Gujarat High Court
The State Of Gujarat vs Ravjibhai Naranbhai Makwana on 19 July, 2024
NEUTRAL CITATION
R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2122 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
==============================================================
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 ?
==============================================================
THE STATE OF GUJARAT
Versus
RAVJIBHAI NARANBHAI MAKWANA & ANR.
==============================================================
Appearance:
MS CM SHAH, APP for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Opponent(s)/Respondent(s) No. 1,2
==============================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 19/07/2024
ORAL JUDGMENT
1. This appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (herein after referred to as 'the Code') against the judgment and order of acquittal dated 21.08.2006 passed by the learned Special Judge, Fast Track Court, Amreli (hereinafter referred Page 1 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined to as 'the learned Trial Court') in Special Case No. 20 of 1997, whereby, the learned Trial Court has acquitted the respondents from the offences punishable under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act (herein after 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 brief facts that emerge from the record of the case are as under:
2.1. That both the accused were working as Unarmed Police Constables in Chaavad Out Post (Class-III) at Lathi Police Station, District Amreli and were public servants. That the complainant Bharatbhai Bholabhai Koli - Rathod was residing at village : Shekh Pipaliya, Taluka Lathi, District Amreli and was at home on 10.08.1993, when both the accused came to his house and arrested him and put him in the lock-up at Lathi Police Station. That on 11.08.1996, the accused No.1 came to Lathi Police Station and the Page 2 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined complainant asked him when he would be released and at that time, the accused told him that he would be presented him before Sub Division Magistrate and would be released on bail. That he was sitting under a tree in the compound of the police station and having his lunch and at that time, Dadubhai Bachubhai Aayar resident of Harsurpur -
Devaliya came and told him that the police were to beat him and they had demanded an amount of Rs.1,000/-. That the said Dadubhai Bachubhai Aayar had met the accused No.1 and an amount of Rs.1000/- as illegal gratification was demanded from him and the complainant told him that he did not have the amount of Rs.1000/- and after bargaining, the matter was settled for Rs.500/-. That Dadubhai Bachubhai Aayar told him that he had Rs.300/- with him and he would give it to the accused and thereafter, to give the remaining amount of Rs.200/- after his release on bail. That on the next day, he was taken before the Sub Divisional Magistrate, Amreli, who released him on bail and when he reached home, Dadubhai Bachubhai Aayar was sitting at his home and told him to pay Rs.200/- to the accused. That once Page 3 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined again on 20.08.1996, Unabhai Bachubhai Aayar came to his house and told him to pay the amount of Rs.200/- to both the accused till the next day. That the complainant did not want to give the amount of illegal gratification and went to the ACB Police Station, Amreli and filed the complaint under Section 7, 12, 13(1)(d) and 13(2) of the P.C.Act, which was registered as C.R.No.7 of 1996 on 21.08.1996. 2.2. The Trap Laying Officer called the panch witnesses and the complainant gave two currency notes of the denomination of Rs.100/- each and a demonstration of anthracene powder and ultraviolet lamp was done in the presence of the complainant and the panch witnesses and the characteristic and use of anthracene powder and ultraviolet lamp was explained to them. That both the currency notes given by the complainant were smeared with anthracene powder and folded and kept in the left side shirt pocket of the complainant and necessary instructions were given by the Trap Laying Officer to the complainant and the panch witnesses and the trap was arranged for. That Part-I of the Page 4 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined panchnama was drawn and the complainant, panch witnesses and members of the raiding party left the police station in Government Vehicles. That they went to Chavad and halted the jeep and the complainant and panch witness No.1 went walking to Chavad Out Post. That the complainant had a conversation with the accused and the complainant gave the tainted currency notes from his left side shirt pocket to the accused No.2, who accepted the tainted currency notes with his right hand and placed them in the hip pocket of his pant and at that time, the complainant and the panch witness No.1 and the accused No.1 was present. That the pre-determined signal was given by the complainant and the members of the raiding party came and caught both the accused red handed. 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 learned Sessions Court, Amreli, which was registered as Special ACB Case No. 20 of 2007.
Page 5 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024
NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined 2.3. That the accused were summoned and after following the procedure of Section 207 of the Code, a charge was framed by the learned Trial Court at Exh.9 and the statement of the accused was recorded at Exhs. 10 and 11 respectively, wherein, the accused denied all the contents of the charge and the entire 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 the case. ORAL EVIDENCE :
Sr.No. Particulars Exh. 1 Bharatbhai Bholabhai 13 2 Chhagandas Purandas Sadhu 24 3 Dilipbhai Shantilal Mehta 27 4 Nagarsinh Kasnabhai Palas 46 5 Vikramsinh Jivatsinh Puwar 48 6. Jagmalbhai Govindbhai Chavda 54 7. Janakbhai Ravatbhai Vala 59 DOCUMENTARY EVIDENCE : Sr.No. Particulars Exh. 1 Complaint 16 2 Panchanama 25 3 Seizure List 28 Page 6 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined 4 Order of sanction for prosecution 47 5 Ravjibhai Naranbhai 55 6 Jamalbhai Mahammadbhai Chauhan 56
2.5. After the closing pursis was submitted by the learned APP, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein, both the accused denied all the evidence produced by the prosecution against them and have refused to step into the witness box. The Accused No.1 stated that he wanted to examine the defence witnesses, whereas, the accused No.2 refused to examine any defence witnesses. The Accused No.1 has examined the following witness in support of his case:
DEFENCE WITNESS:
Sr.No. Particulars Exh.
1 Sikandarkhan Sultankhan 65
2.6 That the arguments of the learned APP and learned advocate
for the accused were heard and the learned Trial Court, by the impugned judgment and order dated 21.08.2006, was pleased to acquit both the accused for all the offences.Page 7 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024
NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined
3. Being aggrieved and dissatisfied with the impugned judgment and order passed learned Trial Court, the Appellant - State has filed the present appeal mainly contending that the impugned judgment and order of acquittal is illegal, improper, unjust and without considering the material on record. That the learned Trial Court has erred in appreciating the evidence produced by the prosecution on record of the case. That the witnesses have supported the case of the prosecution and nothing adverse has come on record during the cross-examination. That the learned Trial Court has not appreciated the evidence properly. That the prosecution, on the basis of deposition of the witnesses and the panchnama, has clearly established the factum of demand and acceptance. That the reasons stated by the learned Trial Court while acquitting the respondents are improper, perverse and bad in law and the learned Trial Court has acquitted the accused on the ground of benefit of doubt and even otherwise, the impugned judgment and order is illegal, improper and bad in law and hence, deserves to be quashed and set aside.
Page 8 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024
NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined
4. Heard learned APP Ms.C.M.Shah for the appellant - State and learned advocate Mr.Rathin Raval for the respondents - accused.
5. Learned APP Ms.C.M.Shah for the appellant - State has taken this Court through the entire evidence produced by the prosecution and has vehemently argued that the learned Trial Court has not appreciated the evidence properly and the prosecution has produced cogent evidence to prove the demand, acceptance and recovery of the tainted currency notes and has successfully proved the case against the respondents but the learned Trial Court has not considered the same and has acquitted the respondents. Learned APP has urged this Court to quash and set aside the impugned judgment and order of acquittal and to find the respondents guilty for the said offence as the respondents being public servants, could not demand any amount of illegal gratification. Hence, learned APP has urged this Court to allow the present appeal and impose maximum sentence on the respondents.
Page 9 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024
NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined
6. Learned advocate Mr. Rathin Raval for the respondents has submitted that the learned Trial Court has appreciated all the evidence in true perspective and has not at all committed any error in acquitting the respondents and therefore, no interference of this Court is required in the impugned judgement and the order of acquittal passed by the learned Trial Court and has urged this Court to reject the appeal.
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:
"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 concretized 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 Page 10 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined 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 re-appreciate 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 sattled 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 sattle 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 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 Page 11 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined 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 sat 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 sat 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)."
7.2. 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:Page 12 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024
NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined
(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.
7.3. 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, which reads as under:
"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 Page 13 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined 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 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.
Page 14 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024
NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined
(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."
8. The law with regard to the acquittal appeals is well crystallized and it is settled principles of law that in acquittal appeals, the Appellate Court can re-appreciate the evidence Page 15 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined and only if the findings of acquittal are perverse or impossible the Appellate Court can interfere but if it is found that the view taken by the learned Trial Court is possible then the Appellate Court should not interfere with the same. That there is no absolute restriction on the Appellate Court regarding interference but the entire evidence must be reviewed and re-appreciated.
9. To bring home the charge against the accused, the prosecution has examined PW-1 Bharatbhai Bholabhai at Exh.12 and the witness is the complainant, who has stated that both the accused had come his house and put him in the Lathi Police Station lock-up and on the next day, Dadubhai Bachubhai Aayar had come to him and told him that he would have to pay an amount of Rs.500/- to the accused. That he was arrested on bail when he was produced before the Sub Divisional Magistrate and he went home and once again, Dadubhai Bachubhai Aayar came and told him that he had already paid Rs.300/- and the remaining amount of Rs.200/- was to be paid. That he had gone to the ACB Police Page 16 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined Station, Amreli and had filed the complaint but the other persons were called. That when he was in the lock-up, the accused No.1 had told him that a case under Section 110 of the Cr.P.C. was filed against him and he would be released on bail on production before the Sub Divisional Magistrate. That Dadubhai Bachubhai Aayar had told him that he would be arrested and he had told Dadubhai to do something and Dadubhai Bachubhai Aayar told him that the accused No.1 was to be given Rs.1000/- but he told Dadubhai Bachubhai Aayar that he did not have Rs.1000/- to pay and ultimately, he agreed to pay Rs.500/-. That Dadubhai Bachubhai Aayar had told him that he had given Rs.300 and had to pay Rs.200/- after he was released. That the complaint is produced at Exh.16 by the complainant and he had given two currency notes of the denomination of Rs.100/- each to the ACB officer and the anthracene powder was applied on the currency notes and necessary instructions were given to him. That he and the panch witnesses had gone to Chavad Out Post and the accused No. 2 was sitting on the chair and he went and asked the accused No.2 where was the accused Page 17 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined No.1 and he told him that he had gone home. That he went to the house of accused No.1 and told the accused No.1 that Unabhai Bacbubhai Karkoliya had told him that he would have to give an amount of Rs.200/- and he gave the amount to the accused No.1 who placed the amount in his pant pocket. He gave the pre-determined signal and the members of the raiding party came and took him to Chavad Out Post. The accused No. 2 was present and the currency notes were recovered from the pocket of the accused No.1. During the cross-examination by the learned advocate for the accused, the witness has stated that he was taken to the Chavad Out Post and after 5 minutes, after having water and tea, he was taken to Lathi Police Station and he was handed over to the Lathi Police Station by both the accused but he was not beaten up before he was handed over to Lathi Police Station. That the accused had told him that he was produced before the Sub Divisional Magistrate and he would be released on bail. That when he was at Lathi Police Station, he was sitting under a tree and having his food and at that time, nobody had beaten him. That earlier when he was arrested at Lathi Page 18 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined Police Station, no one had demanded any amount of illegal gratification from him. That he does not know what business Dadubhai Bachubhai Aayar was doing. That Dadubhai Bachubhai Aayar told that if he had no money, they would beat him but he did not ask any question about which police is demanding the amount from Dadubhai Bachubhai Aayar and he did not ask Dadubhai Bachubhai Aayar when was the amount to be given and when he went to file the complaint, one Nazabhai was with him, who was the President of Kisan Sangh, Babra. That he had not seen the ACB Office and did not know the ACB Officers but Nazabhai knew the ACB officer. That in 1992, a case of decoity was filed against him and he was arrested in the said offence and in 1992, the case under Sections 323 and 504 of the IPC was filed against him and Swami Sachidanand. In 1995, a case under the Prohibition Act was also filed against him and he and Aahir Lunabhai Bachubhai were arrested. 9.1. The prosecution has examined PW-2 Chhagandas Purandas Sadhu at Exh.24 and the witness is the panch witness, who Page 19 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined had gone along with other panch witness Madhubhai Vallabhbhai Pansuriya to the ACB office on 21.08.1996. The witness has stated that both the panch witnesses had gone to the ACB Police Station and they were introduced to the complainant and the details of the complaint was explained to them and thereafter, the demonstration of anthracene powder and ultraviolet lamp was done in their presence and the characteristic of anthracene powder and ultraviolet lamp was explained to them. That Part-1 of the panchnama was written and they left for the trap. That the panch witness No.1 and the complainant went to Chavad Out Post and after the pre-determined signal was given, the members of the raiding party came and the tainted currency notes were recovered from the accused No.1. During the cross- examination by the learned advocate for the accused, the witness has stated that he has not seen Dadubhai Bachubhai Aayar of Harsurpur Devaliya and he does not know whether any police had demanded the amount of Rs.1000/- through Dadubhai Bachubhai Aayar. That he does not know whether Dadubhai Bachubhai Aayar had, in fact, given the amount of Page 20 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined Rs.300/- to any police personnel and the acceptance of the amount of Rs.200/- was not in his presence. That he does not know what conversation had taken place at the time of the trap. That the panchnama was dictated by Mehta Saheb and the writer was writing the same and on reading the complaint, it was found that no direct demand was made by any of the accused from the complainant. That Dadubhai Bachubhai Aayar of Harsurpur Devaliay was not called in his presence by the ACB Police.
9.2. The prosecution has examined PW-3 Dilip Shantilal Mehta at Exh.27 and the witness is the Trap Laying Officer, who has fully supported the case of the prosecution and has narrated all the incidents that had unfolded on 21.08.1996 from the time when the complainant came to the ACB Police Station and filed the complaint. The witness has described the entire procedure undertaken for the demonstration of anthracene powder and ultraviolet lamp and the currency notes given by the complainant were smeared with anthracene powder and placed in left side shirt pocket of the complainant. That Page 21 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined he had given necessary instructions to the panch witnesses and the complainant. That they all had gone for the trap and after the pre-determined signal, he and the other members of the raiding party along with panch witness No.2 had gone and caught the accused red handed. During the cross- examination, the witness has stated that the conversation between the complainant and the accused No.1 was an important evidence and the panchnama does not state that he has heard the conversation between the complainant and the accused No.1. That if the panch witnesses do not support the case then their evidences become important but even though they had heard the conversation, the same is not noted in the panchnama. That till the complaint was filed, the accused did not demand any amount of illegal gratification from the complainant and the complainant was involved as an accused in many cases, which could be narrated as per the past history. That he had reached the place of the trap after the pre-determined signal was given. 9.3. The prosecution has examined PW-4 Nagarsinh Kasnabhai Page 22 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined Palas at Exh.46 and the witness is the competent authority, who has given the order of sanction for prosecution, which is produced at Exh.47.
9.4. The prosecution has examined PW-5 Vikramsinh Jivatsinh Puvar at Exh.48 and the witness is the Investigating Officer, who had taken over the investigation from Police Inspector J.G.Chavda. The witness has stated that he had arrested both the accused on 16.12.1996 and had produced them before the learned Trial Court. That after the order of sanction for prosecution was received, he had filed the charge sheet before the learned Sessions Court. During the cross- examination by the learned advocate for the accused, the witness has stated that when he had made correspondence for the order of sanction for prosecution, he had sent a draft of the order along with the papers.
9.5. The prosecution has examined PW-6 Jagmalbhai Govindbhai Chavda at Exh.54 and the witness is the Investigating Officer, who had taken over the investigation from Police Inspector J.R.Vala. That he had recorded the statement of Page 23 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined connected witnesses and collected the necessary documents regarding the service record of both the accused and also the record of the complaint No.33/1996 filed under Section 110 of Cr.P.C. against the complainant. During the cross- examination by the learned advocate for the accused, the witness has stated that he had recorded the statement of the complainant and the panch witness No.1 and he had not recorded the statement of the Trap Laying Officer. 9.6. The prosecution has examined PW-7 Janakbhai Ravatbhai Vala at Exh.59 and the witness is the Investigating Officer, who had taken over the investigation regarding C.R.No.7 of 1996 of ACB Police Station on 23.04.1996 and had recorded the statement of the Head Constable Bhanabhai Devabhai Sosa. That he had also recorded that the statements of M.J.Solanki, Police Inspector Rasheshkumar Narendrabhai Buch and J.P.Parmar, ACB Office, Amreli and had, thereafter, handed over the investigation to Police Inspector J.G.Chavda.
9.7. The prosecution has examined PW-8 Kamleshbhai Dhirubhai Page 24 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined Bagthaliya at Exh.70 and the witness was working as an Assistant in the Court of the learned Judicial Magistrate, First Class, Amreli and the witness has produced the list of the persons, who were sureties before the Court of learned Judicial Magistrate First Class, Amreli at Exh.71. During the cross-examination by the learned advocate for the accused, the witness has stated that the list does not bear the signature of any person and also does not bear any date and he does not know whose hand writings are on the list above the typed names.
10. After the closing pursis was filed by the learned APP, the accused No.1 has examined Sikandarkhan Sultankhan as Defence Witness No.1 at Exh.65 and the witness has stated that he knows Ahir Punabhai of village Karkoliya and also knows the complainant since 8 to 10 years. That he knows the accused No.1 as the complainant Bharatbhai was arrested and a chapter case was filed before the Sub Divisional Magistrate Office at Amreli. That he had worked to release the complainant on bail as per the say of Punabhai Ahir and Page 25 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined the advocate was Hiteshbhai Solanki. That he had gone to call advocate Hiteshbhai Solanki but the complainant Bharatbhai did not give the amount of Rs.200/- and he had to pay the amount of Rs.200/- to advocate Hiteshbhai Solanki. That he had told Punabhai that he had to take the amount from Bharatbhai and had told to take the amount whenever he would come to the Chavad Out Post. That the complainant gave the amount to the accused No.1 and he had heard that the trap was arranged. During the cross- examination by the learned advocate for the accused, the witness has stated that he knows a number of advocates in Amreli and he was a surety in 2 to 3 cases. That he was also the panch witnesses in one case and he knows the accused No.1 but does not know the accused No.2. That he was in jail for the offence punishable under Section 326 of the IPC and advocate Kamlesh Mehta represented him as an advocate in that case. That he had gone as a surety for the complainant Bharatbhai and he was asked by Sub Divisional Magistrate whether he was the surety of Bharatbhai. That he did not have any discussion with Bharatbhai before he was his Page 26 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined surety.
11. On minute dissection of the entire evidence on record, there is no iota of evidence that the accused had ever demanded the amount of illegal gratification from the complainant directly and the evidence that had emerged on record is that both the accused had arrested the complainant Bharatbhai Bholabhai Koli Rathod and taken him to Chavad Out Post and and thereafter, handed him over to the Lathi Police Station. That there is nothing on record to suggest that the accused were in-charge of the custody the complainant and both the accused were working as Unarmed Head Constable at Chavad Out Post of Lathi Police Station. That the complainant was arrested for the offence under section 110 of the Cr.P.C. and the complainant himself has stated that the accused No.1 had told him that he would be produced before the Sub Divisional Magistrate, Amreli on the next day and he would be released on bail and accordingly, the complainant was released on bail on the next day. The complainant himself has stated that when he was at the Lathi Page 27 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined Police Station, in the afternoon, he was sitting under a neem tree in the Lathi Police Station compound and having his lunch and nobody have demanded any amount of illegal gratification and from him. There is no iota of evidence that at that time, the accused were at Lathi Police Station. It is pertinent to note that the prosecution has not examined Dadubhai Bachubhai Ayar of village Harsurpur Devaliya. It is also on record that as per the complaint, Dudubhai Bachubhai Ayar of village Harsurpur Devaliya had paid the amount of Rs.300/- to the accused but it is not clarified as to which of the accused, he had paid the amount of Rs.300/-. Moreover, there is no clear evidence to the effect that the amount of Rs.200/- was to be paid to the accused No.1 or the accused No.2 and even in the complaint, the complainant has stated that after he was released on bail by the Sub Divisional Magistrate, Amreli, Unabhai Bachubhai Ayar of village Karkoliya had come his house and told him to pay the amount of Rs.200 but the prosecution has not examined Unabhai Bachubhai Ayar of village Karkoliya and hence, the factum of demand made by the accused is not proved Page 28 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined beyond reasonable doubts. That even on the day of the trap, the complainant and the panch witness No.1 had gone to Chavad Out Post and met the accused No.2 and thereafter, as per the complainant, they went to the house of the accused No.1. That there is no corroborative evidence that any demand was made by the accused No.1 on the day of the trap. That if the accused had demanded the amount of illegal gratification when the complainant and the panch witness went to Chavad Out Post, the accused No.2, who was sitting on the chair in Chavad Out Post, would have demanded the amount from the complainant and would have accepted the same but the complainant merely asked the accused No.2 the whereabouts of the accused No.1 and thereafter, went in search of the accused No.1 in his house. It is pertinent to note that the shadow witness has expired and has not been examined before the learned Trial Court and hence, there is no corroboration with regard to the evidence of demand on the day of the trap. That PW-2 Chhagandas Purandas Sadhu was the panch witness, who was along with the members of the raiding party and he had gone after the Page 29 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined pre-determined signal was given and there is no iota of evidence that in fact, the accused had demanded the amount of illegal gratification from the complainant. As per the complaint, Dadubhai Bachubhai Ayar of village Harsurpur Devaliya and Unabhai Bachubhai Auyar of village Karkoliya were the best witnesses, who could depose about the demand of illegal gratification, if any, made by the accused but, both the witnesses have not stepped into the witness box and hence, the factum of demand has not been proved by the prosecution beyond reasonable doubts. 11.1. In the evidence, it has emerged on record that the complainant was involved in a number of offences and the defence witness examined by the accused No.1 at Exh.65, has deposed to the effect that he was present when the complainant was produced before the Sub Divisional Magistrate and advocate Hiteshbhai Solanki had appeared on behalf of the complainant and the complainant had to pay an amount of Rs.200/- to advocate Hiteshbhai Solanki. The evidence that had emerged on record is that the complainant Page 30 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined went to ACB Police Station with Nazabhai, the President of Kisan Sangh, Babra Taluka but the said Nazabhai has not been examined before the learned Trial Court by the prosecution. That in the entire evidence, there is no iota of evidence that the accused had, in fact, demanded for any amount of illegal gratification from the complainant directly and as per the case of the prosecution, demand was made to Dadubhai Bachubhai Ayar of village Harsurpur Devaliya and Unabhai Bachubhai of village Karkoliya but they have not been examined before the learned Trial Court and hence the factum of demand has not come on record.
12. On minute re-appreciation of the entire evidence of the prosecution and the impugned judgment and order, it appears that the learned Trial Court has thoroughly appreciated all the evidence on record and has given due consideration to all the material pieces of evidence. The learned Trial Court has discussed all the oral as well as the documentary evidence and if the evidence produced by the prosecution is examined in light of the law laid down by the Page 31 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024 NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined Constitution Bench in the case of Neeraj Dutta (Supra), it appears that the learned Trial Court has arrived at findings which are legal and proper and there are no errors in law or in facts. Moreover, the view taken by the learned Trial Court in acquitting the accused is fairly possible and there is no illegality and perversity in the impugned judgment and order of acquittal.
13. In view of the settled position of law in the decisions of Mallappa (Supra) and Neeraj Dutta (Supra) and appraisal of the evidence produced by the prosecution, the reasons assigned by the learned Trial Court are reasonable and , this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges levelled against him. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court.
Page 32 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024
NEUTRAL CITATION R/CR.A/2122/2006 JUDGMENT DATED: 19/07/2024 undefined
14. 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.
15. The impugned judgment and order of acquittal dated 21.08.2006 passed by the learned Special Judge, Fast Track Court, Amreli in Special Case No. 20 of 1997 is hereby confirmed.
16. Bail bonds stand cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) F.S.KAZI.....
Page 33 of 33 Downloaded on : Fri Aug 09 21:07:58 IST 2024