The State Of Maharashtra vs Balasaheb Krishnaji Chougule
2021 Latest Caselaw 4100 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION
                          CRIMINAL APPEAL NO.466 OF 2004


The State of Maharashtra               )         ..Appellant

         V/s.

Balasaheb Krishnaji Chougule           )
Aged 50, Occupation - Service          )
Yamge, Tal. Kagal, R/o Ichalkaranji,   )
District Kolhapur                      )         ..Respondent


Ms. P. N. Dabholkar, APP for State
None for Respondent

                                 CORAM : K.R.SHRIRAM, J.

DATED : 5th MARCH 2021

ORAL JUDGMENT.:-

1 This is an appeal impugning an order and judgment dated 29 th

November 2003 passed by Learned Special Judge, Kolhapur, acquitting

respondent (accused) of the offence punishable under Section 7 and 13(1)

(d) read with Section 13(2) of Prevention of Corruption Act, 1988.

2 I have perused the impugned judgment and the evidence with the

assistance of the Learned APP. When confronted by the court, the Learned

APP could not but agree, that the demand itself is suspicious. The grievance

of complainant about the fuse being removed twice and for not giving

adverse report against him itself is difficult to believe. The Learned APP,

though made an attempt, had to agree that the entire evidence shows that

on the two dates when the demand was allegedly made by accused, i.e., on

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16th July 2001 and 19th July 2001, accused was on casual leave and he was

on tour to village Malge Khurd. When accused was on leave and was on

tour, there was no opportunity for complainant to meet accused which raises

a question on the demand itself. P.W.-4 has stated that even on 20 th July

2001 accused was on tour. P.W.-5, I.O. says he was an eye witness of

accused taking the money because when he was standing near the tea stall

he has seen accused taking something from complainant and put in his pant

pocket. But this is not found in the panchnama. Panchnama, on the

contrary states that when the raiding party came there they asked

complainant and P.W.-2 as to what happened and they narrated what

happened.

3 Moreover, no panchnama has been drawn of the meter or the place

which was the origin of the matter. I.O. also admits that post-trap

panchnama was not drawn on the spot or in the office of MSEB but was

drawn in the guest house at Nidhori and he has not given any explanation

for drawing panchnama at the guest house.

4 The Apex Court in Ghurey Lal V/s. State of U.P. 1 has formulated the

factors to be kept in mind by the Appellate Court while hearing an appeal

against acquittal. Paragraph Nos.72 and 73 of the said judgment read as

under:

72. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against acquittal under Section 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the

1(2008)10 SCC 450

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appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.

73. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:

i) The trial court's conclusion with regard to the facts is palpably wrong;

ii) The trial court's decision was based on an erroneous view of law;

iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

v) The trial court's judgment was manifestly unjust and unreasonable;

vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.

vii) This list is intended to be illustrative, not exhaustive.

2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.

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The Apex Court in many other judgments including Murlidhar & Ors.

V/s. State of Karnataka2 has held that unless the conclusions reached by the

trial court are found to be palpably 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 Appellate Court should not interfere with the conclusions of

the Trial Court. Apex Court also held that 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

the view taken by the trial court is a possible view.

We must also keep in mind that there is a presumption of innocence in

favour of respondent and such presumption is strengthened by the order of

acquittal passed in his favour by the Trial Court.

The Apex Court in Ramesh Babulal Doshi V/s. State of Gujarat 3 has

held that if the Appellate Court holds, for reasons to be recorded that the

order of acquittal cannot at all be sustained because Appellate Court finds

the order to be palpably wrong, manifestly erroneous or demonstrably

unsustainable, Appellate Court can reappraise the evidence to arrive at its

own conclusions. In other words, if Appellate Court finds that there was

nothing wrong or manifestly erroneous with the order of the Trial Court, the

Appeal Court need not even re-appraise the evidence and arrive at its own

conclusions.

5 I do not find anything palpably wrong, manifestly erroneous or

2(2014) 5 SCC 730 31996 SCC (cri) 972

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demonstrably unsustainable in the impugned judgment. From the evidence

available on record, there is nothing to substantiate the charge leveled

against accused.

6 There is an acquittal and therefore, there is double presumption in

favour of accused. Firstly, the presumption of innocence available to accused

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, accused having secured his acquittal, the

presumption of his innocence is further reinforced, reaffirmed and

strengthened by the Trial Court. For acquitting accused, the Trial Court

rightly observed that the prosecution had failed to prove its case.

7 In the circumstances, in my view, the opinion of the Trial Court cannot

be held to be illegal or improper or contrary to law. The order of acquittal,

in my view, need not be interfered with.

8       Appeal dismissed.

9       The Government/Appropriate Authority shall pay over to respondent,

within a period of 30 days from the date of receiving a copy of this order, all

pensionary or other benefits/dues stalled, in view of pendency of this

appeal. If during the service, in view of this matter, the promotions or

increments of accused have been affected, the concerned Authority/

Department will pay, proceed and calculate on the basis that there was no

such matter ever on record against the accused and will factor in all

promotions and increments that accused would have been entitled to and all

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the amounts shall be accordingly paid within 30 days.

After 30 days interest at 12% p.a. will have to be paid by

Government/Appropriate Authority to respondent.

No authority shall demand certified copy for reimbursing the benefits/

dues as directed above. All to act on authenticated copy of this order.

Certified copy expedited.

                                                                 (K.R. SHRIRAM, J.)
         Digitally signed
Meera    by Meera M.
         Jadhav
M.       Date:
         2021.03.06
Jadhav   16:59:53
         +0530




                 Meera Jadhav