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2014 Supreme(Guj) 33
Gujarat High Court
Hon’ble Mr. Justice Rajesh H. Shukla
State of Gujarat
Versus
Kiritsinh Mahobatsinh Brahmbhatt & Ors.
Criminal Appeal No. 648 of 2000—Decided on 23/01/2014
Appearance :
Ms. Monali Bhatt, APP, for the Appellant No. 1.
Mr. Arpit A. Kapadia, for the Respondent No. 1.
Notice Served, for the Respondent Nos. 2 & 5.
Point in Issue :
Whether in the facts of the case judgment of acquittal by trial Court sustainable.
Headnote:Head Note :
[Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 387 and 114 — Prevention of Corruption Act — Section 7 — Threatening to pay 10% of the project or Rs. 10.00 lacs otherwise to implicate in serious offence — Offence of extortion or illegal gratification — Acquittal — Appeal against — Appreciation of evidence — Finding as to — Sustainability — Acquittal of accused appellant by trial Court is based on holding that evidence of the complainant and addl. contractor is contrary to the deposition of other prosecution witnesses — A close scrutiny of evidence shows that evidence of complainant, his Manager and driver is not worth relying — The theory or suggestion by the prosecution that Addl. Contractor was threatened that he would be complicated in serious offence by accused is not supported by any evidence when he was not Investigating Officer in any such case — Further deposition of I.O. Where in he has stated based on the statements recorded by him during the investigation suggesting that witnesses have not supported the prosecution case can not be ignored — The statement of I.O. is on oath with regard the course of investigation and what was revealed during his investigation — This statement of I.O. is further supported and corroborated by the deposition of other witnesses — Court held that impugned judgment and order of trial Court can not be characterised as perverse to warrant interference — Court having considered the jurisdiction of appellate Court in case of acquittal held that impugned judgment and order of trial Court does not call for any interference.
Held :
Though submissions may not be readily accepted that one could not remain present at another place merely because he was on a duty, at the same time, it cannot be overlooked that the prosecution witnesses including I.O., Shri V.M. Gaur, Exh. 58, Shri J.J. Desai, Exh. 61 and Devshankar Dhama, Exh. 50 have categorically stated about the presence of the accused in the office of D.C.B. Police Station couple with the fact that there is a distance which takes about 5060 minutes to reach the place of incident leaves a possible doubt or lends support to the probable version given by the trial Court regarding the presence of the Accused No. 1. [Para 14]
Again very basis or foundation of the alleged threat for 10% share or amount by putting Adil into fear would require further corroboration. It leaves a doubt as to whether the Accused No. 1 had any such power or authority, particularly, when he was not the Investigating Officer in another case, which was investigated regarding murder. Therefore, this theory or suggestion by the prosecution that Adil Contractor was threatened that he would be implicated in serious offence by the Accused No. 1, is not supported by any evidence when he was not investigating officer in any such case. [Para 15]
Further, the deposition of investigating officer, Shri Gaur, wherein he has stated based on the statements recorded by him during the investigation suggesting that the witnesses have not supported the prosecution case require consideration.
[Para 16]
The Investigating Officer in his deposition has made a statement on oath with regard to the course of investigation and what was revealed during his investigation. Therefore the facts are totally different from the judgment which has been pressed into service by learned APP, which does not support the contentions raised. Therefore, it would not be of any help and the submissions made by learned APP cannot be accepted. Moreover, the version or deposition of the Investigating Officer, Shri Gaur, Exh. 58 is also corroborated by the deposition of other witnesses, Shri Dhamal, Exh. 50, Shri Desai, Exh. 61 and also Adil Contractor, Exh. 19. [Para 16]
Therefore keeping in mind the provision of Section 378 of the Code of Criminal Procedure, 1973, though there may not be any embargo on the power and there could be a justification in a given case to upset or reversal of acquittal, normally the high Court would be slow in reversing such decision of the trial Court. It has been consistently held and observed that merely because other view is possible or when it is possible that other view could have been taken, does not necessarily justify the interference or substitution. [Para 19]
Law Laid Down :
There is no emerged on the power of appellate Court in a case to upset or reversal of acquittal but normally the High Court would be slow in reversing such decision of trial Court.
Rajesh H. Shukla, J.—The present Appeal is directed against the judgment and order delivered by the Learned Special Judge, Vadodara in Special Case No. 9/1999 dated 11.04.2000 recording acquittal of the accused for the offence under Sections 387 and 114 of the Indian Penal Code and under Section 7 of the Prevention of Corruption Act on the grounds stated in the memo of appeal inter alia that the Court below has erred in not relying upon the evidence of Shri V.M. Gaur and Shri J.J. Desai, who had investigated the matter. It is also contended that the Court below has erred in coming to a conclusion the evidence of witnesses like Samir Patel and Ramesh Patel are not reliable and also erred in not believing the evidence of the complainant and one Adil Contractor on the ground that their evidence are contrary to the statements recorded of other prosecution witnesses.
2. The facts of the case briefly summarized are as follows:
2.1 The Accused No. 1 is said have visited the place of incident, Faramji compound, where the complainant and one Adil Contractor were discussing about the project of the land. It is alleged that the Accused No. 1 accompanied by other accused has threatened Adil Contractor that either 10% of the project or Rs. 10.00 lacs may be given, otherwise, he would be implicated in murder or other serious offence, which led to filing of the complaint.
2.2 On the basis of the aforesaid complaint, Exh. 18, the investigation was made, which culminated into the charge-sheet and, thereafter into Special Case No. 9/1999.
2.3 Thereafter, the Learned Special Judge, Vadodara framed charge at Exh. 8 for the alleged offences and proceeded with the trial.
2.4 After hearing the learned APP as well as learned advocate for the accused and on appreciation of the evidence, the Learned Special Judge, Vadodara recorded acquittal of the accused.
3. It is this judgment and order which has been assailed on the ground inter alia that the acquittal of the accused recorded by the learned trial Court is erroneously.
4. Learned APP Ms. Monali Bhatt referred to the evidence including the deposition of the complainant, Exh. 16 and the deposition of prosecution witnesses, Adil Contractor, Exh. 19, Samirbhai Parshottambhai Patel, Exh. 32 and Rameshbhai Chanibhai Patel, Exh. 34. Learned APP Ms. Bhatt submitted that the emphasis given with regard to the presence of the accused at the place of incident, Faramji compound with reference to the distance from his office cannot be a ground to be considered in isolation. She submitted that it is possible that a person like the police officer could remain in the office and during the course of visiting and supervising such bandobast could incidentally remain present at other place like the place of incident. She also referred to the evidence and tried to submit that the witnesses have stated about the telephonic call or the bandobast duty, which does not necessarily imply that the Accused No. 1 could not be present at the place of incident at all. She therefore submitted that the reliance placed by the Court below on this aspect is erroneous and on the contrary, if the complaint/FIR at Exh. 17 dated 18.08.1998 seems, it lands corroboration to the prosecution witnesses. She further submitted that because other prosecution witnesses are private persons, they cannot be labeled as interested witnesses merely because they are the Manager of the complainant or the driver or the friend of the complainant. Learned APP Ms. Bhatt submitted that the complainant and one Adil Contractor may be a good friend but it is not a ground to outright reject the testimony of such witness regarding said offence. Learned APP Ms. Bhatt has also submitted that the Court below has repeatedly observed that the evidence of the complainant and Adil Contractor is contrary to the depositions of other prosecution witnesses. However, learned APP Ms. Bhatt submitted that there are no contradictions and minor discrepancy in narration or version o
