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2017 DIGILAW 735 (GUJ)

State of Gujarat v. Mansukhbhai Bhalabhai Oza

2017-04-04

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. The appellant State of Gujarat has preferred the present appeal under section 378(1) (3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 29.4.2004 rendered by learned Special Judge, Fast Track Court, Patan in Special ACB Case No. 17 of 2000. 2. The short facts giving rise to the present appeal are that complainant was cultivating the land admeasuring 41.5 gunthas owned by his father, out of which 20 gunthas were sold to one Barot Natvarlal Pratapji by executing the sale deed. It is alleged that on 4.1.2000 the complainant gave xerox copy of the index of the said sale deed to the accused for mutating the name of Barot Natvarlal Pratapji for which the accused demanded Rs. 5000/- which was reduced to Rs. 1500/-, out of which Rs. 1000/- was paid to the accused. However, the complainant did not way to pay the remaining amount of illegal gratification, he approached the ACB office, Mehsana and lodged the complaint. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge sheet against the respondent accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined several witnesses and also produced documentary evidences. 3.2 At the end of trial, after recording the statement of the accused under section 313 of the Criminal Procedure Code, 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellant State has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of acquittal is required to be reversed, as such. 5.1 Ms. Monali Bhatt, learned APP appearing for the appellant State has reiterated and urged the grounds mentioned in the memo of appeal. 5.1 Ms. Monali Bhatt, learned APP appearing for the appellant State has reiterated and urged the grounds mentioned in the memo of appeal. Learned APP has taken this Court through the paper-book and evidence on record and argued that the finding recorded by learned trial Court is based upon the presumptions and surmises. She further submitted that learned trial Court has not rightly appreciated the evidence on record. She submitted that the complainant has fully supported the case of the prosecution and that recovery of tainted currency notes from the table of the accused is also established by the prosecution. She submitted that when the evidence on record clearly indicates that there was predemand and even prior to trap, the accused has already accepted Rs. 1000/- and during the course of trap, he was caught red handed along with tainted currency notes. In her submission, learned trial Court has failed to appreciate the evidence on record and wrongly recorded the judgment of acquittal which is required to be reversed and the respondent is required to be convicted, as such. 6. On the other-hand, Mr. K.B. Anandjiwala, learned senior advocate assisted by Mr. Kunal Shahi, learned advocate for the respondent accused has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Mr. Anandjiwala submitted that learned trial Judge has recorded ample reasons while delivering the judgment and based its findings on the evidence available on record and that there is no evidence on record to link the respondent accused with the crime in question. He submitted that documentary evidence at Exh. 33 clearly establishes that on 29.12.1999 purchaser of the land i.e. Barot Natwarlal Pratapji applied before the accused for mutating his name in the revenue record along with the Index and in pursuance thereof, the respondent accused already mutated the name of Barot Natwarlal Pratapji by revenue entry No. 2670 dated 29.12.1999 and on the same day, the notice under section 135-D of the Gujarat Land Revenue Code was also issued to the concerned persons, copies of which are produced at Exhs. 35 to 37 and even the said entry came to be certified by the Mamlatdar concerned on 4.2.2000. He submitted that panchas as well as independent witnesses have not supported the case of the prosecution. 35 to 37 and even the said entry came to be certified by the Mamlatdar concerned on 4.2.2000. He submitted that panchas as well as independent witnesses have not supported the case of the prosecution. He, therefore, submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in passing the impugned order acquitting the respondents accused, and therefore, the present appeal deserves to be dismissed. 7. This Court has heard Ms. Monali Bhatt, learned APP for the appellant State and Mr. K.B. Anandjiwala, learned advocate assisted by Mr. Kunal Shahi, learned advocate for the respondent accused. 8. This Court has minutely gone through the impugned judgment and order rendered by learned trial Court as well as the evidence on record in the nature of paper book. As per the prosecution version, as the sale transaction took place between the father of the complainant and one Barot Natwarlal Pratapji, the purchaser made application on 29.12.1999 for mutating his name. It is the case of the prosecution that as the accused was not mutating the name of the purchaser and demanding illegal gratification, the son of the seller i.e. complainant lodged the complaint before the ACB office inter alia stating that the accused has demanded Rs. 5000/- which came to be scaled down to Rs. 1500/- and at the time of demand, the accused accepted Rs. 1000/- and as he was not willing to pay the remaining amount, he lodged the complaint. During the course of the trap, the accused came to be caught red handed along with tainted currency notes on 5.2.2000 and thereby, the accused committed the offence as alleged. 9. Having heard learned advocates for the respective parties and having perused the material evidence available on record, it appears that so as to prove the vital ingredients i.e. demand, acceptance and recovery, the evidence of crucial witnesses i.e. complainant, panchas and independent witness is worth to be appreciated. Indisputably, panch Nos. 1, 2 and 6 - PW 2, PW 3 and PW 4 who are eye witnesses have not supported the case of the prosecution and therefore they have been declared hostile. On the contrary, from the evidence of PW 4, the aforesaid documentary evidences in the nature of revenue record at Exhs. Indisputably, panch Nos. 1, 2 and 6 - PW 2, PW 3 and PW 4 who are eye witnesses have not supported the case of the prosecution and therefore they have been declared hostile. On the contrary, from the evidence of PW 4, the aforesaid documentary evidences in the nature of revenue record at Exhs. 33 to 38 were brought on record which clearly indicate that revenue entry No. 2670 was already mutated in the name of Barot Natwarlal Pratapji with effect from 29.12.1999 that is more than a month prior to lodging the complaint. Further, notice under section 135-D of the Gujarat Land Revenue Code came to be served upon the concerned persons. Indisputably, the complainant is neither seller nor purchaser and without verifying truthfulness of the allegations, he lodged the complaint before the ACB office. The complainant alleges that the accused was not mutating the name of the purchaser as such and demanded the amount of illegal gratification. That assumption made in the complaint is totally false in view of the documentary evidences at Exhs. 35 to 38 as the entry was already mutated on 29.12.1999 and the complaint was lodged on 4.2.2000. 10. Even otherwise also, though the complainant has fully supported the case of the prosecution, but his evidence is neither getting corroboration from the evidence of the panchas or the independent witness - PW 4 who was at the relevant time working with the accused who was cited as eye witness of the entire episode. In this view of the matter, when the evidence of the complainant is not at all getting corroboration and support from the evidence of the independent witness, it would be very hazardous to rely upon the evidence of the complainant. In this view of the matter, this Court is of the considered opinion that learned trial Judge has rightly not believed the case of the prosecution. It is by now well settled that demand has to be proved by adducing clinching evidence. Under the circumstances, in absence of specific and clinching evidence to prove all such acts by the respondent accused, acquittal recorded by learned trial Judge cannot be converted into conviction. 11. It is by now well settled that demand has to be proved by adducing clinching evidence. Under the circumstances, in absence of specific and clinching evidence to prove all such acts by the respondent accused, acquittal recorded by learned trial Judge cannot be converted into conviction. 11. 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. 12. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in acquitting the respondent accused of the charges leveled against him. This Court finds that the findings recorded by learned 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 learned court below and hence finds no reasons to interfere with the same. 13. In the result, this appeal fails and accordingly, it is dismissed. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith.