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2016 DIGILAW 1153 (GUJ)

STATE OF GUJARAT v. DAULATKHAN JAFARKHAN MUSALMAN

2016-06-21

R.P.DHOLARIA

body2016
JUDGMENT : R.P. DHOLARIA, J. 1. This is an appeal preferred by the State of Gujarat under Section 378 (3) of the Criminal Procedure Code, 1973 against the judgment and order of acquittal dated 06/12/2004 recorded by the learned third Joint Civil Judge (S.D.) and Judicial Magistrate First Class, Palanpur in Criminal Case No. 4257 of 1994 whereby the learned Trial Judge acquitted the respondents-accused, of the charges for the offence punishable under Sections 198, 465, 466, 471 and 114 of the Indian Penal Code. 2. Brief facts of the case are that on 07/06/1994, recruitment process was being carried out by the office of the District Superintendent of Police, Banaskantha and the candidates were called for the purpose. The certificates were verified and it was found that accused no.1 had submitted duplicate school leaving certificate showing the date of birth as 25/11/1970. He was called to submit original SCC certificate but he failed to comply with the requisition. Earlier on 04/02/1991, there was recruitment process earlier for the post of Police Constable and in the said recruitment process, name of accused no.1 was in the waiting list. He apprehended that said list may expire and therefore, he filed Special Civil Application No. 3031 of 1992. In order to get through the recruitment process, he submitted forged duplicate school leaving certificate and therefore, he was charged with the offence punishable under Sections 198, 465, 466, 471 and 114 of the Indian Penal Code. The trial was initiated against the respondents. 3. To prove the case against the present respondents-accused, the prosecution has examined several witnesses and also produced several documentary evidence. 4. 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 trial Judge acquitted the respondent of all the charges leveled against him by judgment and order dated 06/12/2004. 5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court, the appellant-State has preferred the present appeal. 6. This Court has heard Mr. L.B. Dabhi, learned APP for the appellant-State and Mr. Hriday Buch, learned advocate for the respondents. 7. Mr. 5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court, the appellant-State has preferred the present appeal. 6. This Court has heard Mr. L.B. Dabhi, learned APP for the appellant-State and Mr. Hriday Buch, learned advocate for the respondents. 7. Mr. L.B. Dabhi, learned APP has taken this Court through the impugned judgment and argued that there is evidence on record that in the previous recruitment, the same candidate i.e. respondent no.1 has disclosed his date of birth to be 25/11/1966 and subsequently in order to bring his candidature within the zone of consideration, he has changed his date of birth to 25/11/1970, which prima facie establishes that he has fabricated the document and thereby committed the offence as alleged. He has also taken this Court through the documentary as well as oral evidence and has argued that learned Trial Court has failed to appreciate the same in its proper perspective and order of acquittal is required to be reversed. It is also contended by learned APP that the judgment and order of the trial Court is against the provisions of law as the trial Court has not properly considered the evidence led by the prosecution 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. It is further contended by learned APP that the judgment and order of acquittal passed by the learned Judge is based on inferences not warranted by facts of the case and also on presumption not permitted by law. It is also submitted by him that the learned Judge has not properly appreciated oral as well as documentary evidence and thereby committed error by acquitting the respondent for the alleged offence under Sections 198, 465, 466, 471 and 114 of the Indian Penal Code which requires to be reversed as such and the accused are required to be convicted. 8. On the contrary, supporting the impugned judgment of acquittal, Mr. Hriday Buch, learned advocate for the respondents-accused has argued that there is no iota of evidence available against respondent nos.2 and 3 to connect them with the crime. 8. On the contrary, supporting the impugned judgment of acquittal, Mr. Hriday Buch, learned advocate for the respondents-accused has argued that there is no iota of evidence available against respondent nos.2 and 3 to connect them with the crime. It is further argued that even otherwise also the prosecution has failed to bring on record any opinion from the handwriting expert regarding any fabrication (mutilation) so far as change of date of birth of respondent no.1 is concerned. In absence of such evidence, the accused cannot be linked with the crime as alleged. Consequently therefore, the finding recorded by the learned trial court does not require any interference by this Court. 9. This Court has minutely perused the oral as well as documentary evidence available on record and gone through the impugned judgment and order passed by the trial court as well as paper book and evidence adduced by the prosecution in its entirety and has also considered the submissions made by learned APP for the appellant-State and learned advocate for the respondents. 10. As per the prosecution version, the District Superintendent of Police, Banaskantha initiated recruitment process and on 07/06/1994 wherein respondent no.1 Dolatkhan Jafarkhan Ghasura has filed his candidature. In his candidature, he has tendered school leaving certificate disclosing his date of birth as 25/11/1970 though previously such recruitment procedure was done on 04/02/1991 and at that time he tendered leaving certificate disclosing his date of birth as 25/11/1966. As he did not found place in the recruitment held in the year 1991, he preferred writ petition before the High Court as his name was in the waiting list in the previous recruitment. In the subsequent recruitment procedure, he tendered the aforesaid two leaving certificates at Exh.22 and Exh.62 disclosing his date of birth to be 25/11/1970 which was found to be forged and fabricated one and after conclusion of trial, charge sheet was filed wherein it was alleged that in order to take disadvantage by fabricating his date of birth to bring himself within the zone of consideration, he has changed the birth certificate and changed the date of birth as 25/11/1970 instead of 25/11/1966 and thereby forged the document. In doing such, it is alleged that accused no.2 and 3 abetted and aided accused no.1. 11. In doing such, it is alleged that accused no.2 and 3 abetted and aided accused no.1. 11. Having heard learned advocate for the respective parties to the present proceedings and having perused the impugned judgment as well as records and proceedings and on overall analysis of evidence on record, it clearly reveals that though the witnesses Shri Parbatsinh Bariya has deposed that the certificate at Exh.22 is doubtful but the prosecution has not brought on record as to how the aforesaid certificate is doubtful. This Court has perused the certificate at Exh.22. On perusal of such certificate, there appears no mutilation in entry in the certificate and prima facie it appears to be genuine certificate though date of birth certificate as narrated above appears to be changed one. Even on going through the evidence of the witnesses, no concrete evidence is brought on record to link the accused with the crime and none of the witnesses have alleged anything against respondent nos.2 and 3. Indisputably the prosecution has not sent the aforesaid alleged forged document at Exh.22 for examination to any handwriting expert and has not brought on record any such information. In absence thereof, even if some doubt is shown by the witnesses, it cannot be believed as such and even if we may believe that the certificate of date of birth of respondent no.1 which he himself has produced disclosing to be 25/11/1966 instead of 25/11/1970 which is changed, then also the prosecution was required to bring on record that the aforesaid date of birth has been forged or mutilated by any one of the accused in order to get undue advantage or benefit thereof. That has also not been done by the prosecution. In view of the same, the accused cannot be linked with the crime and the learned Trial Judge has rightly acquitted the accused by giving benefit of doubt. 12. For the reasons recorded as above, it appears that the learned trial court has rightly appreciated the evidence on record and rightly acquitted the accused from the charges leveled against them which calls for no interference by this Court. This Court is of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges leveled against them. This Court is of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges leveled against them. This Court find that the findings recorded by the Trial Court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. 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. Accordingly, present appeal is devoid of any merits and requires dismissal. 13. In the result, the present appeal is hereby dismissed. Record and Proceedings to be sent back to the trial Court, forthwith. Bail bond and bail, if any, stands cancelled. Surety also, if any given, stands discharged. Appeal dismissed.