Gujarat High Court
The State Of Gujarat vs Kadar Kasambhai Odiya on 4 February, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/538/2008 JUDGMENT DATED: 04/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 538 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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Approved for Reporting Yes No
No
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THE STATE OF GUJARAT
Versus
KADAR KASAMBHAI ODIYA & ANR.
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Appearance:
MR RONAK RAVAL, APP for the Appellant(s) No. 1
MR HARSHAD K PATEL(2844) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 04/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. Here is the appeal by the State against the judgment and order of acquittal.
2. Being dissatisfied by the judgment and order passed by the Chief Judicial Magistrate, Rajkot dated 12.07.2007, acquitting the respondents-original accused no.1 and 2 Page 1 of 12 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:26 IST 2025 NEUTRAL CITATION R/CR.A/538/2008 JUDGMENT DATED: 04/02/2025 undefined from the offence under Sections 406, 465, 468, 471 and 120B of IPC, the State has preferred the instant appeal under Section 378 of the Cr.P.C.
3. Facts and circumstances, giving rise to this appeal are that, 4 accused namely Kadar Kasambhai Odiya, Mohmed Mahetab Alam Saiyed, Munni @ Kamar Begam Saiyed and Ajaykumar Ramlal Pasi were prosecuted under Sections 420, 467, 468, 471 and 120B of the IPC. According to the case of prosecution, in the month of May- 2005, the accused no.2 Mohmed Mahetab was arrested for the offences punishable under the provisions of Immoral Traffic Act as the Ahmedabad DCB Branch registered an FIR against him and others. Thereafter, he was detained under the Preventive Detention Law and sent to Rajkot Central Jail. The request for tiffin service made to Rajkot Jail through accused no.1 - Kadar Odiya was allowed. In September, 2005, this Court quashed the detention order, but, due to offence registered under the Immoral Traffic Act, the accused no.2 was in Rajkot Jail. It is further case of prosecution that, the accused conspired and in furtherance of conspiracy, by forging the signature of the Judge of Metro Court, Court No.11, a bogus surety bond as well as release order had been created with a common object to release the accused no.2 from Rajkot Jail. The accused no.1, by sealed envelope, handed over the alleged fake orders to the Rajkot Jail Authority. The Metro Page 2 of 12 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:26 IST 2025 NEUTRAL CITATION R/CR.A/538/2008 JUDGMENT DATED: 04/02/2025 undefined Court No.11, Ahmedabad learnt that, by bogus and false security bond, the accused no.2 was released by the Jail Authority. The Court intimated to the Rajkot Jail Authority. It is in these background facts, the FIR came to be lodged against 4 persons, inter alia, alleging that, they created forged signature and false document of the Court No.11, Ahmedabad and produced it before the Jail Authority, Rajkot, whereby, they committed the offence of forgery, making false documents and used it as genuine for the purpose of getting bail of accused no.1. Pursuant to the said FIR, the investigation had been proceeded. During the investigation, it emerges that, the accused no.3 who was closely associated with the accused no.2 and it is his behest, contacted the advocate - accused no.4 and in connivance of each other, created a false document and by forging the signature of Presiding Officer of the Court, presented before the Jail Authority and obtained the favourable order. The natural handwriting of accused no.4 were obtained and as per the report of Handwriting Expert, the disputed writings and signatures and standard writings and signatures were written by one and same person.
The investigating agency found sufficient material for the charge against the 4 persons as named above and finally they had been chargesheeted and prosecuted. In order to prove the charge, the prosecution had examined Page 3 of 12 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:26 IST 2025 NEUTRAL CITATION R/CR.A/538/2008 JUDGMENT DATED: 04/02/2025 undefined following oral evidence and exhibited documents:
Oral evidence PW 1 - Exh. 66 Himatlal Mavjibhai Bodhani, handwriting expert PW 2 - Exh. 126 Jashubhai Lalabhai Dabhi, complainant PW 3 - Exh. 141 Kanchanbhai Lakshmanbhai Tadvi PW 4 - Exh. 142 Arvindbhai Dataniya PW 5 - Exh. 142/A Kanubhai Patel PW 6 - Exh. 148 Sunil Dirajlal PW 7 - Exh. 150 Shailesh Tansukhlal PW 8 - Exh. 152 Jitendra Keshavbhai PW 9 - Exh. 156 Vinod Ramjibhai PW 10 - Exh. 160 Prakashbhai Manibhai PW 11 - Exh. 166 Dhirendra Thakurbhai PW 12 - Exh. 169 Jitudan Devidan Gadhvi PW 13 - Exh. 172 Rambhai Somabhai Vaghela Documentary evidence Exh. 70, 71 Bail bond Exh. 72 Jail Yadi Exh. 73 to 78 Handwriting specimens of accused no. 4 Ajaykumar Ramlal Exh. 79 to 84 Signature specimen of accused no. 4 Ajaykumar Ramlal Exh. 85 to 90 Document containing signature of accused no. 4 Ajaykumar Ramlal Exh. 91 to 96 Handwriting specimens of accused no. 4 Ajaykumar Ramlal Exh. 97 to 102 Handwriting specimens of accused no. 4 Ajaykumar Ramlal Exh. 103 to 108 Signature specimen of accused no. 4 Ajaykumar Ramlal Exh. 109 to 114 Signature specimen of accused no. 4 Ajaykumar Ramlal Exh. 115 to 120 Signature specimen of accused no. 4 Ajaykumar Ramlal Exh. 121 Diary Exh. 122 Opinion of Handwriting expert Exh. 123 Reasons for opinion of handwriting expert Exh. 127 Jail warrant of accused no. 2 Mohmed Mahetab Alam Exh. 128 to 130 Letter by Asst. Superintendent of Police, Ahmedabad Jail alongwith order Exh. 131 Jail Yadi Exh. 132, 133 Application by accused no. 1 Kadar Kasambhai containing his signature alongwith permission.Page 4 of 12 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:26 IST 2025
NEUTRAL CITATION R/CR.A/538/2008 JUDGMENT DATED: 04/02/2025 undefined Exh. 134 True copy of entry in tiffin register Exh. 135 Order passed by High Court of Gujarat Exh. 136, 137 Photocopy of page from Bail bond register Exh. 138 Office copy of letter Exh. 140 Complaint Exh. 143 Fax message Exh. 144 Panchanama of physical examination of accused no. 2 Mohmed Mahetab Alam Exh. 146 Statement by accused no. 2 Mohmed Mahetab Alam after arrest Exh. 147 Report of serious offence Exh. 149 Panchanama Exh. 151 Panchanama Exh. 164 Application by I/c Superintendent to Metropolitan Magistrate, Ahmedabad alongwith order At the conclusion of trial, the incriminating material brought to the notice of the accused which they denied and did not examine any defense witnesses. The Chief Judicial Magistrate Court, Rajkot, after appreciation of evidence, does not believe the charge of Section 120B, 420 and acquitted the accused from the said charges. The learned court below acquitted accused no.1 and 2 from all charges as there is no evidence to prove their complicity in the offence. The court below convicted the accused no.3 and 4 for the charge punishable under Sections 465, 468 and 471 of the IPC. The accused no.3 was sentenced to undergo 13 years imprisonment and fine of Rs.500/-, whereas, the accused no.4 was given a benefit of probation instead of sentencing him.
4. After completion of the oral as well documentary evidence, the statements of the accused under Section Page 5 of 12 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:26 IST 2025 NEUTRAL CITATION R/CR.A/538/2008 JUDGMENT DATED: 04/02/2025 undefined 313 of the Cr.P.C. were taken with regard to incriminating circumstances made against them in the evidence rendered by the prosecution and they denied it and not lead any evidence in defense.
5. The learned trial court after appreciating and examining the oral as well as documentary evidence acquitted the respondent from the offences charged.
6. In view of the aforesaid facts and circumstances, the State has come up before this Court by way of this appeal.
7. Mr. Ronak Raval, learned APP appearing for the appellant-State assailing the judgment and order of acquittal, has submitted that, the findings of acquittal are contrary to evidence on record and law and are palpably erroneous and based on the irrelevant material. The accused no.2 was in Rajkot Jail and during his jail term, the accused no.1, was permitted by the Jail Authority to supply food on both the times. In order to get the bail order in favour of accused no.2, the accused have had hatched the criminal conspiracy and by forging a signature of the Magistrate, created bogus security bond and release warrant and same was produced by accused no.1 before the Jail Authority. The accused no.3 being a lady accused, had contacted the accused no.4 - an advocate and as per the pre-plan, the seal of the court was obtained and by forging signature, the two important documents Exh.70 Page 6 of 12 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:26 IST 2025 NEUTRAL CITATION R/CR.A/538/2008 JUDGMENT DATED: 04/02/2025 undefined and 72 were created and the authority concerned accepted it as a true and genuine and based on this document, the accused no.2 had been released on bail. Thus, it was submitted that, when the accused no.3 and 4 have been convicted for the act of forgery, the court below on the same evidence, acquitted the accused no.1 and 2 and therefore, the trial court while acquitting the accused, discarded the material evidence and committed an error of law while coming to the conclusion that, the prosecution miserably failed to prove its case against the accused no.1 and 2 -respondents-accused.
8. On the other hand, Mr. Harshad K. Patel, learned counsel appearing for and on behalf of respondents- accused opposing the contention, has submitted that, the Appellate Court in a case of appeal against acquittal can interfere only when there are compelling substantial reasons for doing so and more particularly the findings are without reasons, unreasonable and contrary to the evidence. In the facts of present case, there is no direct evidence available against the accused no.1 and 2 to prove the charge. Even there is no incriminating circumstances to raise the inference that, there was an agreement or understanding amongst the accused about the alleged act of forgery and therefore, in absence of any acceptable and cogent evidence with respect to alleged act of forgery, the learned court below has rightly Page 7 of 12 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:26 IST 2025 NEUTRAL CITATION R/CR.A/538/2008 JUDGMENT DATED: 04/02/2025 undefined disbelieved the constitution of the criminal conspiracy and extended the benefit of doubt to the respondents-accused. In such circumstances, it is prayed that, there is no merits in the appeal and same may be dismissed.
9. Before proceeding to reappreciate the evidence, it would be appropriate to brief account of the settled legal position while dealing with the appeal against the acquittal.
Recently, the Hon'ble Apex Court in the case of Ravi Sharma v State (Government of N.C.T. Delhi and another), MANU/SC/0856/2022 : 2022 LiveLaw (SC) 615 has considered and discussed the law settled by the Hon'ble Apex Court in the case of Chandrappa v. State of Karnataka, MANU/SC/7108/2007: 2007:INSC:142 :
(2007) 4 SCC 415, which are as under :
"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, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(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 Page 8 of 12 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:26 IST 2025 NEUTRAL CITATION R/CR.A/538/2008 JUDGMENT DATED: 04/02/2025 undefined 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 phraseology are more in the nature of "flourishes of language"
to emphasis 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 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."
12. Likewise in the same judgment, the Hon'ble Apex Court has touched and dealt with as to what is meant by perverse findings by taking recourse to the earlier decisions in the cases of Arulvelu and another v. State, MANU/SC/1709/2009 :
2009:INSC:1168 : (2009) 10 SCC 206; Babu v. State of Page 9 of 12 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:26 IST 2025 NEUTRAL CITATION R/CR.A/538/2008 JUDGMENT DATED: 04/02/2025 undefined Kerala MANU/SC/0580/2010 : 2010:INSC:495 : (2010) 9 SCC 189 and Anwar Ali and another v. State of Himachal Pradesh, MANU/SC/0723/2020: 2020:INSC:563 : (2020) 10 SCC 166.
Similarly, while dealing with the aspect as to what is meant by "possible view", the Hon'ble Apex Court in Ravi Sharma (supra), by referring to the Judgments in the cases viz. N.Vijay Kumar v. State of Tamil Nadu, MANU/SC/0051/2021 :
2021:INSC:60 : (2021) 3 SCC 687; Murugesan v. State, MANU/SC/0857/2012 : 2012:INSC:467 : (2012) 10 SCC 383, Hakeem Khan v. State of M.P., MANU/SC/0316/2017:
2017:INSC:254 : (2017) 5 SCC 719, observed that "if the "possible view" of the trial Court is not agreeable for the High Court, even then such "possible view" recorded by the trial Court cannot be interdicted. It is further held that as long as the view of the trial Court can be reasonably formed, regardless of whether the High Court agrees with the same or not, verdict of the trial Court cannot be interdicted and the High Court cannot be supplant over the view of the trial Court".
10. In light of the settled principle of law and applying the same to the facts of present case, it is no doubt true that, the accused no.1 had handed over the envelope containing therein the alleged release warrant and surety bound (Exh.70 and 72). The accused no.2 at relevant time, was in Rajkot Jail and based on the said papers, he was released on bail. The accused no.3 - the lady accused is Page 10 of 12 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:26 IST 2025 NEUTRAL CITATION R/CR.A/538/2008 JUDGMENT DATED: 04/02/2025 undefined known to the accused no.2 and accused no.4 was practicing advocate at Metro Court, Ahmedabad. The oral evidence adduced before the trial court would not indicative of the facts that, the respondents-accused had knowledge about the alleged forgery of orders. The accused no.1 belongs to City Rajkot and as per the instructions of accused no.3, being a Care Taker and supplier of food, had handed over the sealed envelope to the jail authority. Except this, no role is attributed to the accused no.1. It is not the case of prosecution that, the accused no.2 who is the beneficiary of the order, had informed the accused no.1 about his intention to release from the jail and with the aid of accused no.3 and 4, the alleged bogus jail warrant and security bond were created and produced. Thus, the entire oral as well as documentary evidence accepted as it is, do not prove the charge of criminal conspiracy and forgery as provided under Sections 120B, 420, 465, 467, 468 and 471 of the IPC. Learned trial court after careful examination of the oral as well as documentary evidence, found that the prosecution failed to adduce satisfactory, believable and cogent evidence against the respondents-accused to prove the charge beyond reasonable doubt.
11. In light of what has been noted above, we are of the opinion that, the reasons for acquittal are reasonable and based on the evidence on record and the view taken by Page 11 of 12 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:26 IST 2025 NEUTRAL CITATION R/CR.A/538/2008 JUDGMENT DATED: 04/02/2025 undefined the Trial Court is plausible and there is no perversity in the findings brought to the notice of this Court so as to interfere. Thus, in our considered opinion, the Trial Court was justified in acquitting the accused and we are in complete agreement with the findings, ultimate conclusion and resultant order of acquittal recorded by the Court below and hence finds no reason to interfere with the same.
12. With the observations as aforesaid, the appeal is accordingly dismissed. The Registry is directed to send back the R & P to the Trial Court. Bail bonds are cancelled, if any, and surety is discharged.
Sd/-
(ILESH J. VORA,J) Sd/-
(HEMANT M. PRACHCHHAK,J) TAUSIF SAIYED Page 12 of 12 Uploaded by TAUSIF SAIYED(HC01401) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:26 IST 2025