Gujarat High Court
State Of Gujarat vs Bhikhabhai Jethabhai Vasava on 18 July, 2024
NEUTRAL CITATION
R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 635 of 2006
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 YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or
any order made thereunder ?
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STATE OF GUJARAT
Versus
BHIKHABHAI JETHABHAI VASAVA & ANR.
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR KASHYAP R JOSHI for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 18/07/2024
ORAL JUDGMENT
1] This appeal has been filed by the appellant-State under Section 378(1)(3) of Code of Criminal Procedure, 1973 against the judgment and order of acquittal passed by the learned Principal Sessions Judge, Bharuch (hereinafter referred to as Page 1 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined "the learned trial Court") in Special (ACB) Case No. 3 of 2000 on 30/09/2005, whereby the learned trial Court has acquitted the respondents for the offence punishable under Sections 7, 12, 13(1)(d) and 13 (2) of the Prevention of Corruption Act, 1988 (hereafter referred to as "the PC Act" for short). 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 brief facts that emerge from the record of the case are as under:-
2.1] That the accused No. 1 was working as an Assistant Sub Inspector(ASI), Buckle No. 962 and the accused No. 2 was working as a unarmed Police Constable, Buckle No.1701 in the Wagra Police Station, Taluka and District: Bharuch and were public servants. That the complainant Anandbhai Mangalbhai Vasava residing at village Sutarel and Kawatra was residing with his elder brother, Ratilal Mangalbhai Vasava at village Sutarel and four months prior to 6/9/1999, his brother Ratilal Mangalbhai Vasava had gone to the outskirts of the village to collect the grass and at that time Gababhai Melabhai Vasava, Page 2 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined his son-in-law, and two to three other persons had come to assault Ratilal but he ran away and informed the complainant about the assault. That both the brothers went to Wagra Police Station and met the accused No. 1 and told the accused No. 1 about the incident and the accused No. 1 wrote the complaint of Ratilal Mangaldas and recorded the statement of the complainant and told them that he would catch Gababhai Melabhai Vasava and the others but demanded an amount of ₹1000/- for the same. That the complainant told him that he would pay the amount after the work was done and requested him to arrest Gababhai Melabhai Vasava and the others. That no work was done by the accused and once again on 2/9/1999, he met the accused in the Wagra Market and requested him to arrest Gababhai Melabhai Vasava and others, but the accused No. 1 demanded an amount of ₹1000/- and the accused No. 2 was also present and demanded for an amount of ₹300/-. The complainant did not want to pay the amount of illegal gratification and he did not have the amount with him and accused No. 1 told him to give the amount on seventh when he would come to the Wagra market and demanded ₹500/- for Page 3 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined himself and ₹300/- for the accused No. 2, and told him to give the remaining amount of ₹500/- after two days. That the complainant did not want to pay the amount of illegal gratification and went to the ACB office at Bharuch and filed the complaint under Sections 7, 13(1)(d) and 13 (2) of the PC Act, which was registered at C.R.No.5/1999 on 7/9/1999.
2.2] The Trap Laying Officer called the panch witnesses and the demonstration of anthracene powder and ultraviolet lamp was carried out in the presence of the panch witnesses and the complainant and the characteristics of anthracene powder and ultraviolet lamp were explained to the complainant and the panch witnesses. The complainant gave eight currency notes of the denomination of ₹100/ each, which were smeared with anthracene powder and placed in the left pocket of the complainant and the necessary instructions were given to the complainant and the panch witness and the trap was arranged. That the complainant, panch witnesses and the members of the raiding party went in a private vehicle from Mohammadpura, Derol to Wagra and halted the vehicle near the Door Sanchar Kendra. That the complainant and the shadow witness got down Page 4 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined from the vehicle and walked from the ST depot to the Bajar crossroads, and other members of the raiding party and Panch No. 2 followed them. That they came to the tea stall of Suryasangbhai near the canal and waited for the accused and around 9:15 hrs, the accused No.1 came and had conversation with the complainant. That the accused No. 2 came on his hero Honda vehicle and the complainant had conversation with the accused No. 2 and demanded the amount. That the complainant took ₹300/- from the tainted currency notes and gave ₹500/- to the accused No. 1 and the amount of ₹300/- to the accused No. 2, and the accused No. 1 accepted the amount and put it in his shirt pocket and the accused No. 2 received the amount with his right hand and put it in his purse. That the complainant gave the predetermined signal and the members of the raiding party came and caught both the accused. That the necessary panchnama were drawn and the tests were carried out and the Investigating Officer recorded the statements of the connected witnesses and after the order of sanction for prosecution was received, the chargesheet came to be filed before the Sessions Court, Bharuch, which was registered as Special ACB Case No. Page 5 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined 3 of 2000.
2.3] That the accused were duly served with the summons 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 was framed against the accused and the statements of the accused were recorded at Exh:13 & Exh: 14 respectively. The accused denied all contents of the charge and the evidence of the prosecution was taken on record.
2.4] The prosecution has produced the following oral as well as documentary evidences in support of their case.
ORAL EVIDENCE
Sr. Witness Name of the witnesses Exhibit
No.
1 P.W.No.1 Anandbhai Mangalbhai Vasava 22
2 P.W.No.2 Ismail Adam Patel 27
3 P.W.No.3 Nareshchandra Bhikhabhai 34
Koralwala
4 P.W.No.4 Ramanbhai Laxmanbhai Parmar 36
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NEUTRAL CITATION
R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024
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DOCUMENTARY EVIDENCE
Sr. Description of the documents Exhibit
No
1 Complaint 23
2 Panchnama 28
3 Seizure List 29
4 Seizure List 30
5 Document with signature of Panchas 31, 32
6 Allotment letter 35
7 Order of sanction for prosecution 37
8 Order of sanction for prosecution 38
2.5] After the closing pursis was filed by the learned
Additional Public Prosecutor at Exh: 39, the further statement of the accused under Section 313 of the Code Of Criminal Procedure, 1973 were recorded and after the arguments of learned Additional Public Prosecutor and learned Advocate for the accused were heard, the learned trial Court passed the impugned judgment and order of acquittal.
3] Being aggrieved and dissatisfied with the state judgement and order of acquittal, the appellant state has filed the present appeal mainly stating that the impugned judgement and order of acquittal is contrary to law and evidence on record and the learned trial Court has erred in holding that the Page 7 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined prosecution has not proved its case beyond reasonable doubts. That the learned trial Court ought to have convicted the respondents only on the evidence of the panch witness, who has specifically stated that he has heard all the conversation and seen the transactions and there is no reason to disbelieve evidence of the panch witness. That the evidence of the panch witness proves all the ingredients of demand, acceptance, and recovery and the learned trial Court has grossly erred in passing the impugned judgement and order of acquittal, which is required to be quashed and set aside.
4] Heard Learned APP Ms. Jirga Jhaveri for the appellant- State and learned advocate Mr. K.R.Joshi for the respondents. Perused the impugned judgment and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case.
5] Learned APP has taken this Court through the entire evidence of the prosecution and has submitted that the prosecution has examined the complainant at Exh:22, panch witness at Exh:27, the Trap Laying Officer at Exh:24 and the Investigating Officer at Exh:36 and from the oral evidence of the Page 8 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined witnesses, all the ingredients of demand, acceptance and recovery have been proved beyond reasonable doubts. That the complainant has fully supported the case of the prosecution and if the deposition of the panch witness is perused, he has clearly stated that the accused had accepted the amount of illegal gratification and recovered the tainted currency notes from both the accused. That the learned trial Court has not appreciated the evidence in proper perspective and learned Additional Public Prosecutor has urged this Court to allow the appeal and set aside the impugned judgement and order of acquittal. 6] Learned advocate Mr. K.R. Joshi for the respondents has submitted that in the present case the Trap Laying Officer has used anthracene powder and not phenolphthalein powder and has relied upon the decision of this Court in the case of Praveenkumar Amratlal Gajjar versus State of Gujarat, reported in 2006(4) GLR 2883, where in it has been held that instead of anthracene powder, phenolphthalein powder should be used.
6.1] Learned advocate Mr. K.R.Joshi has further submitted that the complainant has not supported the case of Page 9 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined the prosecution and has not mentioned anything about the demonstration of anthracene powder and ultraviolet lamp that was conducted by the Trap Laying Officer in the presence of the complainant and the panch witnesses and there is no iota of evidence of prior demand or demand at the time of the trap. If the entire evidence of the prosecution is perused, the prosecution has not proved the important ingredient of demand, which is sine-qua-non for the offence under the PC Act and the learned trial Court has appreciated the entire evidence in proper perspective and there is no illegality or perversity in the impugned judgement and order of acquittal. Learned advocate Mr. K.R.Joshi for the respondents has urged this Court to reject the appeal of the appeal and the confirm the impugned judgement and order of acquittal.
7] At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court in the case of Mallappa & Ors. Vs. State of Karnataka passed in Criminal Appeal No.1162 of 2011 on 12.02.2024, wherein, the Apex Court has observed in Para Nos. 24 to 26, as under:
Page 10 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024
NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined "24. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge.
It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concertized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.
25. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re-appreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
26. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The 'two-views theory' has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law. In Selvaraj v. State of Karnataka, "13. Considering the reasons given by the trial Court and on appraisal of the evidence, in our considered view, the view taken by the trial Court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan Page 11 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined M. Seshadri v. State of T.N. [(2002) 9 SCC 639] has laid down that as the appreciation of evidence made by the trial Court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus:
"9. ...We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial Court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial Court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal."" (emphasis supplied) In Sanjeev v. State of H.P., the Hon'ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus:-
"7. It is well settled that: -
7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial Court in acquitting the accused must be dealt with, in case the appellate Court is of the view that the acquittal rendered by the trial Court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka5, Anwar Ali v. State of H.P.) 7.2. With an order of acquittal by the trial Court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P.) 7.3. If two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala)."Page 12 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024
NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined 7.1] In Para - 36, the Apex Court, in the case of Mallappa (Supra), has observed as under:-
"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:-
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court.
7.2] The Apex Court, in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in 2022 0 Supreme (SC) 1248, has observed in Para No. 68 as under:
"68. What emerges from the aforesaid discussion is summarised as Page 13 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined 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 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 Page 14 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined 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.
(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."
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NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined 8] As per the settled principles of law, which are very crystallized with regard to the interference of the Appellate Court in acquittal appeals, the evidence produced by the prosecution must be reappreciated and only if there is perversity or illegality in the impugned judgement and order, an interference of the Appellate Court would be warranted. It is also settled that, if two views are possible and the learned trial Court has taken a view of acquitting the accused, the Appellate Court should not interfere with the impugned judgement and order and it is open for the Appellate Court to reappreciate the evidence.
9] To bring home, the charge against the accused, the prosecution has examined Prosecution Witness No. 1 Anandbhai Mangalbhai Vasava at Exh:22 and the witness is the complainant, who has stated that his brother Ratilal Mangalbhai Vasava had given the complaint in the Wagra Police Station to the accused No. 1 but the accused No. 1 was not arresting the opponent in the complaint of his brother and had demanded for an amount of ₹1300/- as illegal gratification and when he had filed the complaint, he had given ₹500/- to the accused No. 1 Page 16 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined and ₹300/- to the accused No. 2, and the amount of ₹500/- was remaining to be paid. The witness has stated that he had filed the complaint, which is produced at Exh:23 that he had produced ₹800/- after selling his goat and there were five to six persons in the ACB office and some powder was applied on the currency notes. That he left for Wagra Police Station with the Trap Laying Officer Mr. Koralwala and the vehicle was stopped at the tea stall of Sursangbhai. That he went to the tea stall and both the accused came and he gave ₹500/- to the accused No. 1 and ₹300/- to the accused No. 2. That both the accused accepted the amount and the accused No. 1 accepted the amount and placed it in his shirt pocket and accused No. 2 placed it in his purse. That the ACB officers came and caught both the accused. That, at that time, there was no one with him and Koralwala Saheb caught both the accused and took them to Wagra rest house. That the hands of both the accused were found with the traces of powder and the clothes of both the accused were also found with the traces of anthracene powder and the currency notes and the clothes were seized. The witness has identified both the accused before the learned trial court. Page 17 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024
NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined During the cross-examination by the learned advocate for the accused, the witness has stated that he had gone to the Wagra Police Station to file the complaint against Gababhai Melabhai Vasava and Gababhai Melabhai Vasava was murdered and a trial was conducted and he and his brother were found guilty for the offence. That he was undergoing the sentence and he was produced from jail for deposing before the learned trial Court. That the complaint in Wagra Police Station was of his brother, which was written by accused No. 1. That he did not meet the Police Inspector or the Police Sub-Inspector of Wagra Police Station and no procedure was undertaken for his complaint but he did not file any complaint with the head of the Police Station or any Superior Officer. That a chapter case was filed by the accused against Gababhai Melabhai Vasava and he was insisting that Gababhai Melabhai be arrested. That he does not know whom he had sold, his goat to raise the ₹800/- and the same is not mentioned in the complaint. That Police Inspector Mr. Koralwala has stated that he was giving ₹800/- but he had refused. That he went and gave the amount to the policeman and they took the amount and counted it and kept it and the Page 18 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined police came and caught them and from there, they went directly to the rest house. That they waited for five to ten minutes at the rest house and came to Bharuch. That all the papers were prepared in his absence, and the signatures were taken on papers thereafter.
9.1] The prosecution has examined Prosecution Witness No. 2 Ismailbhai Adambhai Patel at Exh:27 and the witness is the panch witness, who has supported the case of the prosecution and has narrated in detail about the incidents that had occurred on 7/9/1999, when he and other panch witness Ramanbhai Bhagwanbhai Machhi had gone to the ACB Police Station. That they met the complainant and the demonstration of the anthracene powder and ultraviolet lamp was done in their presence and the characteristics of anthracene powder and ultraviolet lamp were explained to them. The complainant gave ₹800/-, which was currency notes of the denomination of ₹100/- each to the policeman, and all the currency notes were smeared with the anthracene powder and placed in left shirt pocket of the complainant. The witness has stated that the panch witnesses, complainant and the members of the raiding party Page 19 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined went in a private vehicle to Wagra and halted the vehicle at a little distance away and he and the complainant walked from the ST Depot to tea stall of Sursangbhai. That the accused No. 1 came at around 09:15 hrs and the accused No. 2 came at 09:40 hrs, and the complainant gave the amount to both the accused, who took the amount of ₹500/- and ₹300/- respectively, and placed them in their shirt pocket and purse respectively. That the complainant gave predetermined signal and the members of the raiding party came and caught both the accused. That, they had immediately gone in a Sumo vehicle to Wagra rest house and the tests were done and traces of anthracene powder was found on the hands and on the shirt of the accused No. 1 and the purse of the accused No. 2 and the panchnama was drawn.
During the cross examination by the learned advocate of the accused, the witness has stated that the demonstration of anthracene powder was done after he reached and the ultraviolet lamp has one bulb and three tube lights. That there was no facility for washing the hands in the chamber of Mr. Koralwala and during the time that the lamp operator had undertaken the demonstration and concluded the same, he did Page 20 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined not go out of the chamber. That the lamp operator was with them till the demonstration was over and he sat in the jeep and came out along with others. That the vehicle was a private vehicle, but the fare was not decided and it is not mentioned that the vehicle was a hired vehicle in the panchnama. That Mr. Koralwala sat with the driver and both the witnesses and other members of raiding party and the complainant set behind and the seats in the end of the vehicle were vacant. That near the tea stall of Sursangbhai, there are other stalls and shops and there were other customers at the tea stall at that time. That while they were at the tea stall a ST bus came and his known persons got down from the ST bus and he went to meet them and, at that time, the complainant had given the amount. That thereafter, they went to the rest house, but the statements of the persons at the rest house were not recorded. That no permission was taken in his presence for the use of the rest house.
9.2] The prosecution has examined Prosecution Witness No. 3 Nareshchandra Bhikhabhai Koralwala at Exh:34 and the witness is the Trap Laying Officer, who has fully supported the Page 21 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined case of the prosecution and has narrated all the events that had unfolded on 6/9/1999 when the complainant came to the ACB Police Station to record his complaint and thereafter on 7/9/1999 from 7 am onwards when the demonstration of the anthracene powder and ultraviolet lamp was conducted and the trap was arranged. The witness has stated that he had given the necessary instructions to the panch witnesses and the complainant and they had all gone to Wagra for the trap. That after the predetermined signal was given, he had rushed to the spot and caught both the accused and as the trap was at the tea stall in the market at Wagra and the test could not be done, they went to the Circuit House in Room No. 2 and the further procedure was conducted. That the lamp test was done on the hands of both the accused and on the clothes of the accused and an alternative shirt for the accused No.1 was arranged. That the panchnama was drawn and the further investigation was handed over to Police Inspector R.L. Parmar.
During the cross-examination by the learned advocate for the accused, the witness has stated that as per the notification from the department, phenolphthalein powder has to be used Page 22 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined instead of anthracene powder, but in this matter, anthracene powder was used. That the room has to be darkened and the lights have to be put off at the time of the test. That he had not instructed the complainant to get the amount and come, and he does not know whether the complainant has been sentenced in a murder case. That he had casually questioned the complainant and the complainant had made allegation that the accused were taking their work lightly. That when he had taken the complaint, it has emerged that there was a first demand and the demand is a separate offence. That if the offence of demand is made out, a complaint can be filed if the demand is in the presence of independent witness, but in this case, no offence of demand was registered. That he does not know, who had arranged for the alternative shirt for the accused No. 1.
9.3] The prosecution has examined Prosecution Witness No. 4 Ramanbhai Laxmanbhai Parmar and the witness is the Investigating Officer who has taken over the investigation from Prosecution Witness No. 3- Police Inspector Nareshchandra Bhikhabhai Koralwala. The witness has stated that he had recorded the statements of all the connected witnesses, and Page 23 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined after the order of sanction for prosecution and the documents regarding the service record of the accused were received, the chargesheet was filed before the Sessions Court, Bharuch.
During the cross-examination by the learned advocate for the accused, the witness has stated that a chapter case was filed regarding the complaint filed by the brother of the complainant in Wagra Police Station and in the chapter case the complainant was consistently absent and hence the chapter case was dropped and was concluded. That he had not recorded the statement of the Trap Laying Officer Mr Nareshchandra Bhikhabhai Koralwala.
10] On minute appreciation of the entire evidence of the prosecution, the infirmities in the case of the prosecution have emerged on record and there is no iota of evidence regarding any prior demand made by the accused at the Wagra Police Station before filing of the complaint and even at the time of the trap. The complainant has stated that he and his brother Ratilal Vasava had gone to the Police Station and in presence of his brother, the accused No. 1 had demanded for the amount of illegal gratification of ₹1000/- but the said brother Ratilal Page 24 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined Vasava has not been examined before the learned trial Court and hence there is no corroborative evidence regarding prior demand made by the accused No. 1. The complainant in his deposition at Exh:22 has not breathed a word about the demonstration of anthracene powder and ultraviolet lamp that was done by the Trap Laying Officer on the date of the trap, and the complainant has not mentioned anything about the demand made by the accused on the day of the trap. The complainant has merely stated that he was waiting alone at the tea stall of Sursangbhai and both the accused came and he gave the amount of ₹500/- and ₹300/- respectively, which was accepted by them. That the ingredients of demand havve not emerged in the evidence of the complainant and as far as the deposition of the panch witness is concerned, he has supported the case of the prosecution and stated he had gone along with the complainant to the tea stall of Sursangbhai but during the cross- examination, the witness has clearly stated that while they were waiting at the tea stall of Sursangbhai, a ST bus came and his relative got down from the ST Bus and he went to talk to his relative, and at that time, the complainant had given the amount Page 25 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined to the accused. That the panch witness has not witnessed the acceptance of the tainted currency notes, and there is no iota of evidence that the panch witness has heard the demand of illegal gratification being made by both the accused and it has also emerged on record that the trap was at the tea stall of Sursangbhai and at that time, there were many other stalls and shops around, but no independent witnesses have been examined by the prosecution. That immediately after the trap, the accused and the panch witnesses were taken to the Wagra Rest House where the tests were done, but no evidence to that effect has been produced on record.
10.1] That prosecution has not proved the ingredients of demand which is a sine-qua-non for the offences under the PC Act and there is no evidence on record to hold that the accused had in fact demanded for the amount of illegal gratification. The evidence that has emerged on record is to the effect that the complainant was unhappy with the accused No.1 as the accused No.1 was not arresting Gababhai Melabhai and others but in the evidence of the Investigating Officer, it has emerged that a chapter case was filed by the accused No. 1 and Page 26 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined the chapter case was dismissed and concluded due to the continuous absence of the complainant. It has emerged that the said Gababhai Melabhai was murdered by the complainant and his brother and the case was tried before the competent Court and the complainant and his brother were found guilty sentenced for the offence. That there is no iota of evidence regarding demand of illegal gratification made by the accused and the evidence produced by the prosecution, does not warrant a conviction.
11] The learned trial Court has in the impugned judgment and order discussed the entire evidence adduced by the prosecution and has discussed all the aspects and as the factum of demand was not proved by the prosecution beyond reasonable doubts, the learned trial Court has passed the impugned judgment and order of acquittal.
12] In view of the decision of the Apex Court in the case of Mallappa (supra) and Neeraj Dutta (supra), this Court is of the opinion that the learned trial Court has appreciated the entire evidence of the prosecution and there does not appear to be any infirmity and illegality in the impugned Page 27 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024 NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined judgment and order of acquittal. The learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges leveled against him. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed.
13] The impugned judgment and order passed by the learned Principal Sessions Judge, Bharuch in Special (ACB) Case No. 3 of 2000 on 30/09/2005 is hereby confirmed. Bail bonds stand canceled.
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NEUTRAL CITATION R/CR.A/635/2006 JUDGMENT DATED: 18/07/2024 undefined 14] Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) VVM Page 29 of 29 Downloaded on : Fri Aug 02 22:37:25 IST 2024