[CASE NUMBER] IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 160 of 2000 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the [ACT] or any order made thereunder? [ENTITY] Appellant(s) Versus [ENTITY] Opponent(s)/Respondent(s) Appearance: MS CM SHAH, ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1 MR KB ANANDJIWALA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 09/03/2015 ORAL JUDGMENT
1. By way of this appeal, the appellant- State has challenged the judgment and order of the learned Special Judge, [ENTITY] (for short, 'the trial Court'), Dated : 28.12.1999, rendered in [CASE NUMBER], whereby, the learned trial Court acquitted the original accused-the Respondent, herein, of the charges under [SECTION] and [SECTION] of the Prevention [CASE NUMBER] [ACT] short, 'the Act') and [SECTION] of the [ACT].
2. The brief facts of the case of the prosecution, as set out before the trial Court, are that the original complainant lodged a complaint before the PI, ACB at Bhuj, on 09.01.1986, wherein, he stated that, since, his father wanted to get the name of elder brother of the complainant entered into the record in respect of their land, admeasuring 4 acres, the complainant had met the accused before about 20-25 days of the alleged offence and at that time, the accused had demanded Rs.400/- for the same. It is also stated in the complaint that, then, on 06.01.1985, the complainant again met the accused and on this occasion also the accused demanded Rs.400/- by the evening of 09.01.1986. Hence, a trap was arranged on the aforesaid date, wherein, the accused was apprehended and a complaint was registered against him. On registration of the offence, police carried out the investigation and on finding sufficient evidence, a charge-sheet was filed against the accused. At the time of trial, since, the accused did not plead guilty, the trial was conducted.
3. Before the trial Court, the prosecution, in support of its case, examined four witnesses.
[CASE NUMBER] 4. Apart from that the prosecution also
produced several documents to strengthen its case, viz. the complaint, panchnama of trap etc
5. After recording the evidence of the witnesses and perusing the material on record, the trial Court passed the impugned order. Hence, the present appeal.
6. Learned APP for the appellant-State, vehemently submitted that the trial Court committed a grave error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective. She, submitted that taking into consideration the evidence of the witnesses examined by the prosecution as well as the documentary evidences produced by it, the trial Court ought to have held the accused guilty of the charges leveled against him. She, therefore, prayed that the appeal be allowed.
7. On the other hand, Mr. [ENTITY], learned Advocate for the accused-Respondent, herein, opposed the appeal and submitted that the trial Court acquitted the accused after perusing the entire material on record, and hence, no interference is called for at the hands of this Court and the appeal be dismissed.
[CASE NUMBER]
8. Heard learned APP for the appellant-State as well as the learned Advocate for the original accused and perused the material on record with their assistance.
9. The case of the prosecution before the trial Court was that the accused-Respondent, herein, demanded and accepted bribe from the complainant for transferring the land in the name of his brother. In order to prove its case, the prosecution examined the complainant as PW-1. It is the specific case of the complainant-PW-1 as well as the prosecution that the accused demanded Rs.400/- for transfering the land in the name of the brother of the complainant. However, during his cross-examination, the complainant-PW-1 could not prove that an application for the aforesaid purpose was given by his father. Not only that, even PW-4, who had carried out investigation into the alleged offence, in his evidence(Exhibit-37) stated that he could not get any such application either from the father of the complainant or from the office of the accused. Thus, the very cause, on the basis of which the accused is said to have demanded bribe from the complainant, does not stand proved. Here, it may also be noted that, though, the complainant and his brother had gone to ACB Office together, the brother of the complainant was not examined by the prosecution, and hence, the trial Court rightly observed that [CASE NUMBER] when the brother of the complainant, in whose name land was to be transferred, was present, the filing of complaint by the complainant raises suspicion about its genuineness. According to the complainant, when the complainant along with Panch No.1 went to the office of the accused at Sukhpur, there were Mr. [ENTITY], Talati of Village Ratiya, Mr. [ENTITY], Mantri of Village Sukhpur and Mr. [ENTITY], Circle Inspector were present, but, none of them has been examined by the prosecution. Further, as per the complainant after reaching the office of the accused, the accused called him outside the office, where, the complainant allegedly gave money to the accused, and hence, the panch No.1 being inside the office could not have seen the accused demanding and accepting bribe. Further, the amount of bribe, as per the complainant, the accused put beneath the purse of Shri. [ENTITY], which was on the table, whereas, as per the evidence of Panch No.1, the tainted currency notes were found from beneath the purse of Shri. [ENTITY] which was on the floor. Then, according to the IO, at the time of trap, he was at a place from where he can see anybody standing in the lobby of the office. The IO, in his cross- examination, further stated that he had seen no one in the lobby. As against this it is the say of the complainant and Panch No.1 that accused had accepted the money in lobby, which runs contrary to the evidence of IO. Thus, there are a number of [CASE NUMBER] contradictions in the evidence of the witnesses, which go to the root of the matter. In above view of the matter, this Court has to look into the matter from the touchstone of the following recent decisions of the Hon'ble Apex Court.
10. The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In a latest decision in the case of "[PRECEDENT], the Apex Court has laid down the powers of the High Court in appeal against the order of acquittal. In para 12 of the said decision, the Apex Court has observed as under;
"12. In dealing with appeals against acquittal, the appellate court must bear in mind the following:(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial Court,
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions disturbing the finding of fact recorded by the trial Court. It is so because the [CASE NUMBER] trial court had an advantage of seeing the demeanour of the witnesses. If the trial Court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trail court are palpable wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if view taken by the court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial Court."
11. The Hon'ble Apex Court in "[PRECEDENT] has held as under;
"That appellate Court is empowered to re- appreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence."
12. Here, it would also be relevant to refer to a recent decision of the Apex Court in "[PRECEDENT]. In that case, the trial Court found that the [CASE NUMBER] prosecution failed to prove demand and acceptance on the part of the original accused, and thereby, acquitted the accused of the charges of corruption leveled against him. However, on an appeal, the Delhi High Court reversed the judgment and order of the trial Court and convicted the accused for the charges under [ACT]. Being aggrieved with the same, the original accused moved the Apex Court and Apex Court set aside the order of the High Court. While setting aside the order of the Delhi High Court, the Apex Court observed as under in Paragraph-37, thereof;
"37. The High Court in exercise of its appellate jurisdiction has exceeded its parameters laid down by this Court in reversing the acquittal order of the trial court. Therefore, the findings are not only erroneous in law but also vitiated in law. The relevant paragraphs from the [CASE NUMBER] 31 judgment in [PRECEDENT] (supra) are extracted hereunder:
"13. In coming to this conclusion, we are reminded of the well-settled principle that when the Court has to exercise its discretion in an appeal arising against an order of acquittal, the Court must remember that the innocence of the accused is further re-established by the judgment of acquittal rendered by the High Court. Against such decision of the High Court, the scope of interference by this Court in an order of acquittal has been very succinctly laid down by a [CASE NUMBER] three-Judge Bench of this Court in [PRECEDENT]. At SCR p. 129, [ENTITY], J. (as His Lordship then was) culled out the principles as follows:
"9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in [ENTITY] case, afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (I) 'substantial and compelling reasons', (ii) 'good and sufficiently cogent reasons', and
(iii) 'strong reasons', are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."
Further, in the ca following se of Murugesan,(supra) it is held as under:
19. An early but exhaustive [CASE NUMBER] consideration of the law in this regard is to be found in the decision of [ENTITY] v. King Emperor wherein it was held that the power of the High Court extends to a review of the entire evidence on the basis of which the order of acquittal had been passed by the trial court and thereafter to reach the necessary conclusion as to whether order of acquittal is required to be maintained or not. In the opinion of the Privy Council no limitation on the exercise of power of the High Court in this regard has been imposed by the Code though certain principles are required to be kept in mind by the High Court while exercising jurisdiction in an appeal against an order of acquittal. The following two passages from the report in [ENTITY] adequately sum up the situation:
"There is, in their opinion, no foundation for the view, apparently supported by the judgments of some courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower court has 'obstinately blundered', or has 'through incompetence, stupidity or perversity' reached such 'distorted conclusions as to produce a positive miscarriage of justice,' or has in some other way so conducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result.
emphasis supplied) [CASE NUMBER] [SECTION], [SECTION] and [SECTION] of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice."
20. The principles of law laid down by the Privy Council in [ENTITY] have been consistently followed by this Court in a series of subsequent pronouncements of which reference may be illustratively made to the following: Tulsiram Kanu v. State, [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT].
21. A concise statement of the law on the issue that had emerged after over half a century of evolution since [ENTITY] is to be found in para 42 of the Report in [PRECEDENT]. The same may, therefore, be usefully noticed below:
"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 [ACT] 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. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence [CASE NUMBER] 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."
(emphasis supplied)
22. Another significant aspect of the law in this regard which has to be noticed is that an appeal to this Court against an order of the High Court affirming or reversing the order of conviction recorded by the trial court is contingent on grant of leave by this Court under [SECTION] of the [ACT]. However, if an order of acquittal passed by the trial court is to be altered by the High Court to an order of conviction and the accused is to be sentenced to death or to undergo life imprisonment or imprisonment for more than 10 years, leave to appeal to this Court has been dispensed with and [SECTION] of the [ACT], provides a statutory right of appeal to the accused in such a case. The aforesaid distinction, therefore, has to be kept in mind and due notice must be had of the legislative intent to confer a special status to an appeal before this Court against an order of the High Court altering the acquittal made by the trial court. The issue had been dealt with by this Court in [PRECEDENT] in the following terms, though in a different context: (SCC pp. 70-71, para 12) "12. As is evident from the above recorded findings, the judgment of conviction was converted to a judgment of acquittal by the High Court. Thus, the first and foremost question that we need to consider is in what circumstances this Court should interfere with the judgment of acquittal. Against an order of acquittal, an appeal by the State is maintainable to this Court only with the leave of the court. On the contrary, if the judgment of acquittal passed by the trial court is set aside by the High Court, and the accused is sentenced to death, or life imprisonment or imprisonment for more than 10 years, then the right of appeal of the accused is treated as an absolute right subject to the provisions of [SECTION] and [SECTION] of the [ACT] and [SECTION] of the [ACT]. In light of this, it is obvious that an appeal against acquittal is considered on slightly different parameters compared to an ordinary appeal preferred to this Court."
[CASE NUMBER]
23. Having dealt with the principles of law that ought to be kept in mind while considering an appeal against an order of acquittal passed by the trial court, we may now proceed to examine the reasons recorded by the trial court for acquitting the accused in the present case and those that prevailed with the High Court in reversing the said conclusion and in convicting and sentencing the appellant-accused."
13. Hence, for the reasons stated herein above and the aforesaid decisions will not permit this Court to take a different view, than, the one taken by the trial Court. In this case it is not proved beyond doubt that the original accused- Respondent, herein, committed the offence alleged against him. Hence, the present appeal deserves to be dismissed.
14. In the result, this appeal fails and is DISMISSED. The judgment and order of the trial Court, Dated : 28.12.1999, stands CONFIRMED. Bail bonds of the accused, if any, on bail, stands discharged. R & P be sent back to the concerned trial Court, forthwith.
([ENTITY], J) [ENTITY]