State Of Gujarat vs Bakulaben W/O Sanjaybhai ...
2022 Latest Caselaw 1455 Guj

    R/CR.A/624/2009                                CAV JUDGMENT DATED: 09/02/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 624 of 2009


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
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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 or any order made thereunder ?

========================================================== STATE OF GUJARAT Versus BAKULABEN W/O SANJAYBHAI BHUPATLAL KOTHARI ========================================================== Appearance:

HCLS COMMITTEE(4998) for the Respondent(s) No. 1 MS RESHMA RUMA FOR MR SHAKEEL A QURESHI(1077) for the

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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 09/02/2022

CAV JUDGMENT

1. This Appeal is filed by the appellant - State of Gujarat under Section 378(1)(3) of the Criminal Procedure Code, 1973 against the judgment and order dated 22.01.2009 passed by the learned Additional Sessions Judge, Patan in Criminal Appeal No.48 of 2008 acquitting the respondent - original accused from the offence punishable under sections

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420, 465, 468 and 471 of Indian Penal Code and under section 12(1)(b) of Passport Act, 1967.

2. The case of the prosecution is that the complainant Bhikhalal Nanalal, lodged a complaint before 'A' Division Police Station being I-CR-No.141/06, against present accused for the offences punishable under sections 420, 465, 468 and 471 of India Penal Code & under section 12(1)

(b) of the Passport Act. It is the case of the prosecution that Shri Bhikhalal Nanalal Ravaiya is serving as a Police Head Constable in 'A' Division Police Station, Junagadh in L.I.B. (Local Investigation Branch) and the Superintendent of Police of Junaghadh written a letter bearing no. C/LIB/Pass/Offence/06 dated 26.5.2006 in which it was stated that Kothari Bakulaben Sanjaykumar, Residing at Junagadh, Dhebar Falia, Kundi Sheri has submitted File No. AHDB/004282/06 dated 6.3.2006 to obtain a Tatkal Passport from the Regional Passport Office at Ahmedabad. As per letter dated 25.5.2006 of the Regional Passport Office, Ahmedabad, it was mentioned that Kothari Bakulaben Sanjaykumar of Junagadh submitted wrong birth date her school leaving certificate, hence, it was ordered to make enquiry about it. On receipt of the said order from the Superintendent of Police of Junagadh, Shri Bhikhalal Nanalal Ravaiya personally visited at Government Girls High School, Junagadh where Bakulaben Sanjaykumar Kothari obtained education and on enquiry from the record of the Government Girls High School,

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Junagadh, it was found that her name was shown as Bakulaben D/o. Jinabhai Dayatar and the date of birth is shown as 15.6.1963. Bakulaben Jinabhai Dayatar, after marriage, known as a Bakulaben Sanjaykumar Kothari and it was found that from the enquiry of passport, Bakulaben Sanjaykumar Kothari has made scratches and erasures in the School Leaving Certificate and there was a change in the date of birth from 15.6.1963 to 15.6.1968 and by making scratches and erasures, Bakulaben Sanjaykumar Kothari created forged document and the said offence was committed by Bakulaben Sanjaykumar Kothari on or before 7.3.2006. Bakulaben Sanjaykumar Kothari has submitted forged school Leaving Certificate mentioning the date of birth of Bakulaben Sanjaykumar Kothari as 15.6.1968 instead of 15.6.1963 and by submitting such type of forged document, Bakulaben Sanjaykumar Kothari or Bakulaben D/o. Jinabhai Dayatar has committed forgery against the Government of India to obtain passport and Bakulaben Sanjaykumar Kothari or Bakulaben D/o. Jinabhai Dayatar has committed offences punishable under Sections 420, 465, 468 and 471 of India Penal Code & Section 12(1)(b) of the Passport Act, 1967.

2.1. After completing police enquiry, offence was registered at Junagadh 'A' Division Police Station, I-CR-NO-141/06 dated 26.5.2006 and after investigation of the charge sheet no.I-29/06 dated 14.7.2006, was filed in the Court of Chief Judicial Magistrate, Junagadh, which was registered as a

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Criminal Case No. 1875/2006.

2.2. The Learned Chief Judicial Magistrate after supplying copies of the police papers and complaint, framed charge vide Exh.5 on 4.8.2006 and as per plea at Exh.6, accused Bakulaben Sanjaykumar Kothari denied all the charges leveled against her. The prosecution therefore led evidence. The Prosecution has examined oral evidence of witnesses as well as produced documentary evidences on the record of the case. At the conclusion of the trial, the Learned Chief Judicial Magistrate of Junagadh has rendered his judgment vide Exh. 87 in vernacular language and the benefit of doubt was given to the accused namely Bakulaben Sanjaykumar Kothari and the Learned Chief Judicial Magistrate was pleased to acquit the Bakulaben Sanjaykumar Kothari from the charges of offences punishable under Sections 420, 465, 468 and 471 of India Penal Code & Section 12(1)(b) of the Passport Act.

2.3. The State of Gujarat preferred Criminal Appeal No. 48/08 before the learned Additional Sessions Judge at Junagadh, under the provision of Section 378 (1) of the Criminal Procedure Code, against the judgment and order passed by the learned Chief Judicial Magistrate of Junagadh in Criminal Case No. 1875/06 dated 22.5.2006. At the end of trial, the learned Additional Sessions Judge, Patan, was pleased to dismiss the Criminal Appeal No. 48/08, filed by the State of Gujarat and upheld and confirm

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the judgment and order dated 22.5.2008, rendered by Learned Chief Judicial Magistrate, Junagadh in Criminal Case No. 1875/2006 vide judgment and order dated 22.1.2009.

2.4. Being aggrieved by and dissatisfied with the aforesaid judgement and order of acquittal, present appeal has been filed by the appellant - State.

3. Learned APP Mr.R.C. Kodekar for the appellant State has vehemently argued that the Sessions Court has committed a grave error in not believing the deposition of the witnesses examined by the prosecution and evidence adduced by the prosecution. He has further submitted that the Sessions Court has erred in acquitting the respondents

- accused from the charges levelled against them. He has further argued that the prosecution has proved that the respondents have committed offence under sections 420, 465, 468 and 471 of Indian Penal Code and under section 12(1)(b) of Passport Act, 1967. He has further argued that Sessions Court has acquitted the respondents accused merely on some minor contradictions and omissions in the evidence of the witnesses. He has further argued that the trial court has erred in not believing the evidence of the investigating officer who had no reason to implicate the accused falsely in the case. He has further argued that the offence punishable under sections 420, 465, 468 and 471 of Indian Penal Code and under section 12(1)(b) of Passport

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Act, 1967, is made out, however, the same is not believed by the Sessions Court. He has further argued that though the prosecution witness has supported the case of the prosecution, the trial court erroneously not believed their evidence and acquitted the accused. He has further argued that the trial court has erroneously held that the prosecution has failed to prove the case beyond reasonable doubt.

Making above submissions, he has requested to allow the present appeal.

4. Mr.Shakeel Qureshi, learned advocate for the respondent - original accused has submitted that there is hardly any substance in the submissions of learned APP. There is no admissible evidence on record connecting the accused with the commission of the offence. There are material contradictions and omissions in the evidence of the prosecution witnesses. The prosecution has not proved the case beyond reasonable doubt. No error or illegality has been committed by the trial court in acquitting the respondents accused by giving benefit of doubt.

Making above submissions, he has requested to dismiss the present appeal.

5. Heard the learned advocates for the respective parties and perused the impugned judgement and order of acquittal and re-appreciated the entire evidence on record.

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6. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in Acquittal Appeals. It is well settled by is catena of decisions that an appellate Court has full Power to review, re-appreciate and consider the Evidence upon which the Order of Acquittal is founded. However, the Appellate Court must bear in mind that in case of Acquittal, there is prejudice 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 reaffirmed and strengthened by the trial Court.

7. On re-appreciation of evidence on record, it is clear that no scratches and erasers done by bakulaben wife of Sanjaykumar Bhupatlal Kothari of Junagadh. Not a single witness has deposed before the learned Chief Judicial Magistrate that he or she has seen Bakulaben wife of Sanjaykumar Bhupatlal Kothari making scratches and erasures or forge the document in question. Want of sanction is fatal to the prosecution and there is no sanction as per section 15 of the Passport Act. A motive to create forged document by Bakulaben wife of Sanjaykumar Bhupatlal Kothari is not proved. The prosecution agency has not referred the so-called forged document before the

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handwriting expert to verify it. The prosecution agency has not obtained any style of handwriting of Bakulaben wife of Sanjaykumar Bhupatlal Kothari. Age factor is not important factor to obtain passport from the competent authority. Passport Authority of India has not lodged any complaint against Bakulaben wife of Sanjaykumar Bhupatlal Kothari, hence there is bar of section 15 of the Passport Act. There is no legal and valid sanction given by the competent Passport Authority of India.

8. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:-

"6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 :

"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled

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that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed:

"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the

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wrongful conviction of an innocent person.

The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on

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page 157 of "The Proof of Guilt" by Glanville Williams, second edition:

"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."

28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:

"Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."

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"9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."

8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under:

"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court

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judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."

9. In that view of the matter, the Criminal Appeal being devoid of merits is dismissed.

(RAJENDRA M. SAREEN,J) R.H. PARMAR