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CR.A/420/2001 11/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 420 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
======================================
THAKKAR
RAMESHKUMAR MAFATLAL - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
======================================
Appearance
:
MR
KB ANANDJIWALA for Appellant(s) : 1,
MR HL JANI ADDITIONAL PUBLIC
PROSECUTOR for Opponent(s) :
1,
======================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 12/05/2011
CAV
JUDGMENT
The
present appellant has preferred this appeal under Section 374 of the
Code of Criminal Procedure, against the judgment and order of
conviction and sentence dated 25.5.2001 passed by the learned
Special Judge (ACB), Mehsana in Special (ACB) Case No.14 of 1993,
whereby, the learned Judge has held guilty the appellant under
Sections 7 and Section 13(2) of the Prevention of Corruption Act
(for short “Act”) and sentenced conjointly for both the
offences to undergo R.I. for one year and to pay a fine of Rs.500/-
i/d to further undergo S.I. for 15 days.
2. The
brief facts of the prosecution case is as under:
It
is the case of the prosecution that the appellant was serving as
Unarmed Police Constable, having Buckle No.2065 at Mehsana Taluka
Police Station. On 20.6.1993, P.I. Mr. Rana of the aforesaid Police
Station took three persons namely Raghuji, brother of complainant
Sardarji Bhemaji, Sartanji Prajapati and one lady Urmilaben
Laljibhai Patel in custody as they were found on the highway in dark
hours of night. Therefore, the complainant and one Rabari Kanjibhai
Nathabhai came to Mehsana for necessary inquiry at Taluka Police
Station, Mehsana and they saw Raghuji and Sartanji were in police
lock up. Thereafter, they contacted appellant – accused and at
about 4 p.m., the complainant and said Kanjibhai went to the police
station and again contacted the accused and said Kanjibhai told that
they had come only for the release of Raghuji. Therefore, the
accused told the complainant to give him Rs.500/- for release of
Raghuji and it is also alleged that the appellant told the
complainant that without accepting Rs.500/-, he would not release
Raghuji and he told the complainant to come with the amount. As the
complainant and said Kanjibhai were not willing to pay the amount of
Rs.500/- to the accused and, therefore, they approached ACB Police
Station and lodged complaint against the accused. After completing
the formalities, preliminary part of panchnama was drawn. Two
panchas were called and necessary instructions were given to the
complainant by the ACB party. The complainant along with panch and
raiding party members proceeded to the Mehsana Taluka Police
Station. On reaching there, the complainant, Kanjibhai and panch
No.1 proceeded to Taluka Police Station situated on the 3rd
Floor of the building and these three persons went inside the Taluka
Police Station. They contacted the accused and at that time, the
accused was doing some other work. After about 10 minutes, the
accused went outside the chamber and he was being followed by the
complainant, said Kanjibhai and panch No.1. It is alleged that the
accused thereafter came with Raghuji and while standing in the
corridor, the demand was made and the amount was passed on.
Initially, the amount of Rs.400/- was offered, however, the accused
insisted for Rs.500/- and, therefore, Rs.100/- was later on passed
on and that is how the amount of Rs.500/- was given to the accused.
According to the prosecution, the prearranged signal was given and
immediatley the raiding party rushed upstairs and the accused threw
those currency notes from the 3rd Floor balcony to the
ground floor and the notes were found lying on the ground.
Thereafter,
the complaint was registered against the appellant. Statement of the
complainant and other witnesses were recorded. Necessary sanction
was obtained from the concerned Authority and after the
investigation was over the charge-sheet was filed against the
appellant under Section 7 and 13(2) of Act.
Thereafter,
the charge was framed against the appellant at Exhibit 12.. The
appellant – accused pleaded not guilty to the charge and
claimed to be tried.
In
order to bring home the charge levelled against the appellant-
accused, the prosecution has examined the witnesses Viz. P.W.1
Sardarji Bhemaji, complainant at Exhibit 15, P.W.2 Kanjibhai
Nathabhai Rabari at Exhibit 17, P.W.3 Bharatkumar Jayantilal Trivedi
at Exhibit 18 and P.W.4 Gajendrasinh Pratapsinh Puvar, P.I. ACB at
Exhibit 24 and also relied upon the various documentary evidence.
Thereafter,
after examining the witnesses, further statement of the
appellant-accused under Section 313 of Code of Criminal Procedure
was recorded in which the appellant-accused has denied the case of
the prosecution.
After
considering the oral as well as documentary evidence and after
hearing the parties, learned Special Judge vide impugned judgment
and order dated 25.5.2001 held the appellant – accused guilty
to the charge levelled against him and convicted and sentenced the
appellant accused, as stated above.
Being
aggrieved by and dissatisfied with the impugned judgment and order
of conviction and sentence passed by the learned Special Judge
(ACB), Mehsana, the present appellant has preferred this appeal.
Heard
Mr. K.B. Anandjiwala, learned advocate for the appellant and Mr.
H.L. Jani, learned APP for the respondent-State.
Mr
Anandjiwala, learned advocate, appearing for the appellant submitted
that the judgment and order passed by the learned Special Judge is
erroneous, without appreciating the facts and evidence on record.
Even there was no specific demand on the part of the accused and the
acceptance of money was not proved by the prosecution as per the
provisions of the Prevention of Corruption Act. He submitted that
the complainant was declared hostile and at the police station, as
per the evidence of said witness complainant P.W.1 at Exihibit 15,
some policeman told him that for the purpose of releasing Raghuji,
Rs.500/- was to be paid by way of surety and as the complainant had
not possessed that much amount, at the instance of Kanjibhai, both
of them went to the ACB office. After treating him hostile, he
deposed that he did not remember as to whether in his complaint the
policeman, who demanded the money was named as Rameshbhai Thakkar,
appellant accused. Learned advocate further submitted that
therefore, whatever is deposed by the complainant with regard to the
demand, is required to be accepted as the evidence. The demand of
Rs.500/- was made for the purpose of taking surety and not towards
illegal gratification, other than the procedural aspects. Therefore,
from the evidence, it does not transpire that the object behind the
demand was illegal and the amount which was alleged to have been
demanded was towards illegal gratification, but the said amount of
Rs.500/- was as surety. Learned advocate Mr. Anandjiwal further
submitted that P.W.2 Kanjibhai Nathabhai Rabari at Exhibit 17, was
present along with the complainant and this witness is not treated
hostile by the prosecution. This witness deposed that after reaching
to Taluka Police Station, they contacted the Head Constable with
regard to Raghuji. Thereafter, some talks had taken place with
regard to the bail amount and the amount of bail Rs.500/- was
demanded. Thereafter, this witness thought to give much amount
Rs.500/- was unwise and, therefore, at the instance of one
Ramjibhai, the complaint was lodged before ACB Office. At the time,
when the complainant and said Kanjibhai visited the Police Station,
the accused was not present there. He submitted that even this
witness stated in cross-examination that it was not true that he had
stated before the police in is statement that PSO told to give
Rs.500/- to the accused. Therefore, the learned advocate submitted
that looking to the evidence of this witness also it cannot be said
that the demand of Rs.500/- made by the accused is proved by the
prosecution. It becomes crystal clear from the evidence of both
these witnesses that the PSO – Head Constable has asked the
complainant about the bail amount of Rs.500/- for releasing the
Raghuji on bail and not for any other purpose. Learned advocate
further submitted that in the present case, the most vital part of
the evidence in corruption cases i.e. the demand of illegal
gratification is lacking and is not established and the whole case
is failed. Learned advocate further submitted that in the present
case, it is doubtful as to whether Sardarji is the complainant and
the complaint has been recorded as per his say. According to the
evidence of complainant Sardarji, when he went to ACB Office, along
with him, one Kanjibhai, Ramjibhai and other persons were present
and Ramjibhai had a talk with the officer in the ACB office. In
cross-examination, the P.W.1 stated that in Police Station when he
had gone for the first time, he sat by the side while Ramjibhai had
a talk with the policeman and this witness had some quarrel with the
policeman in past. Even the arrangement of the amount was made by
Ramjibhai. Learned advocate Mr. Anandjiwala further submitted that
similarly, Kanjibhai Nathabhai, P.W.2 examined at Exhibit 18 stated
in his cross-examination that at the ACB office, Ramjibhai went
inside and met PI ACB and he had a talk with PI. Therefore, it
becomes clear that the complaint against the accused was lodged at
the instance of Ramjibhai. From the evidence of P.W.3 Bharatkumar
Jayantilal Trivedi, the demand, which was made on the part of the
accused is not at all established. He also read the oral evidence of
P.W.4 – Gajendrasinh Pratapsinh Puwar at Exhibit 24.
Therefore, learned advocate submitted that the judgment and order of
conviction and sentence passed by the learned Special Judge is
required to be dismissed by allowing this Appeal.
Mr.
Advocate has also relied upon a decision in the case of BANARASI
DAS v/s STATE OF HARYANA, reported in AIR 2010 SC 1589
and contended that in absence of proof of demand,the prosecution has
failed to prove its case beyond reasonable doubt and the Judgment of
the trial Court be quashed and set aside and the appellant is
required to acquitted from the charges alleged against him.
As
against this, Mr H.L. Jani, learned APP appearing for the respondent
– State has supported the Judgment and order passed by the
learned Special Judge. He has contended that the learned Judge has
not committed any error in holding the appellant guilty of the
charges levelled against him. He has contended that looking to the
evidence of the complainant, Panch witness and the Trapping Officer,
the demand and acceptance of bribe amount by the accused and
recovery thereof is proved and, therefore, no interference is called
for by this Court. He has contended that the learned Judge has
considered each and every aspect of the matter and has passed
absolutely just and proper judgment and order of conviction.
Therefore also, the impugned judgment and order of conviction and
sentence passed by the learned Judge requires to be confirmed.
I
have gone through the impugned judgment and order passed by the
learned trial Judge and oral as well as documentary evidence
produced on the record. I have read the oral evidence of prosecution
witness-complainant and also perused the charge framed against the
appellant. I have also considered the submissions advanced by the
parties.
From
the perusal of the oral evidence of P.W.1 – complainant, it
appears that he has turned hostile before the learned Special Judge.
Said witness, during the course of his deposition, has stated that
after giving the money to the accused, he had no knowledge about the
acceptance of bribe amount by the accused and even where the accused
put the said bribe amount and he had not known even the name of the
accused. In his cross-examination, it is stated that said Ramjibhai
is a leader of the village and it is very well reflected that the
complainant has tried to put the amount of Rs.500/- in the pocket of
the accused and at that time, the accused told that what he was
doing and pulled the hand of the accused and the accused had not
accepted the money, therefore, the currency notes were thrown on the
ground. From the evidence of P.W.2 Kanjibhai Rabari at Exhibit 17,
it appears that this witness had no knowledge where the accused put
the said amount of bribe. Cross-examination of this witness shows
that Ramjibhai had some talk with ACB Officer and thereafter, the
signature of the complainant was taken on the complaint. He has also
stated that when the amount, was given to the accused, at that time,
the accused told the complainant that what the complainant was doing
and the accused had not accepted the money, and the amount of bribe
was found on the ground. From the cross-examination of this
witness, nothing come out about demand and acceptance on the part of
the accused and it is not transpired that the amount which was given
to the accused, was bribe money or for other purpose. I have also
perused the oral evidence of P.W. 4 – Gajendrasinh Pratapsinh
Puwar at Exhibit 24 and from his evidence, it has come out that the
marks of anthracene powder were found on the fingers, tip of the
right hand and pent of the accused, but it is not established that
the said money was accepted by the accused on his own, because the
currency notes were found on the ground. It is doubtful as to
whether the accused demanded the money from the complainant or the
complainant at his own put the money in the pocket of the accused or
the accused accepted by his hand the said money.
I
have gone through the evidence produced before the learned Special
Judge, but, it has not come out from the evidence that the
anthracene powder was found from the body parts like finger, tips of
hand and the cloth of the accused and even in the experiment of the
ultra violet lamp, it has not been found that on the currency notes,
anthracene powder was found. In this case, the demand is not at all
proved by the prosecution against the accused and so far as the
recovery is concerned, the same is not found from the physical
possession of the accused and, therefore, mere allegation levelled
against the accused by the complainant about the demand is not
sufficient to convict the present appellant – accused and hence,
this appeal deserves to be allowed.
I
have perused the statement of the appellant – accused recorded
under Section 313 of the Code of Criminal Procedure and the probable
defence is established by the present appellant beyond reasonable
doubt. In the instant case, the complainant has turned hostile and
evidence of other witnesses do not corroborate with each other,
therefore, the demand aspect is not established. I have perused the
complaint and other evidence. It appears that the said complaint
against the accused was lodged at the instance of Ramjibhai who is a
leader of the village. It is also not established that the money,
which was asked from the complainant was for bail purpose or for any
other purpose and, therefore, the demand and acceptance on the part
of the appellant is not proved. As the basic aspects of demand and
acceptance are not proved, it can be said that the accused was
falsely implicated in the case. Merely the marks of the anthracene
powder on the hand of the appellant do not prove that the said money
was for bribe purpose or the appellant himself accepted, by his own,
the money and put it in the pocket of his pent. In the latest
decision of the Supreme Court in the case of Banarsi Das Vs.
State of Haryana, reported in AIR 2010 SC 1589, the Hon’ble
Supreme Court has observed that mere proof of recovery of bribe
money from accused is not sufficient to prove the offence. In that
view of the matter, I am of the opinion that so far as the offence
of bribery is concerned, the demand and acceptance of money is
required to be proved beyond reasonable doubt and mere recovery of
bribe money from accused is not sufficient to prove the offence and
to hold the person guilty. Presumption cannot be raised when demand
is not proved in this case. Therefore, in absence of any evidence
regarding the demand, mere alleged recovery is not sufficient to
convict the present appellant and hence, this appeal deserves to be
allowed. The ratio laid down in aforesaid decision is squarely
applicable to the facts of the present case because in the case on
hand, the demand is not proved and the complainant had not stated
about the demand made by the accused and, therefore, mere alleged
recovery is not sufficient to prove the case against the appellant
accused. Even the recovery is also not proved as per law. Further,
it has come on record that the complaint is filed at the behest of
one Ramjibhai, who hatched conspiracy and colluded to falsely
arraign the appellant as an accused in false trap case.
In
view of the above, the impugned judgment and order dated 25.5.2001
passed by the learned Special Judge (ACB), Mehsana in Special (ACB)
Case No.14 of 1993 is quashed and set aside and the appellant –
accused is hereby acquitted from all the charges alleged against
him. Bail bonds, if any, stands cancelled. Fine, if any paid, shall
be refunded to the appellant. R & P, if received, be sent back
to the trial Court, forthwith.
(Z.K.SAIYED,
J.)
ynvyas
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