CR.A/117819/1997 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1178 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE J.C.UPADHYAYA ==================================================== 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 constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ==================================================== STATE OF GUJARAT - Appellant(s) Versus GOVINDJI MASANGJI DABHI - Opponent(s) ==================================================== Appearance : MR LB DABHI, APP for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, ==================================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 13/08/2008 ORAL JUDGMENT 1. The appellant – State of Gujarat by preferring this appeal CR.A/117819/1997 2/14 JUDGMENT under section 378 of the Code of Criminal Procedure ('Code', for short) has challenged the legality and validity of the judgment rendered by the learned Judicial Magistrate First Class, Kalol ('ld.Magistrate', for short) on dated 30.9.1997 in Criminal Case no.2530/1990. The ld.Magistrate by virtue of the impugned judgment acquitted the respondent – accused for the offences punishable under section 463, 464, 466, 468, 469, 471, 474 and section 120-B of the IPC. 2. The prosecution case in nutshell is as under:- 2.1 It is the case of the prosecution that in the year 1987, the respondent herein, who was original accused in the aforesaid Criminal Case was serving as Talati-cum-Secretary in village Unali, Tal.Kalol. It is the case of the prosecution that when the inspection of certain entries pertaining to Record of Right and Village Form no.7 & 12 was made, it was transpired that the accused had concocted and forged certain records. That false entries were created and forged signatures of Mamlatdar and Deputy Mamlatdar were made. Even certain entries which were cancelled by Mamlatdar Mr.Patel, forgery was also committed by the accused in such records, which were formerly corrected by his higher Officer. Thus, the accused has created false records, and cheating had been done with the Government revenue records. Complainant Mamlatdar Mr.B.T. Trivedi inspected the disputed record and recorded statements of Dy.Mamlatdar and other Officials, including the statement of the accused. Ultimately, Mamlatdar Mr.B.T. Trivedi lodged police complaint against the accused. After registering the CR.A/117819/1997 3/14 JUDGMENT complaint, investigation was started. During the course of investigation, Investigating Police Officer seized certain records and recorded statements of witnesses. After the completion of the investigation, chargesheet was filed in the Court of learned Judicial Magistrate First Class, Kalol. Ld.Magistrate framed charge at Exh.4, and when the charge was read-over and explained to the accused, he did not plead guilty and claimed to be tried. The prosecution examined complainant Mamlatdar Bhanuprasad Trivedi at Exh.16. In his deposition, copies of disputed entries as well as the statements of witnesses recorded by him, were produced. The prosecution examined Talati-cum-Secretary Mr.Jayeshkumar Akhani at Exh.107, who was successor in office of the accused. Prosecution examined Panch Bachuji Thakore at Exh.111. He was a Panch of panchnama of seizure of record. However, he did not support the contents of the panchnama, Exh.112 and was declared hostile witness. Finally, the prosecution examined Investigating Police Officer, Waris Ali Saiyed at Exh.118. No more witnesses were examined by the prosecution. After the conclusion of the evidence, the ld.Magistrate recorded further statement of the accused, and in his further statement, accused generally denied all the allegations leveled against him by the prosecution and stated that because of some rivalry prevailing in his department, he was falsely involved in this case. 3. The ld.Magistrate after considering the evidence on record and considering the arguments advanced on behalf of CR.A/117819/1997 4/14 JUDGMENT both the parties, delivered the impugned judgment and he was pleased to acquit the accused by virtue of the impugned judgment. 4. On behalf of the appellant – State ld.APP Mr.Dabhi submitted that the judgment and order of acquittal passed by the ld.Magistrate is contrary to law and evidence on record. That it has come in evidence that it is the duty of Talati-cum-Secretary to keep the entire record of Village Panchayat in his custody and to maintain such record. That anything done to such record or any interpolation or any addition or omission done to such record, becomes the responsibility of the accused. That, therefore, the accused being the custodian of such record, is responsible for anything done to such record. That considering the deposition of complainant and the successor Talati-cum- Secretary Mr.Akhani, the prosecution has proved its case beyond reasonable doubt that it was the accused alone, who concocted forged record and fabricated the same, and forged the signatures of his higher Authorities. That considering the deposition of complainant Mamlatdar Mr.Trivedi, it is clear that he recorded the statement of accused, which is produced at Exh.23. In said statement, the accused clearly admitted the guilt. This is not a statement recorded by the police of the accused. This statement is admissible in evidence as extra judicial confession of accused before the witness. The ld.Magistrate erred in not properly appreciating the evidence adduced by the prosecution in form of extra judicial confession. That CR.A/117819/1997 5/14 JUDGMENT the ld.Magistrate placed much reliance upon the fact that the disputed documents and handwritings, and specimen signatures were not forwarded to a handwriting expert and his opinion was not obtained by the Investigating Police Officer. However, the complainant Mamlatdar Mr.Trivedi and successor in office of the accused, Talati-cum- Secretary Mr.Akhani, categorically deposed that the disputed handwritings and signatures were in the handwriting of accused. There was no reason whatsoever for the Investigating Police Officer to forward said record to a handwriting expert for his opinion. Therefore, it was submitted that the ld.Magistrate erred in holding that the prosecution failed to prove its case beyond reasonable doubt. Therefore, it was submitted that the appeal be allowed and the impugned judgment delivered by the ld.Magistrate be set-aside and the respondent accused be convicted and sentenced in connection with the offences charged against him in accordance with law. 5. None appeared for the respondent accused. 6. Before the evidence adduced by the prosecution in this case is appreciated or re-appreciated, it would be useful to consider the principles laid down by Honourable the Apex in the case of Chandrappa and others Vs.State of Karnataka reported in (2007)4 SCC 415 regarding the acquittal appeals under section 378 of the Code : (1)An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. CR.A/117819/1997 6/14 JUDGMENT (2)The Code of Criminal Procedure, 1973 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”, “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 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 views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not be disturbed by the appellate court.” 7. Considering the ratio laid down by Honourable Apex Court in the aforesaid case and the evidence adduced by the prosecution in this case, if the same is again re-appreciated, there is no dispute that in the year 1987, accused was serving as Talati-cum-Secretary in village Unani, Tal.Kalol. As per the case of the prosecution, complainant Mamlatdar CR.A/117819/1997 7/14 JUDGMENT Bhanuprasad Trivedi received a letter, Exh.17 by Talati-cum- Secretary, village Unali, to the effect that during his checking, certain irregularities were traced out in the record regarding Village Forms and Record of Right maintained by the Village Panchayat. Pursuant to the said letter, Exh.17, in the capacity as Head of Department, Mamlatdar Mr.Trivedi started inquiry and collected certain records and recorded statements of the staff members, and ultimately lodged a police complaint before the police. 8. After this much of background, if the deposition of complainant Mamlatdar Mr.Trivedi, recorded at Exh.16 is considered, it transpires that in his examination-in-chief, he stated that after receipt of letter, Exh.17, he started inquiry regarding the allegations made in the letter and deposed about the steps he took while conducting the inquiry in this regard. In the impugned judgment, discussing the deposition of complainant Mr.Trivedi, in paragraph-6, the ld.Magistrate observed that from his deposition, it is revealed that during his inquiry, he had recorded statements of Mahendrakumar Ramniklal Barot and Babulal Natwarlal Raval, and both these witnesses have died. Babulal Natwarlal Raval was serving as Dy.Mamlatdar at the relevant time. He also stated that he recorded the statement of accused on dated 25.4.1989 and produced the same at Exh.23. However, in his cross-examination, when he was confronted with certain entries, like Village Form no.7 and 12 produced from Exh.24 to Exh.81, he stated that he cannot say as to who signed those entries and he cannot CR.A/117819/1997 8/14 JUDGMENT identify the signature. He stated that even he cannot say whether Mr.Akhani, who is Talati-cum-Secretary of village Unali and successor in office of the accused, signed those entries or not. He went to the extent of saying that he did not deliver original record, nor even the xerox copies of the record to the police, but, he does not know whether police obtained xerox copies of the record from his office. He admitted that he did not compare the disputed signature with the signatures of Mr.Barot and Mr.Akhani. He stated that solely on the basis of handwriting, he cannot say as to whether the disputed interpolations were made either by Mr.Barot or by Mr.Akhani. He admitted that he does not have any knowledge of handwriting like that of a handwriting expert. About the office procedure, he stated that it is the function of Dy.Mamlatdar to verify periodically, at the interval of every 2 to 3 months, the revenue records of the Village Panchayats under his jurisdiction. He categorically admitted that from dated 11.09.1986 to dated 4.4.1988, the record of Village Panchayat, Unali was verified only once by the Dy.Mamlatdar. This period covers up the year 1987, wherein as per the case of the prosecution, the accused forged the document and concocted the records. It is pertinent to note that as per the office procedure, though at the interval of every 2 to 3 months in a year, it was the duty of the Dy.Mamlatdar to verify the records, but during the relevant period, the disputed record was verified only once during the period of 2 years. In his cross- examination, complainant Mr.Trivedi admitted that in the disputed record, the handwritings seem to be of different CR.A/117819/1997 9/14 JUDGMENT persons. From his deposition, it transpires that when certain records were shown to witness Mr.Barot and witness Mr.Babulal Natwarlal Raval, they stated that in the record certain signatures alleged to be that of these witnesses, are not their signatures. However, as stated above, both the witnesses had died and prosecution was not in a position to examine both these witnesses. 9. The prosecution examined witness Jayeshkumar Akhani at Exh.107, and according to his disposition, he succeeded the accused and was Talati-cum-Secretary in village Unali from dated 6.12.1988 onwards. He stated that as per the Government policy, certain succession entries were required to be made in the Record of Right, and therefore, he was called by Dy.Mamlatdar, Mr.Mahendra Barot along with the record. That during verification, it was found that certain irregularities were there in the records. In his cross- examination, he stated that Dy.Mamlatdar, Mr.Mahendra Barot was a superior Officer and at the instance of Dy.Mamlatdar, Mr.Barot, he made report regarding the disputed entries. He admitted in his cross-examination that till he remained in the office of Talati-cum-Secretary, Unali, no person had approached him complaining any irregularity in any revenue entry. He categorically admitted that he cannot say as to whose handwritings are in the disputed entries. As per the deposition of complainant Mamlatdar Mr.Trivedi, Talati-cum-Secretary Mr.Akhani forwarded letter, Exh.17 to him, complaining certain irregularities in the Record of Right. It is pertinent to note that CR.A/117819/1997 10/14 JUDGMENT during the course of deposition, when the letter, Exh.17 was shown to this witness Jayeshkumar Akhani, surprisingly, he stated that he does not know as to what is written in the letter, Exh.17. It may be noted that even as per the case of the prosecution, the origin of the entire prosecution case lies in the letter, Exh.17, written by this witness Mr.Akhani, addressed to Mamlatdar, Kalol. However, as stated above, the author of this letter pleads complete ignorance about this letter, Exh.17. In paragraph-7 of the impugned judgment, the ld.Magistrate has therefore, rightly observed that such conduct on the part of this witness Mr.Akhani suggests that by pleading ignorance about this letter, the witness is in fact, concealing some truth. 10.The prosecution then examined panch witness Bachuji Thakore, Exh.111, and according to the prosecution case, this witness was one of the panchas, regarding the seizure panchnama, Exh.112. However, he turned hostile and did not support the contents of the panchnama, Exh.112. It is true that merely this panch witness did not support the contents of this panchnama, that itself cannot be the ground to discard the panchnama, Exh.112, if it is otherwise proved during the course of deposition of Investigating Police Officer. However, Investigating Police Officer Mr.Saiyed in his deposition, Exh.118 about this panchnama, Exh.112 deposed that Mamlatdar Mr.Trivedi (the complainant) produced certain records before him and vide panchnama dated 22.09.1989, said records were seized in presence of panchas. Considering the CR.A/117819/1997 11/14 JUDGMENT panchnama, Exh.112, it transpires that certain revenue records were produced by Mamlatdar Mr.Trivedi before police, and same were seized by Investigating Police Officer in presence of two panchas, and one of them was panch Bachuji Thakore. However, considering the deposition of Mamlatdar Mr.Trivedi, who lodged the FIR before the police, it clearly transpires that though in his deposition, he stated that he produced certain revenue records before the Investigating Police Officer, but, the important aspect is this that as per his deposition, he recorded certain statements of the revenue employees, serving under him, including that of the accused. During the course of his deposition, he produced those statements, which are from Exh.19 to Exh.23. Exh.23 is alleged to be the statement of the accused before the Mamlatdar Mr.Trivedi. Complainant Mamlatdar Mr.Trivedi in his cross-examination, categorically admitted that he did not produce those statements before the Investigating Police Officer. In his entire deposition, no explanation is forthcoming, as to why those statements were not supplied to the Investigating Police Officer. Even considering the panchnama, Exh.112, it is nowhere stated that along with the revenue records, the statements recorded by Mamlatdar Mr.Trivedi were supplied to the Investigating Police Officer. 11.Turning to the deposition of Investigating Police Officer, Mr.Saiyed, Exh.118, he also admitted that he did not inquire about any inquiry conducted by the complainant Mamlatdar Mr.Trivedi, and he does not know whose CR.A/117819/1997 12/14 JUDGMENT statements were recorded by Mr.Trivedi. Important aspect is this that he did not send any of the disputed documents to handwriting expert for obtaining necessary opinion. 12.Considering the overall evidence on record, it clearly transpires that during the course of investigation, the important documentary evidence like the statements of witnesses recorded by Mr.Trivedi, during his inquiry, were neither collected by the Investigating Police Officer from Mr.Trivedi nor Mamlatdar Mr.Trivedi cared to supply those statements to the Investigating Police Officer. As stated above, the origin of this case lies in the letter, Exh.17, written by incoming Talati-cum-Secretary Mr.Akhani addressed to Mamlatdar Mr.Trivedi. The author of said letter Mr.Akhani, during the course of his deposition before the ld.Magistrate pleaded total ignorance about the letter. Considering the deposition of Mamlatdar Mr.Trivedi and the Talati-cum- Secretary Mr.Akhani, nowhere they stated that the disputed handwritings are of the accused. On the contrary, during the course of his deposition, complainant Mamlatdar Mr.Trivedi stated that he cannot say about the handwriting in the disputed documents. He further admitted that he does not possess any knowledge and skill like that of a handwriting expert. One more important aspect emerges from the evidence on record is this that as admitted by Mr.Trivedi, at the interval of every 2 to 3 months in a year, it is the duty of the Dy.Mamlatdar to verify the revenue records of each village panchayat, under his jurisdiction. In the instant case, as admitted by Mr.Trivedi for the period of 2 CR.A/117819/1997 13/14 JUDGMENT years i.e. from dated 11.09.1986 to 04.04.1988, the record was inspected and verified only once by the Dy.Mamlatdar. The relevant period i.e. the year 1987 is covered up within that period. Furthermore, there is no cogent evidence on record that throughout this period i.e. from dated 11.09.1986 till 04.04.1988, only the accused was performing his duty as Talati-cum-Secretary, village Unali. It is said that it is the responsibility of Talati to preserve and maintain revenue records of his village panchayat. There cannot be any dispute about it. But, to book the accused in connection with the offences alleged against him, it was necessary to prove by the prosecution that from the date of last verification and inspection of the revenue records of Unali Village Panchayat, till the second verification of the record was made by Dy.Mamlatdar, throughout the period only the accused was performing his duty as Talati-cum- Secretary of Village Unani. No cogent evidence is forthcoming in this regard. 13.In the impugned judgment, ld.Magistrate, at length discussed all the above aspects of the matter. There is nothing that the ld.Magistrate committed any illegality or irregularity in appreciating oral and documentary evidence on record. Therefore, there is no reason whatsoever for this Appellate Court to interfere with the ultimate conclusion arrived at by the ld.Magistrate that the prosecution failed to prove its case beyond reasonable doubt. Therefore, the ld.Magistrate rightly acquitted the accused from the charges leveled against him. Therefore, the appeal CR.A/117819/1997 14/14 JUDGMENT deserves to be dismissed. 14.In the result, the appeal is dismissed. (J.C.UPADHYAYA, J.) (binoy)