Gujarat High Court
State Of Gujarat vs Pravinbhai Becharbhai Bhagat on 29 August, 2023
Bench: Hemant M. Prachchhak
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2664 of 2005
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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STATE OF GUJARAT
Versus
PRAVINBHAI BECHARBHAI BHAGAT & 2 other(s)
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Appearance:
MS CM SHAH APP for the Appellant(s) No. 1
MR HRIDAY BUCH(2372) for the Respondent(s) No. 1,2
MR. JAVED S QURESHI(6999) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 29/08/2023
Page 1 of 35
Downloaded on : Sun Sep 17 02:52:20 IST 2023
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ORAL JUDGMENT
1. The appellant - State of Gujarat has preferred the present
appeal under Section 378(1)(3) of the Criminal Procedure Code
against the impugned judgment and order of acquittal dated
10.06.2005 passed by the learned Special Judge, Fast Track
Court No.5, Bharuch (hereinafter be referred to as "the Trial
Court") in Special Corruption Case No.15 of 2000 whereby the
original accused have been acquitted from the charges levelled
against them under Sections 7, 12, 12(1(d), 13(2) of the
Prevention of Corruption Act (hereinafter be referred to as "the
Act").
2. Facts in brief giving rise to filing of the present appeal are
as under:-
2.1 On 08.08.2000, the complainant has given an information
that accused no.1 and 2 were serving as police constable at
G.I.D.C. Ankleshwar Police Station at the relevant point of time
in traffic department. That the complainant was plying the
private jeep car as passenger vehicle in that area and, therefore,
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accused no.1 and 2 have demanded illegal gratification for plying
the vehicle in the area and also threatened the complainant and
used abusive language against him and, therefore, the
complainant decided to lodge the complaint against the accused.
It is alleged that the complainant was not willing to pay any bribe
amount, he has lodged the complaint before the Bharuch A.C.B.
Police Station. It is alleged that the Police Inspector, A.C.B. called
panch witnesses and after preparing first part of panchnama and
making the currency notes smeared with anthrecene powder and
instructed both panchas and the complainant. Thereafter, the
raid was carried out on 09.08.2000 and they all have started
from ACB Police Station to Ankleshwar GIDC and reached near
the place and met accused no.1 and 2 and in turn accused no.2
has made a demand from the complainant and on such demand,
the complainant has offered amount of illegal gratification, but
accused no.2 has not accepted the same and directed the
complainant to pay such amount to accused no.3, who being a
handcart was doing the business of fruit wending on the cross
road of Ankleshwar G.I.D.C., has accepted the said amount and
at that time, the trap was arranged and caught raid handed by
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accepting the amount and therefore, the complaint came to be
registered before the ACB Police Station, Bharuch.
2.2 After completion of investigation, the charge-sheet was led
before the Special Court and the learned Special Judge has
framed the charge against the accused wherein they have
denied having committed any offence and pleaded for trial.
Accordingly, the trial took place wherein the prosecution has
examined three witnesses and produced certain documentary
evidence. Thereafter, further statements of the accused under
Section 313 of the Criminal Procedure Code were recorded by
the Trial Court wherein the accused have denied having
demanded or accepted any amount and pleaded that they are
innocent. The accused side has neither examined any defence
nor examined themselves.
2.3 After completion of the trial and having heard both the
sides, the Trial Court has acquitted the accused from the charges
levelled against them.
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3. Being aggrieved and dissatisfied with the impugned
judgment and order of acquittal, the State has preferred the
present appeal.
4. Heard Ms.C. M. Shah, learned Additional Public Prosecutor
for the appellant - State, Mr.Hriday Buch, learned senior
advocate for the respondents no.1 and 2 and Mr.Javed Qureshi,
learned advocate for respondent no.3 at length. Perused the
evidence on record as well as impugned judgment and order of
the Trial Court.
5. Ms.Shah, learned Additional Public Prosecutor for the
appellant - State of Gujarat has vehemently submitted the same
facts which are narrated in the appeal memo and has also
submitted that there is ample evidence on record in connecting
the accused with the alleged crime. While reading the entire
evidence on record, Ms.Shah, learned Additional Public
Prosecutor for the appellant - State has submitted that in this
case, the prosecution has proved three ingredients of offences
viz. demand, acceptance and recovery of the amount from the
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accused. While referring to the evidence of the complainant and
panch, Ms.Shah, learned Additional Public Prosecutor has
submitted that from the evidence of the witnesses, it is crystal
clear that accused no.1 and 2 have demanded Rs.800/- from the
complainant in presence of panch and they have directed the
complainant to pay the amount to accused No.3 and at their
instance, accused No.3 has accepted the amount and the same
has been recovered from him as per the panchnama and the
version of the police witness. According to Ms.Shah, learned
Additional Public Prosecutor, there is cogent and reliable
evidence on record to establish the fact that accused have
demanded and accepted the amount through accused No.3 and
accused No.3 has also involved in the said offence and the same
has been proved beyond reasonable doubt by the prosecution.
Ms.Shah, learned Additional Public Prosecutor has submitted that
though the prosecution has proved the case beyond reasonable
doubt by examining P.W.2 and P.W.3, however, the Trial Court
has not considered the evidence of P.W.2 and P.W.3 in its true
and proper perspective and acquitted the accused. She has
submitted that though the evidence of P.W.1 is supported the
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case of the prosecution in part and though he declared hostile
during the course of the examination, despite of that his whole
evidence cannot be brushed aside or discarded and the Trial
Court has, while discarding the evidence of P.W.1, passed the
impugned judgment and order of acquittal. She has submitted
that though the evidence of the trapping officer i.e. P.W.3 is
sufficient to prove the charge levelled against the accused in
absence of any other cogent and material evidence, despite of
this fact, the Trial Court has observed that there is material
contradiction in the evidence of the witnesses and passed the
impugned judgment and order of acquittal. She has submitted
that the evidence of P.W.3 - trapping officer cannot be doubted
as per the settled principles of law more particularly the decision
of the Hon'ble Supreme Court in the case of Abdul Majid Abdul
Hak Ansari Vs. State Of Gujarat reported in (2003) 10 SCC
198 and as per the said decision, the conviction can be passed
relying upon the evidence of such officers, who supported the
case of the prosecution. She has submitted that the Trial Court
has miserably failed to appreciate the entire evidence in its true
perspective and committed an error of law and facts. She has
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submitted that the impugned judgment and order is bad in law
and, therefore, the same deserves to be quash and set aside and
to convict and punish the accused for the said offence. She has
prayed to allow the present appeal.
6. Mr.Buch, learned senior advocate for the respondents -
accused has objected the appeal and submitted the written
submission. He has submitted that there is no clear cut evidence
on record to connect accused with the alleged offence of bribe,
especially, there is lacking of demand and acceptance on their
part and on experiment of ultra violate lamp, no positive sign of
anthrecene powder was found on the hands of the accused. He
has submitted that the entire version of the prosecution is not
believable and from the evidence of the complainant and panch
witness, there is material contradictions regarding main
ingredients of demand and acceptance. He has submitted that
this being an appeal against the judgment and order of acquittal
filed under Section 378(1)(3) of the Criminal Procedure Code, this
Court has limited scope to interfere with the impugned judgment
and order of acquittal. He has prayed to dismiss the appeal and
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confirm the judgment and order of the Trial Court. He has
submitted that though after considering the materials and the
evidence led by the prosecution and examining the demeanor of
the witnesses, the Trial Court has come to the prosecution that
the prosecution has failed to establish the charge levelled
against the accused, this Court cannot interfere and/or disturb
the findings recorded by the Trial Court on any conjuncture and
surmises. He has submitted that even the recovery of the
currency notes are also not recovered from the accused or not at
the instance of the accused. He has submitted that there is
lacking of demand, acceptance and recovery at the instance of
the accused. According to him, the Trial Court has properly
appreciated the evidence and has rightly acquitted the accused
from the charges levelled against them. He has submitted that
the impugned judgment and order of the Trial Court is perfect
one and there is no perversity and the same is required to be
confirmed by this Court.
6.1 In support of his submissions, Mr.Buch, learned senior
advocates has relied upon the following decisions:-
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(1) State Of Gujarat Vs. Bhavjidan Chandidan Chara reported
in 1984 GLH 572;
(2) Ravindra Mahadeo Kothamkar Vs. The State of
Maharashtra reported in 2015 SCC OnLine Bom 6558;
(3) Ravi Sharma Vs. State (Government of NCT of Delhi) and
another reported in (2022) 8 SCC 536;
(4) State of Gujarat Vs. Ambalal Kalabhai Parmar rendered in
Criminal Appeal No.1009 of 2006 dated 12.04.2023;
(5) Vastabhai Joitaram Prajapati Vs. State of Gujarat reported
in 2023 SCC OnLine Guj 2557;
7. It is well settled by catena of decisions that an Appellate
Court has full power to review, re-appreciate and reconsider the
evidence upon which the order of acquittal is founded. However,
Appellate Court 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
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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.
8. Further, 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.
Further, while exercising the powers in appeal against the order
of acquittal, the Court of appeal would not ordinarily interfere
with the order of acquittal unless the approach of the lower Court
is vitiated by some manifest illegality and the conclusion arrived
at would not be arrived at by any reasonable person and,
therefore, the decision is to be characterized as perverse. Merely
because two views are possible, the Court of appeal would not
take the view which would upset the judgment delivered by the
Court below. However, the Appellate Court has a power to review
the evidence if it is of the view that the conclusion arrived at by
the Court below is perverse and the Court has committed a
manifest error of law and ignored the material evidence on
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record. A duty is cast upon the Appellate Court, in such
circumstances, to re-appreciate the evidence to arrive to a just
decision on the basis of material placed on record to find out
whether any of the accused is connected with the commission of
the crime with which he is charged.
9. In the case of Bhavjidan Chandidan Chara (supra), the
Division Bench of this Court has held and observed in paragraph
no.2 as under:-
"2............ Now what the Police Inspector did after
recording the complaint was to find out or select the
panchas. In a corruption case choosing of panchas is most
material and most important aspect in the case. The
reason is that the evidence of this witness alone ultimately
makes or mars the whole future of a public servant.
Normally the evidence of the complainant is not accepted
without corroboration. Normally the police officers are not
believed in toto in most of the cases because they are
considered to be interested witnesses. Now, therefore, the
whole case hangs on one individual and that individual is
the panch and that, therefore, choosing of a panch is the
most important aspect in a trap case and what the learned
Special Judge found was that the Police Inspector chose the
panch from Irrigation Department............."
10. In the case of Ravindra Mahadeo Kothamkar (supra),
the Bombay High Court has held and observed in paragraphs
no.16, 17 and 18 as under:-
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"16. When the trap was being laid without verification of
the demand, it was essential to have truly independent
witnesses as panchas. However, admittedly, panch
Godbole had previously acted as a panch for the ACB on
about 3 to 4 occasions. Selecting such a panch casts doubt
on the sincerity of the investigating agency, particularly,
because the trap was laid hurriedly and without verification
of the demand.
17. A perusal of the impugned judgment shows that the
learned Special Judge has proceeded on the presumption
of guilt as opposed to the presumption of innocence. He
noticed some inconsistencies and variations in the versions
of the complainant and the panch Godbole, but did not
give any importance to those variations by observing that
"it was likely that the panch witness either did not hear
attentively what the accused actually spoke or did not
remember." Regarding the other discrepancies between
the evidence of the witnesses as to the spot where the
appellant was apprehended, the learned Judge observed
that 'having regard to the mental state of the witnesses,
there was a likelihood of they being confused about the
place of acceptance of the bribe and place of catching the
appellant' (paragraphs 23, 25 and 26 of the impugned
judgment). The learned Judge also reasoned that, that the
complainant and panch Godbole had approached the
appellant and that the appellant took them to the hotel,
offered them lassi etc. was admitted. He thought this to be
corroborating the evidence of the prosecution witnesses
forgetting that corroboration was required not with respect
to these happenings, but with respect to demand and
acceptance of bribe. When as per the prosecution case the
appellant had asked the complainant to pay the bribe to
him in the office, that he did not demand it there and
instead took the complainant out in a hotel, is actually a
factor weakening the case of the prosecution, but the
learned Judge has held the same aspect as favourable to
the prosecution. The learned Judge posed a question as to,
'why the appellant found it necessary to take the
complainant and panch to the hotel and offer them lassi
and oblige them, was not explained', and that, 'mere fact
of acquaintance was not sufficient to take him to the
hotel.' The learned Special Judge observed that, the fact
that the appellant took them to the hotel, itself creates
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suspicion regarding the defence of the appellant.
18. In my opinion, the following factors -
(a) that, there had been no verification of the demand
before laying of a trap;
(b) that, the trap was laid as soon as the complaint was
made and rather hurriedly;
(c) that, the details regarding the manner and the place of
acceptance of the bribe amount given by the prosecution
witnesses differ, it was not safe to hold the appellant guilty
of the alleged offences."
11. In the case of Ravi Sharma (supra), the Hon'ble Supreme
Court has held and observed in paragraphs no.8 and 9 as under:-
"Before venturing into the merits of the case, we would like
to reiterate the scope of Section 378 the Code of Criminal
Procedure (for short 'Cr.P.C.') while deciding an appeal by
the High Court, as the position of law is rather settled. We
would like to quote the relevant portion of a recent
judgment of this Court in Jafarudheen and Others Vs. State
of Kerala (2022 SCC Online SC 495) as follows:
25. While dealing with an appeal against acquittal by
invoking Section 378 the Cr.P.C, the Appellate Court has to
consider whether the Trial Court's view can be termed as a
possible one, particularly when evidence on record has
been analyzed. The reason is that an order of acquittal
adds up to the presumption of innocence in favour of the
accused. Thus, the Appellate Court has to be relatively
slow in reversing the order of the Trial Court rendering
acquittal. Therefore, the presumption in favour of the
accused does not get weakened but only strengthened.
Such a double presumption that enures in favour of the
accused has to be disturbed only by thorough scrutiny on
the accepted legal parameters.
This Court in the aforesaid judgment has noted the
following decision while laying down the law:
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Precedents:
Mohan alias Srinivas alias Seena alias Tailor Seena v. State
of Karnataka, [2021 SCC OnLine SC 1233] as hereunder:
"20. Section 378 CrPC enables the State to prefer an
appeal against an order of acquittal. Section 384 CrPC
speaks of the powers that can be exercised by the
Appellate Court. When the trial court renders its decision
by acquitting the accused, presumption of innocence
gathers strength before the Appellate Court. As a
consequence, the onus on the prosecution becomes more
burdensome as there is a double presumption of
innocence. Certainly, the Court of first instance has its own
advantages in delivering its verdict, which is to see the
witnesses in person while they depose. The Appellate Court
is expected to involve itself in a deeper, studied scrutiny of
not only the evidence before it, but is duty bound to satisfy
itself whether the decision of the trial court is both possible
and plausible view. When two views are possible, the one
taken by the trial court in a case of acquittal is to be
followed on the touchstone of liberty along with the
advantage of having seen the witnesses. Article 21 of the
Constitution of India also aids the accused after acquittal in
a certain way, though not absolute. Suffice it is to state
that the Appellate Court shall remind itself of the role
required to play, while dealing with a case of an acquittal.
21. Every case has its own journey towards the truth and it
is the Court's role undertake. Truth has to be found on the
basis of evidence available before it. There is no room for
subjectivity, nor the nature of offence affects its
performance. We have a hierarchy of courts in dealing with
cases. An Appellate Court shall not expect the trial court to
act in a particular way depending upon the sensitivity of
the case. Rather it should be appreciated if a trial court
decides a case on its own merit despite its sensitivity.
22. At times, courts do have their constraints. We find,
different decisions being made by different courts, namely,
trial court on the one hand and the Appellate Courts on the
other. If such decisions are made due to institutional
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constraints, they do not augur well. The district judiciary is
expected to be the foundational court, and therefore,
should have the freedom of mind to decide a case on its
own merit or else it might become a stereotyped one
rendering conviction on a moral platform. Indictment and
condemnation over a decision rendered, on considering all
the materials placed before it, should be avoided. The
Appellate Court is expected to maintain a degree of
caution before making any remark.
23. This court, time and again has laid down the law on the
scope of inquiry by an Appellate court while dealing with
an appeal against acquittal under Section 378 CrPC. We do
not wish to multiply the aforesaid principle except placing
reliance on a recent decision of this court in Anwar Ali v.
State of Himanchal Pradesh, (2020) 10 SCC 166:
14.2. When can the findings of fact recorded by a court be
held to be perverse has been dealt with and considered in
paragraph 20 of the aforesaid decision, which reads as
under: [Babu v. State of Kerala, [(2010) 9 SCC 189]:
"20. The findings of fact recorded by a court can be held to
be perverse if the findings have been arrived at by ignoring
or excluding relevant material or by taking into
consideration irrelevant/inadmissible material. The finding
may also be said to be perverse if it is "against the weight
of evidence", or if the finding so outrageously defies logic
as to suffer from the vice of irrationality. (Vide Rajinder
Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635], Excise &
Taxation Officer-cum-Assessing Authority v. Gopi Nath &
Sons [1992 Supp (2) SCC 312], Triveni Rubber & Plastics v.
CCE [1994 Supp (3) SCC 665], Gaya Din v. Hanuman
Prasad [(2001) 1 SCC 501], Aruvelu v. State, [(2009) 10
SCC 206] and Gamini Bala Koteswara Rao v. State of A.P.
[(2009) 10 SCC 636])."
It is further observed, after following the decision of this
Court in Kuldeep Singh v. Commr. of Police [(1999) 2 SCC
10], that if a decision is arrived at on the basis of no
evidence or thoroughly unreliable evidence and no
reasonable person would act upon it, the order would be
perverse. But if there is some evidence on record which is
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acceptable and which could be relied upon, the conclusions
would not be treated as perverse, and the findings would
not be interfered with.
14.3. In the recent decision of Vijay Mohan Singh v. State
of Karnataka, [(2019) 5 SCC 436], this Court again had an
occasion to consider the scope of Section 378 CrPC and the
interference by the High Court [State of Karnataka v. Vijay
Mohan Singh, 2013 SCC OnLine Kar 10732] in an appeal
against acquittal. This Court considered a catena of
decisions of this Court right from 1952 onwards. In para 31,
it is observed and held as under:
"31. An identical question came to be considered before
this Court in Umedbhai Jadavbhai v. State of Gujarat,
[(1978) 1 SCC 228]. In the case before this Court, the High
Court interfered with the order of acquittal passed by the
learned trial court on reappreciation of the entire evidence
on record. However, the High Court, while reversing the
acquittal, did not consider the reasons given by the
learned trial court while acquitting the accused. Confirming
the judgment of the High Court, this Court observed and
held in para 10 as under:
'10. Once the appeal was rightly entertained against the
order of acquittal, the High Court was entitled to
reappreciate the entire evidence independently and come
to its own conclusion. Ordinarily, the High Court would give
due importance to the opinion of the Sessions Judge if the
same were arrived at after proper appreciation of the
evidence. This rule will not be applicable in the present
case where the Sessions Judge has made an absolutely
wrong assumption of a very material and clinching aspect
in the peculiar circumstances of the case.'
31.1. In Sambasivan v. State of Kerala, [(1998) 5 SCC 412],
the High Court reversed the order of acquittal passed by
the learned trial court and held the accused guilty on
reappreciation of the entire evidence on record, however,
the High Court did not record its conclusion on the
question whether the approach of the trial court in dealing
with the evidence was patently illegal or the conclusions
arrived at by it were wholly untenable. Confirming the
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order passed by the High Court convicting the accused on
reversal of the acquittal passed by the learned trial court,
after being satisfied that the order of acquittal passed by
the learned trial court was perverse and suffered from
infirmities, this Court declined to interfere with the order of
conviction passed by the High Court. While confirming the
order of conviction passed by the High Court, this Court
observed in para 8 as under: (SCC p. 416)
"8. We have perused the judgment under appeal to
ascertain whether the High Court has conformed to the
aforementioned principles. We find that the High Court has
not strictly proceeded in the manner laid down by this
Court in Doshi case [Ramesh Babulal Doshi v. State of
Gujarat, (1996) 9 SCC 225] viz. first recording its
conclusion on the question whether the approach of the
trial court in dealing with the evidence was patently illegal
or the conclusions arrived at by it were wholly untenable,
which alone will justify interference in an order of acquittal
though the High Court has rendered a well- considered
judgment duly meeting all the contentions raised before it.
But then will this non-compliance per se justify setting
aside the judgment under appeal? We think, not. In our
view, in such a case, the approach of the court which is
considering the validity of the judgment of an appellate
court which has reversed the order of acquittal passed by
the trial court, should be to satisfy itself if the approach of
the trial court in dealing with the evidence was patently
illegal or conclusions arrived at by it are demonstrably
unsustainable and whether the judgment of the appellate
court is free from those infirmities; if so to hold that the
trial court judgment warranted interference. In such a
case, there is obviously no reason why the appellate
court's judgment should be disturbed. But if on the other
hand the court comes to the conclusion that the judgment
of the trial court does not suffer from any infirmity, it
cannot but be held that the interference by the appellate
court in the order of acquittal was not justified; then in
such a case the judgment of the appellate court has to be
set aside as of the two reasonable views, the one in
support of the acquittal alone has to stand. Having regard
to the above discussion, we shall proceed to examine the
judgment of the trial court in this case."
31.2. In K. Ramakrishnan Unnithan v. State of Kerala,
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[(1999) 3 SCC 309], after observing that though there is
some substance in the grievance of the learned counsel
appearing on behalf of the accused that the High Court has
not adverted to all the reasons given by the trial Judge for
according an order of acquittal, this Court refused to set
aside the order of conviction passed by the High Court
after having found that the approach of the Sessions Judge
in recording the order of acquittal was not proper and the
conclusion arrived at by the learned Sessions Judge on
several aspects was unsustainable. This Court further
observed that as the Sessions Judge was not justified in
discarding the relevant/material evidence while acquitting
the accused, the High Court, therefore, was fully entitled to
reappreciate the evidence and record its own conclusion.
This Court scrutinised the evidence of the eyewitnesses
and opined that reasons adduced by the trial court for
discarding the testimony of the eyewitnesses were not at
all sound. This Court also observed that as the evaluation
of the evidence made by the trial court was manifestly
erroneous and therefore it was the duty of the High Court
to interfere with an order of acquittal passed by the
learned Sessions Judge.
31.3. In Atley v. State of U.P., [AIR 1955 SC 807], in para 5,
this Court observed and held as under: (AIR pp. 809-10)
'5. It has been argued by the learned counsel for the
appellant that the judgment of the trial court being one of
acquittal, the High Court should not have set it aside on
mere appreciation of the evidence led on behalf of the
prosecution unless it came to the conclusion that the
judgment of the trial Judge was perverse. In our opinion, it
is not correct to say that unless the appellate court in an
appeal under Section 417 CrPC came to the conclusion that
the judgment of acquittal under appeal was perverse it
could not set aside that order.
It has been laid down by this Court that it is open to the
High Court on an appeal against an order of acquittal to
review the entire evidence and to come to its own
conclusion, of course, keeping in view the well- established
rule that the presumption of innocence of the accused is
not weakened but strengthened by the judgment of
acquittal passed by the trial court which had the
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advantage of observing the demeanour of witnesses whose
evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide
powers of appreciation of evidence in an appeal against an
order of acquittal as in the case of an appeal against an
order of conviction, subject to the riders that
the presumption of innocence with which the accused
person starts in the trial court continues even up to the
appellate stage and that the appellate court should attach
due weight to the opinion of the trial court which recorded
the order of acquittal.
If the appellate court reviews the evidence, keeping those
principles in mind, and comes to a contrary conclusion, the
judgment cannot be said to have been vitiated. (See in this
connection the very cases cited at the Bar,
namely, Surajpal Singh v. State [1951 SCC 1207]; Wilayat
Khan v. State of U.P. [1951 SCC 898]. In our opinion, there
is no substance in the contention raised on behalf of the
appellant that the High Court was not justified in reviewing
the entire evidence and coming to its own conclusions.'
31.4. In K. Gopal Reddy v. State of A.P., [(1979) 1 SCC
355], this Court has observed that where the trial court
allows itself to be beset with fanciful doubts, rejects
creditworthy evidence for slender reasons and takes a view
of the evidence which is but barely possible, it is the
obvious duty of the High Court to interfere in the interest
of justice, lest the administration of justice be brought to
ridicule."
27. N. Vijayakumar v. State of T.N., [(2021) 3 SCC 687] as
hereunder: (SCC pp. 695-99, paras 20-21 & 23-24)
"20. Mainly it is contended by Shri Nagamuthu, learned
Senior Counsel appearing for the appellant that the view
taken by the trial court is a "possible view", having regard
to the evidence on record. It is submitted that the trial
court has recorded cogent and valid reasons in support of
its findings for acquittal. Under Section 378 CrPC, no
differentiation is made between an appeal against
acquittal and the appeal against conviction. By considering
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the long line of earlier cases this Court in the judgment
in Chandrappa v. State of Karnataka, [(2007) 4 SCC 415]
has laid down the general principles regarding the powers
of the appellate Court while dealing with an appeal against
an order of acquittal. Para 42 of the judgment which is
relevant reads as under: (SCC p. 432) "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 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 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.
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(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."
21. Further in the judgment in Murugesan v. State, [(2012)
10 SCC 383] relied on by the learned Senior Counsel for
the appellant, this Court has considered the powers of the
High Court in an appeal against acquittal recorded by the
trial court. In the said judgment, it is categorically held by
this Court that only in cases where conclusion recorded by
the trial court is not a possible view, then only the High
Court can interfere and reverse the acquittal to that of
conviction. In the said judgment, distinction from that of
"possible view" to "erroneous view" or "wrong view" is
explained. In clear terms, this Court has held that if the
view taken by the trial court is a "possible view", the High
Court not to reverse the acquittal to that of the conviction.
xxx xxx xxx
23. Further, in Hakeem Khan v. State of M.P., [(2017) 5
SCC 719] this Court has considered the powers of the
appellate court for interference in cases where acquittal is
recorded by the trial court. In the said judgment it is held
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 so 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 supplant
over the view of the trial court. Para 9 of the judgment
reads as under; (SCC pp.722-23)
"9. Having heard the learned counsel for the parties, we
are of the view that the trial court's judgment is more than
just a possible view for arriving at the conclusion of
acquittal, and that it would not be safe to convict
seventeen persons accused of the crime of murder i.e.
under Section 302 read with Section 149 of the Penal
Code. The most important reason of the trial court, as has
been stated above, was that, given the time of 6.30 p.m. to
7.00 p.m. of a winter evening, it would be dark, and,
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therefore, identification of seventeen persons would be
extremely difficult. This reason, coupled with the fact that
the only independent witness turned hostile, and two other
eyewitnesses who were independent were not examined,
would certainly create a large hole in the prosecution
story. Apart from this, the very fact that there were injuries
on three of the accused party, two of them being deep
injuries in the skull, would lead to the conclusion that
nothing was premeditated and there was, in all probability,
a scuffle that led to injuries on both sides. While the
learned counsel for the respondent may be right in stating
that the trial court went overboard in stating that the
complainant party was the aggressor, but the trial court's
ultimate conclusion leading to an acquittal is certainly a
possible view on the facts of this case. This is coupled with
the fact that the presence of the kingpin Sarpanch is itself
doubtful in view of the fact that he attended the Court at
some distance and arrived by bus after the incident took
place."
24. By applying the abovesaid principles and the evidence
on record in the case on hand, we are of the considered
view that having regard to material contradictions which
we have already noticed above and also as referred to in
the trial court judgment, it can be said that acquittal is a
"possible view". By applying the ratio as laid down by this
Court in the judgments which are stated supra, even
assuming another view is possible, same is no ground to
interfere with the judgment of acquittal and to convict the
appellant for the offence alleged. From the evidence, it is
clear that when the Inspecting Officer and other witnesses
who are examined on behalf of the prosecution, went to
the office of the appellant-accused, the appellant was not
there in the office and office was open and people were
moving out and in from the office of the appellant. It is also
clear from the evidence of PWs 3, 5 and 11 that the
currency and cellphone were taken out from the drawer of
the table by the appellant at their instance. There is also
no reason, when the tainted notes and the cellphone were
given to the appellant at 5.45 p.m. no recordings were
made and the appellant was not tested by PW 11 till 7.00
p.m."
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12. So far as the evidence of the complainant is concerned, he
has not supported the version of the prosecution and declared
hostile. So far as the evidence of the panch witness is concerned,
he in his cross-examination has admitted that he was called
upon by the trapping officer on specific instruction and chosen as
a panch witness. He has deposed that the muddamal currency
notes seized from accused no.3 were placed in a cover, which
was not sealed by the trapping officer. The panch witness in his
cross-examination has admitted that the trap was laid at a public
place and due to lot of traffic and noise, he has not heard any
conversation which took place between the complainant and the
accused. So far as the evidence of trapping officer is concerned,
he in his cross-examination has deposed that he has not verified
genuineness of the allegations made by the complainant and not
conducted any investigation. He has further admitted that on
four different occasions including the present offence, the
panches were called from the Taluka Development Office.
13. On perusal of the entire evidence on record, it clearly
transpires that there is no clear cut evidence regarding demand
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of any illegal gratification by the accused. Mere recovery is only
made from accused No.3, but for that purpose also, there is
contradiction in the evidence of the witnesses. It transpires that
the acceptance of the amount is also doubtful. The fact which
emerges from the evidence on record does not inspire any
confidence for connecting the accused with the alleged crime.
The ingredients of demand and acceptance are missing in the
present case. The evidence on record is not sufficient to connect
the accused with the alleged crime.
14. I have perused the original record and proceedings of the
case and the evidence on record. I have gone through the
impugned judgment and order of acquittal passed by the Trial
Court. It appears that the prosecution has examined
complainant, panch witness and trapping officer and except
these three witnesses, no any other witnesses has been
examined by the prosecution to prove the case beyond
reasonable doubt. There are three opinion required to be
considered while exercising the power under Section 378(1)(3) of
the Criminal Procedure Code against the impugned judgment
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and order of acquittal (i) whether there is any perversity or
illegality or infirmity found in the impugned judgment and order,
ifany then after considering the oral as well as documentary
evidence, recording demeanor of the witnesses and considering
the arguments advanced by both the sides, the Court can
exercise the power (ii) whether the Trial Court has committed an
error while appreciating the evidence of the prosecution
witnesses, does prosecution witness have deposed to prove the
charge levelled against the accused beyond reasonable doubt or
not and if the charge is proved against the accused then in that
case, whether the Court has committed any error or not; (iii)
whether the Trial Court has committed any error while following
principles of law or has committed any error while appreciating
the ratio laid down by this Court or Hon'ble Supreme Court in the
light of the facts of the case of the accused or not. Under the
circumstances, the Appellate Court can interfere and entertain
the appeal filed by the State against the judgment and order of
acquittal. Herein the present case, I am of the opinion that
neither of the circumstances which led to the fact that there is
any requirement to alter the findings recorded by the Trial Court
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after evaluating the evidence led by the prosecution and after
considering the arguments advanced by all the parties in
consonance with the settled principle of law and fact, the Trial
Court has rightly recorded the findings in favour of the accused.
While examining the evidence of the witnesses, it appears that
the evidence of the panch witness, which has been relied upon
by the learned Additional Public Prosecutor is not trustworthy
and reliable and his evidence is not beyond the scope of Section
3 of the Indian Evidence Act. In the examination-in-chief, the
panch witness has deposed that earlier, he never attended any
proceedings and in the cross-examination, he has admitted that
he went as panch witness in earlier proceedings / trap, which
was not succeeded but he stood as panch in the trap. Therefore,
it appears that the panch witness was very much aware of the
process of the trap, however, he was not telling truth before the
Court and hence the Trial Court has rightly disbelieved the
evidence of the panch witness i.e. P.W.2. The quality of the
witness is also one of the basic consideration while evaluating
the evidence of the witnesses. Now, while appreciating the
evidence of the panch witness i.e. P.W.2 in the present case, it is
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appears that the evidence of the panch witness is not
trustworthy and reliable and even quality of such evidence
cannot be referred to and relied upon. The trapping officer
examined who recorded the FIR, drew the panchnama, carried
out the initial investigation and subsequently, handed over the
investigation to the Investigating Officer, who has filed the
charge-sheet. The trapping officer in his evidence has
categorically admitted that he has not verified the fact that such
demand was made by the accused or not and he has simply
recorded the FIR and arranged the trap on the basis of such
information. The method of investigation is also looked into, as
the trapping officer himself has chosen the panch witness only in
one offence, however, he has selected the very same witness as
panch witness as many as 4-5 occasions. On perusal of the
evidence of P.W.2 and P.W.3, it appears that the trapping officer
has selected panch witness from the one office only which
creates doubt and, therefore, the Trial Court has right observed
that in such circumstances, if the trapping officer selected the
panch witness from the one office or one particular department
then for conducting the raid or trap is creating doubt and,
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therefore, the Trial Court has rightly relied upon the decision of
this Court in the case of Kishorchand Mansukhlal Joshi Vs. State
of Gujarat reported in 1985 GLH 103 wherein this Court has
observed that in case of corruption, the evidence of panch
witness and the complainant is very material and important. The
evidence of the panch witness is required to be some more care
and caution to appreciate the evidence. Time and again, the
Hon'ble Supreme Court has considered the quality of the
evidence and not quantity of the evidence more particularly
sterling quality of the witness who can certainly be referred to
and relied upon evidence while passing the final order. In the
present case, the evidence of the P.W.2 creates serious doubt
and the story put forward by the prosecution goes to the route of
the matter and, therefore, the Trial Court has rightly considered
the evidence of the P.W.2 and P.W.3, while passing the
impugned judgment and order which is absolutely perverse and
settled principles of law and there is no any infirmity or illegality
in the impugned judgment and order of the Trial Court. Now, it is
well settled that once the findings recorded after appreciating
the evidence and considering the arguments, the Court has
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come to the conclusion and passed the order of acquittal which
is presumption of innocence was already established before the
Court by the accused and in normal circumstances this
presumption cannot be brushed aside.
15. It is worthwhile to refer to the decision of the Hon'ble
Supreme Court in the case of Chandrappa and others Vs.
State of Karnataka reported in (2007) 4 SCC 415. The
relevant paragraph of the decision of the Hon'ble Supreme Court
in the case of Chandrappa (supra) reads as under:-
"The following general principles regarding powers of
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 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 emphasize 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.
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(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
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."
16. It would be worthwhile to refer to the decision of the
Hon'ble Supreme Court in the case of Sharad Birdhichand
Sarda Vs. State of Maharashtra reported in (1984) 4 SCC
116 wherein the Hon'ble Supreme Court has held and observed
in paragraphs No.151 and 153 as under:-
"151. It is well settled that the prosecution must stand or
fall on its own legs and it cannot derive any strength from
the weakness of the defence. This is trite law and no
decision has taken a contrary view. What some cases have
held is only this where various links in a chain are in
themselves complete, then a false plea or a false defence
may be called into aid only to lend assurance to the Court.
In other words, before using the additional link it must be
proved that all the links in the chain are complete and do
not suffer from any infirmity. It is not the law that where
there is any infirmity or lacuna in the prosecution case, the
same could be cured or supplied by a false defence or a
plea which is not accepted by a court.
153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established :
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(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may be'
established. There is not only a grammatical but a legal
distinction between 'may be proved' and 'must be or
should be proved' as was held by this Court in Shivaji
Sahebrao Bobade V/s. State of Maharashtra, (1973) 2 SCC
793 where the following observations were made : [SCC
para 19, p. 807 : SCC (Cri.) p. 1047]
Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a Court can convict
and the mental distance between 'may be' and 'must be' is
long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and
tendency.
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in
all human probability the act must have been done by the
accused.
16. It is also worthwhile to refer to and relied upon the decision
of the Hon'ble Supreme Court in the case of C.M. Girish Babu
Vs. CBI, Cochin, High Court of Kerala reported in 2010 (1)
GLH 142 : (2009) 3 SCC 779. The relevant paragraphs of this
decision reads as under:-
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"It is well settled that the presumption to be drawn under
Sec. 20 is not an inviolable one. The accused charged with
the offence could rebut it either through the cross-
examination of the witnesses cited against him or by
adducing reliable evidence. If the accused fails to disprove
the presumption the same would stick and then it can be
held by the Court that the prosecution has proved that the
accused received the amount towards gratification.
It is equally well settled that the burden of proof placed
upon the accused person against whom the presumption is
made under Sec. 20 of the Act is not akin to that of burden
placed on the prosecution to prove the case beyond a
reasonable doubt.
["It is well established that where the burden of an issue
lies upon the accused he is not required to discharge that
burden by leading evidence of proof his case beyond a
reasonable doubt. That is, of course, the test prescribed in
deciding whether the prosecution has discharged its onus
to prove the guilt of the accused; but the same test cannot
be applied to an accused person who seeks to discharge
the burden placed upon him under Sec. 4 under the
Prevention of Corruption Act. It is sufficient if the accused
person succeeds in proving a preponderance of probability
in favour of his case. It is not necessary for the accused
person to prove his case beyond a reasonable doubt or in
default to incur verdict of guilt. The onus of proof lying
upon the accused person is to prove his case by a
preponderance of probability. As soon as he succeeds in
doing so, the burden shifts to prosecution which still has to
discharge its original onus that never shifts, i.e.; that of
establishing on the whole case the guilt of the accused
beyond a reasonable doubt. " (See Jhangan V/s. State,
1966 3 SCR 736). (Emphasis supplied)]"
17. Even otherwise, considering the ratio laid down by the
Hon'ble Supreme Court as well as this Court in the case of A.
Subair Vs. State of Kerala, reported in (2009) 6 SCC 587,
State of Kerala and another Vs. C. P. Rao, reported in
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(2011) 6 SCC 450 and Neeraj Datta Vs. State (Govt. of
N.C.T. of Delhi) reported in AIR 2023 SC 330, this Court
is of the opinion that the present appeal being meritless
deserves to be dismissed.
18. On perusal of entire evidence on record and on re-
appreciating the evidence, it clearly transpires that the
prosecution has miserably failed to prove all the three
ingredients of the offences of corruption viz. namely demand,
acceptance and recovery. The evidence on record is not
sufficient to connect the accused with the alleged crime. The
prosecution failed in establishing the guilt of the accused beyond
reasonable doubt that the respondents - accused received any
gratification.
19. On perusal of the impugned judgment and order of the
learned Special Judge, it clearly transpires that the learned
Special Judge has taken into consideration all the facts while
acquitting the accused. It also appears from the impugned
judgment and order that the learned Special Judge has
appreciated the entire evidence in its true perspective and has
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come to the right conclusion in acquitting the accused. The
impugned judgment and order of the learned Special Judge is not
perverse one and it is based on the evidence on record. The
same does not warrant any interference at the hands of this
Court and the same is sustainable in the eyes of law. This Court
is in complete agreement with the impugned judgment and order
of the learned Special Judge.
20. For the foregoing reasons, the present appeal is devoid of
merits and it deserves to be dismissed. Resultantly, it is
dismissed. The impugned judgment and order dated 10.06.2005
passed by the learned Special Judge, Fast Track Court No.5,
Bharuch in Special Corruption Case No.15 of 2000 is hereby
confirmed. Bail bond stands cancelled. Record and proceedings
be sent back to the concerned Trial Court forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
