Gujarat High Court
State Of Gujarat vs Samadmohmed Noormohmed Shaikh on 6 June, 2024
NEUTRAL CITATION
R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 791 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the YES
judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the judgment ? NO
4 Whether this case involves a substantial question of law as to the NO
interpretation of the Constitution of India or any order made
thereunder ?
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STATE OF GUJARAT
Versus
SAMADMOHMED NOORMOHMED SHAIKH & ANR.
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Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 06/06/2024
ORAL JUDGMENT
1. This appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and the order of acquittal in Special Corruption Case No.7 of 2004 passed by the learned Special Judge, 2nd Fast Track Judge, Valsad (hereinafter Page 1 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined referred to as 'the learned Trial Court') on 31.08.2007, whereby, the learned Trial Court has acquitted the respondents - accused from the offences punishable under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the P.C.Act'). The respondents are hereinafter referred to as 'the accused' in the rank and file as they stood in the original case, for the sake of convenience, clarity and brevity.
2. The relevant facts leading to filing of the present appeal are as under:
2.1. That the accused No.1 was working as Armed Police Constable, Buckle No.103 in the Vapi GIDC Police Station and was a public servant. That the accused No.2 was a private person and having an ice-cream stall below the over bridge, Vapi GIDC Cross Road, (Selvas Road), Vapi.
That the accused No.1 was on duty on 23.03.2004 between 14:00 hours to 22:00 hours at Vapi GIDC Cross Road Page 2 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined (Selvas Road) at the traffic point below the over bridge at Vapi. That the complainant Police Inspector, Mr. N.B.Koralwala, ACB Police Station Valsad had received secret information that the police officials of the Traffic Branch were halting the auto-rickshaws passing by the cross-road and on the pretext of giving RTO memos were collecting the amount of Rs.50/- to 100/- as illegal gratification. That the complainant Police Inspector Mr.N.B.Koralwala decided to arrange for a decoy trap and two panch witnesses were called and the panch witnesses and the members of the ACB Police Station, Valsad went towards Vapi GIDC Cross-Roads. That they halted auto- rickshaw No.GJ-15-Y-4885 and the driver of the auto- rickshaw was Altafbhai Dawoodbhai Shah and the decoy trap was explained to him and he agreed to cooperate and act as a decoy. That the demonstration of phenolphthalein powder and solution of Sodium Carbonate was carried out in the presence of the panch witnesses and the decoy and the characteristic of phenolphthalein powder and solution Page 3 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined of Sodium Carbonate was explained to them and two currency notes of the denomination of Rs.50/- each smeared with phenolphthalein powder and placed in the shirt pocket of the decoy Altafbhai Dawoodbhai Shah. Both the panch witnesses and other members of the ACB Police Station sat in the auto-rickshaw No.GJ-15-Y-4885 and went towards the cross-roads and while they were crossing the cross-roads, the accused halted the auto- rickshaw and demanded an amount of Rs.100/- as illegal gratification. That the decoy Altafbhai Dawoodbhai Shah took the tainted currency notes with his right hand from his left side shirt pocket and gave them to the accused. That the accused told the decoy to give the amount to the accused No.2, who had an ice cream stall and at that time, the accused No.2 accepted an amount of Rs.100/- and the decoy gave the pre-determined signal and the members of the raiding party came and caught the accused red handed. That the complainant Police Inspector Mr.N.B.Koralwala registered a complaint with the ACB Page 4 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined Police Station, Valsad under Section 7, 12, 13(1)(d) and 13(2) of the P.C.Act, which was registered at C.R.No.2 of 2004 with Valsad ACB Police Station. That the panchnama was drawn and the Investigating Officer recorded the statement of the connected witnesses and after the order of sanction for prosecution was received, a charge sheet came to be filed before the Sessions Court, Valsad, which was registered as Special Corruption Case No.7 of 2004. 2.2. The accused were duly served with the summons and the accused appeared before the learned Trial Court and after the due procedure under Section 207 of the Code of Criminal Procedure was completed, a charge was framed against the accused at Exh.18 and the statements of the accused were recorded at Exh.19 and 20 respectively, wherein, the accused denied the allegations made in the charge and the evidence of the prosecution was taken on record.
2.3. The prosecution has filed the following oral as well as Page 5 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined documentary evidence to prove the charge against the accused.
Oral evidence :
1. Dineshbhai Maganbhai Patel Exh.28
2. Altafbhai Dawoodbhai Shah Exh.32
3. Nareshbhai Bhikhabhai Koralwala Exh.34
4. Rajdhar Doratrao Marathe Exh.42 Documentary evidence :
1. Panchnama Exh.29
2. Seizure Memo Exh.30, 31
3. Complaint Exh.34
4. Panchnama of place of offence Exh.43
5. FSL Report Exh.44
6. Sanction Order Exh.45 2.4. That after the entire evidence of the prosecution was taken on record, the learned APP filed a closing pursis at Exh. 46 and the further statement of the accused under section 313 of the Code of Criminal Procedure was recorded, wherein, the accused denied all the evidence against him.Page 6 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024
NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined 2.5. After the arguments of the learned APP and the learned advocate for the accused, the learned Trial Court acquitted the accused for all the offences vide the impugned judgment and order of acquittal dated 31.08.2007.
3. Being aggrieved and dissatisfied with the impugned judgment and the order of acquittal passed by the learned Trial Court, the appellant - State has filed the present appeal mainly contending that the impugned judgment and order of acquittal is contrary to law and the evidence on record and the principles of natural justice and hence, is required to be quashed and set aside. That the impugned judgment and order of acquittal is based on inferences not warranted by facts of the case and also on presumption not permitted by law. That the learned Trial Court has not appreciated that there are direct or indirect evidences connecting the accused with the crime but the learned Trial Court has directly come to the conclusion that the prosecution has failed to prove the case beyond reasonable doubts. That the learned Trial Court has committed error Page 7 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined in appreciating the evidence of the witnesses of the prosecution and in fact, the panch witnesses have clearly stated that the accused No.1 had demanded the amount of illegal gratification of Rs.100/- whcih was accepted by the accsued No.2 on behalf of the accused No.1 and hence, both the accused are liable for the comission of the offences. That the tainted currency notes have been found from the possession of the accsued No.2 and there were no reasons for the learned Trial Court to disbelieve the evidence of the panch witnesses. That the defence raised by the accused that the amount of Rs.100/- was paid towards the ice-cream has been believed by the learned Trial Court but the learned Trial Court has committed a grave error in believing the defence of the accused. That the prosecution has proved the case beyond reasonable doubts and hence, the impugned judgment and order is illegal and contrary to the evidence on record and against the settled principles of law and hence, the same deserves to be quashed and set aside.
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4. Heard learned Additional Public Prosecutor Ms. Jirga Jhaveri for the appellant - State. Though served, the accused have chosen not to appear before this Court. Perused the impugned judgment and order of acquittal and have re-appreciated the entire evidence of the prosecution on record of the case.
5. Learned APP Ms. Jirga Jhaveri has taken this Court through the entire evidence produced on record of the trial Court and has vehemently argued that the panch witnesses and the driver have fully supported the case of the prosecution. The prosecution has proved all the ingredients of the demand, acceptance and the recovery of the tainted currency notes from the accused No.2. That the learned Trial Court has committed a grave error in acquitting the accused and hence, the impugned judgment and order deserves to be quashed and set aside and the accused must be found guilty for the said offences.
6. The Apex Court in the case of Neeraj Dutta Vs. State Page 9 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined (Govt. of NCT of Delhi) reported in 2023 (0) AIJEL-SC 70625 and the Apex Court has in Para - 88 observed as under:
88. What emerges from the aforesaid discussion is summarised as under:
88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.
88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the e bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior Page 10 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (1) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which 9 is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.
88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. 88.6. (f) In the event the complainant turns "hostile", or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. 88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the Page 11 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act.
88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature."
7. The law with regard to the interference of the Appellate Court in acquittal appeals is observed by the Apex Court in the case of Ballu @ Balram @ Balmukund and Anr. Vs. The State of Madhya Pradesh in Criminal Appeal No.1167 of 2018 and relevant Para-9, as under:
"9. ... ... ....The law with regard to interference by the Appellate Court is very well crystallized. Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted. Though, there are a catena of judgments on the issue, we will only refer to two judgments which the High Court itself has reproduced in the impugned judgment, which are as reproduced below:
"13. In case of Sadhu Saran Singh vs. State of U.P. (2016) 4 SCC 397, the Supreme Court has held that:-
"In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and !aw. However, we believe that the paramount consideration of the Court is to do substantial Page 12 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. Appellate Court, while 9 enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded."
14. Similar, In case of Harljan Bhala Teja vs. State of Gujarat (2016) 12 SCC 665, the Supreme Court has held that:-
"No doubt, where, on appreciation of evidence on record, two views are possible, and the trial court has taken a view of acquittal, the appellate court should not interfere with the same. However, this does not mean that in all the cases where the trial court has recorded acquittal, the same should not be interfered with, even if the view is perverse. Where the view taken by the trial court is against the weight of evidence on record, or perverse, it is always open far the appellate court to express the right conclusion after reappreciating the evidence If the charge is proved beyond reasonable doubt on record, and convict the accused."
8. In view of the settled principles of law in acquittal appeals, and particularly, in cases filed under the P.C.Act in light of the judgment of the Apex Court in the case of Neeraj Dutta (Supra), the evidence of the prosecution is required to be minutely dissected and to bring home the charge Page 13 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined against the accused, the prosecution has examined PW-1 Dineshbhai Maganbhai Patel at Exh.28. This witness is the panch witness, who has stated that on 23.03.2004, he had gone to the ACB Office along with the other panch witness Govidbhai Tandel and they went by the Government Vehicle No.GJ-1-G-3756 to Vapi cross-roads near Pappilon Hotel, Vapi and they reached Vapi GIDC at about 2:40pm. That they halted auto-rickshaw No.GJ-15-Y-4885 and the auto-rickshaw was empty and the driver was Altafbhai Dawoodbhai Shah. That he was explained about the decoy trap and he agreed to cooperate and at that time, the Police Inspector gave two currency notes of the denomination of Rs.50/- each to the decoy. That the experiment of phenolphthalein powder and solution of sodium carbonate was explained in the presence of the panch witnesses and phenolphthalein powder was applied on the currency notes and placed in the left side shirt pocket of the driver of the auto-rickshaw. That the panch witnesses and three other members of the raiding party sat in the auto- Page 14 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024
NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined rickshaw, whereas, the witness sat in the front seat with the driver of the auto-rickshaw and the Police Inspector and panch witness No.2 and the other two police officials sat behind. That they left to go towards Vapi GIDC and at the cross-roads, the traffic police constable blew the whistle and halted the auto-rickshaw and threatened to give a traffic memo as there were excess passengers in the auto-rickshaw. That the driver requested the traffic police and at that time, the traffic police demanded the amount of Rs.100/- and the decoy took the tainted currency notes to give the traffic police but the traffic police told the decoy to give the money to the ice-cream stall. That the decoy went and gave the amount to the accused No.2, who accepted the tainted currency notes and the decoy gave the pre- determined signal to the members of the raiding party and the member of the raiding party came and caught both the accused red handed. That the test was done and the panchnama was drawn and the seizure memo was prepared. During the cross-examination by the learned Page 15 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined advocate for the accused, the witness has stated that when they reached Vapi, 2-3 auto-rickshaw were going with full passengers but the same is not mentioned in the panchnama. That five persons were seated in the auto- rickshaw, which had capacity for three passenges and in the panchnama, it is not mentioned whether the accused No.1 was on the East side or on the West side of the cross- road. That the location of the accused No.2 is also not mentioned in the panchnama and no map of the place of incident has been prepared. That when the Police Inspector went to the Traffic Police Constable, he caught the shirt's collar of the Traffic Police Constable and brought him to the ice-cream stall and thereafter, introduced himself. That he does not know that what type of ice-cream the accused No.2 was selling. That there were illegal passengers in the auto-rickshaw and if there are more passengers found in the auto-rickshaw and the said auto-rickshaw is halted by the traffic police, such act would not be an illegal act. That during the panchnama, Page 16 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined the solution of the hand-wash of the traffic constable, ice- cream sellor or the punter driver have not been seized. That on the date of the trap at 5:30pm, Police Inspector Mr.N.B.Koralwala had told both the witnesses to affix their signatures on the seizure memo and to go home. That they have not affixed their signatures on the muddmal currency notes. That the panchnama was dictated by the Police Inspector Mr.N.B.Koralwala and the other police personnel was writing the same and as the panchnama was dictated by the Police Inspector Mr.N.B.Koralwala, they had affixed their signatures on the panchnama. 8.1. The prosecution has examined PW-2 Altafbhai Dawoodbhai Shah at Exh.32 and the witness is the decoy, who has stated that he was driving auto-rickshaw No.GJ- 15-Y-4885 on 23.03.2004 and was going from Pardi to Vapi and at that time, Police Inspector Mr.N.B.Koralwala met him near Pappilon Hotel and asked for cooperation and he consented to cooperate. That Police Inspector Mr.N.B.Koralwala gave two currency notes of the Page 17 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined denomination of Rs.50/- each and phenolphthalein powder was applied on said currency notes and the tainted currency notes were placed in the left side shirt pocket of the said decoy. That Marathe Sir sat in the auto- rickshaw and when they reached near Vapi cross-roads, Samad Mahammad Noor Shaikh met him and demanded the amount of Rs.100/- and showed the accused No.2 and told the decoy to give to him the amount. That he gave the tainted currency notes to the accused No.2 and the witness gave the pre-determined signal and the officials came and caught both the accused. That the hand wash of the accused No.2 was taken and pink colour was shown on his hands also when his hands were also checked. During the cross examination by the learned advocate for the accused, the witness has stated that he did not have a badge number and without the badge number, he could not driven the auto-rickshaw. That he had not drive the auto- rickshaw on 21.03.2004 and 22.03.2004. That the Police Inspector Mr.N.B.Koralwala was standing near the Page 18 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined parking of the Pappilon Hotel and he had halted the auto- rickshaw about 100 ft. away from Police Inspector Koralwala Sir. That at that time, the traffic was moving on both the sides of the road. That there were other auto- rickshaw drivers also. That five persons sat in his auto- rickshaw and the capacity of his Piaggo rickshaw was of three passengers. That he did not fix any rent for the auto- rickshaw and he did put the auto-rickshaw meter down. That he had not taken any rent from Police Inspector Koralwala Sir and no rent was given by the Police Inspector Koralwala Sir. That he knew the accused No.1 for the past two months and he cannot say that where the ice-cream stall of the accused No.2 was located. That after the incident, he had stopped driving the auto-rickshaws. That he does not know the colour of the powder that was applied. That he does not know from where the powder was taken from and what was done to the excess powder. That he cannot say whether pink colour solution was taken by the officials and after his hand wash, he had gone away Page 19 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined from there. That he had affixed his signature but did not read the papers and the signatures of both the accused were taken after they were caught. That both of them were caught by the neck and made to sit in the vehicle. That after the accused No.2 was caught, his cart was lying there and he does not know what had happened to the cart or money in the cart.
8.2. The prosecution has examined PW-3 Nareshbhai Bhikhabhai Koralwala and the witness is the complainant and the Trap Laying Officer, who has fully supported the case and has narrated in detail all the events that had taken place on 23.03.2004. The witness has stated that he had received secret information about traffic police collecting illegal gratification from the auto-rickshaw drivers and had decided to arrange the decoy trap and has thereafter, narrated in details all the events that had taken place on that day till the trap was successful. That after the trap was successful, he had filed the complaint at ACB Police Station, Valsad and had handed over the muddamal to the Page 20 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined writer and further investigation to Police Inspector Mr.R.D.Marathe. During the cross-examination by the learned advocate for the accused, the witness has stated that the panchnama does not mention what action has to be done for the pre-determinated signal and at the time of the decoy trap, no test was done on the hands of the auto- rickshaw driver. That the panchnama does not mention what steps were taken for the cart of the accused No.2 and no map of the place of trap was prepared. That no independent witnesses were shown in this case and even though, the independent witnesses besides the panch witnesses were available their evidence have not been taken.
8.3. The prosecution has examined PW-4 Rajdhar Dolatrao Marathe at Exh.42 and this witness is the Investigating Officer, who has stated that after the trap was successful, he has taken over the investigation and had drawn the necessary arrest panchnama and arrested both the accused. That he had recorded the statements of the Page 21 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined connected witnesses, collected the necessary documents and sent the papers to the Superintendent of Police, Valsad for the order of sanction for prosecution. That after the order of sanction for prosecution was received, a charge sheet was filed before the Sessions Court, Valsad on 03.09.2004. During the cross-examination by the learned advocate for the accused, the witnesses has stated that no note was made prior to going for the decoy trap and no note was made about the trap money being taken from the Government expenses. That the order of sanction for prosecution produced at Exh.45 states that it is a draft order in the heading.
9. On minutely dissecting the entire evidence of the prosecution, no clear demand of illegal gratification has been established in the evidence of the prosecution. The decoy PW-2 Altafbhai Dawoodbhai Shah has not stated that the accused No.1 had demanded the amount of illegal gratification from him and the PW-1 Dineshbhai Maganbhai Patel has not stated that the demand of illegal Page 22 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined gratification was made. It is on record that there were five passengers in the auto-rickshaw though its carrying capacity is three passengers and it appears that the accused No.1, who was the traffic constable, had halted the auto-rickshaw and if the accused No.1 had demanded the amount of illegal gratification, he would have immediately taken the tainted currency notes and placed them in his pocket. It is also on record that the punter driver alone went to the ice-cream stall of the accused No.2, which was at a distance of 100 ft. from the place where the auto- rickshaw was parked. In the entire evidence produced by the prosecution, there is no clear evidence whether the demonstration of phenolphthalein powder and solution of sodium carbonate was done and admittedly, the complaint was filed after the trap was successful. It also appears that the complaint and the panchnama do not bear the names of the police officials who were seated in the auto- rickshaw. The panchnama too merely states that Police Inspector Mr. N.B.Koralwala, ACB Police Station, Valsad Page 23 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined and the other two police officers sat in the auto-rickshaw. The Trap Laying Officer has admitted that the evidence of the other independent witnesses were available but no independent witnesses have been examined before the learned Trial Court. Moreover, it is on record that the panchnama was not dictated by the panch witnesses but the panchnama was dictated by Police Inspector Mr. N.B.Koralwala, ACB Police Station, Valsad and was written by the police personnel and the panch witnesses had affixed their signatures as the panchnama was dictated by the Police Inspector Mr. N.B.Koralwala, ACB Police Station Valsad. On perusal of the said order of sanction for prosecution produced at Exh.45, the heading mentioned that it is a draft sanction order and it appears that the sanction has not been given after proper application of mind.
10. The learned Trial Court has discussed all the aspects of the evidence of the prosecution and has concluded that there is no reliable evidence to support the conviction of the Page 24 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined accused and the prosecution has miserably failed to establish the offence charged against the accused. It is settled law that unless the evidence is clear, cogent and reliable, no conviction can be recorded and on re- appreciating the entire evidence, the evidence is contrary and far from convincing. As observed by the learned Apex Court in the case of Ballu @ Balram @ Balmukund (Supra), the scope of the Appellate Court to interfere in the finding of acquittal is limited and unless and until some perversity and illegality is found in the judgment and order of the learned Trial Court, the Appellate Court will interfere only to ensure that no miscarriage of justice has occurred. In the present case, there is no iota of evidence that any demand for illegal gratification was made by the accused or that the accused had accepted any amount of illegal gratification and the reasons assigned by the learned Trial Court are just and proper. This Court has perused the findings of the learned Trial Court and the learned Trial Court has appreciated all the evidence and Page 25 of 26 Downloaded on : Fri Jun 21 21:30:40 IST 2024 NEUTRAL CITATION R/CR.A/791/2008 JUDGMENT DATED: 06/06/2024 undefined has, in a well reasoned judgment and the order, acquitted the accused and there is no perversity or illegality in the findings recorded by the learned Trial Court. This Court is in complete agreement with the findings, the reasons, ultimate conclusion and the resultant order of acquittal by the learned Trial Court.
11. This Court finds no reason to interfere with the impugned judgment and the order of acquittal and the present appeal is devoid of merits and resultantly, the same is dismissed. The impugned judgment and order of acquittal in Special Corruption Case No.7 of 2004 passed by the learned Special Judge, 2nd Fast Track Judge, Valsad on 31.08.2007 is hereby confirmed. Bail bonds stand cancelled.
12. Record and proceedings be sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J) F.S.KAZI.....
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