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2015 DIGILAW 994 (GUJ)

State of Gujarat v. Virabhai

2015-10-07

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT : K.S. Jhaveri, J. 1. Both these Criminal Appeals are preferred against judgment and order dated 13.10.2010 passed by Additional Sessions Judge, Court No. 13, Ahmedabad, in Sessions Case No. 114 of 2010. By the said judgment, accused Nos. 1, 3, 4 and 5 were acquitted of the charges of offence punishable under Sections 489(B) and (C) and Section 114 of the Indian Penal Code, while accused No. 2 was acquitted of the charges of offence punishable under Sections 489(B) of IPC. However, accused No. 2 is convicted for offence punishable under Section 498(C) of IPC and sentenced to undergo rigorous imprisonment for a period of four years and ordered to pay fine of Rs. 1,000/- and, in default of payment of fine, simple imprisonment of two months was awarded. Criminal Appeal No. 375 of 2008 is preferred for enhancement of sentence imposed on accused No. 2 by the impugned judgment, while Criminal Appeal No. 376 of 2008 is preferred by the State against acquittal of the accused persons. 2. Both these appeals are arising out of the same judgment and since they are arising out of the same incident and the evidence is common in both these appeals, the same are taken up for hearing together. 3. The case of the prosecution is that on 14.4.2008 at about 9.45 p.m. while complainant was doing his business, one customer came and demanded one plate of watermelon and gave note of the denomination of Rs. 500/-. The complainant doubted said note as it was not tallying with the original note. Therefore, he caught that person and handed him over to police. The police carried out interrogation of accused No. 1, fake currency note was recovered and complaint being C.R. No. I-231/2008 for offence under Section 489(B), 489(C) and 114 of IPC was registered. During investigation of the said case, accused No. 1 said that he has received such note from accused No. 4. Upon inquiry, accused No. 4 told that he has received such noted from accused No. 3 and in turn accused No. 3 informed that he has received such note from accused No. 2. On 21.4.2008, raid was carried out and during raid accused No. 2 was caught red handed with 201 notes of the denomination of Rs. 500/-, and during inquiry accused No. 2 has produced 290 notes of the denomination of Rs. 500/-. On 21.4.2008, raid was carried out and during raid accused No. 2 was caught red handed with 201 notes of the denomination of Rs. 500/-, and during inquiry accused No. 2 has produced 290 notes of the denomination of Rs. 500/-. During investigation, accused No. 2 revealed that several such notes were given to accused No. 5. Therefore, police raided the house of accused No. 5 and during raid he was found in possession of 72 notes of the denomination of Rs. 500/- and 31 notes of the denomination of Rs. 100/-. 3.1 Investigation was carried out and charge sheet was submitted in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same committed to Sessions Court. Thereafter, charge was framed against the accused persons. The accused persons pleaded not guilty and claimed to be tried. 3.2 During the trial, the prosecution had examined following witnesses; P.W.No. Name of the witness Exh. 1 Complaint, Babulal Srisama Sonar 19 2 Bharatkumar Mohanlal Anikar, Panch witness. 22 3 Ghanshyamsinh Dhirubha Mandora, Police Constable 25 4 Ajaibhai Kanjibhai Thakor, Panch witness. 26 5 Lakhtariya Alkesh Jaysukhbhai, Panch witness. 31 6 Mayurdevsinh Rajenderasinh Champavat, Police Constable. 33 7 Somabhai Mohanbhai Solanki, Head Constable, Bavla Police Station. 36 8 Jagabhai Shivabhai Patel, Witness. 39 9 Khemabhai Ishwarbhai Patel, Panch witness. 40 10 Uday Rajendra Sonkar 47 11 Harishchandrasinh Ghoghubha Zala, ASI, Dasada Police Station. 50 12 Samarthdan Dajibhai Gadhavi, investigation officer. 56 3.3 The prosecution has also produced and relied upon following documentary evidence:- Sr. No. Description Exh. 1 Original complaint of complaint-Babulal Sonkar 20 2 Recovery panchnama. 23 3 Panch slip (in cover) 27 4 Recovery-discovery panchnama. 28 5 Panch slip (in cover) 29 6 Muddamal receipt No. 68/08 38 7 Discovery panchnama. 41 8 Muddamal receipt No. 19/08 51 9 Slip bearing signature of panchas. 57 10 Report for addition of Sections 489 (c) and 114 of IPC. 58 11 FSL receipt. 59 12 Dispatch note. 60 13 FSL receipt. 61 14 FSL report. 62 15 Report of officer-in-charge. 63 16 Telephone vardhi. 64 3.4 At the end of trial, the Court below recorded further statements of accused persons under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid, and also acquitting the accused persons of some of the charges levelled against them. 62 15 Report of officer-in-charge. 63 16 Telephone vardhi. 64 3.4 At the end of trial, the Court below recorded further statements of accused persons under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid, and also acquitting the accused persons of some of the charges levelled against them. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred before this Court. 4. Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against accused No. 2 is just and proper and she has supported the conviction recorded by impugned judgment. So far as Criminal Appeal No. 375 of 2011 is concerned, which is preferred for enhancement of sentence imposed on accused No. 2, she has taken us through the evidence and contended that the trial Court has committed an error in imposing the sentence upon accused No. 2 inspite of voluminous evidence against him and contended that the trial Court ought not to have imposed such a lesser punishment. She also submitted that without appreciating the documentary as well as oral evidence available on the record of the case in its proper perspective, learned Judge has erred in imposing lesser punishment upon accused No. 2. She submitted that the prosecution has examined 12 witnesses in support of its case and has also produced 16 documentary evidences on the record of the case. However, without appreciating those documentary as well as oral evidence available on the record of the case in its proper perspective the learned Judge has erred in imposing lesser punishment upon accused No. 2. She submitted that the reason put forth on behalf of the accused is not sufficient and reasonable for imposing lesser sentence on the accused. Therefore also, as the sentence imposed by the learned Judge is not sufficient and reasonable the same deserves to be enhanced by this Hon'ble Court. She also submitted that from the available material and from facts and circumstances of the case, it is clear that the accused No. 2 deserve maximum sentence as provided under the aforesaid provision of the Code. It is a fit case wherein the sentence imposed on accused No. 2 deserves to be enhanced by this Hon'ble Court. She also submitted that from the available material and from facts and circumstances of the case, it is clear that the accused No. 2 deserve maximum sentence as provided under the aforesaid provision of the Code. It is a fit case wherein the sentence imposed on accused No. 2 deserves to be enhanced by this Hon'ble Court. She further submitted that the learned Judge has failed to appreciate that there is no any mitigating circumstance to impose lesser sentence and it is very clear from the facts and circumstances of the case available on the record of the case that there is aggravating circumstances in which Hon'ble Judge ought to have imposed the maximum sentence as provided under the law. She also submitted that the learned trial Judge has committed an error in taking lenient view while imposing sentence on accused No. 2 and, therefore, the sentence imposed is required to be enhanced. Therefore, she submitted that Criminal Appeal No. 375 of 2011 may be allowed and the sentence imposed by the trial Court may be enhanced. 5. On the other hand, Mr. Kaivan Patel, learned advocate for accused No. 2 submitted that the sentence imposed upon the accused No. 2 is just and proper and this Court may not interfere with the sentence. He submitted that the learned trial Court has after appreciating the evidence on record in its proper perspective imposed the sentence, therefore, it may not be enhanced. He also submitted looking to the offence in question, the sentence imposed may not be enhanced and this appeal may be dismissed. 6. We have heard Ms. C.M. Shah, learned APP for the State and Mr. Kaivan Patel, learned advocate for the respondent. We have also gone through the evidence on record. Considering the evidence of the complainant and other witnesses, it is clear that some of the panch witnesses have not supported the case of the prosecution. While considering the case against accused No. 2, the trial Court has rightly believed that he was in possession of the fake notes. It is rightly found by the trial Court that from the deposition of PW-6, it is clear that accused No. 2 was found in possession of fake currency notes and this witness has also identified muddamal mobile, which was recovered from accused No. 2. Not only that panchnama and its contents were proved against accused No. 2. It is rightly found by the trial Court that from the deposition of PW-6, it is clear that accused No. 2 was found in possession of fake currency notes and this witness has also identified muddamal mobile, which was recovered from accused No. 2. Not only that panchnama and its contents were proved against accused No. 2. Therefore, the trial Court has rightly convicted accused No. 2 for offence punishable under Section 489(C) of IPC. The sentence provided for such offence is upto seven years, however, the discretion exercised by the trial Court is just and proper while imposing punishment of four years. Therefore, enhancement appeal preferred by the State against conviction of accused No. 2 deserves to be dismissed. 7. So far as Criminal Appeal No. 376 of 2011 is concerned, which is preferred against acquittal of accused Nos. 1, 3, 4 and 5 from the charges of offence punishable under Sections 489(B) and (C) and Section 114 of the Indian Penal Code, and against acquittal of accused No. 2 from the charges of offence punishable under Sections 489(B) of IPC, it is submitted by learned APP that the impugned judgment and order of acquittal is against law and evidence on record. She submitted that the learned Judge has erred in appreciating the evidence of the prosecution witnesses wherein the prosecution has established that the respondents-accused were guilty of the offence. She submitted that the learned Judge has committed grave error apparent on the record of the case by not properly appreciating the material available on the record of the case. She also submitted that the learned Judge has not properly appreciated the over all facts and circumstances of the case and also the evidence available on the record of the case which is sufficient to prove that the accused persons have committed the offence punishable under Sections 489(B) and (C) and Section114 of IPC. Therefore, the learned Judge ought to have convicted the accused persons for the aforesaid offences. She submitted that the learned Judge has committed grave error in discarding and disbelieving the prosecution version while coming to the conclusion that prosecution has failed to prove beyond reasonable doubt that the accused persons have committed offence. Therefore, the impugned judgment and order passed by the learned Judge deserves to be quashed and set aside by this Hon'ble Court. She submitted that the learned Judge has committed grave error in discarding and disbelieving the prosecution version while coming to the conclusion that prosecution has failed to prove beyond reasonable doubt that the accused persons have committed offence. Therefore, the impugned judgment and order passed by the learned Judge deserves to be quashed and set aside by this Hon'ble Court. She, therefore, submitted that by allowing Criminal Appeal No. 376 of 2011, impugned judgment acquitting the respondents-accused of some of the charges levelled against them may be set aside. 8. 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 Vs. State of Kerala & Anr., (2006) 6 S.C.C. 39 , the Apex Court has narrated the powers of 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." 8.1 Further, in the case of Chandrappa Vs. State of Karnataka, (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. [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. 8.2 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. 8.3 Even in the case of State of Goa V. Sanjay Thakran & Another, (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." 8.4 Similar principle has been laid down by the Apex Court in the 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 LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal are well settled. 8.5 In the case of Luna Ram Vs. Bhupat Singh and Ors., (2009) SCC 749, the 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 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." 8.6 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, AIR 2013 SC 321 , the Apex Court in para 4 has held as under: "4. Vs. State, rep. by the Inspector of Police, Tamil Nadu, 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 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 vs. Sohan Lal and Others, (2004) 5 SCC 573 ]" 8.7 It is also a settled legal position that in acquittal appeal, 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. 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. 8.8 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. 9. We have gone through the oral as well as documentary evidence on record. It is observed by the trial Court that so far as accused Nos. 1, 3, 4 and 5 are concerned, the prosecution could not prove its case beyond reasonable doubt. It is found that even the panchas have not supported the case of the prosecution so far as these accused are concerned. So far as accused No. 1 is concerned, the prosecution has failed to prove that he was knowing that he was in possession of a fake note of Rs. 500/-. Therefore, we find that the accused persons are rightly acquitted by the learned trial Judge for the charges levelled against them, as aforesaid. From the above, it is clear that the learned Judge has not committed any error while acquitting the accused persons of some of the charges levelled against them. Moreover, learned APP is not in a position to show any evidence on record so as to take a contrary view in the matter or to conclude 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 material evidence while acquitting the accused persons. Hence, we are of the considered opinion that the Court below has not committed any error in acquitting accused Nos. 1, 3, 4 and 5 of the charges of offence punishable under Sections 489(B) and (C) and Section 114 of the Indian Penal Code, and while acquitting accused No. 2 of the charges of offence punishable under Sections 489(B) of IPC. 1, 3, 4 and 5 of the charges of offence punishable under Sections 489(B) and (C) and Section 114 of the Indian Penal Code, and while acquitting accused No. 2 of the charges of offence punishable under Sections 489(B) of IPC. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below in the impugned judgment and, therefore, find no reasons to entertain this appeal and this appeal is also required to be dismissed. 10. For the foregoing reasons, both these appeals are dismissed. The impugned judgment and order dated 13.10.2010 passed by Additional Sessions Judge, Court No. 13, Ahmedabad, in Sessions Case No. 114 of 2010 is confirmed. If accused No. 2 has not undergone the prescribed period of sentence, he shall surrender before the jail authorities within a period of ten weeks from today to serve the remaining period of sentence. Bail bonds, if any, stands cancelled. Record and Proceedings, if lying here, be sent back to the concerned trial Court forthwith.