Gujarat High Court
The State Of Gujarat vs Kasnabhai Hirabhai Baria on 3 June, 2024
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R/CR.A/452/2007 JUDGMENT DATED: 03/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 452 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
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
KASNABHAI HIRABHAI BARIA
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Appearance:
MS JYOTI BHATT, APP for the Appellant(s) No. 1
MS JAYSHREE C BHATT(170) 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. Feeling aggrieved and dissatisfied by the judgment and
order of acquittal dated 19.8.2006 passed by learned Special
Judge, Dahod in Special Case No. 11 of 2004, in which the
respondent herein - original accused was acquitted from the
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charges under Sections 7 and 13(2) of the Prevention of
Corruption Act, 1988, the appellant - State has approached
this Court by way of this Appeal under Section 378 of the
Criminal Procedure Code, 1973.
2. Brief facts of the case of the prosecution can be stated
as under:-
2.1 That a criminal complaint was filed by one Karshan
Hemraj Rathod of village Vankiya against complainant
Bharatbhai Ramabhai of the village. At the relevant point of
time, respondent accused Kasnabhai Hirabhai Baria was
discharging his duties as a Unarmed Head Constable in
Gulbar Out Post, Garbada Police Station and this accused
person has arrested complainant Bharatbhai Ramabhai Katara
and sent him behind the bars.
2.2 It is further the case of prosecution that respondent
accused has also administered threat to move remand
application and thereby, demanded Rs.2,500/- from
complainant towards not to move remand application as well
as to release them on bail and not to beat during custody. It is
further the case of prosecution that out of aforesaid
Rs.2,500/-, Rs.1000/- was accepted and balance amount of
Rs.1,500/- was to be given on 22.1.2002. It is further the case
of the prosecution that complainant was not ready and willing
to give illegal gratification, he approached before ACB
Godhra, and filed a complaint. Therefore, on the basis of
aforesaid complaint, on 22.1.2002, raid was arranged and
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during raid, the respondent has demanded and accepted
illegal gratification of Rs.1,500/- from complainant in the
presence of panch no.1 and thereby committed offence under
Sections 7 and 13(2) of the Prevention of Corruption Act,
1988.
2.3 Upon receipt of the aforesaid complaint, the necessary
investigation was carried out by the Investigating Officer and
thereafter, the charge-sheet was filed before the Special
Judge, Dahod for the offences under Sections 7 and 13(2) of
the Prevention of Corruption Act, 1988.
2.4 Thereafter, the learned Special Court framed the
charges at Exh.3 and the plea was recorded at Exh.4. The
accused pleaded not guilty to the charges levelled against him
and had opted for judicial trial and, therefore, the trial was
commenced.
2.5 To prove the case, the prosecution had examined
following four witnesses :
Sr. Name Exh. No.
No.
2.6 Through the aforesaid witnesses, following documentary
evidence was brought on record.
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Sr. No. Documentary Evidence Exh.
No.
4 Letter dated 23.1.2002 allocating Panchas 27
5 Face mark register of the accused dated 28
24.1.2002
Magistrate, Dahod
7 Original complaint of the complainant to PSI, 31
Garbada dated 31.12.2001
8 Original reply dated 2.1.2002 to the chapter 32
case of the complainant - Kasna Himraj
9 Letter dated 18.6.2002 of the Superintendent 29
of Police, Dahod granting permission to try
the criminal case at Dahod.
2.7 At the end of trial and after recording statement of
accused under Section 313 and after having heard the
arguments of prosecution and defense, the learned Trial Judge
acquitted the respondent herein original accused of the
charges leveled against him under Sections 7 and 13(2) of the
Prevention of Corruption Act, 1988 vide judgment and order
dated 19.08.2006.
2.8 Being aggrieved and dissatisfied by the aforesaid
judgment and order passed by the learned Trial Judge, the
appellant State is therefore, before this Court by way of
present appeal.
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3. Learned Assistant Public Prosecutor Ms. Jyoti Bhatt for
the appellant State has vehemently submitted that the
judgment and order of the Trial Court is against the provisions
of law and that the Trial Court has not properly considered
the evidence laid by the prosecution in its true perspective
and that has resulted into serious miscarriage of justice.
Learned APP submitted that the findings and reasoning
recorded by the Trial Court is perverse in nature being
contrary to the evidence brought on record. Ms.Jyoti Bhatt
learned APP further submitted that looking to the evidence
laid by the prosecution and looking to the provisions of law, it
is established that the prosecution has proved all the
ingredients of offenses under Sections 7 and 13(2) of the
Prevention of Corruption Act, 1988 against the present
respondent. Therefore, learned APP requested this Court to
allow the present appeal by quashing and setting the acquittal
order and to record conviction of the accused under Sections
7 and 13(2) of the Prevention of Corruption Act, 1988 in the
interest of justice.
4. Considered the oral submissions canvased by learned
APP Ms.Jyoti Bhatt, judgment of acquittal recorded by learned
Special Judge and the entire evidence recorded by the Trial
Court during the course of trial.
5. At the outset, it is the case where the complainant has
turned hostile. The complainant has not supported the version
of the complaint during his oral evidence before the trial court
on oath. Since the complainant turned hostile, other
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independent corroborative piece of evidence deserves to be
considered. Upon perusal of the panchnama at Exh.24 as well
as evidence of the panch witnesses, the trial court has
recorded the finding that the panch witness - Arvindsinh
Ishwarsinh Mahida has given the deposition mechanically. If
the deposition of the said witness is perused, it does not
support the element of demand. The oral testimony of the
panch witnesses and the panchnama if jointly seen, there are
many contradictions. In the said panchnama also, there is no
reference as to the demand. The said panch witness has also
admitted that the entire panchnama was written by the
constable as dictated by the PI Shri Navle of ACB. One more
aspect which deserves consideration is that in the entire case,
the brother of the complainant along with other two persons
was present, however, the prosecution has not examined
those independent witnesses so as to support the version of
the prosecution. Upon perusal of the evidence, it further
appears that on the contrary, the entire amount which was
alleged to have been demanded towards the illegal
gratification was, in fact, towards the settlement between the
parties of the chapter case. Therefore, upon overall scrutiny of
evidence, the prosecution could not establish the demand and
acceptance by way of drawing proper panchnama and leading
evidence of independent witnesses, more particularly when
the complainant himself had turned hostile.
6. At this stage, it is required to be noted that the present
appeal is against the order of acquittal. Thus, in my
considered opinion, the law laid down by the Hon'ble Apex
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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 catena of decisions the
principles, which deserves to be kept in mind while deciding
the acquittal appeal. In the case of "Ms. 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;
"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."
7. 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
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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 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."
8. 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.
9. Even in the case of "STATE OF GOA Vs. SANJAY
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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."
10. 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.
11. In the case of "LUNA RAM VS. BHUPAT SINGH AND
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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."
12. 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
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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]"
13. 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."
14. The Hon'ble Apex Court in "SHIVASHARANAPPA &
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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."
15. 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."
16. One another important aspect of the matter is that there
is no demand as well as acceptance by the accused. Further
consideration of the evidence would reveal that even the
Panchnama which was drawn in presence of Panchas and
their depositions are contradictory to the version of the
complainant. As per the deposition of Panchas, the
complainant completely given different version than that of
Panchas. Further, the cumulative evaluation of evidence
would lead to believe that neither there was confirmed
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demand nor acceptance by the accused.
17. In view of the aforesaid, I am of the considered opinion,
the finding 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, acquitting 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, 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.
18. In the above view of the matter, I am of the considered
opinion that the 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.
19. In the result, the present appeal is hereby dismissed.
20. The impugned judgment and order of acquittal dated
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19.8.2006 passed by learned Special Judge, Dahod in Special
Case No. 11 of 2004 is confirmed.
21. Record and Proceedings to be sent back to the trial
court. Bail and bail bond, if any, stands canceled. Surety also,
if any given, stands discharged.
(NIRAL R. MEHTA,J)
V.J. SATWARA
