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Gujarat High Court · body

2015 DIGILAW 120 (GUJ)

STATE OF GUJARAT v. ANOPSINH ABHESINH GOHIL

2015-01-30

K.J.THAKER

body2015
JUDGMENT : 1. The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 6.11.1993 passed by the learned Addl. Sessions Judge, Kheda at Nadiad in Criminal Appeal No. 30 of 1990, whereby, the learned Addl. Sessions Judge has acquitted the accused for the offence punishable under section 408 of IPC and quashed and set aside the judgment and order of conviction and sentence dated 29.8.1990 passed by the learned Chief Judicial Magistrate, Nadiad in Criminal Case No. 4317/1984, whereby, the learned Magistrate has convicted both the accused under section 408 of IPC and sentenced them to undergo S/I for two years and to pay a fine of Rs. 1000/- each, in default, to further undergo S/I for six months. 2. It is to be noted that the Criminal Appeal No. 313 of 1994 preferred by the State stands abated as the respondent-ori. Accused no. 1 – Masharubhai Rambhai Desai has expired. 3. The brief facts of the present case are that the ori. Accused no. 1 was serving as Secretary in Aminpura Seva Sahakari Mandali, Taluka Kapadwanj and accused no. 2 was serving as clerk in said Seva Sahakari mandali during relevant period of offence, that is, between 1.7.79 to 31.12.79. It is alleged that the accused have during this period committed offence of misappropriation for the amount of Rs. 2,10,546- 58ps. The misappropriation is detected during the audit of the said Seva Sahakari Mandali and it was found that there was a shortage of stockof goods in which the Seva Sahakari mandali was dealing. Therefore, the complaint was filed in the Court of J.M.F.C. Kapadwanj on 9.4.90 and the complaint was sent to Kapadwanj Police for investigation under section 15693) of Criminal Procedure Code. After necessary investigation both the accused were chargesheeted in the Court J.M.F.C. Kapadwanj. Thereafter, the case was transferred to the Court of learned Chief Judicial Magistrate, Nadiad and it was numbered as Criminal Case No. 4317/1984. The trial was initiated against the respondents. 4. The accused were charged at Ex. 14. The accused pleaded not guilty to the charge and so claimed to be tried. 5. Thereafter, the case was transferred to the Court of learned Chief Judicial Magistrate, Nadiad and it was numbered as Criminal Case No. 4317/1984. The trial was initiated against the respondents. 4. The accused were charged at Ex. 14. The accused pleaded not guilty to the charge and so claimed to be tried. 5. The evidence produced by the prosecution was recorded by the learned Chief Judicial Magistrate, and at the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Chief Judicial Magistrate, Nadiad vide judgment and order dated 29.8.90, convicted and sentenced both the accused, as stated above. 6. Against the said judgment and order of conviction and sentence dated 29.8.90 passed by the learned Chief Judicial Magistrate, Nadiad, both the accused have preferred two criminal appeals being Criminal Appeals No. 29/90 and 30/90. The learned Addl. Sessions Judge vide impugned judgment and order dated 6.11.1993 has allowed both the appeals preferred by the accused. 7. Being aggrieved by and dissatisfied with the aforesaid judgment and order dated 6.11.1993 passed by the learned Addl. Sessions Judge, Kheda at Nadiad, the appellant-State has preferred two appeals i.e. Criminal Appeal No. 312/1994 & 313/1994. As stated above, Criminal Appeal No. 313/94 stands abated as the ori. Accused no. 1 has expired. 8. It was contended by learned APP Ms. Shah that the judgment and order of the learned Addl. Sessions Judge is against the provisions of law; he has not properly appreciated the evidence led by the prosecution before the trial Court and looking to the provisions of law itself it is established that the prosecution has proved all the ingredients of alleged charges against the present respondent. Learned APP has also taken this court through the oral as well as the entire documentary evidence on record. The presence of the respondent is already established and commission of offence under IPC is also established, and therefore, the present appeal deserves to be allowed. 9. Per contra, learned advocate Mr. Saiyed for the respondent has submitted that impugned judgment and order of acquittal passed by the learned Addl. Sessions Judge is absolutely just and proper, and therefore, no interference is called for. He has further submitted that the findings recorded by the ld. Addl. 9. Per contra, learned advocate Mr. Saiyed for the respondent has submitted that impugned judgment and order of acquittal passed by the learned Addl. Sessions Judge is absolutely just and proper, and therefore, no interference is called for. He has further submitted that the findings recorded by the ld. Addl. Sessions Judge are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. Hence, the present appeal deserves to be dismissed. 10. The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of “M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR”, (2006) 6 S.C.C. 39 , the Apex Court has narrated 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 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.” 11. Further, in the case of “CHANDRAPPA Vs. STATE OF KARNATAKA”, reported in (2007) 4 S.C.C. 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. [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.” 12. Thus, it is a settled principle that while exercising appellate powers, even if two reasonable views / 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. 13. Even in the case of “STATE OF GOA Vs. SANJAY THAKRAN & ANR.”, reported in (2007) 3 S.C.C. 75, the Apex 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. 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.” 14. Similar principle has been laid down by the Apex Court in cases of “STATE OF UTTAR PRADESH VS. RAM VEER SINGH & ORS.”, 2007 A.I.R. S.C.W. 5553 and in “GIRJA PRASAD (DEAD) BY L.R.s VS. STATE OF MP”, 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 15. In the case of “LUNA RAM VS. BHUPAT SINGH AND ORS.”, reported in (2009) SCC 749, the Apex Court in para 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 doctor who conducted the postmortem 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 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.” 16. Even in a recent decision of the Apex Court in the case of “MOOKKIAH AND ANR. VS. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU”, reported in AIR 2013 SC 321 , the Apex Court in para 4 has held as under: “4. Even in a recent decision of the Apex Court in the case of “MOOKKIAH AND ANR. VS. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU”, reported in AIR 2013 SC 321 , the 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 leveled 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 reappreciate 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 vs. Sohan Lal and Others, (2004) 5 SCC573]” 17. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite 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. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite 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”, AIR 1981, SC 1417, wherein it is held as under; “...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93 :( AIR 1967 SC 1124 ) that it is not the duty of the Appellate 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.” 18. In a recent decision, the Hon’ble Apex Court in “SHIVASHARANAPPA & ORS. VS. STATE OF KARNATAKA”, JT 2013 (7) SC 66 has held as under; “That appellate Court is empowered to re- appreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence.” 19. 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. 20. The State has preferred two appeals, as stated above. As far as main culprit is concerned, the appeal being Criminal Appeal No. 313 of 1994 stands abated qua him as he has passed away. I have gone through the judgment and order passed by the trial court as well as learned Addl. Sessions Judge. I have also perused the oral as well as documentary evidence led before the trial court and also considered the submissions made by learned APP for the appellant-State. Even while going through the merits of the matter, I do not see any justification in up-turning the judgment and order of the learned Addl. Sessions Judge on one count. The signatures of the present accused were not there. Section 408 of IPC reads as under: “408. Even while going through the merits of the matter, I do not see any justification in up-turning the judgment and order of the learned Addl. Sessions Judge on one count. The signatures of the present accused were not there. Section 408 of IPC reads as under: “408. Criminal breach of trust by clerk or servant.-Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 21. Therefore, it cannot be said that the accused has committed any criminal breach of trust in respect of a servant of the organization, and therefore, in light of this fact, not just because the case is 30 years old, even on merits, learned APP has not been able to show that this appeal requires to be allowed. Even looking to the evidence on record, Ms. Shah ld. APP is not able to bring home the charge levelled against the accused and persuaded this Court to take a different view than that taken by the learned Addl. Sessions Judge in view of the catena of decisions of the Apex Court and the latest decision of the Apex Court in the case of State of Punjab vs. Madan Mohan Lal Verma, reported in (2013) 14 SCC 153. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. 22. In the above view of the matter, I am of the considered opinion that the learned Addl. Sessions judge was completely justified in quashing and setting aside the judgment and order of conviction and sentence passed by the trial Court and acquitting the respondent of the charges leveled against him. I find that the findings recorded by the ld. Addl. Sessions Judge are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by him. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Addl. Sessions Judge, and hence, find no reasons to interfere with the same. 23. In the result, the present appeal is hereby dismissed. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Addl. Sessions Judge, and hence, find no reasons to interfere with the same. 23. In the result, the present appeal is hereby dismissed. R & P to be sent back to the trial Court. Bail bond and bail, if any, stands cancelled. Surety also, if any given, stands discharged.