44 13. Note as to registering the offence 47 14. Original Complaint 48 15. Copy of entry dated 20.1.2006 in Station Diary 49 16. Note as to sending of the report of FSL 50 17. Despatch Note of sending of muddamal to FSL 51 18. ‘E’ Report of the offence 60 19. Voter’s ID Card of the accused 61 20. Note as to addition and deletion of section 62 21. FSL forwarding letter dated 27.6.2006 74 22. FSL Report dated 27.6.2006 75 2.4 At the end of the trial and after recording the Further Statements of the accused under Section 313 of Code of Criminal Procedure, 1973 (for brevity, 'the Code') and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge came to the aforesaid conclusion by impugned judgment and order. 2.5 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant - State has preferred the present appeals for enhancement of sentence as well as against acquittal. 3. Mr. Pujari, learned Additional Public Prosecutor for the appellant - State contended that in view of the fact that the prosecution case has been believed and proved and the accused Nos. 1 and 2 are convicted, however, the sentence imposed upon them is inadequate and against the provision of law. Moreover, the acquittal of the accused Nos. 3. Mr. Pujari, learned Additional Public Prosecutor for the appellant - State contended that in view of the fact that the prosecution case has been believed and proved and the accused Nos. 1 and 2 are convicted, however, the sentence imposed upon them is inadequate and against the provision of law. Moreover, the acquittal of the accused Nos. 3 and 4 for the offence punishable under Sections 489A, 489D and Section 120B was also not warranted. Making above submissions, he requested to allow the present appeals in the interest of justice. 4. On the other hand, Mr. Thakore, learned advocate for the respondent No. 1 herein - original accused No. 1 and Mr. Bharhmbhatt, learned advocate for the respondent No. 2 herein-original accused No. 2 submitted that though the prosecution failed to prove the case against the accused beyond reasonable doubt, the learned trial Judge has convicted them and thereby, has committed an error of law. However, he fairly conceded that no appeal has been filed by the accused Nos. 1 and 2 against conviction and in that view of the matter, this Court may not interfere in the appeal. 5. So far as acquittal of accused Nos. 3 and 4 is concerned, 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 Hon'ble Apex Court in catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr., reported in (2006) 6 SCC 39 , the Hon'ble 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 Hon'ble 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 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 Vs. 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 Vs. State of Karnataka, reported in (2007) 4 SCC 415 the Hon'ble Apex Court has 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. 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 powers, 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 Hon'ble Apex Court in the case of State of Goa V. Sanjay Thakran & 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: "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 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 Hon'ble Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors., reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled. 5.5 In the case of Luna Ram Vs. Bhupat Singh and Ors., reported in (2009) SCC 749, the Hon'ble Apex Court in paras 10 and 11 has held as under: "10. The High Court has noted that the prosecution version was not clearly believable. Some of the so-called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The High Court has noted that the prosecution version was not clearly believable. Some of the so-called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the post-mortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in a running condition. 11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence." 5.6 Even in a recent decision of the Hon'ble Apex Court in the case of Mookiah and Anr. Vs. State rep. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SC 321 , the Hon'ble Apex Court in para 4 has held as under: "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges levelled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal.[Vide State of Rajasthan v. Sohan Lal and others, (2004) 5 SCC 573 : ( AIR 2004 SC 4520 : 2004 AIR SCW 4321)]" 5.7 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 Hon'ble Apex Court in the case of State of Karnataka Vs. 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." 5.8 Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence at length is not necessary. 6. We have examined the matter carefully and gone through the evidence on record. We have re-appreciated and re-evaluated the evidence on the touchstone of the latest decisions of the Hon'ble Apex Court. We find that the trial Court while considering the evidence on record, has very elaborately discussed the evidence adduced before it. Taking into consideration small quantity of currency notes, which could have even gathered from other currency notes in transaction and the fact that there is nothing on record to show against the accused Nos. 3 and 4 that they were preparing the fake currency notes and/or indulging in any process in that regard, we find that the finding arrived at by the learned trial Judge is just and the sentence imposed upon the accused Nos. 1 and 2 also appears just. 3 and 4 that they were preparing the fake currency notes and/or indulging in any process in that regard, we find that the finding arrived at by the learned trial Judge is just and the sentence imposed upon the accused Nos. 1 and 2 also appears just. Further, the learned Additional Public Prosecutor 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 below has ignored the material evidence on record. In that view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order. 7. We are, therefore, of the considered opinion that the findings recorded by the trial Court in coming to the aforesaid conclusion are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are in complete agreement with the reasonings given and the findings arrived at by the trial Court. No interference is warranted with the judgment and order of the trial Court. 8. In view of the aforesaid discussion, present appeals fail and are dismissed accordingly. The impugned judgment and order dated 31/07/2008 passed by the learned Additional Sessions Judge and Presiding Officer, 5th Fast Track Court, Veraval in Sessions Case Nos. 27 of 2006 and 13 of 2007 is confirmed. Bail bonds, if any, shall stand cancelled. Registry to return the R & P, if any, to the trial Court forthwith.