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2017 DIGILAW 836 (GUJ)

State of Gujarat v. Ashok Satyanarayan Agrawal

2017-04-19

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 10.3.2008 rendered by learned Special Judge (ACB), Court No. 4, Ahmedabad in Special Case No. 20 of 2005. 2. The short facts giving rise to the present appeal are that the respondents - accused hatched criminal conspiracy and in furtherance thereto, accused Nos. 1, 2, 3, 4, 5, 7 and 8 have procured the licence of preserving arms by suppressing material facts from the office of the District Magistrate, Jammu & Kashmir. Accused No. 10 was discharging his duties as Junior Clerk with the office of Police Commissioner, Ahmedabad. Deceased accused Paramjitsinh and absconding accused Jogindersinh were also members of the criminal conspiracy. Accused Nos. 2 to 8 have, in assistance of accused No. 1 filled up the forms for obtaining licence for holding fire arms which were entertained and after obtaining the licence from the office of the District Magistrate, Jammu & Kashmir, accused Nos. 2 to 8 had purchased weapons from deceased Paramjitsinh. The application for transferring the licence was tendered by accused Nos. 2, 3 and 5 before the office of Police Commissioner, Ahmedabad which application was entertained by accused Nos. 9 and 10 and they managed to transfer these licence from the office of the District Magistrate, Jammu & Kashmir to the jurisdiction of the Police Commissioner, Ahmedabad. It is alleged that accused Nos. 9 and 10 have caused original papers disappeared in order to render assistance to the main accused persons. Ultimately, the complaint came to be lodged against the accused persons. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the respondents 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 statements 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. 3.2 At the end of trial, after recording the statements 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 Mr. K.L. Pandya, 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. He further submitted that learned trial Court has not rightly appreciated the evidence on record. He submitted that respondents - accused are involved in heinous crime of cheating, forgery, bribery and keeping arms illegally and unauthorizedly and that the said offences are the result of criminal conspiracy hatched by them. In his 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 respondents are required to be convicted, as such. 6. On the other-hand, Mr. Ekant Ahuja, learned advocate for respondent No. 4 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. He 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 respondents accused with the crime in question. He 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 respondents accused with the crime in question. He submitted that though the respondents accused are charged for the heinous offences like cheating, forgery, bribery, destruction of evidence, unauthorized possession of arms, criminal conspiracy, forging of documents etc., but none of the panchas have supported the case of the prosecution, however, only oral evidence of the police officers is available on record. He submitted that in light of the clear admission made by the said police officers in their cross examination, their evidence is also in the nature of hearsay evidence so far as the alleged offences are concerned. He submitted that allegations are also regarding cheating and forging documents, but the prosecution has not at all produced any document alleged to have been forged and no documentary evidence is produced to show that the present respondents have cheated either to the competent authority of Jammu & Kashmir or the competent authority of State of Gujarat while procuring arm licence. He submitted that in absence of such documentary evidence, even the prosecution has failed to establish such charge by way of oral evidence. He submitted that the prosecution has solely relied upon so called confessional statements of the respondents which came to produced at Exhs. 157 to 166 wherein also Mr. Ahuja, learned advocate for respondent No. 4 pointed out that none of the aforesaid statements are disclosing any confession which appears to have been made by any one of the respondent accused before learned Magistrate, however, the aforesaid statements cannot be relied upon as they were accused while their statements were recorded. He submitted that in view of clear admission made by learned Magistrate, who recorded the aforesaid statements, that the persons gave statements for becoming approver, but they are not permitted to be approver or witnesses of the State, as such and therefore, their evidence is no more helpful to 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. Mr. 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. Mr. B.N. Limbachia, learned advocate for accused Nos. 9 and 10 has submitted that the accused are charged for the commission of offence of bribery, however, there was no trap as well as nothing is revealing from the evidence of PW 14, PW 16, PW 17 and PW 19 to 22 and therefore, the prosecution has not at all lead any evidence connecting the accused with the crime in question. He submitted that even the police witnesses have also not deposed in this regard and, therefore, the accused have been wrongly implicated with the crime in question. Rest of learned advocates appearing for remaining accused have adopted the arguments that have been advanced by Mr. Ahuja, learned advocate, in support of their submissions and requested this Court to treat and consider the said arguments as the arguments on their behalf for the respective respondents - accused. 8. This Court has heard Mr. K.L. Pandya, learned APP for the appellant State and respective learned advocates for the respondents - accused. 9. 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, all the accused hatched criminal conspiracy for possessing arms and to get licence by resorting to illegal means as well as by forging documents from the State of Jammu & Kashmir and thereby they have committed offences as alleged. 10. Indisputably, PWs 1 to 10, 12, 13 and 15 have been declared hostile. PW 11 - Jayantibhai Rajabhai Gohil has been examined at Exh. 111. The witness has deposed that he was serving in the office of Police Commissioner, Ahmedabad in licence branch. Nothing worth is coming out from his deposition. However, the witness has deposed that the licences were renewed upto 2005. 11. PW 16 - Vedprakash Gopichand Gupta has been examined at Exh. 135. The witness has deposed that he is owner of Gujarat Gun House and since 1972, he is selling weapons. Nothing worth is coming out from his deposition. However, the witness has deposed that the licences were renewed upto 2005. 11. PW 16 - Vedprakash Gopichand Gupta has been examined at Exh. 135. The witness has deposed that he is owner of Gujarat Gun House and since 1972, he is selling weapons. The witness has deposed that accused - respondent No. 2 herein has deposited his weapons with him on 16.6.2004. 12. PW 17 - Rameshbhai Ishwarbhai Patel has been examined at Exh. 139. The witness has deposed that while he was serving as Police Inspector in the Crime Branch, he received information from the CBI and therefore, he inquired and thereafter he lodged the complaint. The witness has deposed that during the course of his interrogation, he gathered information that in the year 1995, one deceased Paramjit Singh used to supply weapons as well as licences in the State of Gujarat, however, he was residing in State of Haryana. The witness has deposed that thereafter he investigated and found that there were licenses bearing Nos. 791, 790 and 785 from the State of Jammu & Kashmir which got to be transferred by the accused to Ahmedabad, however, the entire record regarding obtaining of licenses as well as getting it transferred to Ahmedabad was not available in the office and therefore, he did not procure any documentary evidence pertaining to license. In the cross examination, the witness has clearly admitted that he has not personally investigated anything at Jammu & Kashmir. The witness has admitted that he has no information as to how the licenses are to be granted in State of Jammu & Kashmir. He has not interrogated deceased Paramjit Singh and not even seized any record from the State of Jammu & Kashmir as well as from the office of Police Commissioner, Ahmedabad. The witness has admitted that in case of grant of license as well as renewal, the higher police officials are making inquiry and thereafter only granting and renewing the licenses. The witness has admitted that he has no personal knowledge regarding the present case, but he lodged the complaint on the strength of the letter which he has received from the Central Bureau of Investigation. 13. PW 18 - Dr. Narendra Kantilal Amin has been examined at Exh. 145. The witness has admitted that he has no personal knowledge regarding the present case, but he lodged the complaint on the strength of the letter which he has received from the Central Bureau of Investigation. 13. PW 18 - Dr. Narendra Kantilal Amin has been examined at Exh. 145. The witness has deposed that he was Investigating Officer of the case and that the Central Bureau of Investigation was investigating into the present case, no documentary evidences were seized or collected in the present case. Similarly, the record pertaining to the transfer of license from Jammu & Kashmir to the office of Police Commissioner, Ahmedabad was also not available and therefore, no documentary evidence came to be collected. In the cross examination, the witness has admitted that he has not interrogated police officials who were involved in transfer of licenses from Jammu & Kashmir to Ahmedabad. The witness has admitted that the competent authority to transfer licenses from one State to another State is the Deputy Commissioner of Police. 14. PW 19 - Dahaji Gobarji Vanjara has been examined at Exh. 153. The witness has deposed that he has accorded sanction. 15. PW 21 - Janakkumar Keshavlal Pandya and PW 22 - Sushant Velantine Pinto, learned Magistrates have been examined at Exh. 156 and Exh. 163 respectively before whom confessional statements at Exhs. 157 to 166 were recorded. 16. On overall analysis of the aforesaid evidence on record, it can be seen that none of the panchas, in whose presence recovery came to be effected from the accused as well as panchnama came to be drawn, had supported the case of the prosecution and, therefore, they were declared hostile. 17. Leaving aside the aforesaid aspect, only oral evidence of the police officials is available on record and on evaluation of their evidence, the fact reveals that since the case was handed over by the Central Bureau of Investigation to the Commissioner of Police, Ahmedabad, they recorded the complaint and investigated the offence. However, the documents were in custody of the Central Bureau of Investigation and, therefore, alleged documents by which the present respondents accused alleged to have committed offences in question are not brought on record and not proved before the learned trial Court as well. However, the documents were in custody of the Central Bureau of Investigation and, therefore, alleged documents by which the present respondents accused alleged to have committed offences in question are not brought on record and not proved before the learned trial Court as well. Therefore, in absence of production of such documentary evidence on record, as noted above, transfer of licenses and the licenses issued by the District Magistrate, Jammu & Kashmir as well as the office of Police Commissioner, Ahmedabad are forged one could not be proved. As stated above, the Investigating Officer Mr. Amin has clearly admitted that the documentary evidences are in custody of the Central Bureau of Investigation and the same could not be collected. 18. So far as the allegation as regards to bribery concerning accused Nos. 9 and 10, nothing is on record indicating that accused Nos. 9 and 10 have indulged into corrupt practice while processing the applications. Neither documentary evidence is available on record nor oral evidence to link the accused with the crime in question. 19. It is also revealing from the Record and Proceedings that the prosecution has tried to strengthen the case solely relying upon so called confessional statements alleged to have been recorded which came to be produced before learned trial Court at Exhs. 157 to 166. This Court has perused the said alleged confessional statements as read over by learned APP Mr. K.L. Pandya. On going through all such confessional statements, nowhere any confession is made by any of the respondents accused. On the contrary, it is indicating that the deponent has tried to exculpate another accused in the crime in question and that is also not clearly spelling out. 20. On overall evaluation of the aforesaid confessional statements at Exhs. 157 to 166, it can be seen that the same are exculpatory in nature and the same can never be relied upon such cases. Normally, exculpatory statement from the mouth of the accused is in the nature of establishing guilt of another accused which can never be established against the co-accused for proving the prosecution as held by the Honourable Apex Court in catena of decisions. As admitted by learned Magistrates i.e. PW 21 and PW 22, the deponents have gave the aforesaid statements in order to avail the benefit of becoming approver or witness absolving themselves from the crime in question. As admitted by learned Magistrates i.e. PW 21 and PW 22, the deponents have gave the aforesaid statements in order to avail the benefit of becoming approver or witness absolving themselves from the crime in question. Admittedly, the same has not been done by the prosecuting agency and, therefore, the aforesaid confessional statements are of no use so far as the present accused are concerned. 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. Under the circumstances, in absence of specific and clinching evidence to prove all such acts by the respondents accused, acquittal recorded by learned trial Judge cannot be converted into conviction. 21. 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. 22. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in acquitting the respondents accused of the charges leveled against them. 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. 23. 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. Appeal Dismissed.