The State Of Gujarat vs Merubhai Devabhai Jafda
2024 Latest Caselaw 4476 Guj

Gujarat High Court

The State Of Gujarat vs Merubhai Devabhai Jafda on 3 June, 2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 2244 of 2006

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                             THE STATE OF GUJARAT
                                     Versus
                         MERUBHAI DEVABHAI JAFDA & ANR.
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Appearance:
MR. KRINA CALLA, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1
MR ATIT D THAKORE(5290) for the Opponent(s)/Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                                  Date : 03/06/2024
                                   ORAL ORDER

1. Feeling aggrieved and dissatisfied with the

impugned judgment and order of acquittal dated

30.09.2016 by the learned Presiding Officer, Fast Tract

Court No.2, Rajkot in Special Case No.15 of 1995,

acquitting the respondent herein - original accused for

the offence under Sections 7, 12, 13(1)(d) and 13(2) of

the Prevention of Corruption Act (hereinafter referred to

as "the Act"), the present appellant - State, therefore,

approached this Court by way of the present Criminal

Appeal under Section 378 of the Code of Criminal

Procedure, 1973.

2. The brief fact as per the prosecution can be stated

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as under:

2.1. The complainant was serving as Police Inspector,

A.C.B. Police Station at Rajkot and he had received the

information that Police personnel are demanding and

receiving illegal gratification from the vehicle drivers

under the guise of entry fees when they are entering

and passing through the National Highway of Rajkot

District and therefore, complainant arranged a running

trap with the help of punter truck driver Kasambhai

Habibbhai of Truck No. GJ-3T-223 near Greenland Cross

Road, opposite Bombay Hotel on Ahmedabad Gondal

bypass road on 08.03.1995 at about 6:00 hours. At that

time, complainant and other persons were travelling in truck No.GJ-3T-223 and when they all reached at the

place of incident, accused Gopalbhai Kanjibhai Sagathia

had stopped the truck and he was asked for entry book

upon which driver Kasambhai told that he did not have

entry book and upon such reply, accused Gopalbhai

Kanjibhai Sagathia asked for Rs.20/- towards entry fee in

the presence of complainant and panchas, which amount

was given by truck driver Kasambhai to the accused who

has accepted said amount and thus accused were caught

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in decoy trap. It is also the case of the complainant that

accused No.1, Merubhai Devabhai Jafda and accused

No.3, Pravinbhai Madhubhai Chauhan were also there

and seated in the police mobile and thereby, accused

were caught in decoy trap of demanding and accepting

illegal gratification from the driver of truck No.GJ-3T-223

under the guise of entry fee and, therefore, a regular

complaint was lodged by the complainant against the

accused.

2.2. In furtherance of the aforesaid complaint, necessary

investigation was carried out and proper sanction was

obtained from the Competent Authority. Thereafter,

charge-sheet was filed before the Court of learned Special Judge, Rajkot for the offence under Sections 7, 12, 13(1)

(d) and 13(2) of the Act. The learned Special Judge

framed the charges at Exh.13 against the accused on

30.05.1997. The accused pleaded not guilty, and

thereafter, having recorded his plea at Exh.14, trial was

commenced.

2.3. To prove the charges, the prosecution has examined

the following three witnesses:

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Sr. P.W. Name of Witnesses Exhibit No. Numer

2.4. Through the aforesaid witnesses, the prosecution has

also brought on record the following documentary

evidence:

 Sr.      Exhibit                                Particulars
No.
1.            66          Panchnama dated 08.03.1995
2.            67          Seizure Memo
3.            68          Seizure Memo
4.            70          Sanction to prosecute the accused
5.            72          F.I.R.
6.            73          Control Room Log Book
7.            74          Log Book



2.5. At           the      end      of   the    trial,     after      recording            the

statement           of     the      accused    under       Section       313        of     the

Criminal           Procedure         Code,     1973,      and      considering             the

arguments on behalf of the prosecution and the defence,

the learned trial Judge acquitted the respondent herein -

original accused from the charges levelled against him

under offence under Sections 7, 12, 13(1)(d) and 13(2) of

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the Act, vide impugned judgment and order of acquittal

dated 30.09.2016 by the learned Presiding Officer, Fast

Tract Court No.2, Rajkot in Special Case No.15 of 1995.

2.6. Thus, being aggrieved and dissatisfied with the

aforesaid judgment and order passed by the trial court,

the appellant - State has approached this Court by way

of this appeal under Section 378 of the Code of Criminal

Procedure, 1973.

3. The learned Additional Public Prosecutor (APP), Ms.

Krina Calla, appearing for the appellant - State,

contended that the judgment and order of the trial court

is against the provisions of law. It has been contended

that the trial court has not properly considered the evidence led by the prosecution, and that has resulted

into serious miscarriage of justice. The learned APP

further contended that the evidence produced on record

is sufficient to hold the accused guilty of the offences

alleged. However, the learned trial court has committed

serious error in construing the evidence in its true

perspective and thereby, the order or acquittal is

perverse in nature. The learned APP submitted that the

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ingredients of offence under Sections 7, 12, 13(1)(d) and

13(2) of the Act have been proved by the prosecution

with sterling quality of evidence, and thereby, the order

of acquittal deserves to be quashed and set aside.

Lastly, the learned APP has taken this Court through

the entire oral as well as the documentary evidence, and

requested this Court to convict the respondent herein -

original accused by reversing the acquittal order, in the

interest of justice.

4. At the outset, it is required to be noted that the

present appeal is against the order of acquittal. Thus, in

our considered opinion, the law laid down by the Hon'ble

Apex Court, with regard to general principles governing

acquittal appeals, deserves to be taken note of. The Hon'ble Apex Court has very succinctly explained in its

catena of decisions the principles, which deserves to be

kept in mind while deciding the acquittal appeal. In the

case of "M.S. NARAYANA MENON @ MANI VS. STATE

OF KERALA & ANR", (2006) 6 S.C.C. 39, the Apex Court has narrated the powers of the High Court in

appeal against the order of acquittal. In para 54 of the

decision, the Apex Court has observed as under;

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"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."

5. Further, in the case of "CHANDRAPPA VS. STATE

OF KARNATAKA", reported in (2007) 4 S.C.C. 415, the Apex Court laid down the following principles;

"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, re- ppreciate 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

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reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies 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."

6. Thus, it is a settled principle that while exercising

appellate powers, even if two reasonable views /

conclusions are possible on the basis of the evidence on

record, the appellate Court should not disturb the finding

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of acquittal recorded by the trial Court.

7. Even in the case of "STATE OF GOA Vs. SANJAY

THAKRAN & ANR.", reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court

in such cases. In para 16 of the said decision, the Court

has observed as under;

"16. From the aforesaid decisions, it is apparent that 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 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 he is charged

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with."

8. Similar principle has been laid down by the Apex

Court in cases of "STATE OF UTTAR PRADESH VS.

RAM VEER SINGH & ORS.", 2007 A.I.R. S.C.W. 5553 and in "GIRJA PRASAD (DEAD) BY L.R.s VS. STATE

OF MP", 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of

acquittal, are well settled.

9. In the case of "LUNA RAM VS. BHUPAT SINGH

AND ORS.", reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under;

"10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.

11. Considering the parameters of appeal against the

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judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence."

10. Yet in an another decision of the Apex Court in the

case of "MOOKKIAH AND ANR. VS. STATE, REP. BY

THE INSPECTOR OF POLICE, TAMIL NADU", reported in AIR 2013 SC 321, the Apex Court in para 4 has held

as under:

"4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not

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merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC573]"

11. It is also a settled legal position that in acquittal

appeals, the appellate Court is not required to rewrite

the judgment or to give fresh reasonings, when the

reasons assigned by the Court below are found to be

just and proper. Such principle is laid down by the Apex

Court in the case of "STATE OF KARNATAKA VS.

HEMAREDDY", AIR 1981, SC 1417, wherein it is held as under;

"...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

12. Thus, in case the appellate court agrees with the

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reasons and the opinion given by the lower court, then

the discussion of evidence is not necessary.

13. The Hon'ble Apex Court in "SHIVASHARANAPPA

& ORS. VS. STATE OF KARNATAKA", JT 2013 (7) SC 66 has held as under;

"That appellate Court is empowered to reappreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence."

14. In a very recent decision in case of Babu

Sahebagouda Rudragoudar v. State of Karnataka reported

in 2024 SCC OnLine SC 561, the Apex Court has reiterated the principles governing the appeal against

acquittal recorded by the trial court, which can be

quoted as under:

"(a) That the judgment of acquittal suffers from patent perversity;

(b) That the same is based on a misreading/omission to consider material evidence on record;

(c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."

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15. At this juncture, before deciding the present appeal,

it is required to be noted that main accused No.2,

namely, Gopalbhai Kanjibhai Sagathia, who was caught

red-handed with Muddamal Currency i.e. illegal

gratification, died during the course of trial, and trial

against him was declared to be abated. The present

respondent - original accused appears to have been

implicated in the present offence because, at the time

when the raid was carried out, these two accused were

sitting in a Police Mobile Van at the place of offence.

Admittedly, these two accused have neither demanded

nor accepted illegal gratification. No recovery of currency

notes were made from the present accused persons, as entire Muddamal was recovered from accused No.2 -

Gopalbhai Kanjibhai Sagathia. It also, therefore, appears

that demand and acceptance, if at all, can be attributed,

would be to the accused No.2 - Gopalbhai Kanjibhai

Sagathia, who died during the trial. These accused

persons were present and sitting in the Police Mobile

Van where the accused No.2- Gopalbhai Kanjibhai

Sagathia was going to sit after accepting the bribe, and

at that time, he was arrested. Thus, considering the

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evidence of PW-1, Kasambhai Habibbhai Sarvadi at

Exh.36, who was acting as a punter for the A.C.B.

Police, the present respondent - original accused has not

played any role to either demand or accept for illegal

gratification. It is not even the case of the prosecution

that all these three accused; the present respondents -

original accused Nos.1 and 3 along with the original

accused No.2 - Gopalbhai Kanjibhai Sagathia have

collectively demanded money, and thereafter, accepted by

original accused No.2. Under the circumstances, in my

considered opinion, the present respondent - original

accused cannot be said to be involved in the offence.

16. In view of the aforesaid, this Court is of the considered opinion that the findings of fact recorded by

the learned trial court cannot be faultered. I have not

found any infirmity in the order passed by the learned

trial Judge so as to interfere in this case. The judgment

and order of acquittal, quitting the present respondent -

original accused by the learned trial Judge is just and

proper. The evidence on record will not permit this Court

to take a different view, than that of taken by the

learned trial Judge. Even looking to the present appeal,

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nothing is produced or pointed out to rebut the

conclusion of the trial court. Even looking to the

evidence on record, the learned APP could not able to

persuade this Court to take a different view, than that

of taken by the learned trial Judge.

17. Keeping in mind the aforesaid, as well as the law

as discussed hereinabove, in my considered opinion, the

learned trial court was completely justified in acquitting

the respondent herein - original accused. I find that the

findings recorded by the trial court are absolutely just

and proper and in recording the said findings, no

illegality or infirmity has been committed by it. I am,

therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal

recorded by the court below, and hence, find no reasons

to interfere with the same.

18. In the result, the present appeal is hereby dismissed.

19. The impugned judgment and order of acquittal

dated 30.09.2016 by the learned Presiding Officer, Fast

Tract Court No.2, Rajkot in Special Case No.15 of 1995

is confirmed.

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20. Record and Proceedings to be sent back to the trial

court. Bail and bail bond, if any, stands cancelled.

Surety also, if any given, stands discharged.

(NIRAL R. MEHTA,J) DIWAKAR SHUKLA