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Gujarat High Court · body

2009 DIGILAW 93 (GUJ)

STATE OF GUJARAT v. LAXMANSINHJI DANSINHJI GOHIL

2009-02-17

K.S.JHAVERI, Z.K.SAIYED

body2009
JUDGMENT Z. K. SAIYED, J. The State has preferred this appeal under Sec. 378 of Cr.P.C. against the judgment and order of acquittal dated 15-4-1993 passed by the learned Special Judge, Nadiad in Special Case No. 1 of 1990. 2. The complainant Parbatsinh Dipsinh Sodha, a tailor, resident of village Baladi, Dist. Kheda, has two brothers, and therefore, it was his wish to stay at his in-law's house. At village Fatiabad, his uncle-in-Law's property was there, and therefore, he wanted to purchase it and for that transaction, he paid Rs. 1000/- and entered into banaklzat and for the registration of the same, he has visited the office of Sub-Registrar on 3-4-1987. 2.1. They reached at Sub-Registrar's office and met Mr. L. D. Gohil and gathered some information regarding the costs of the registration. He paid Rs. 50/- for that and then Sub-Registrar officer Mr. Gohil called one Manojbhai and directed him to purchase stamp paper of Rs. 15/-. Thereafter, a draft was prepared by Manojbhai and signatures of the parties were taken for purchase of stamps, and thereafter, they came to the office of Sub-Registrar with Manojbhai. Mr. Gohil asked Manojbhai to go out from the office and Parbatsinh was alone at that time. Mr. Gohil told him that "we have worked hard, so pay us" and they should be paid accordingly, and therefore, he demanded Rs. 200/- and told him that if he will not pay Rs. 200/-, then his work will not be done. At that time, the complainant had only Rs. 100/-, and therefore, he paid Rs. 100/- to Mr. Gohil. However, the stamp paper was kept with Mr. Gohil and told him that remaining Rs. 100/- to be paid to him by 4-00 p.m. on the next day and assurance was also obtained from the complainant. 2.2. However, complainant was not ready to give bribe money to the public servant Mr. Gohil. Therefore, he approached to the A.C.B. Office, at Nadiad and he has explained everything before the Police Inspector and then his complaint was recorded. 2.3. Thereafter, two panchas were called upon by the Police Inspector, A.C.B., Nadiad. Both the panchas were introduced by Trapping Officer to complainant and short facts of the complaint were narrated by complainant before the two panchas and also the complaint was read over to them. Thereafter, complainant has produced trap amount of Rs. 2.3. Thereafter, two panchas were called upon by the Police Inspector, A.C.B., Nadiad. Both the panchas were introduced by Trapping Officer to complainant and short facts of the complaint were narrated by complainant before the two panchas and also the complaint was read over to them. Thereafter, complainant has produced trap amount of Rs. 100/- in form of nine notes of Rs. 10/-, and two notes of Rs. 5/-. Then, preliminary panclznama was drawn. Search was also made by the panchas on the complainant and contents were noted in the panclmama. Trap amount which was produced by the complainant was handed over to Head Constable Babarbhai Shanaji Vaghela and Trapping Officer has instructed him to apply anthracene powder on the said currency notes and called for ultra violate lamp. 2.4. Thus, every practicals were made by the Head Constable Babarbhai Shanaji Vaghela and some contents were also noted in the panchnama, then, anthracene powder was applied on the currency notes and they were put in the pocket of shirt of complainant and then Trapping Officer has also verified the same and satisfied himself regarding non-presence of anthracene powder on each members of the raiding party. Thereafter, complainant and panchas were instructed by Trapping Officer and preliminary panchnama was drawn. 2.5. Then raiding party went to the office of Sub-Registrar and panch No.1-Rasidmiya Subamiya Malek went in the office of Mr. Gohil along with complainant. It was also instructed by the Trapping Officer that complainant will not touch the trap amount prior to the demand which may be made by the accused and panch was also instructed that he shall remain with the complainant and try to hear and see the transaction of trap amount. 2.6. Thereafter, when panch and complainant entered into the office of Mr. Gohil, he was present and he asked the complainant that all parties for document are present. He said, yes. Then, all were directed to take their seat and at that time, panch was also accompanied with the complainant. 2.7. Mr. Gohil has started procedure and signatures were also obtained and he has also verified the presence of panch, but just to hide identity of panch, he was introduced as brother of complainant. Thereafter, on completion of all the procedure of Office of Sub-Registrar, the complainant told Mr. Gohil that as per yesterday talk, he came with Rs. 100/-. Then, accused Mr. Thereafter, on completion of all the procedure of Office of Sub-Registrar, the complainant told Mr. Gohil that as per yesterday talk, he came with Rs. 100/-. Then, accused Mr. Gohil told him to give the same. So, complainant has taken out the trap amount from his pocket and when he tried to give it to Mr. Gohil, he told him to give the same to Mr. Manojbhai, and thereafter, he will take it from him. So, Manojbhai who was also present there came to the complainant and accepted that trap amount, counted it and he has also offered it to Mr. Gohil, but Mr. Gohil told him that "to keep it with him, he would collect it later on". Therefore, the trap amount was put in the pocket of Manojbhai and then as per the signal given by the complainant to the Trapping Officer, the raiding party rushed to the place of Mr. Gohil. 2.8. The Trapping Officer introduced himself and other members of the raiding party and he has verified the name of Mr. Gohil and also verified the trap amount. Thereafter, he has also verified from the panch and the reply of Mr. Gohil was also supported by panch witness. 2.9. The U. V. Lamp Operator Babarji was also present with ultra violate lamp. He was directed by the Trapping Officer to make test of U. V. Lamp and the same were done. Hands of the members of the raiding party were also searched but in the natural light, anthracene powder was not found, and thereafter, Trapping Officer instructed the lamp operator to use U. V. Lamp. The lamp operator Mr. Babarji has verified and checked hands of the members of raiding party, except panch, complainant and accused, but no symptoms of anthracene powder was found on the hands, fingers and tips of the members of raiding party. Thereafter, lamp operator has applied rays of U. V. Lamp on the fingers of both the hands and clothes of Manojbhai @ Mansinh Rupsinh Jhala, resident of Kapadvanj. In the light of U. V. Lamp, the presence of anthracene powder was found on the right hand thumb, tips of fingers and palm as well as from clothes, pockets and inside the pocket of the shirt. They have seen light brownish shining marks present. 2.10. Then, panch No. 1 was directed by the Trapping Officer regarding search of Manoj R. Zala. They have seen light brownish shining marks present. 2.10. Then, panch No. 1 was directed by the Trapping Officer regarding search of Manoj R. Zala. While checking panch has taken out the trap amount from the pocket of shirt of Manoj and number of currency notes were tallied with the first part of the panchnama. They have found that the numbers which were mentioned in the first part of the pane/mama were same. Thereafter, the trap amount and shirt of Manojbhai were seized and sealed and signatures of both the panchs as well as Trapping Officer were made. 2.11. Then search of Mr. L. D. Gohil was also made and articles were seized under the panchnama. The documents of the complainant were called and recovered from the office and contents of the documents were mentioned in the panchnama and other documents were also seized. 2.12. Thereafter, clothes and hands of the complainant Parbatsinh Dipsinh Sodha were also verified in the light of U. V. Lamp and from right hand fingertip and pocket of shirt, outside and inside, the presence of anthracene powder was found by the panchas as well as members of the raiding party and search of complainant was made. 2.13. Thereafter, panchnama of the office of accused No. 1 was drawn and every articles which were present there were noted in panchnama and statements of panchas as well as complainant were recorded. Thereafter, the offence was registered in connection of the complaint of complainant Parbatsinh Dipsinh Sodha and both the accused, i.e. Mr. N. D. Gohil and Manojbhai, were arrested and statements were also recorded. 3. Thereafter, further investigation was carried out by the officer and sanction of the prosecution was obtained from the competent authority of accused No. 1 and charge-sheet was filed before the learned Special Judge, Nadiad. After verification of the papers of charge-sheet, cognizance was taken by the learned Special Judge, and accordingly, charge was framed against both the accused. 4. The prosecution has examined following witnesses P.W. 1 Parbatsinh Dipsinh Exh. 37 P. W. 2 Rasidmiya Subamiya Malek Exh. 45 P.W. 3 Sitaram Vishwnath Maurya Exh. 59 5. In support of the case of the prosecution, the prosecution has produced the following documentary evidence 1. Muddamal pavti Exh. 2 2. Stamp paper Exh. 38 3. Receipt of muddamal articles No. 4 Exh. 41 4. Muddamal articles No. 6 Exh. 42 5. 37 P. W. 2 Rasidmiya Subamiya Malek Exh. 45 P.W. 3 Sitaram Vishwnath Maurya Exh. 59 5. In support of the case of the prosecution, the prosecution has produced the following documentary evidence 1. Muddamal pavti Exh. 2 2. Stamp paper Exh. 38 3. Receipt of muddamal articles No. 4 Exh. 41 4. Muddamal articles No. 6 Exh. 42 5. Muddamal articles No. 8 Exh. 43 6. Receipt Book of muddamal articles Exh. 44 7. Panchnama of trap amount Exh. 54 8. Letter of sanction dated 31-12-1988 Exh. 55 9. Original complaint Exh. 60 10. Transfer order of accused No. 1 dated 21-5-1985 Exh. 61 6. On submission of closing pursis, learned Special Judge recorded further statements of accused under Sec. 313 of Cr.P.C. At the end of the trial, learned Special Judge acquitted the respondents-accused of the charges levelled against them. 7. Being aggrieved by and dissatisfied with the said judgment and order dated 15-4-1993 passed by the learned Special Judge, the appellant-State has preferred the present appeal. 8. Mr. R. C. Kodekar learned A.P.P. appearing for the appellant-State has taken us through the evidence on record, documentary as well as oral. 8.1. Mr. Kodekar has submitted that the trial Court has not read the evidence of the material witnesses in the manner in which it ought to have been read and has clearly misread the evidence. 8.2. He has also contended that the order of learned Special Judge is not proper in eye of law, and therefore, he has committed an error. 8.3. Mr. Kodekar has read the panchnama and complaint and submitted that, first the demand was made by the accused and an amount of Rs. 100/- was also accepted and accused was ready to accept the remaining amount of Rs. 100/- on the next day. It is submitted that from the contents of complaint, the prosecution has established its case beyond doubt so far as the demand of accused No. 1 is concerned. 8.4. He has also contended that complainant's evidence is very clear and it is also established from the oral evidence of complainant that the accused has demanded Rs. 200/- and accepted Rs. 100/- and also agreed to accept the remaining amount of Rs. 100/ - on the next day i.e. on 4-4-1987. 8.5. Mr. Kodekar has contended that in the presence of panch who is independent witness, bribe amount of Rs. 200/- and accepted Rs. 100/- and also agreed to accept the remaining amount of Rs. 100/ - on the next day i.e. on 4-4-1987. 8.5. Mr. Kodekar has contended that in the presence of panch who is independent witness, bribe amount of Rs. 100/- was accepted. He has also read the oral evidence of panch witness and contended that panch witness and complainant has produced sufficient evidence to establish that accused No: 1 has demanded illegal gratification. Mr. Kodekar further contended that the trap money was recovered from the possession of accused No.2. 8.6. Mr. Kodekar further contended that the second demand is totally established from the oral evidence of panch witness and complainant because in the presence of panch, accused No. 1 told the complainant to hand over that bribe money (trap money) to accused No. 2 and that trap money was accepted by accused No. 2 and he has also tried to give that bribe money to accused No. 1, but he told him "to keep it with him and that he would collect it later on". 8.7. Mr. Kodekar has read the oral evidence of complainant and dialogues took place between complainant and accused No. 1 and vehemently argued that from the oral evidence of complainant as well as panch witness, the prosecution has also proved second demand and acceptance of bribe amount. 8.8. Mr. Kodekar has also submitted that from the finger-tips and pocket of shirt of accused No.2, presence of anthracene powder was found and trap amount was also recovered from accused No.2. He has also submitted that accused No. 2 is an abettor of accused NO.1. 8.9. He read the provisions of Secs. 107 and 108 of I.P.C. and submitted that from the evidence of panch witness as well as complainant, the prosecution has established that accused No. 2 has accepted the trap amount and he has abetted accused No.1. 8.10. Mr. Kodekar has also submitted that when the demand and possession is established before the trial Court and when the oral evidence of panch as well as complainant is in a position to prove the demand and acceptance, then learned Judge should not ignore and discard the evidence of prosecution. 8.11. Mr. 8.10. Mr. Kodekar has also submitted that when the demand and possession is established before the trial Court and when the oral evidence of panch as well as complainant is in a position to prove the demand and acceptance, then learned Judge should not ignore and discard the evidence of prosecution. 8.11. Mr. Kodekar has submitted that learned Judge has committed an error in acquitting the respondents-accused, and therefore, the judgment and order of acquittal is required to be quashed and set aside and respondents are required to be convicted under the provisions of Prevention of Corruption Act. 9. On behalf of respondent No. 1 learned Advocate Mr. Buddhbhatti is present. None appears for respondent No.2. Mr. Buddhbhatti states that he will assist for both the accused. 9.1. Learned Advocate Mr. Buddhbhatti has submitted that the judgment and order passed by the learned Judge is proper and legal and the learned Judge has not committed any error while acquitting the accused. 9.2. He has also submitted that important witness was not examined and prosecution has no right to say that the case of the prosecution is proved beyond any reasonable doubt. 9.3. He has also contended that from the evidence of the complainant, the prosecution has failed to prove first demand as well as the second demand. 9.4. He has also contended that panch is an interested witness because he is a public servant and just due to the fear of further prosecution against him, he has explained his oral version in favour of prosecution. 9.5. Mr. Buddhbhatti has also submitted that from the oral evidence of the complainant, it is established on record that some amount was paid to Manojbhai and the say of complainant cannot be believed that the demand of illegal gratification was made by the accused No. 1. 9.6. He has also contended that during the search of accused No.1, no anthracene powder was found. 9.7. He has further submitted that the trap amount was not recovered from the possession of accused No.1. 9.8. He has contended that the story of prosecution is an instigated one. He has also contended that the case of corruption, demand, acceptance and recovery is required to be proved with corroborative piece of evidence. 9.9. He has also contended that the story of prosecution is unprobable and nobody will accept the bribe amount in the presence of others. 9.8. He has contended that the story of prosecution is an instigated one. He has also contended that the case of corruption, demand, acceptance and recovery is required to be proved with corroborative piece of evidence. 9.9. He has also contended that the story of prosecution is unprobable and nobody will accept the bribe amount in the presence of others. He has also contended that during the search of accused No.2, presence of anthracene powder was found on so many places of the shirt. He has also vehemently argued that when two views are possible, then the view of learned Judge is required to be confirmed. 10. Mr. Buddhbhatti has placed reliance on the decision of the Apex Court in the case of Raj Rajendra Singh Seth alias R.R.S. Seth v. State of lharkhand & Anr., reported in 2008 (11) SCC 681 and in the case of State of A.P. v. V. Sasudeva Rao, reported in 2004 (9) SCC 319 and submitted that the learned Judge has considered the evidence of the prosecution properly and there is no scope for this Court to interfere with the judgment and order passed by the learned Judge. 11. We have gone through the judgment and order passed by the learned Judge and perused the oral as well as documentary evidence led before the trial Court and also considered the submissions made by the learned Advocates appearing for the parties. 12. From the evidence on record, it appears that certain facts are undisputed. From the day on which cognizance was taken by the learned Judge up to the disposal of the case, none of the accused have made any question for sanction. Even they have not opposed, which, itself shows validity of the sanction Exh. 55. They have not objected when sanction was exhibited, but accused No. 2 has admitted the same. Even the learned Judge has also not discussed this issue. So, we have not found that respondents had any grievance with regard to sanction Exh. 55 and at this stage, learned Advocate Mr. Buddhbhatti has contended that the sanction was not signed but it appears from the papers that no attempt was made by the respondent No. 1 to oppose the sanction before the learned Judge. So, we have not found that respondents had any grievance with regard to sanction Exh. 55 and at this stage, learned Advocate Mr. Buddhbhatti has contended that the sanction was not signed but it appears from the papers that no attempt was made by the respondent No. 1 to oppose the sanction before the learned Judge. Had it been objected, the author of the order could have been examined the same and it could have proved by original record by examining the author, at this stage, respondents may be permitted to take advantage of his omission and concession. 12.1. At the outset, it is required to be noted that it is well settled law that the appellate Court has power to reappreciate the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to reappreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime he is charged with. On the peculiar facts of this case we find that we are required to re-appreciate the evidence recorded during the trial and to find out whether the reasons assigned by the trial Court to appreciate the same are legal and permissible. 13. At this stage, it would be necessary to discuss the evidence of three, important witnesses, namely, Complainant, Panch and Trapping Officer. 13.1. We have perused the oral evidence of complainant and read the complaint. It appears from the perusal of oral as well as documentary evidence that the evidence regarding first demand made by the accused No. 1 to the complainant is established and proved by oral version of the complainant. 13.2. We have also perused the oral evidence of P. W. 2-Rasidmiya Subamiya Malek Exh. 45 and compared the same with the oral evidence of complainant as well as panchnama Exh. 54. We have found from the oral evidence as well as documentary evidence that in the presence of panch witness, the second demand was made by accused No. 1. 13.3. We have also perused the oral evidence of P. W. 2-Rasidmiya Subamiya Malek Exh. 45 and compared the same with the oral evidence of complainant as well as panchnama Exh. 54. We have found from the oral evidence as well as documentary evidence that in the presence of panch witness, the second demand was made by accused No. 1. 13.3. We have also found from the oral evidence that the contents of panchnama before the second demand made by accused No. 1 is also proved by independent witness - panch. We have also perused oral evidence regarding acceptance of bribe (trap money). 13.4. We have found from the oral evidence of complainant P.W. 1 that accused No. 1 has demanded bribe money and in connection of that demand, the said trap money was offered by the complainant, then, he was directed by accused No. 1 to hand over the trap money to accused No.2. 13.5. We have also considered the presence of accused No.2 which is already proved by the oral version of the complainant as well as panch and due to the suggestion of accused No. 1 to hand over the bribe money to accused No.2. The accused No. 2 has accepted that trap amount from the complainant, and thereafter, again he offered it to the accused No.1, but again he was told by accused No. 1 to keep it with him and he will collect it later on. 13.6. We have also considered the said evidence with the panchnama and oral version of the panch. It appears that so far as the first demand, second demand and acceptance of bribe amount are concerned, all the three aspects are proved by the oral version of complainant as well as the panch witness. 13.7. At this stage, it would be necessary to discuss the evidence of Trapping Officer P.W. 3-Sitaram Vishwnath Maurya Exh. 59. It appears from the oral evidence of Trapping Officer that he has proved two parts of pane/mamas in the corroborative piece of evidence with the oral evidence of panch. We have also perused the oral evidence of three star witnesses of prosecution. We have found that Trapping Officer has adopted proper theory regarding use of ultra violate lamp. 13.8. We have also found from the oral evidence that anthracene powder was found on the finger-tips and pocket of shirt of accused No.2. We have also perused the oral evidence of three star witnesses of prosecution. We have found that Trapping Officer has adopted proper theory regarding use of ultra violate lamp. 13.8. We have also found from the oral evidence that anthracene powder was found on the finger-tips and pocket of shirt of accused No.2. We have also perused the statements of both the accused, which were recorded under Sec. 313 of Cr.P.C. by the learned Special Judge. 14. It was the duty of the accused No. 1 and accused No. 2 to explain and remove presumption. We have not found that proper explanation was offered to the learned Special Judge for the cause of presence of anthracene powder. It is true that learned Advocate Mr. Buddhbhatti has contended that when two views are possible, then the view of the learned Judge is required to be considered. But, from the perusal of the evidence of complainant as well as panch and Trapping Officer, we have not found that the issue of two views is applicable in the facts of the present case. 14.1. Sections 107 and 108 of Indian Penal Code, reads as under : "107. Abetment of a thing ;- A person abets the doing of a thing, who - First ;- Instigates any person to do that thing; or Secondly ;- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly ;- Intentionally aids, by any act or illegal omission, the doing of that thing. 108. Abettor ;- A person abets any offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor." 14.2. We have also perused the provisions of Secs. 107 and 108 of Indian Penal Code and considered the definition of "Abetment" and "Abettor". In the present case, from the evidence of the prosecution, it is established that accused No.2 was found to be an instrument of accused No. 1 through whom accused No. 1 was committing illegalities and criminal wrong. 15. 107 and 108 of Indian Penal Code and considered the definition of "Abetment" and "Abettor". In the present case, from the evidence of the prosecution, it is established that accused No.2 was found to be an instrument of accused No. 1 through whom accused No. 1 was committing illegalities and criminal wrong. 15. We have also found from the evidence that when first demand was made by accused No. 1 to the complainant, from that period, role of accused No.2 was very clear because he was present there and all papers were prepared by him and even at the time of second demand made by principal accused in the presence of accused No. 2 in his own office, it is clear from the evidence of complainant and independent panch witness that when trap money was demanded and it was placed before accused No. 1 in presence of accused No. 2, he was told by accused No. 1 to accept bribe money from the complainant, and therefore, accused No.2 has accepted trap money. It is on record that trap money was counted by him and then tried to give it to accused No. 1 but accused No. 1 told him to keep it with him and he will collect it later on. So, from the evidence, it appears that accused No.2 was also well aware about the said illegal demand of bribe and transaction. 15.1. It is true that in order to convict a person of abetting the commission of crime, it is not only necessary to prove that he has taken part in the said transaction, which is innocent, but in the same way or other, it is absolutely necessary to connect him with the said transaction which is of criminal nature. We have also found from the evidence that said principle is totally proved and act of accused No. 2 was established before the trial Court as a criminal act. We have also found that intention to commit offence as an abettor to accused No. 1 was also proved and abetment to accused No. 1 had been committed guilt with intention and knowledge. 15.2. From the perusal of the evidence, we have found that both the accused had understanding to commit offence of demand and acceptance of illegal gratification and just to finalise their said criminal wrong, they abetted each other. 15.2. From the perusal of the evidence, we have found that both the accused had understanding to commit offence of demand and acceptance of illegal gratification and just to finalise their said criminal wrong, they abetted each other. We have also found that both the accused had not removed the presumption and also presence of anthracene powder on the fingers-tips, palms, hands, clothes and inside the pockets of accused No.2. I 15.3. Learned Advocate Mr. Buddhbhatti has also read the oral evidence of the witness - complainant and vehemently argued that a person named Dalpatsinh who was with the complainant and he is a star witness of the prosecution and was dropped by prosecution vide pursis Exh. 64. He has also read the pursis Exh. 64 and contended that there was a fear to the prosecution that the said witness will not support the prosecution case. He has contended that the prosecution was not fair enough because when the witness was available even though he was dropped. Therefore, it is contended by him that nonexamination of Dalpatsinh is fatal to the prosecution case. 16. We have considered the submission of Mr. Buddhbhatti learned Advocate for the respondents. From the oral evidence of the witnesses examined by the prosecution, it appears that the main witnesses, complainant, panch and Trapping Officer. who are the base of the case and when main important witnesses are examined, then, non-examination of a person who is not a man of cause of complaint, acceptance and recovery and also not a member of raiding party cannot be said to be fatal to the prosecution case. We have also perused pursis Exh. 64 and oral evidence of complainant as well as panch witness and panchnama. At the event of demand made by accused No.1, we have not found that Dalpatsinh was present with the complainant and when trap amount was offered in view of the demand made by accused No.1, only panch witness and accused No. 2 were present. We have also found from the pursis Exh. 64 that it was in the knowledge of the prosecution that said Dalpatsinh was win-over by the accused persons. In the case of Takhaji liraji v. Thakore Kubersing Chamansing & Ors., reported in 2002 (1) GLR 1, wherein, the Hon'ble Supreme Court has observed in Para 19 as under : "19. We have also found from the pursis Exh. 64 that it was in the knowledge of the prosecution that said Dalpatsinh was win-over by the accused persons. In the case of Takhaji liraji v. Thakore Kubersing Chamansing & Ors., reported in 2002 (1) GLR 1, wherein, the Hon'ble Supreme Court has observed in Para 19 as under : "19. So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not connivingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined, it would not have supported the prosecution case. On the other hand, if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witness may not be material. In such a case, Court ought to scrutinize the worth of the evidence adduced. The Court of facts must ask itself - whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable, the Court can safely act upon it, uninnuenced by the factum of non-examination of other witnesses. In the present case, we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein. In the present case, we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein. The injuries sustained by these witnesses are not just minor and certainly not self-inflicted. None of the witnesses had a previous enmity with any of the accused persons and there is apparently no reason why they would tell a lie. The genesis of the incident is brought out by these witnesses. In fact, the presence of the prosecution party and the accused persons in the chowk of the village is not disputed. How the vanity of the Thakore was hurt leading to a heated verbal exchange is also not in dispute. Then followed the assault. If the place of the incident was the chowk, then it was a sudden and not premeditated fight between the two parties. If the accused persons had reached their houses and the members of the prosecution party had followed them and opened the assault near the house of the accused persons, then it could probably be held to be a case of self-defence of the accused persons in which case non-explanation of the injuries sustained by the accused persons would have assumed signiticance. The learned Sessions Judge has on appreciation of oral and circumstantial evidence inferred that the place of the incident was the chowk and not a place near the houses of the accused persons. Nothing more could have been revealed by other village people or the party of tightrope dance performers. The evidence available on record shows and that appears to be very natural, that as soon as the melee ensued all the village people and tightrope dance performers took to their heels. They could not have seen the entire incident. The learned Sessions Judge has minutely scrutinised the statements of all the eye-witnesses and found them consistent and reliable. The High Court made no effort at scrutinising and analysing the ocular testimony so as to doubt, if at all, the correctness of the several, findings arrived at by the Sessions Court. They could not have seen the entire incident. The learned Sessions Judge has minutely scrutinised the statements of all the eye-witnesses and found them consistent and reliable. The High Court made no effort at scrutinising and analysing the ocular testimony so as to doubt, if at all, the correctness of the several, findings arrived at by the Sessions Court. With the assistance of the learned Counsel for the parties we have gone through the evidence adduced and on our independent appreciation we find the eye-witnesses consistent and reliable in their narration of the incident. In our opinion, non-examination of other witnesses does not cast any infirmity in the prosecution case." 16.1. Therefore, we are of the opinion that non-examination of Dalpatsinh does not cast any infirmity in the prosecution case. Therefore, non-examination of this witness, is not fatal to the prosecution case. 16.2. So far as provisions of Corruption Act, 1947, is concerned, presumption is required to be drawn in the case of demand and acceptance of bribe. It is true that Trapping Officer is using anthracene powder, but nowadays they are using phenolphthalein powder. We have re-appreciated the evidence of prosecution case and considered the oral evidence of panch, complainant and Trapping Officer. 16.3. We have not found that respondent has tried to attempt to remove the presumption regarding the presence of anthracene powder. We have also found that demand was made by the accused No. 1 to the complainant in his office. From the perusal of judgment of the trial Court, it appears that the trial Court has disbelieved most of the evidence and passed the acquittal order. 16.4. It is necessary to scrutinize the reasons assigned by the trial Court for acquittal. A complete reading of the complaint, panchnama and oral evidence of the witnesses, prosecution has proved the presence of anthracene powder on the body of the accused No.2. 17. From the oral evidence of P.W. I-complainant Exh. 37 and complaint Exh. 60, it is clear that the complainant has explained the demand of Rs. 200/- made by accused No.1. We have also perused the oral evidence of P.W. 1 Exh. 37 and P.W. 2 Exh. 45. Both the witnesses have deposed in their oral evidence about the demand made by accused No. 1 with a specific word that accused No. 1 has asked the complainant whether he has come with Rs. 200/- made by accused No.1. We have also perused the oral evidence of P.W. 1 Exh. 37 and P.W. 2 Exh. 45. Both the witnesses have deposed in their oral evidence about the demand made by accused No. 1 with a specific word that accused No. 1 has asked the complainant whether he has come with Rs. 100/-, and thereafter, he told him to give. So, trap amount was given to accused No. 1 and accused No. 1 has tried to accept it, but thereafter, he told the complainant to give it Manojbhai - accused NO.1. Therefore, from the panchnama Exh. 54 oral evidence of panch, we have found that both the witnesses have proved the demand made by accused No. 1. Even, we have perused the cross-examination of the said witnesses, but we have not found that the defence has succeeded to establish that the oral version of both the witnesses were false and concocted. We have also perused oral evidence of complainant and panch witness. It appears that the trap amount was accepted by accused No.2 in collusion with accused No. 1. We have also perused the panchnama and oral evidence of panch as well as Trapping Officer, whereby, they have specifically established that the presence of anthracene powder was found on the fingers-tips and palm as well as clothes of accused NO.2. From the evidence of panch as well as members of raiding party and complainant, recovery of trap amount from the pocket of shirt of accused No. 2 is proved, then by virtue of Sec. 4 of the Prevention of Corruption Act, 1947, the Court is bound to raise presumption that accused No. 2 had accepted and obtained trap amount and it also appears that accused No. 1 agreed to accept the trap amount and also admitted to accept that trap amount, and then he told that the trap amount was accepted by accused No.2. So far as the corruption cases are concerned, the prosecution has to establish that trap amount was demanded and accepted, then, mere receipt of money is itself sufficient to raise a presumption under Sec. 4(1) of the Prevention of Corruption Act, 1947. Section 4 of the Act, reads as under : "4. So far as the corruption cases are concerned, the prosecution has to establish that trap amount was demanded and accepted, then, mere receipt of money is itself sufficient to raise a presumption under Sec. 4(1) of the Prevention of Corruption Act, 1947. Section 4 of the Act, reads as under : "4. Presumption where Public Servant accepts gratification other than legal remuneration :- (1) Where in any trial of an offence punishable under Sec. 16/ or Sec. 165 of the Indian Penal Code (or of an offence referred to in clause (a) or clause (b) of sub-sec. (1) of Sec. 5 of this Act punishable under subsec. (2) thereof), it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said Sec. 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under Sec. 165A of the Indian Penal Code (or under clause (ii) of sub-sec. (3) of Sec. 5 of this Act), it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed unless the contrary is proved that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Sec. 161 of the Indian Penal Code, or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in sub-sees. (1) and (2), the Court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn." 18. (3) Notwithstanding anything contained in sub-sees. (1) and (2), the Court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn." 18. We have perused the statements of accused recorded under Sec. 313 of Cr.P.C. When the trap amount was recovered from the accused No.2, it was clearly incumbent upon the accused No. 2 to explain as to how it has come into his pocket, but he has not explained anything about the trap money and anthracene powder. 18.1. We have also perused sanction Exh. 55. It is found that sanction was issued by a maker of the authority 'with application of mind and in view of the evidence collected during the investigation. We have also found that sanctioning authority has applied its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. We have also not found that accused has never opposed and challenge sanction Exh. 55. It is an established law that Special Court cannot take cognizance without legal sanction. So, we are of the opinion that when the question regarding sanction was not opposed or argued before the trial Court as well as before this Court, then, legality and validity of sanction Exh. 55 is required to be considered in a positive manner. 18.2. We have also considered Sec. 8 of the Evidence Act and the statements recorded under Sec. 313 of Cr.P.C. Accused had never bothered to explain the presence of anthrecene powder as well as recovery of trap amount. From the evidence of complainant and panch witness, it is clear that accused No. 1 has demanded illegal gratification and also made a statement to the complainant that without money his work will not be done by him. From the conduct of accused No.1, it appears that he has not explained anything to deny the allegations regarding demand as well as acceptance of trap money by accused No.2. Therefore, from the conduct of accused No. 1 and accused No.2, who was present with accused No. I, it is clear that at the event of direction given by accused No. 1 to complainant to give the trap amount to accused No. 2 on the spot. Therefore, from the conduct of accused No. 1 and accused No.2, who was present with accused No. I, it is clear that at the event of direction given by accused No. 1 to complainant to give the trap amount to accused No. 2 on the spot. Without any hesitation, the trap amount was accepted by accused No. 2 in the presence of panch, then, it was counted by him and again it was placed before accused No.1, therefore, accused No. 1 told him that "keep it with you, he will see later on". So, conduct of both the accused is established from the oral as well as documentary evidence. So far as Sec. 4 of the Prevention of Corruption Act, 1947 is concerned, it was the duty of accused to remove the presumption, but we have not found that they have removed the presumption in a convincing manner. 19. We find that the approach of the learned Judge in appreciating the evidence appears to be not only erroneous, but de hors the record and settle( principles of criminal jurisprudence. In such cases, what should be the modi of appreciating the evidence is noted by the Apex Court in the case of State of Maharashtra v. Siraj Ahmed Nisar Ahmed & Ors., reported in 2007 (5) SCC 161 . Paragraph 33 of the said decision reads as under : "33. The Designated Court has rejected the evidence of both the witnesses on consideration of other aspect that P. W. 55 had stated that no search of the flat was made by the police party. While appreciating the evidence, the Court must keep in mind that the powers of observation differ from persons to person. What one may notice, other may not. An object or thing happened might ret1ect in the image of a person's mind, whereas, it may go unnoticed on the part of another. It has not come out in the evidence or in the cross-examination that P. W. 55 was also a party to the search of the flat along with P. W. 50 after the arms were produced by the accused who had made a categorical statement that he had made a search of Block No. 402 before the completion of the panchnama. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once, that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence, more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence, as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matter not touching the core of matter in issue, hyper-technical approach by taking sentence out of context here or there from the evidence, attaching importance to some technical error committed by the Investigating Officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole." 19.1. Similar view has been taken by this Court in the case of State c Gujarat v. Hathisinh A. Parmar, reported in 2008 (0) GLHEL-HC 220294 We have appreciated the evidence of prosecution case with total air of suspicio and doubt which is against the settled principles of criminal jurisprudence an we have not found two views in this case. 20. Thus, as discussed above, we have scrutinized each and every reason advanced by the trial Court and each conclusion arrived at by the trial Court for acquittal. None of the conclusion is sustainable as we have discussed the same above in detail. Only because this is an appeal against the acquitta1 it is not the rule of law that it could not be interfered with. We have also considered the matter in depth and the entire evidence and the attend in circumstances point to the only conclusion that respondents-accused have committed the offence. On re-appreciation of the evidence, we come to the positive conclusion that the prosecution was able to prove the charge again the accused-present respondents for the offence punishable under Secs. 161 163 and 165A of Indian Penal Code and under Sec. 5(1)(d) read with See 5(2) of Prevention of Corruption Act. 21. In the premises aforesaid, the following order is passed : 21.1. The present appeal preferred by the appellant-State of Gujarat against the acquittal of the accused is allowed. 161 163 and 165A of Indian Penal Code and under Sec. 5(1)(d) read with See 5(2) of Prevention of Corruption Act. 21. In the premises aforesaid, the following order is passed : 21.1. The present appeal preferred by the appellant-State of Gujarat against the acquittal of the accused is allowed. The judgment and order delivered by the learned Special Judge, Nadiad on 15-4-1993 in Special Case No. 1 of 1990 acquitting the present respondents - (1) Laxmansinhji Dansinhji Gohil, and (2) Manoj alias Mansinh Rupsinh Jhala, for the charge levelled against them under Secs. 161, 163 and 165A of Indian Penal Code and under Sec. 5(1)(a) read with Sec. 5(2) of Prevention of Corruption Act, is set aside and we come to the conclusion that the prosecution is able to prove the guilt of the accused and the accused are liable to be punished for the offence punishable under Secs. 161, 163 and 165A of Indian Penal Code and under Sec. 5(1)(a) read with Sec. 5(2) of Prevention of Corruption Act. 22. Since, the respondents-accused have been convicted for the aforesaid offences, they will have to be heard on the question of sentence. Mr. M. J. Buddhbhatti learned Advocate appearing for respondent No.1, states that he will instruct the respondent No. 1 to remain present before this Court on 3-3-2009. 22.1. So far as respondent No.2 is concerned, though served, none appears. Hence, bailable warrant in the sum of Rs. 5000/- shall be issued against the respondent No. 2 returnable on 3-3-2009. 22.2. Both the respondents are directed to remain personally present before this Court on 3-3-2009 at 10-30 a.m. for hearing on the question of sentence. FURTHER ORDER Dated : 3-3-2009 : 23. Heard the accused on the quantum of sentence. Accused No. 1 was present before the Court earlier and submitted that he is medically unfit, so at his request time was granted. Today, the son of accused No. 1 remained present before the Court with medical papers showing that the accused No. 1 is in the hospital. Accused NO.2 is present and prayed for rehearing the matter. The appeal was heard at length and since Mr. Buddhbhatti has represented the case of the accused NO.2 also and since we propose to award minimum sentence, the request of accused No. 2 is not required to be considered. Accused NO.2 is present and prayed for rehearing the matter. The appeal was heard at length and since Mr. Buddhbhatti has represented the case of the accused NO.2 also and since we propose to award minimum sentence, the request of accused No. 2 is not required to be considered. The accused No. 2 has already been served and chosen not to appear before the Court at the time of hearing. 24. After careful consideration of the evidence on record, the order of acquittal passed by the learned Special Judge, Nadiad in Special Case No. 1 of 1990 is hereby quashed and set aside and we hereby convict the respondent Nos. 1 and 2 - accused for the offence punishable under Sees. 161 and 165A of I.P.C. and under Sec. 5(1)(d) read with Sec. 5(2) of Prevention of Corruption Act and sentence each of the present respondents - accused to undergo R/I for six months with a fine of Rs. 100/- each, in default, to undergo further simple imprisonment for 15 days. 25. Mr. Buddhbhatti requested for time to surrender before the Jail Authority. Accordingly, the respondents-accused are directed to surrender before the Jail Authority within a period of six weeks from today. Order accordingly. (HSS) Order accordingly.