{"id":85311,"date":"2011-09-27T00:00:00","date_gmt":"2011-09-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hitendra-vs-d-w-1-bhanuprasad-ambalal-on-27-september-2011-3"},"modified":"2017-02-21T07:11:31","modified_gmt":"2017-02-21T01:41:31","slug":"hitendra-vs-d-w-1-bhanuprasad-ambalal-on-27-september-2011-3","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hitendra-vs-d-w-1-bhanuprasad-ambalal-on-27-september-2011-3","title":{"rendered":"Hitendra vs D.W.1 Bhanuprasad Ambalal … on 27 September, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Hitendra vs D.W.1 Bhanuprasad Ambalal … on 27 September, 2011<\/div>\n
Author: Z.K.Saiyed,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/449\/1998\t 16\/ 16\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 449 of 1998\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE Z.K.SAIYED\n \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n=========================================\n\n\n \n\nHITENDRA\nNATWALAL RAO - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n=========================================\n \nAppearance : \nMR\nHN  JOSHI FOR M\/STHAKKAR ASSOC. for Appellant(s) : 1, \nMR HL JANI\nADDITIONAL PUBLIC PROSECUTOR for Opponent(s) :\n1, \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE Z.K.SAIYED\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 25\/02\/2011 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
1.\tThe
\npresent appellant has preferred this appeal under Section 374(2) of
\nthe Code of Criminal Procedure, against the judgment and order of
\nconviction and sentence dated 5.5.1998 passed by the learned Special
\nJudge, Nadiad in Special Case No.7 of 1994, whereby, the learned
\nJudge has convicted the appellant under section  161 of the Indian
\nPenal Code and sentenced to undergo R.I. for one year and to pay a
\nfine of Rs.1000\/-, in default, to undergo three months S.I. Learned
\nSpecial Judge was pleased to convict and sentence the appellant under
\nSections 7 and sec. 13(2)of the Prevention of Corruption Act and
\nsentenced him to undergo R\/I for two years and to pay a fine of
\nRs.2000\/-, in default, to undergo S.I. for four months.\n<\/p>\n
2.\tThe
\nbrief facts of the prosecution case is as under:\n<\/p>\n
3.\tIt
\nis the case of the prosecution that the appellant was serving as
\nP.S.I. at Tarapur Police Station and one accused named Shakraji
\nSomaji Dabhi was performing his duty as Unarmed Head Constable at the
\nvery police station. The complainant Pramodbhai Shankarbhai Patel and
\nBhanubhai Ambalal Purohit were engaged in business of caterers. The
\naltercation took place between the complainant and Manubhai
\nParsottambhai Patel and Vishnubhai Parsottambhai regarding dues of
\nbusiness and about borrowing the amount to the said persons. In
\nconnection to the said dispute, against Bhanuprasad Ambalal and other
\nthree persons the complaint was lodged before Tarapur Police Station
\non 24.6.1993 and the investigation was handed over to  Shakraji
\nSomaji Dabhi, Head Constable. Said Constable told the complainant to
\nmeet the appellant – accused, who was P.S.I. of the Police
\nStation, if you would want to dispose the complaint. Thereafter,
\ncomplainant met the appellant and the appellant demanded Rs.15000\/-
\nfrom the complainant. Ultimately, the deal was fixed in the sum of
\nRs.6000\/- therefore, the complaint was lodged against the appellant –
\naccused and other accused, who was Constable at Tarapur Police
\nStation regarding demand of bribe made by the accused before the ACB,
\nNadiad and in the said complaint, the signatures of two witnesses
\nwere taken and they were Ramanbhai Kabhaibhai Solanki and Subhasbhai
\nJamnadas Rathod were called from Jilla Panchayat office, Nadiad.
\nThereafter, P.I. Mr. Bhatt, A.C.B. told the complainant to produce
\nthe trap amount and therefore, the complainant produced the trap
\namount of Rs.6000\/- (Rs.500 x 8 = Rs.4000\/- and Rs.100 x 20 =
\nRs.2000\/-).  The numbers of said currency notes were noted in first
\npart of Panchnama and thereafter, anthracene powder was applied to
\nthe said currency notes and experiment of ultra violet lamp of the
\nsaid notes was carried out. Thereafter, the complainant, panchas and
\nraiding party went to Tarapur Police Station, where the appellant
\naccused was present at that time. The complainant met the accused,
\nwho had demanded the bribe amount and the said amount was accepted by
\nthe appellant accused and kept the said amount in the left pocket of
\npent. Thereafter, the complainant made signal to the member of
\nraiding party, who were standing outside the police station and
\ntherefore, they entered to the police station and said currency notes
\nwere recovered from the pocket of the appellant – accused and
\nanthracene powder was found on the hand, tips and thumb of right hand
\nand the edge of the pocket of the accused appellant. After obtaining
\nthe sanction from the appropriate authority, the charge-sheet was
\nfiled,  which was given number as Special Case No. 7 of 1994.\n<\/p>\n
4.\tThereafter,
\nthe charge was framed at Ex. 8 against the appellant. The appellant –
\naccused has pleaded not guilty and claimed to be tried.\n<\/p>\n
5.\tIn
\norder to bring the home the charge levelled against the appellant-
\naccused, the prosecution has examined the following witnesses<\/p>\n
Complainant\n<\/p>\n
\t– Pramodbhai Shankarbhai Patel at Exhibit 12, PW No.1<\/p>\n
Ramanbhai
\n\tK. Solanki, Panch No.1 Exhibit 15<\/span><\/p>\n
Subhash
\n\tJamnadas Rathod Panch No.2 Exhibit 19<\/span><\/p>\n
Gurudayalsingh
\n\tGopalsingh Add.DGP, PW 3  <\/p>\n
Pushpalsingh
\n\tNathulal Doshi PW 4<\/p>\n
Melaji
\n\tSomaji Sodha, Writer Exhibit 30 PW No.5<\/p>\n
Udesinh
\n\tBhikhabhai Vaghela Exhibit 39, PW No.6<\/p>\n
Suryakant
\n\tAmbalal Bhatt PI ACB, Exh. 40 PW 7<\/p>\n
6.
\n\tThe prosecution has also produced various  documentary evidence
\nbefore the trial Court to prove the case.\n<\/p>\n
7.\tThe
\ndefence side has examined following witnesses:\n<\/p>\n
\t1.
\nD.W.1 Bhanuprasad Ambalal Purohit<\/p>\n
\t2.
\nD.W.2 Nutkur Gulamnabi Vhora<\/p>\n
8.\tThereafter,
\nafter examining the witnesses, further statement of the
\nappellant-accused under sec. 313 of Code of Criminal Procedure was
\nrecorded in which the appellant-accused has denied the case of the
\nprosecution.\n<\/p>\n
9.\tAfter
\nconsidering the oral as well as documentary evidence and after
\nhearing the parties, learned Special Judge vide impugned judgment and
\norder dated 5.5.1998 held the appellant – accused guilty to the
\ncharges levelled against him and sentenced him as stated above<\/p>\n
10.\tBeing
\naggrieved by and dissatisfied with the impugned judgment and order of
\nconviction and sentence passed by the learned Special Judge, Nadiad,
\nthe present appellant has preferred this appeal.\n<\/p>\n
11.\tHeard
\nMr. Joshi learned advocate for the appellant and Mr H.L. Jani learned
\nAPP for the respondent-State.\n<\/p>\n
12.\tMr
\nJoshi learned advocate appearing for the appellant has read the
\nevidence of complainant Mr. Pramodbhai at Exhibit 12 and submitted
\nthat the complainant did not support the case of the prosecution and
\nlater on he was declared hostile. Therefore, it is clearly
\nestablished that the appellant had not made any demand from the
\ncomplainant. Even from the bare perusal of the evidence of the said
\nwitness, it appears that when the complainant went inside the chamber
\nof the appellant, at that time, panch No.1 was not with him but he
\nwas outside the chamber. He further submitted that there are four
\nstages, which are required to be proved though the evidence of the
\ncomplainant and there should be corroboration to all four stages from
\nindependent evidence and the stages are like (1) Initial demand (2)
\nSecond demand to be made in the presence of panch (3) Acceptance and
\n(4) recovery. He submitted that there is no evidence pertaining to
\ninitial demand or demand at the time of raid even any stage in the
\ninstant case, therefore, it cannot be said that the prosecution has
\nestablished the case against the appellant. The complainant himself
\nsubmitted that as per the evidence of the complainant, it appears
\nthat the appellant had never demanded any bribe money from him. The
\ndemand is most vital part, which was required to be proved by the
\nprosecution. He further submitted that there is no evidence about
\nthat the appellant made the demand of Rs.15,000\/- on 25th
\nJune and after 3 to 4 days , later on it was fixed at Rs.7000\/- and
\nthereafter, once again it was fixed at Rs.6000\/-. Even the
\nprosecution has failed to select independent person as a panch and
\nthe panchas in the instant case, were deliberately selected. As per
\nthe evidence of Mr. Bhatt at Exhibit 40, he admitted that it is true
\nthat he used to take the Government servant as a panch witness with a
\nview to see that the Government servants can be pressurized to give
\ndepositions as per the panchnama. Therefore, the panch witnesses
\ncannot be said to be an independent witnesses.  He also submitted
\nthat the person viz. Bhanuprasad Purohit, from whom the alleged bribe
\nwas demanded, is cited as witness, but he was not examined by the
\nprosecution. The PW 2 – Ramanbhai K. Solanki, Exh.15 stated in
\nhis evidence that he is in the government service and if he would not
\ndeposed as per panchnama written by ACB, he would have to face
\ndifficulty. The witness also submitted that the marks of anthracene
\npowder were found inside of pocket of complainant and he has not
\nstated with regard to the experiment of ultra violet lamp on the
\nhands of appellant – accused and the hands of accused were seen
\nin the ultra violate lamp. This coupled with the fact that P.W.1 –
\ncomplainant has not stated any thing about acceptance of bribe by
\nappellant – accused. Thus, acceptance of bribe cannot be said
\nto have been proved beyond reasonable doubt.\n<\/p>\n
13.\tMr.\n<\/p>\n
Joshi learned advocate for the appellant has also contended that the
\nsanction letter at Exhibit 21 is not correct as per law. The conduct
\nof the complainant is also required to be considered as he was
\ndeclared later on hostile. The material DW No.1 Bhanuprasad Ambalal
\nPurohit has not supported the case of the prosecution. As per his
\nevidence, said Pramodbhai, complainant never demanded Rs.6000\/- from
\nhim, which was to be given in form of bribe to the accused and he had
\nno knowledge that said Pramodbhai lodged complainant before ACB
\nagainst the present appellant and one another accused –
\nConstable. Therefore, it clearly appears that he has not supported
\nthe case of the prosecution even though he is a star witness and the
\ncomplaint, which was lodged, in which he was main accused and due to
\nrelationship with the complainant, the complainant lodged the
\ncomplainant before ACB against accused. The accused submitted the
\nwritten statement at Exhibit 72 in which he denied the story narrated
\nby the complainant in the complaint, but the same has not been
\nconsidered by the learned Special Judge during the course of trial.
\nD.W. 2 Batadoor Ghulamnabi Vora at Exhibit 75 stated that the accused
\nmade demand during the conversation with the complainant and the
\ncomplainant signaled to the raiding members of the ACB. Mr. Joshi,
\nlearned advocate also submitted that learned Special Judge has not
\ntaken into consideration the statement of the accused recorded under
\nSection 313 of the Code of Criminal Procedure. He further submitted
\nthat the complainant was a President of political party and closely
\nassociated with MLA and he frequently visited the Tarapur Police
\nStation and was making unusual demands. Even these persons i.e. the
\ncomplainant and MLA were pressurizing the accused to falsely involve
\nthe Sarpanch under Section 408 of the Indian Penal Code in the scam
\nof one Milk Produce Society and the accused did not succumb to their
\nillegal demand and therefore, the complainant threatened the accused
\nto involve in the offence of bribe. Necessary entry was made in the
\nStation diary against complainant. Mr. Joshi further submitted that
\nthe Investigating Officer Mr. Bhatt had visited Tarapur and called
\nthe accused but the accused could not meet him as he was busy with
\ninvestigation of some other case and therefore, said Mr. Bhatt
\nthreatened the accused through the police constable that the
\nappellant – accused does not know what is the ACB Department and he
\nwill teach him a lesson. He also submitted that one Criminal case
\nbeing C.R. No.I 43 of 1993 was registered with Tarapur Police
\nStation, against Bhanubhai Purohit and the investigation was not with
\nthe appellant accused. The relationship of the accused and Sakraji
\nDabhi, accused No.2 was not good, as the accused No.2 remained absent
\non duty without any report. Mr. Joshi, learned advocate also
\nsubmitted that the complainant tried to give money forcefully and to
\nput the same in the pocket and therefore, the accused caught his hand
\nand gave a push. The money were lying on the floor and at that time,
\nthe members of raiding party came there and raid was carried out.\n<\/p>\n
14.\tMr.\n<\/p>\n
Joshi, learned advocate relied upon the case reported judgment in
\nCriminal Law Reporter (Mah) 1986 in the case of Marverka H.
\nPathan Vs. State of Maharashtra, wherein in para 20 it has been
\nobserved that “once the foundation of the demand becomes not
\nonly brutal but is practically destroyed, then this must have impact
\non the other circumstances because as stated earlier, one
\ncircumstance in such cases always unfolds
\nother and the impact of one on other cannot be ignored.”
\nHe further submitted that in corruption cases, it is the duty of the
\ninvestigating officer to secure independent and respectable witness.
\nIn support of this submission, he has relied upon the case of Raghbir
\nSingh Vs. State of Punjab reported in AIR 1976 SC 91. Mr.
\nJoshi, learned advocate further submitted that learned Special Judge
\nfailed to appreciate that the accused would ever demand and accept
\nthe bribe in the presence of person about whom he was not sure and in
\nthis circumstances, the appellant accused was entitled to be
\nacquitted. He relied for this submission, on case of G.V.
\nNanjundiah Vs. State (Delhi Admn.), more particularly, para 21 of
\nthe judgment.\n<\/p>\n
15.\tMr.\n<\/p>\n
Joshi, learned advocate further submitted that the currency notes
\nwere not recovered from the actual or even conscious possession of
\nthe appellant and therefore, the accused has been wrongly convicted
\nand sentenced by the learned Special Judge. He relied upon the case
\nof Surajmal Vs. State (Delhi Administration) reported in AIR
\n1979 SC 1408. Learned advocate Mr. Joshi also submitted that the
\nuse of anthracene powder on the currency notes was not perfect and
\nproper because said practice of applying anthracene powder on
\ncurrency notes is deprecated by this High Court. He further submitted
\nthat learned Special Judge ought to have given the benefit of doubt
\nto the present appellant in the circumstances, where no demand by the
\nappellant is proved and even the aspects of acceptance or recovery of
\nthe currency notes are proved as the complainant did not support the
\ncase of the prosecution. In support of this submission, he relied
\nupon the case of K.S. Pandya Vs. State of Gujarat reported in
\n1992 (1) Crimes 488. Mr. Joshi, learned advocate further
\nsubmitted that in the instant case, sanctioned letter was already
\nprepared by the ACB department, without proper application of mind.
\nTherefore, the sanction granted against the appellant is completely
\ncontrary to law.   In that view of the matter, Mr. Joshi, learned
\nadvocate submitted that the impugned judgment and order of conviction
\nand sentence requires to be quashed and set aside.\n<\/p>\n
16.\tAs
\nagainst this, Mr H.L. Jani learned APP appearing for the respondent –
\nState has argued that the prosecution has examined in all 7 witnesses
\nin support of the prosecution case and from the oral evidence of
\ncomplainant, it is established that demand was made by the present
\nappellant as per the tactics and practice of the office of the
\nappellant and in connection of the said trap, amount was paid to the
\npresent appellant and, therefore, demand is proved beyond reasonable
\ndoubt. Initially, the amount of bribe was fixed at Rs.15,000\/- and
\nthereafter, after requests made by the accused, the amount was
\ndetermined to the tune of Rs.6000\/-. It was very well proved before
\nthe learned trial Judge that the appellant accused made demand of
\nbribe amount and same was accepted by the accused. He has read the
\noral evidence of panch, complainant and Trapping Officer and argued
\nthat trap amount was recovered from the pocket of the
\nappellant-accused and anthracene powder was also found from the
\nfingers, tips, thumb  of the appellant, therefore, presumption is
\nrequired to be drawn against the present appellant. He has read the
\nimpugned judgment and order and contended that the learned Judge has
\nconsidered the defence as well as case of the prosecution and he has
\nrightly convicted the appellant as per the provisions of law and,
\ntherefore, the impugned judgment and order of conviction and sentence
\npassed by the learned Judge requires to be confirmed. Mr Jani,
\nlearned APP has contended that suppose as per the say of the
\nappellant, the demand is not established, yet when the acceptance is
\nestablished and even the anthracene powder was found from the tips,
\nfingers and thumb of right hand of the appellant accused and on the
\ncurrency notes accepted by the appellant, then no question can  arise
\nthat in absence of demand, the appellant accused is entitled for
\nacquittal. Mr. Jani, learned APP further submitted that the
\nsanctioned was given by competent Authority after considering the
\nseriousness of the offence. Therefore also, the impugned judgment and
\norder of conviction and sentence passed by the learned Judge requires
\nto be confirmed.\n<\/p>\n
17.\tI
\nhave gone through the impugned judgment and order passed by the
\nlearned Judge and  oral as well as documentary evidence produced on
\nthe record. I have read the oral evidence of prosecution
\nwitness-complainant and also perused the charge framed against the
\nappellant. From the perusal of the oral evidence of complainant PW-1,
\nit is established beyond reasonable doubt that at the event of first
\nmeeting, the complainant met the appellant but there was no any kind
\nof conversation and no demand was made by the present appellant to
\nthe complainant. As per his evidence also, the accused No.2 –
\nShakrabhai, who was Head Constable, had told the complainant that
\nthere was no talk with the appellant. The complainant made his own
\npresumption about the intention of the appellant and said Bhanuprasad
\nand complainant went to the ACB office. The complainant also stated
\nin his oral evidence that he presumed about the intention of the
\nappellant to take money from the complainant, but there was no any
\nclear conversation with the appellant or even with the said Constable
\nShakraji. The complainant also stated in his evidence that the
\ncomplainant went into the police station and there was no any person
\nwith him and after giving Rs.6000\/- to the appellant, he gave signal
\nto the ACB personnel. As per the complainant, he had even no
\nknowledge about where the appellant had kept the money, after taking
\nthe same from the complainant. From the perusal of the judgment and
\norder passed by the learned Special Judge, it appears that the
\ncomplainant was declared hostile when he was cross-examined and he
\nhad not supported the case of the prosecution. It is also admitted
\nfact that on the same day, the complainant has never talked to the
\nappellant with regard to the bribe amount, so the demand as per the
\nprosecution case is not established beyond reasonable doubt. In this
\ncase, the demand is not proved and the demand in a corruption case is
\na sine qua non for proving a case. This demand is missing in this
\ncase. Moreover, the panch No.1 was admittedly out side the police
\nstation and therefore, he cannot be said to be witness, in his
\npresence, the demand was raised by the appellant – accused.
\nTherefore, in absence of proof of demand, the offence under Section
\n13(1)(d) of Act cannot be held to be established.\n<\/p>\n
18.\tSo
\nfar as the oral evidence of P.W. 2 Ramanbhai Solakni a Exhibit 15 is
\nconcerned, there were certain contradictions and this evidence is not
\na corroborative piece of evidence. Even from the evidence P.W.3, he
\nfairly admitted that the sanction was given without applying mind.
\nTherefore, he has not supported the case of the prosecution.
\nTherefore, as per the complaint, initial conversation regarding
\ndisposal of the complaint was made with the accused No.2 and
\nthereafter, the accused No.2 told the complainant to meet the
\nappellant accused. So, the story narrated in the complaint and in the
\ndeposition of this witness is quite different. Thus, present accused
\nwas not having charge of investigation of that case. As per the
\ndeposition of P.W.5 Melaji Somaji Sodha at Exhibit 30, the said
\nwintess stated in his cross-examination that the investigation was
\nhanded over to accused No.2 with regard to the complaint being C.R. I
\n49 of 1993 and not with the appellant and he also admitted that the
\naccused No.2 was frequently remained absent on duty and therefore,
\nappellant condemned  him to remain present on duty and therefore,
\naltercation took place between them. But he had not averred or
\nadmitted that the appellant had made demand of bribe amount and the
\nacceptance about the bribe money. Therefore, he had not supported the
\ncase of the prosecution at all. Therefore, it is very well
\nestablished that the appellant had never demanded any bribe or
\nillegal gratification from the complainant. P.W.40 Suryakant Ambalal
\nBhatt, P.I., ACB, stated in his deposition that he has no knowledge
\nabout what had happened before entering into the police station,
\nwhere the accused was P.S.I., he had solely relied upon the statement
\nof the complainant. He had no knowledge about strained relationship
\nbetween the accused No.1 and 2 and he had not made any inquiry about
\npast history of the complainant and later on he came to know that the
\ncomplainant was not reliable person.\n<\/p>\n
19.\tD.W.1\n<\/p>\n
– Bhanuprasad stated in his deposition at Exhibit 74 that the
\naccused never demanded money from him and the complainant made any
\ndemand from the said witness about Rs.6000\/- towards bribe amount.
\nD.W. 2 – Nutkur Gulamnabi Vhora stated in his deposition at Exhibit
\n75 that the complainant himself kept the bribe money in the pocket of
\nthe appellant and at that time, the accused threw the money on the
\nfloor and immediately, the complainant rushed down outside the police
\nstation for indicating the ACB personnel. When the ACB personnel came
\ninto the police station, the money was found on the floor. In his
\ncross-examination, he admitted that during the conversation between
\nthe complainant and accused, there was no  demand made by the accused
\nand he also denied that after taking the money, the accused kept the
\nsame in his pocket. It is also proved beyond reasonable doubt from
\nthe oral evidence  of the complainant as well as  witnesses that at
\nTarapur Police Station, the appellant had not on his own accepted
\nbribe money or made any demand of bribe and the complainant himself
\ndeclared hostile then there is no question regarding any kind of
\nallegation against the accused pertaining to demand and acceptance.
\nSo, no doubt, as per the say of the prosecution, recovery of trap
\namount and presence of anthracene powder is also established against
\nthe present appellant, however, looking to the record, it is
\nestablished that there is contradictory version of the panch and
\ncomplainant   It is the case of the prosecution that the trap amount
\nwas found from the appellant and produced before the Trapping
\nOfficer, but when the demand is not established beyond reasonable
\ndoubt, then acceptance and recovery is not sufficient to convict the
\npresent appellant-accused. This coupled with fact that panch No.1
\ndoes not say that hands of accused were seen in ultra violet lamp or
\nmarks of anthracene powder were found on hands of the accused. The
\npanchnama has not supported the case of the prosecution. The accused
\nalso submitted the written submission before the lerned Sessions
\nCourt at Exhibit 74, wherein he stated that due strained relation
\nwith the accused No.2, the accused has been wrongly arraigned in the
\noffence. Even Bhanubhai, who was accused of the alleged crime, has
\nsupported the case of the accused and in the written statement, it
\nreflects that said Bhanubhai has not lodged complaint before ACB, but
\n Pramodbhai lodged the complaint against the accused and therefore,
\nit appears that the complainant had some grudge with the appellant
\naccused and therefore, complaint was lodged before the ACB. I have
\nalso perused the statement of the present appellant recorded under
\nsec.313 of Code of Criminal Procedure and in that view of the matter,
\nit cannot be considered that the statement of the appellant recorded
\nunder sec. 313 of Code of Criminal Procedure, is an after thought.
\nThe probable defence is established by the present appellant beyond
\nreasonable doubt. In the latest decision of the Supreme Court in the
\ncase of  Banarsi Das Vs. State of Haryana, reported in AIR 2010
\nSC 1589, wherein, the Hon’ble Supreme Court has observed that
\nmere proof of recovery of bribe money from accused not sufficient to
\nprove the offence. In that view of the matter, I am of the opinion
\nthat so far as the offence of bribery is concerned, the demand and
\nacceptance of bribe is required to be proved beyond reasonable doubt
\nand mere proof of recovery of bribe money from accused is not
\nsufficient to prove the offence and to hold the person guilty.
\nPresumption cannot be raised when demand is not proved in this case.
\nTherefore, in absence of any evidence regarding the demand, then mere
\nalleged recovery is not sufficient to convict the present appellant
\nand hence, this appeal deserves to be allowed.\n<\/p>\n
20.\tIn
\nthe result, the appeal is allowed. The judgment and order dated
\n5.5.1998 passed by the learned Additional Sessions Judge, Nadiad in
\nSpecial Case No.7 of 1994, is hereby quashed and set aside. The
\nappellant – accused is hereby acquitted from the charges
\nalleged against him. Bail bonds shall stands cancelled. R & P to
\nbe sent back to the concerned trial Court, forthwith.\n<\/p>\n
(Z.K.SAIYED,J.)<\/p>\n
ynvyas<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Hitendra vs D.W.1 Bhanuprasad Ambalal … on 27 September, 2011 Author: Z.K.Saiyed, Gujarat High Court Case Information System Print CR.A\/449\/1998 16\/ 16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 449 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================= 1 Whether Reporters of Local Papers may […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-85311","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nHitendra vs D.W.1 Bhanuprasad Ambalal ... on 27 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hitendra-vs-d-w-1-bhanuprasad-ambalal-on-27-september-2011-3\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hitendra vs D.W.1 Bhanuprasad Ambalal ... on 27 September, 2011 - 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