Gujarat High Court
The State Of Gujarat vs Rajendrainh Narendrasinh Solanki on 3 June, 2024
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R/CR.A/285/2007 JUDGMENT DATED: 03/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 285 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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THE STATE OF GUJARAT
Versus
RAJENDRAINH NARENDRASINH SOLANKI
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Appearance:
MS JYOTI BHATT,APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
MR NM PATEL(6042) for the Opponent(s)/Respondent(s) No. 1
MR.RAJESH B SONI(2632) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 03/06/2024
ORAL JUDGMENT
1. Being aggrieved and dissatisfied by the judgment and
order dated 30.09.2006 passed in Special ACB Case No. 03 of
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2004 by the learned Special Judge and Additional Sessions
Judge 5th Fast Track Court, Godhra, in acquitting the
respondent herein - original accused of the offence under
Section 7, 13(1)(D) and 13(2) of the Prevention of Corruption
Act, the State has approached this Court by way of Appeal
under Section 378 of the Criminal Procedure Code, 1970.
2. The brief case of the prosecution can be thus stated as
under:-
2.1 The complainant - Takhatsinh Raiyajibhai Chauhan,
residing at Aklacha, Ta - Thasara submitted a complaint to
Mr. R. B. Sharma, Police Inspector, ACB, Vadodara on
19/02/2004 that his native is at village - Bethiya, Ta - Kalol
and at present stays at Aklacha, Ta - Thasara. Bhupendrasinh
Prabhatsinh Khant who at present stays at Khant Muvada, Ta
- Shahera, Dist - Panchmahal, is friend and relative to the
complainant. On 12/02/2004, the complainant got to know
from the call of Shantaben, sister of Bhupendrasinh, that
Bhupendrasinh was taken to Shahera Police Station for family
land dispute. So the complainant went to Bupendrasinh Khant's
home, and thereafter, as Bhupendrasinh was in jail at Shahera
Poice station, he went there to inquire about him. At Shahera
Police Station, he met Rajubhai Solanki, the policeman who
was investigating about the complaint against Bupendrasinh.
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Rajubhai Solanki introduced himself to him. On the request to
release Bupendrasinh on bail, Rajubhai got angry, and with
profanity, he said that Bhupendrasinh might be beaten by
attaching a tree. On request by the complainant not to do so
and to present him in court as soon as possible, Rajubhai
demanded a bribe of Rs. 5,000/- to do the same. But after
that, they argued to reduce the amount and agreed on Rs.
2500/- and the complainant had to say yes as a last resort to
give the amount to Rajubhai. The complainant told the
policeman, Rajubhai, that as he had no money at that time, he
would arrange and give it to him as early as possible after
releasing on bail. But Rajubhai Solanki insisted him forcefully
to give the bribe amount before presenting him for bail on the
same day. Thereafter, on presenting Bhupendrasinh before
Mamlatdar, he was released on bail on that day. Thereafter,
on 15/02/2004, a call was received from Bhupendrasinh, and
he said that as Harishchandrasinh Jivantsinh Khant submitted a
complaint on the day on which he was released on bail, in
Shahera Police Station about the second quarrel, from that
day, Rajubhai Solanki was finding him. Bhupendrasinh told the
complainant that Rajubhai said profanity to him and
threatened him about beating and sending him behind bars for
not giving Rs. 2500/- as decided in the earlier case. As soon as
the complainant heard this, he met Rajubhai Solanki at
Shahera Police Station on the same day. But Rajubhai said
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abusive words to him and threatened him about beating
Bhupendrasinh and sending him behind bars for not giving him
Rs. 2500/- as decided earlier. At that time, the complainant
told Rajubhai that he was busy in arrangement of the money.
But he did not believe and told to present Bhupendrasinh at
any cost. Therefore, the complainant urged Rajubhai that he
would give the bribe amount himself and requested not to beat
Bhupendrasinh and send behind bars. Rajubhai asserted the
complainant that "I will have the money first, every other
thing is later". So the complainant told Rajubhai that he
would come with the money and bring Bhupendrasinh with
him. Thereafter, Rajubhai told the complainant to give him Rs.
2500/- latest by date 20/02/2004 as per his demand, and bring
Bhupendrasinh Khant with him. The said Rajubhai Solanki
serves as policeman at Shahera Police Station. As the
complainant did not want to give the bribe amount of Rs.
2500/- to him, he submitted the compliant with the
aforementioned facts before Mr. R. B. Sharma, Police
Inspector, ACB, Vadodara. As he said that he would produce
the bribe amount of Rs 1000/- himself, Mr. Sharma, Police
Inspector, did the proceeding of the arrangement for the trap
of bribe in this case.
3. Pursuant to the aforesaid, the Investigating Agency
registered the complaint and carried out investigation and
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thereafter filed chargesheet before the concerned Court. The
learned Special Court below Exh.11 framed charges against the
present accused. Since the accused in his statement, did not
plead guilty, the trial was conducted.
3.1 To prove the case, the prosecution examined the
following 6 witnesses:-
Sr. Name Particulars Exh.
No. No.
1 Takhatsinh Rayjibhai Chauhan Complainant 14
4 Bhavsingh Ditabhai Vaghela Police Officer 39
6 V. T. Navle Investigating Officer 47
4. Through the aforesaid witnesses, prosecution has brought
on record following documentary evidence.
Sr. Description of the Documents Exhibit
No.
Vadodara
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Police Station
Police Station for February 2004
6 Complaint for Shahera Police Station's Crime 32
Register No. 12/04
Register No. 188/04
8 Extract of Shahera Police Station Register 34
10 Extract of Shahera Police Station's Station Diary 36
entry Dated 20/02/04
5. At the end of the trial, after recording the statement of
the accused under Section 313 of CrPC and hearing arguments
on behalf of the prosecution and defense, the learned Trial
Judge was pleased to acquit the respondent herein - original
accused from the charges leveled against him under Section 7,
13(1)(d) and 13(2) of the Prevention of Corruption Act vide
judgment and order dated 30.09.2006 passed in Special ACB
Case No. 03 of 2004. Being aggrieved by the aforesaid, the
appellant - State is before this Court by way of present
appeal.
6. It was contended by learned Assistant Public Prosecutor
Ms. Jyoti Bhatt appearing for the appellant State that the
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judgment and order of the Trial Court is against the provisions
of law. It was contended that the Trial Court has not properly
appreciated the evidence produced on record in its true
perspective and that has resulted into serious miscarriage of
justice. It was further contended that the ingredients of all the
offences under Section 7, 13(1)(d) and 13(2) of the Prevention
of Corruption Act were proved, however, the learned Trial
Court had miserably failed in construing the same that too by
ignoring overwhelming evidence against the accused and that
has resulted into perversity. Learned APP has also taken this
Court through entire oral as well as documentary evidence and
submitted that the charges against the accused persons are
stand proved and thereby the impugned acquittal order be
quashed and set aside by recording conviction against the
accused persons in the interest of justice.
7. 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,
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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;
"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."
8. 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.
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[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 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."
9. 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 of acquittal
recorded by the trial Court.
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10. 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 with."
11. Similar principle has been laid down by the Apex Court
in cases of "STATE OF UTTAR PRADESH VS. RAM VEER
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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.
12. 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 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."
13. 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
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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
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]"
14. It is also a settled legal position that in acquittal appeals,
the appellate Court is not required to rewrite the judgment or
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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."
15. Thus, in case the appellate Court agrees with the reasons
and the opinion given by the lower Court, then the discussion
of evidence is not necessary.
16. 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."
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17. 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."
18. While keeping in mind the aforesaid settled provisions of
law, it is also worthwhile to take note of certain admitted
facts of the case. It is pertinent to note that it is a case where
the allegation of only demand was made. Thus, the other two
aspect i.e. acceptance and recovery is not required to be
considered. Considering the evidence of the complainant,
demand was made by the accused person on 12.02.2004,
15.02.2004, and 20.02.2004. However, so far as 12.02.2004
and 15.02.2004 are concerned, the said demand was never
made before any independent witnesses. So far as demand
made on 15.02.2004 is concerned, it was the case that the said
demand was made in presence of one Mr. Bhupendrasinh Khat
which could have been independent witness, however, the said
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independent witness was never examined by the prosecution so
as to substantiate the case of the complainant. Another
infirmity in the evidence of the prosecution which is required
to be noted is the panchama at Exh.24. The said panchnama
was not prepared at the place of incident i.e. near the gate of
Mamlatdar Office where the demand was made. The said
panchama was prepared in Sahera Police Station. Considering
the deposition and the cross-examination of the panch
witnesses, it appears that the said panchnama was not drawn
in the presence of the panchas and that they were made
merely signatories.
19. In view of the aforesaid, in my view, it is the case where
only demand was made by the accused. Thus, on such
allegation of demand only, the evidence of the complainant
should be sterling in quality. More so, the evidence of the
complainant have to be corroborated by other independent
evidence. However, in the instant case, the prosecution could
not establish demand by leading cogent and corroborative
piece of evidence. Even the panchnama which was prepared
cannot be said to be having any legal force. I say so because,
it appears from the record that the second part of the
panchnama which should have been prepared at the place of
incident admittedly was prepared at Sahera Police Station and
in the entire panchnama there is no whisper about the place
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where the demand was made i.e. near the gate of Mamlatdar
Office. Coupled with the aforesaid, even the panchas have in
their cross-examination stated that they are not aware who has
drawn the panchnama and upon whose instance. Accordingly,
the panchas were only called for to sign the same to complete
the formalities which in my considered opinion cannot be
permissible in eye of law and thus the panchnama itself is
doubtful.
20. In view of the aforesaid, I am of the considered opinion,
the findings of fact recorded by the learned trial court cannot
be faltered. I did not find 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
respondents - 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,
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 persuade this Court to take a different
view, than that of taken by the learned trial Judge.
21. In the above view of the matter, I am of the considered
opinion that the trial court was completely justified in
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acquitting the respondents 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.
22. In the result, the present appeal is hereby dismissed.
23. The impugned judgment and order of acquittal dated
30.09.2006 by the learned Special Judge and Additional
Sessions Judge 5th Fast Track Court, Godhra in Special ACB
Case No. 03 of 2004 is confirmed.
24. Record and Proceedings to be sent back to the trial
Court. sd/-
(NIRAL R. MEHTA,J)
SHRIJIT PILLAI
