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2015 DIGILAW 911 (GUJ)

State of Gujarat v. Niranjan Ranmal Vayda

2015-09-14

RAJESH H.SHUKLA

body2015
Judgment Rajesh H. Shukla, J. 1. The present Appeal is directed against the impugned judgment and order rendered in Criminal Case No. 401 of 1985 by the learned Judicial Magistrate First Class, Khambhaliya (Kalyanpur) dated 27.5.1988 recording the acquittal of the Respondent - Original Accused for the offence under Sections 454, 457 and 380 of the Indian Penal Code for the reasons recorded therein. The facts of the case briefly summarized are as follows. 2. As it transpires from the material and evidence, the accused is alleged to have committed an offence of house breaking and theft of the amount from the bank. Therefore the complaint has been registered by the complainant (cashier) and the same has been registered as FIR No. 205 of 1985 with Gataka Police Station for the alleged offence. 3. Thereafter the investigation was made and the charge sheet was filed and the charge was framed. The prosecution examined the witnesses and the defence has also examined the witnesses and after the recording of the evidence of prosecution witnesses was over the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. Thereafter the defence has also examined the witnesses as defence witnesses. 4. After hearing the learned APP as well as learned Advocate for the accused, the trial court has passed the judgment recording the acquittal which is assailed in the present appeal. 5. Heard learned APP Shri H.L. Jani for the Appellant - State and learned Advocate Shri Hasit H. Joshi for the Respondent - Original Accused. 6. Learned APP Shri H.L. Jani has referred to the papers and the R&P which has been called for. He pointedly referred to the testimony of the complainant PW-7. He has also referred to the testimony of the other panch witnesses PW-1 and PW-2, who are the employees of the bank. Learned APP Shri Jani has also referred to the testimony of the Manager of the bank - PW-3 and other witnesses including the complainant - PW-7 at Exh. 21. Learned APP Shri Jani referred to the panchnama including the recovery discovery panchnama as well as the panchnama for the assistance of the dog squad. Learned APP Shri Jani has also referred to the testimony of the Manager of the bank - PW-3 and other witnesses including the complainant - PW-7 at Exh. 21. Learned APP Shri Jani referred to the panchnama including the recovery discovery panchnama as well as the panchnama for the assistance of the dog squad. Learned APP Shri Jani submitted that as it transpires the accused had the occasion to clean the premises and therefore at that time he could have access to the keys as stated by the complainant in his testimony at Exh. 21. He submitted that the dog squad has found the accused as the dog had identified the accused. He therefore submitted that the judgment and order recording the acquittal on appreciation of evidence is erroneous. 7. Learned Advocate Shri Hasit Joshi appearing for the Respondent -Original Accused has referred to the papers at length and submitted that as it appears that from the testimony of the witnesses, the complainant who was serving as a cashier had the keys of the locker and he was in charge of Manager. He pointedly referred to the testimony of witnesses that he could have been an accused as initially the complainant was suspected as stated by PW-2 in his testimony at Exh. 10. He submitted that the complainant has offered to deposit the amount to settle the issue which is also required to be considered. It has been stated by PW-3 that the complainant had shown willingness to deposit the amount. He submitted that the accused who was only cleaning and sweeping the premises for half an hour would not have access to the keys of the locker and it is not broken but it is being opened with the keys. Therefore when the complainant as a cashier was having keys and he was in charge, without the keys it could not have been opened. He therefore emphasized about the conduct of the complainant and the entire episode. 8. Learned Advocate Shri Hasit Joshi also submitted that there is no evidence brought on record with regard to the total amount or the balance in the locker/safe and the bank has not produced any documentary evidence. He further submitted that the recovery discovery panchnama cannot be said to have been proved or established as the amount is said to have been recovered from the field. He further submitted that the recovery discovery panchnama cannot be said to have been proved or established as the amount is said to have been recovered from the field. However, he submitted that the defence witnesses have categorically stated about the money which was borrowed by the accused for the said purpose, which raises doubt about the recovery itself. He therefore submitted that the present appeal may not be entertained. Learned Advocate Shri Hasit Joshi submitted that in view of the principles with regard to the acquittal appeals, normally the court would not disturb the findings even if there are two views are possible if the view is taken by the court is plausible. He therefore submitted that the present appeal may not be entertained. 9. In view of this rival submissions, it is required to be considered whether the present appeal can be entertained. 10. As it transpires from the material and evidence on record, the complainant is the cashier having the keys of the locker/safe and was also in charge of Manager. Admittedly, the locker/safe is not broken but it is opened with the keys and the keys were found in the locker at the time of incident. There is no explanation as to how the key could be in possession of the accused or he could have any access to such keys. Admittedly, the accused is not even the employee. It is stated that he was only sweeping and cleaning the premises for half an hour or one hour. This itself suggest that he could not have an access to the keys of the locker/safe of the bank and therefore could not have opened or even chance to open the same. Therefore the submissions which have been made by learned APP Shri H.L. Jani relying upon the panchnama including the recovery discovery panchnama as well as dog tracking cannot be readily accepted. A useful reference can be made to the judgment of the Hon'ble Division Bench of the High Court reported in 2000 (3) GLR 1925 in the case of Trikambhai @ Tiko Ravjibhai Thakor v. State of Gujarat, wherein it has been observed that the evidence of the dog squad could be used for the investigation and even if such evidence is admissible it can be used as a corroborative evidence and is not that of much weight. Therefore, there is no material or evidence to establish the very basis or the foundation with regard to the involvement of the accused as to how he could have any access to the keys. Further, no material or evidence is produced with regard to the exact amount lying in the safe or the locker as there is no documentary evidence. As against that a close scrutiny of the testimony of the witnesses who are the officers of the bank clearly suggest that initially the complainant (cashier) was ready to settle the matter on depositing the amount. Further, the discovery or recovery panchnama is not supported by the panch witness at all and though it is said that the amount is recovered from the agricultural field, the testimony of the defence witness is that the accused was compelled to borrow and deposit the amount would stare in the face. Therefore when the very basis or the foundation is not lead with regard to the offence alleged, the findings and the conclusion arrived at cannot be said to be erroneous. 11. The Hon'ble Apex Court has laid down the broad guidelines with regard to the approach in acquittal appeals. It is well accepted that normally the appellate court would not reverse the findings unless there are justifiable reasons. The Hon'ble Apex Court in a judgment reported in (2015) 7 SCC 681 in case of State of Madhya Pradesh v. Madanlal has reiterated the approach in such matters and the exercise of powers by the court. It has been clearly observed quoting from the earlier judgment reported in (2015) 6 SCC 158 in case of K. Anbazhagan v. State of Karnataka: "39........... The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely, solely because there might not have been proper assistance by the counsel appearing for the parties. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasonings in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind - sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test." 12. The Hon'ble Apex Court has laid down the broad guidelines with regard to the scope of acquittal appeals in catena of judicial pronouncements. A useful reference can be made to the judgment of the Hon'ble Apex Court reported in (2007) 4 SCC 415 in the case of Chandrappa v. State of Karnataka. The broad guidelines have been laid down, which clearly referred to the relevant factors, which are required to be considered and the approach depending upon the facts of the case. It has been specifically observed with regard to the relevant factors which are required to be considered for reversing the order of acquittal. 13. Therefore, considering the background and the reasons recorded for the findings arrived at by the court below, it cannot be said to be erroneous or perverse. The view taken by the court below is a plausible view in light of the broad guidelines with regard to the acquittal appeals. The present appeal therefore deserves to be dismissed and accordingly stands dismissed. The Criminal Revision Application also stands dismissed in view of the order passed in the Criminal Appeal. 14. The muddamal money (Re. 12,500/-) as observed by the trial court may be handed over to the accused on usual terms. Appeal Dismissed.