Research › Search › Judgment

Gujarat High Court · body

2018 DIGILAW 524 (GUJ)

STATE OF GUJARAT v. AMRATBHAI ZINABHAI CHAPANERIA

2018-02-16

R.P.DHOLARIA

body2018
JUDGMENT : 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 30.11.2004 rendered by learned Special Judge, 3rd Fast Track Court, Valsad in Special Corruption Case No.35 of 2002 (Old Case No.6 of 1999). 2. The short facts giving rise to the present appeal are that the respondent accused was working as Taluka Surveyor in the year 1999 and he was discharging his duties at Valsad. It is alleged that the complainant was in possession of the land at Sonwada and the said land was to be measured and therefore the complainant requested the accused to measure the area of the land. However, the respondent accused demanded money from the complainant. As the complainant did not want to pay the amount of illegal gratification, he approached the ACB office 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.Mehta, learned APP appearing for the appellant State has reiterated and urged the grounds mentioned in the memo of appeal. 5.1 Ms.Mehta, 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 since contemporaneous record in the nature of panchnama and other evidence are admitted in the evidence and keeping reliance upon those documentary evidence, the accused could have been convicted even though the complainant and shadow panch have not supported the case of the prosecution. 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.Rushabh Shah, 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.Shah 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 learned trial Court has elaborately dealt with the evidence on record and that the complainant as well as shadow panch had not at all 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 respondent accused, and therefore, the present appeal deserves to be dismissed. In support of his submissions, Mr.Shah has placed reliance upon the decision of the Honourable Apex Court in the case of B.Jayraj Vs State of A.P., reported in AIR 2014 SC (Supp) 1837. 7. This Court has heard Ms.Maithali Mehta, learned APP for the appellant State and Mr.Rushabh R.Shah, 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. 7. This Court has heard Ms.Maithali Mehta, learned APP for the appellant State and Mr.Rushabh R.Shah, 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 stated above, the respondent accused was working as Taluka Surveyor in the year 1999 and he was discharging his duties at Valsad. It is alleged that the complainant was in possession of the land at Sonwada and the said land was to be measured and therefore the complainant requested the accused to measure the area of the land. However, the respondent accused demanded money from the complainant. As the complainant did not want to pay the amount of illegal gratification, he approached the ACB office and lodged the complaint 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. PW 1 – Dhansukhbhai Devabhai who is complainant has been examined at Exh.17. PW 2 – Kishor Kashinath Khernar has been examined at Exh.19. On going through the entire evidence on record, more particularly, Exh.17 and Exh.19, it is noticed that the complainant and the shadow panch have not supported the case of the prosecution and virtually, the complainant has disowned his complaint. In this view of the matter and considering the ratio laid down in the case of B.Jayraj (supra) by the Honourable Apex Court, 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 by catena of decisions 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. 10. It is by now well settled by catena of decisions 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. 10. 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. 11. 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. 12. 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.