Gujarat High Court
Kachrabhai Mohanbhai Solanki vs State Of Gujarat on 19 April, 2024
NEUTRAL CITATION
R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1378 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
================================================================
1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
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 ?
================================================================
KACHRABHAI MOHANBHAI SOLANKI
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR SHAKEEL A QURESHI(1077) for the Appellant(s) No. 1
MS. JIRGA JHAVERI, APP for the Opponent/Respondent No. 1
================================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 19/04/2024
ORAL JUDGMENT
1] This appeal has been filed by the appellant under Section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 25.03.2008 Page 1 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined passed by the learned Additional Sessions Judge (Fast Track Court No. 1), Narmada @ Rajpipla (hereinafter referred to as 'the learned Trial Court') in Special (ACB) Case No. 6 of 2006, whereby, the learned trial Court has convicted the appellant for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act (herein after referred to as 'the P.C. Act'). The learned trial Court has sentenced the appellant to rigorous imprisonment for two years and fine of Rs.10,000/- and in default simple imprisonment for ninety days for the offence under Section 7 of the PC Act and three years rigorous imprisonment and fine of Rs.10,000/- and in default simple imprisonment for six months for the offence under Sections 13(1)(d) and 13(2) of the PC Act. The learned trial Court was pleased to acquit the accused No. 2 Rakeshbhai Bhanabhai Tadvi for all the offenses and was pleased to further order that the sentences of the accused No. 1 were ordered to run concurrently. The appellant and the co-accused who is acquitted are hereinafter referred to as 'the accused' as they stood in the rank and file Page 2 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined in the original case, for the sake of convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as under:-
2.1] That the accused No. 1 was a Police Constable in the Rajpipla Police Station and accused No. 2 two was a Police Constable in the police headquarters of Narmada District and both the accused were public servants. That the complainant Police Inspector, Mr. I.B.Vyas, ACB Police Station, Bharuch had received information that the Police personnel were halting the heavy vehicles passing by on the State Highway and were demanding for amounts of illegal gratification ranging from ₹10/- to ₹200/- in the name of entry10/- to ₹10/- to ₹200/- in the name of entry200/- in the name of entry fee and were not undertaking any legal measures and allowing the vehicles to pass by. That on 20/12/2004, the complainant Police Inspector, Mr I.B.Vyas called the two panch -witnesses and in the presence of all the members of the raiding party explained to the panch -witnesses about the decoy trap that was to be arranged and all the officials and Page 3 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined Panch witnesses went in government jeep GJ-1-G-3755 to Devaliya Nasvadiya State Highway. That about 15:10, the truck No. RJ-14-2G-1891 was passing by and they halted the truck and asked for cooperation from the driver Jagdishprasad Mangiram Saini residing at Dhani Karmani Taluka: Khedari, Dist:Junjnu, State Rajasthan and gave him the tainted currency notes of ₹10/- to ₹200/- in the name of entry200/- which were placed in the left side shirt pocket of the Kafani (long and short coat) of the Driver Jagdishprasad Mangiram Saini. That the panch witnesses and the other members of the raiding party sat in the truck and went towards Devaliya three roads towards Ankleshwar check post on the Vadia road and at that time Unarmed Police Constable Kachrabhai Mohanlal Solanki blew his whistle and Unarmed Police Constable Rakeshbhai Bhanabhai Tadvi raised his hand and halted the truck. That Unarmed Police Constable Kachrabhai Mohanbhai Rajpipla demanded an Entry fee of ₹10/- to ₹200/- in the name of entry10/- from the decoy trap Driver Jagdishprasad Mangiram Saini and accepted the tainted currency notes of ₹10/- to ₹200/- in the name of entry10/- with his left hand and put it in his left pant pocket. That Page 4 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined when the decoy truck driver Jagdishprasad Mangiram Saini gave the predetermined signal, the members of the raiding party came and caught the Unarmed Police Constable Kachrahai Mohanbhai Solanki red handed and the tainted currency notes of ₹10/- to ₹200/- in the name of entry10/- was recovered from him. That the complaint was filed by the ACB Police Inspector, Mr. IB Vyas under Sections 7, 12, 13(1)(d) and 13(2) of the PC Act on 23/12/2004, which was registered before Bharuch ACB Police Station as C.R.No. 11 of 2004. That the Investigating Officer investigated the offence and recorded the statements of connected witnesses and after the panchnama were drawn, and the order of sanction for prosecution was received, a charge sheet was filed before the Session Court, Narmada District, which was registered as Special Case No. 6/2006. 2.2] That the accused were duly served with the summon and the accused appeared before the learned trial Court and after the due procedure of Section 207 of the Code of Criminal Procedure, 1973 was followed, a charge at Exh: 12 were framed against the accused and the statements of the Page 5 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined accused were recorded at Exh: 13 and 14 respectively. The accused denied all contents of the charge and the evidence of the prosecution was taken on record.
2.3] The prosecution has examined 5 witnesses and has produced 23 documentary evidence in support of their case and after the closing pursis was filed by the learned APP at Exh: 69 the statements of the accused under section 313 of the Code of Criminal Procedure, 1973 was recorded and after the arguments were heard, the learned trial Court by the judgment and order found the accused No. 1 guilty for all the offences and the sentenced the accused No. 1 Kachrabhai Mohanbhai Solanki to rigorous imprisonment of two years and fine of Rs.10,000/- and in default simple imprisonment for ninety days under Section 7 of the PC Act and three years rigorous imprisonment and fine of Rs.10,000/- and in default simple imprisonment for a period of ninety days under Sections 13(1)(d) and 13(2) of the PC Act. The learned trial Court was pleased to acquit the accused No. 2 Rakeshbhai Bhanabhai Tadvi for all the offenses and was pleased to Page 6 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined further order that the sentences of the accused No. 1 were to run concurrently .
3] Being aggrieved and dissatisfied with the impugned judgment and order of conviction, the accused No.1 Kachrabhai Mohanbhai Solanki has filed the present appeal mainly stating that the judgment and order of conviction is illegal, arbitrary, unjust and improper and bad in law. That the learned trial Court has not exercised the powers vested in the learned trial Court in proper manner and has committed an illegality by passing the impugned judgment and order and has not considered the defense raised by the accused. That the judgement and order of conviction is based on presumptions, conjunctures and assumptions and is required to be quashed and set aside. That witnesses are selected witnesses and interested witnesses and their evidences are not trustworthy and hence, the conviction cannot be allowed to be sustained on the basis of such evidence. That, even the sanction has not been given by the competent authority after proper application of mind and the trial is vitiated. That, the Page 7 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined decoy punter Jagdishprasad Mangilal Saini has been declared hostile, and no evidence has come on record in his deposition. That as there is no evidence of any demand made by the appellant and, there is ample evidence to suggest that the place was well populated, and even though there was a cleaner along with the driver, no independent witnesses have been examined by the learned trial court. That the complainant, Mr. I.B. Vyas Police Inspector is the Trap Laying Officer, and he is directly involved in the result of the case and is an interested witness and it has come on record that the Police Inspector has himself registered the complaint and has lead the trap which casts a serious doubt on the credibility of the witness. That the impugned judgement and order passed by learned trial Court is not proper and has been passed without considering the defence of the accused and hence the same must be quashed and set aside.
4] Heard learned advocate, Mr. Shakeel Qureshi appearing for the appellant and Ms. Jigar Jhaveri learned Additional Public Prosecutor for the respondent state. Page 8 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024
NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined 5] Learned advocate Mr. Shakeel Qureshi appearing for the appellant has submitted that the independent decoy witness Jagdishprasad Mangilal Saini has not supported the case of the prosecution and there is no evidence of any demand made by the appellant. That the complainant, who himself is a police officer has participated in the trap and even though the independent witnesses were available, more particularly the cleaner of the truck has not been examined before the learned trial Court. That the demand is not proved by the prosecution beyond reasonable doubts, and as per the case of the prosecution the incident has occurred at midnight on 23/12/2004, when the diesel truck was in a running condition. That there are major contradictions in the deposits of the complainant and the panch witnesses and there is no corroboration of the evidence of the panch witnesses. That in the statement of the accused recorded under Section 313 of the Cr.P.C., a specific contention was raised that there was no demand and no recovery from the appellant and no demand of bribe is made out from the entire evidence of the panch Page 9 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined witness. That the panch witness has also stated that he had not got down from the truck and even the driver had not got down from the truck and there is also a suggestion to the effect that the tainted currency notes were lying on the ground. That Cassock (kafani) of the decoy punter has not been recovered by the Investigating Officer and there is nothing on record to suggest that the pant of the appellant was replaced. Admittedly, the scene of offence is the State Highway and no alternative pant was available. That the Investigating Officer has stated that the pant was recovered, and there is no evidence whatsoever as to who had arranged for the alternative pant of the accused. That, even the sanction was illegal as no original documents were sent by the Investigating Officer and a proposed draft of the sanction order was also sent to the competent authority. That there is nothing on record to suggest that currency notes of ₹10/- to ₹200/- in the name of entry10/- were withdrawn from the Government Treasury and there were other amounts that were recovered from the possession of the accused but the same were not sent to the Forensic Science Laboratory. Page 10 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024
NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined That the Cleaner, who was an independent witness has not been examined and looking to the facts of the case and the evidence on record, the ingredient of demand has not been proved by the prosecution beyond reasonable doubts and the recovery is completely doubtful and hence the learned trial Court could not have convicted the accused on this evidence. That even though the independent witnesses were available as the place at the time of the trap, was a populated area, no independent witnesses have been examined, and there is no iota of evidence about the demand and hence the learned trial Court has wrongly read the evidence evidence of the prosecution and has wrongly convicted the accused and hence, the impugned judgement and order of conviction must be quashed and set aside and accused must be acquitted for all the offences.
5.1] Learned advocate Mr. Shakeel Qureshi appearing for the appellant has relied upon the following judgments in support of his case.
Page 11 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024
NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined
1. Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in 2022 0 Supreme (SC) 1248
2. Gopal Lal Ghosulal Chhapa Versus State of Gujarat reported in 1199 (1) GLR 546
3. Hemtuji Ramaji Rana Versus State of Gujarat, reported in 2017(0) AIJEL-HC 237510
4. Mukthar Singh Versus State of Punjab reported in 2017(8) SCC 136 6] Learned APP Ms. Jirga Jhaveri appearing for the respondent-State has submitted that the judgment and order of conviction passed by the learned trial Court is legal, proper and hence, no interference is required in the judgment and order passed by the learned trial Court and the appellant must found guilty for the said offences .
7] Learned advocate Mr Shakeel Qureshi appearing for appellant has relied on the decision of the Apex Court in the case of Neeraj Dutta (supra), wherein the Hon'ble Supreme Court has observed in Para No. 68, which reads as under: Page 12 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024
NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined "68. What emerges from the aforesaid discussion is summarised as under:
(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
(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.
(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.
(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 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 demand for illegal gratification Page 13 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) 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 Section 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 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 inturn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and
(ii) of the Act.
(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.
(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.
Page 14 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024
NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined
(g) In so far 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 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 Section 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature." 8] As per the settled principles of law in conviction appeals when the Appellate Court finds that the findings of fact were based on a wholesome erroneous approach and the very basis of reasoning was not in the right perspective and the intrinsic merit of the evidence of the witnesses was not considered and the trial was perversely disposed of permitting manifest error and glaring infirmities, the appellate Court can interfere in the judgment and order passed by the learned trial Court. To exercise the powers in a conviction appeal, the findings on merits after considering and meticulously dissecting the evidence of record is imperative and to bring Page 15 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined home the charge against the accused, the prosecution has examined PW: 1 Takhatsinh Somabhai Gohil at Exh; 27. The witness is the panch witness and he has stated that on 22/12/2004, he had gone along with the other panch witness Bhikhabhai Naginlal Rana to the ACB office, and at that time, the Police Inspector Mr. Vala and Police Inspector Mr. I.B.Vyas and the other police personnel were present. That they were introduced and Mr. Vyas had told them about the decoy trap that was to be arranged and experiment of phenolphthalein powder and sodium carbonate solution was done demonstrate their presence. That they left for the trap in a government vehicle bearing registration Number GJ-1-G- 3755 and went on the Vadi Road, when they halted a Jeep, and at that time, truck No. RJ-14-2G-1891 was halted. That the driver Jagdish Madhavram Saini resident of Dhani Karmani District: Jhunjhunu, Rajasthan was called and was explained about the decoy trap and he had agreed to cooperate. That he had 14 tonnes of mud in his truck, which was to be emptied at Spile Company, GIDC Jagadhia and it Page 16 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined was brought from Hindustan Copper Limited, Amalsat and the members of the raiding party and the panch witnesses went in the truck. That the amount of ₹10/- to ₹200/- in the name of entry200/- which were one currency note of the denomination ₹10/- to ₹200/- in the name of entry100/- and ten currency note of the denomination of ₹10/- to ₹200/- in the name of entry5/- were placed in the right side Cassock (kafani) of the decoy panter Jagdishprasad Saini after they were laced with phenolphthalein powder. That they sat in the truck and went towards Devalya three roads towards Ankleshwar check post, at the Rajpipla Wadia Palace Point, and when they reached near the Wadia Palace check Post, the truck was halted and an entry fee of ₹10/- to ₹200/- in the name of entry10/- was demanded and the driver took the tainted currency notes from the left side pocket of his Cassock (kafani) and gave it to the policeman. The driver started all four parking lights and gave the predetermined signal and the panch No. 2 and the members of raiding party immediately came and caught the accused red-handed. That the person who had received the amount was the accused No. 1. During the cross examination, the witness has stated that he had recovered the tainted Page 17 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined currency note from the pant pocket of the accused. 8.1] The prosecution has examined PW No. 2 Indravadan Balkrushna Vyas at Exh: 58 and the witness is the complainant and has stated that he was working in the ACB Police Station as a Police Inspector between 2004 to 2006. That he had arranged for the trap on 24/12/2004 and had called the panch witnesses and has deposed in detail about the entire procedure that he had undertaken on the day of the trap. The witness has stated that he halted the truck No. RJ- 14-2G-1891 and the driver Jagdishprasad Saini was explained about the decoy trap that was to be arranged, and he had agreed to cooperate in the same. That when they reached the place of incident, the accused No. 1 demanded for the amount and had accepted the same and the tainted currency notes were recovered from the possession of the accused No. 1 by the panch No. 2. That he has filed the complaint in the ACB Police Station at Bharuch and has identified his own signature. During the cross examination by the learned advocate for the accused, the witness has stated that a Station Diary is Page 18 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined maintained in his police station and he has not made any entry in the Station Diary about the secret information that was received. That he has not verified about any information that he had received by any punter, and he had not received information about the name of the particular employee or officer that was involved in the offence. That he did not make any entry in the register about the currency notes that were used and before filing of the complaint, the panch nama, the forwarding letter and the statement of the truck driver was recorded. That the panch nama is a part of the investigation and he had not informed the Dy.S.P of the area before the trap. That he had not verified as to whether any complaint was received at the police station that any police personnel were demanding for bribes on the state highway. That, the primary panchnama and the experiment was done in his office and there was no facility to wash hands in his office. That after they left their office, there were many check posts but they did not stop on any check post and there was a cleaner in the truck, but the statement of the cleaner was not recorded. That Page 19 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined during the trap, the truck was not switched off, and he had not heard the conversation of the demand. That there were five cartridges and a rifles with the accused No. 2, but he had not investigated about the same.
8.2] The prosecution has examined PW:3 Jagdishprasad Mangiram Saini. The witness is the decoy punter and the driver of the truck No. RJ-14-2G-1891 and he has stated that on 22/12/2004, he was driving his truck from Rajasthan to Jaghadia GIDC, where he had to dump 14 tonnes mud in Swile Limited Company. That one 'Tata Sumo' had halted his truck about 2 km towards Rajpipla and had told him that their vehicle was spoilt and they wanted to go to Rajpipla and hence they had sat in the truck. That near the Rajpipla Point, a policeman halted him, and as the passengers were sitting in the truck, he did not want to be harassed and gave ₹10/- to ₹200/- in the name of entry10 to the policeman, but he does not know as to whether the currency note was accepted by him or not. That he drone his vehicle, a white vehicle came from behind and stopped him and the passengers got down from the truck and Page 20 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined they allowed his truck to go. The witness has been declared hostile by the learned APP and has been cross examined or length by the learned APP, but nothing to support the case of the prosecution has come on record. During the cross examination by the learned advocate for the accused, this witness has stated that he could not identify the muddamal currency note as to whether it was the same that was given to the accused or not.
8.3] The prosecution has examined P.W.No. 4 Nipurna Milan Toravne at Exh: 69, and this witness is the competent authority who has given the order of sanction for prosecution of the accused and the order of sanction for prosecution is produced at Exh:70. During the cross examination by the learned advocate for the accused, this witness has stated that he does not remember as to whether the accused was transferred to Junagadh when he had given the order of sanction for prosecution. That he does not remember as to whether the secret information that was received and entered into the Station Diary was sent towards him or not, and he Page 21 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined could not say as to which documents out of 233 papers that were sent, were read by him. That a proposed draft was also sent along with the 233 papers.
8.4] The prosecution has examined PW No.5 Ranjitsingh Desabhai Vala at Exh: 72 and this witness is the Investigating Officer who has taken over the investigation from Police Inspector, Mr IB Vyas. The witness has stated that he recorded the statements of connected witnesses, and after the order of sanction for prosecution was received, he has filed the chargesheet. During the cross examination by the learned advocate for the accused, the witness has stated that he has not recorded the further statement of the complainant and the payment of the amount of bribe was not made by the driver from his ownership. That, there was no record, as to whether the amount of bribe was taken from the government treasury, and besides the currency notes of ₹10/- to ₹200/- in the name of entry10/- no other currency notes were sent to the Forensic Science Laboratory. That the secret information was received by Police Inspector, Mr. I.B.Vyas, and if a trap was successful, the same was Page 22 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined considered at the time of promotion. That if the amount of bribe was accepted, it would amount to a successful trap. That no logbook of the vehicle has been seized and the place of the trap was a well-populated place having Check Post and a Forest Check Post nearby. That he had recorded the statement of the employees of the Forest Check Post, but as they were not eye witnesses, they had not been mentioned in the chargesheet. That during investigation, it was found that there was a cleaner with the driver and he had recorded the statement of cleaner but as it was not helpful, it was not filed with the charge sheet. That at the time, when the order of sanction for prosecution was given, the accused were transferred to other districts.
9] On minutely dissecting the entire evidence of prosecution, it is the case of the prosecution that secret information was received by Police Inspector, Mr. I.B.Vyas of ACB Police Station that certain police personnel are demanding for illegal gratification in the name of entry fee, and hence he had decided to arrange for the trap. That if the Page 23 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined complaint produced at Exh:59 is perused, it appears that the complainant has filed the complaint in his own presence and has identified his own signature and thereafter has proceeded to arrange for the trap. That the complainant has done all the procedure for arrangement of the trap and the same is narrated in his deposition at Exh: 58 and has stated that the trap was successful, but the fact that the complainant himself has filed the complaint in his own presence and has arranged for the trap raises a huge doubt on the credibility of the witness and the case of the prosecution. As per the say of the complainant he had halted the driver of the truck No. RJ-14- 2G-1891 and had asked the driver Jagdishprasad Saini for cooperation and the said decoy truck driver has been examined at Exh: 67, but the witness has not supported the case of the prosecution and there is no iota of evidence to show that any demand was made by the accused at the time of the trap. The witness has stated that there were passengers in his truck and hence he himself had taken the currency notes of ₹10/- to ₹200/- in the name of entry10/- and had given it to the policeman who had Page 24 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined halted him but he does not say as to whether the amount was accepted by the policeman or not. Hence, in the absence of any evidence of the demand by the accused, the recovery cannot be believed. The panch witness- Takhatsinh Somabhai Gohil has supported the case of the prosecution and has stated that the accused had demanded for the amount of entry fee, but it has also come on record that at the time of the trap, the diesel truck was on and it cannot be said that the demand was heard by the complainant. It is also on record that the cleaner of the truck was present at the time of the incident and the Investigating Officer has recorded his statement but the Investigating Officer has stated that he did not support the case of the prosecution and hence he has not been shown as a witness in the charge sheet. That there is no iota of evidence regarding the demand of illegal gratification or acceptance of the tainted currency notes made by the accused and admittedly, the driver and the panch witness were seated in the truck, which was at a height of about 8 to 10' and at that time the engine of the truck was on. That when Page 25 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined the prosecution has not proved the specific demand by the accused, the presumption under Section 20 of the PC Act would not be available to the prosecution and it is settled principle of law that the demand is a sine qua non for a conviction under the PC Act to be sustained. There are major contradictions in the deposition of the panch witness and the complainant regarding the recovery of the tainted currency notes from the possession of the accused No. 1 and the panch witness says that he had recovered the ten currency note from the pocket of accused No. 1. whereas the Trap Laying Officer says that he had instructed the panch witness No. 2 to recover the amount of ₹10/- to ₹200/- in the name of entry10/- from the pocket of the accused.
10] The learned trial Court has in the impugned judgment and order discussed all the judgments that were relied upon by the accused and the prosecution and has believed the deposition of the complainant, who was also the Trap Laying Officer and has passed the impugned judgment and order of conviction mainly on the basis of the deposition of Page 26 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined the complainant, who was also the Trap Laying Officer. The learned trial Court has not considered the fact that the person from whom the main demand was made as per the case of the prosecution i.e. the driver of truck No. RJ-14-2G-1891 Jagdishprasad Mangiram Saini has not breathed a word about the demand, and in the absence of any evidence regarding the demand made by the accused, the accused cannot be convicted for the said offence. Though, the learned trial Court has discussed all the judgements and has also discussed that a legal presumption when illegal gratification was accepted is available to be prosecution but the learned trial Court has not considered that the complainant himself has filed the complaint in his presence and has identified his own signature and has arranged for the trap, even though there were other police personnel available in his office. That the credibility of this witness being the complainant and the Trap Laying officer is doubtful and in the absence of any evidence, regarding the demand, the conviction under the PC Act cannot be invoked. That it is also on record that the Cleaner of the truck was Page 27 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined present throughout, but as per the say of the investigating officer, the Cleaner did not support the case of the prosecution and hence he has not been shown in the charge sheet. That there is no evidence of any corroboration of demand made by the accused and hence when the evidence of the prosecution does not prove the demand of illegal gratification, which is a sine-qua-non for raising the presumption under section 20 of the PC Act, the accused cannot be convicted. There is no evidence whatsoever as to how the pant of the accused was seized and who had arranged for the pant, which was replaced and in the absence of such evidence, it cannot be said that the prosecution has proved the case beyond reasonable doubts. That the learned trial Court has not considered the contradictions that have arisen in the evidence of the prosecution, and there is no evidence that can be said to constitute a demand which as per the settled principle of law as an ingredient of the charges levelled against the accused.
Page 28 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024
NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined 11] On overall appreciation of the evidence produced by the prosecution before the learned trial Court and in the context of the elucidation of law pertaining to the proof of ingredients for the offences under section 7, 13(1)(d) read with section 13 (2) of the PC Act, this court is of the unhesitant opinion that the prosecution has miserably failed to prove the charges level against the accused beyond all reasonable doubts. The learned trial Court has failed to analyze the factual and legal aspect in the correct perspective and consequently the conviction and sentence recorded by the learned trial Court needs interference and the same is quashed and set aside.
12] The impugned judgment and order dated dated 25.03.2008 passed by the learned Additional Sessions Judge (Fast Track Court No. 1), Narmada @ Rajpipla in Special (ACB) Case No. 6 of 2006 convicting the appellant under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 is hereby quashed and set aside and the appellant is acquitted from all the offences. Fine to be Page 29 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024 NEUTRAL CITATION R/CR.A/1378/2008 JUDGMENT DATED: 19/04/2024 undefined refunded to the appellant after proper verification. Bail bonds stand canceled.
13] Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) VVM Page 30 of 30 Downloaded on : Fri May 10 20:47:20 IST 2024