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Gujarat High Court · body

2011 DIGILAW 597 (GUJ)

DADMOHMED AMAD SUMRA v. STATE OF GUJARAT

2011-08-10

Z.K.SAIYED

body2011
CAV JUDGMENT 1. Since the present appeals are arising out of the common judgment and order dated 31st July, 1996 passed by the learned Special Judge, Junagadh, in Special Case No.05 of 1989, the appeals are decided by this common judgment. 2. So far as Criminal Appeal No.750 of 1996 is concerned, the same is filed by the original accused against the judgment and order of conviction; so far as Criminal Appeal No.910 of 1996 is concerned, the same is filed by the State of Gujarat for enhancement of sentence and so far as Criminal Appeal No.911 of 1996 is concerned, the same is filed by the State of Gujarat against the order of acquittal. 3. Appellant of Criminal Appeal No.750 of 1996 has preferred the appeal under Section 374(2) of the Code of Criminal Procedure, 1973 against the judgment and order of conviction and sentence dated 31st July, 1996 passed by the learned Special Judge, Junagadh, in Special Case No.05 of 1989, whereby the learned Special Judge has convicted the appellant for the offence punishable under Section 161 of the Indian Penal Code and awarded fine of Rs.500/-and in default of payment of fine, sentenced him to undergo simple imprisonment for a period of 15 days whereas the learned Special Judge has acquitted the appellant from the offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1847 by giving benefit of doubt. 4. As per the case of the prosecution, the complainant and two other persons have a well in their joint name. It is the case of the prosecution that on 29th May, 1987 quarrel took place between the complainant and one of the joint holders of the well, viz. Ranmal Mesi, with respect to drinking water to cattle. Therefore, Ranmal Mesi went to beat the complainant, but the complainant ran away and he made aware about the incident to third joint holder of the well, viz. Ravji Kala. It is the case of the prosecution that on that day itself, the complainant along with Ravji Kala went to Sasan Outpost to lodge the complaint. Thereafter, the Investigating Officer informed the complainant and the witness Ravji Kala to remain present at Sasan Police Station on 02nd June, 1987. On that day, their statements came to be recorded. Ravji Kala. It is the case of the prosecution that on that day itself, the complainant along with Ravji Kala went to Sasan Outpost to lodge the complaint. Thereafter, the Investigating Officer informed the complainant and the witness Ravji Kala to remain present at Sasan Police Station on 02nd June, 1987. On that day, their statements came to be recorded. On their returning home from Sasan Police Station, the appellant, who was serving as Constable (Kotwal) at Hirpur, accompanied the complainant and the witness from Hirpur, demanded Rs.100/-towards expenses from the complainant and the witness in the compound of the Police Station. At that time the complainant was not having the amount as demanded by the appellant and therefore, the complainant went to village Talala to manage for the amount as demanded by the appellant. From there also, the complainant could not manage the amount and therefore, he told the appellant that the amount would be sent to his home. Thereafter when the appellant met the complainant in village market, again he demanded Rs.100/- from the complainant. It is also the case of the prosecution that the appellant went to the house of complainant and demanded Rs.100/-. It is also the case of the prosecution that on 04th June, 1987 at 17.00 hours the appellant met the complainant at Bus Stand and by misusing his position as Police, threatened the complainant and told him to arrange to send the said amount between 20.00 and 21.00 hours to his house. 5. As the complainant was not willing to give Rs.100/- to the appellant, he approached the Police Inspector, A.C.B., Junagadh and lodged his complaint on 05th June, 1987. Thereafter, services of two panchas were sought, facts of the case were narrated to them and thereafter the experiment of U.V. Lamp was carried out with the help of anthrecene powder. The basic ingredients of the anthrecene powder were explained and made understood to the panchas as well as to the complainant. Thereafter, currency notes, i.e. two notes of Rs.50/-each, produced by the complainant were smeared with anthrecene powder. Number of these notes were noted in the preliminary part of panchnama. The said currency notes were put in the left pocket of the pant of the complainant. Thereafter, the Police Inspector, A.C.B., gave necessary instructions to the complainant as well as to the panchas. Number of these notes were noted in the preliminary part of panchnama. The said currency notes were put in the left pocket of the pant of the complainant. Thereafter, the Police Inspector, A.C.B., gave necessary instructions to the complainant as well as to the panchas. Thereafter, preliminary part of the panchnama was drawn and signature of the panchas were taken below the panchnama. Thereafter, the complainant, panchas and members of the raiding party proceeded towards village Haripur in Government vehicle at 18.40 hours. 5.1. It is the case of the prosecution that they reached village Hirpur at about 20.15 hours and parked their vehicle outside the village and thereafter, the complainant and panch No.1 went inside the house of the appellant whereas panch No.2 and members of raiding party spread in the surrounding area waiting for signal of the complainant. The appellant welcomed the complainant and panch No.1 and asked the complainant as to whether he has brought money as per demand, and if yes, then give and by saying this, the appellant raised his right hand towards the complainant. Therefore, the complainant took out the money from his left side pocket of trouser using his left hand and gave it to the appellant in his right hand. The appellant put the said notes in his right pocket of his trouser. 6. Thereafter, the complainant gave pre-arranged signal to the members of raiding party. Thereupon the members of the raiding party rushed at that place and caught the appellant. Thereafter, after giving his identity, P.I. asked the appellant as to for what purpose he has accepted the amount from the complainant and where is the said amount. Thereafter, experiment of U.V. Lamp was carried out on the members of raiding party, excluding the complainant and the appellant, but anthrecene powder was not found. Thereafter, the said experiment was carried out on the hands the appellant where on finger tips of both the hands, anthrecene powder was found. Thereafter, panch No.2 took out the currency notes from the pocket of the appellant, on which presence of anthrecene powder was found. Thereafter, again hands of panch No.2 was checked out in U.V. Lamp and as the panch No.2 has took out the currency notes from the pocket of the appellant, on fingers of both the hands, light blue fluorescent marks of anthrecene powder was found. Thereafter, again hands of panch No.2 was checked out in U.V. Lamp and as the panch No.2 has took out the currency notes from the pocket of the appellant, on fingers of both the hands, light blue fluorescent marks of anthrecene powder was found. Even on the trouser also, light blue fluorescent marks of anthrecene powder was found. The number of the currency notes were got tallied with the number noted in the preliminary panchnama. Thereafter, trouser and handkerchief of the appellant came to be seized. Thereafter, second part of panchnama came to be drawn and signature of both the panchs were obtained on the same. 7. Thereafter, a complaint against the present appellant came to be registered for the offences punishable under the Prevention of Corruption Act, 1988. Thereafter Investigating Officer carried out investigation and recorded statements of various persons. Thereafter, after obtaining sanction, charge-sheet came to be filed against the appellant-accused. 8. Thereafter, charge was framed at Exhibit 10 against the appellant. The charge was read over and explained to the appellant, to which the appellant pleaded not guilty and claimed to be tried. 9. In order to bring home the charges levelled against the appellant, the prosecution has examined in all four witnesses and also produced documentary evidence in support of its case. 10. Thereafter, after completing the evidence of prosecution, further statement of the appellant under Section 313 of the Code of Criminal Procedure, 1973 came to be recorded wherein the appellant has denied the case of the prosecution. 11. After considering the oral as well as documentary evidence produced on record and after hearing the parties, the learned Special Judge, Junagadh vide impugned judgment and order dated 31st July, 1996 held the appellant–accused guilty to the charges levelled against him as mentioned aforesaid. 12. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Junagadh, the appellant has preferred the present appeal. 13. Heard Mr.Yogesh Ravani, leaned counsel for the appellant and Mr.R.C. Kodekar, learned Additional Public Prosecutor for the respondent-State. 14. Mr.Ravani, learned counsel appearing for the appellant, read the charge at Exhibit 10 and contended that it is the duty of the prosecution to prove the essential ingredients of the offence, viz. initial demand, second demand, acceptance and recovery beyond reasonable doubt. 14. Mr.Ravani, learned counsel appearing for the appellant, read the charge at Exhibit 10 and contended that it is the duty of the prosecution to prove the essential ingredients of the offence, viz. initial demand, second demand, acceptance and recovery beyond reasonable doubt. He has contended that in the instant case, the prosecution has failed to prove the said essential ingredients beyond reasonable doubt. Therefore, the judgment and order of conviction and sentence is required to be quashed and set aside. He has read the oral evidence of P.W. No.1 – complainant at Exhibit 16 and the contents of complaint (Exhibit 17). Mr.Ravani has contended that from the oral evidence of this witness, prosecution has failed to establish direct evidence of demand. He has also contended that from the oral version of this witness, demand is not proved beyond reasonable doubt. Mr.Ravani has also contended that from the oral version of this witness, prosecution has failed to prove the second demand also. He has further read the oral evidence of this witness and contended that the prosecution has failed to prove the recovery of trap amount from the appellant. He has also contended that experiment of U.V. Lamp was not carried out properly and therefore, it cannot be said that the prosecution has proved its case beyond reasonable doubt. Mr.Ravani has read oral evidence of P.W. No.2-panch at Exhibit 18 and contended that from the oral version of this witness, prosecution has failed to prove the demand beyond reasonable doubt. He has further read the oral evidence of this witness and contended that presence of anthrecene powder is also not proved beyond reasonable doubt. Mr.Ravani has also read the panchnama at Exhibit 19 and contended that the prosecution has failed to prove the contents of panchnama. Mr.Ravani has also read oral evidence of P.W. No.3 at Exhibit 21 and contended that prosecution has not gained any favourable evidence from this witness. He has also read oral evidence of P.W. No.4-Trapping Officer at Exhibit 26 and contended that he is a police officer and his evidence cannot be considered in favour of prosecution. Even from the oral version of this witness, prosecution has failed to prove the alleged charge framed against the appellant. He has also read oral evidence of P.W. No.4-Trapping Officer at Exhibit 26 and contended that he is a police officer and his evidence cannot be considered in favour of prosecution. Even from the oral version of this witness, prosecution has failed to prove the alleged charge framed against the appellant. Mr.Ravani has further contended that the learned Judge has observed in the order that prosecution has failed to prove the offence under Section 5(1)(D) of the Prevention of Corruption Act and acquitted the appellant from the said charge and on the said aspect, charge under Section 161 of the Indian Penal Code should not have been believed. The charge levelled against the appellant is without sufficient material and evidence. The learned Judge has committed grave error in convicting the appellant under Section 161 of the Indian Penal Code. He has also contended that when criminal misconduct is not proved beyond reasonable doubt, appellant cannot be convicted under Section 161 of the Indian Penal Code. He has also contended that the prosecution has not examined important witnesses, viz. Ramji Kala and Bharatbhai Vaghela, without assigning any valid reasons. He has also contended that there is material contradiction in the oral evidence of Kanti Shamjibhai Parmar and the complainant. He, therefore, contended that looking to the evidence produced on the record as also the circumstantial evidence, the prosecution has failed to prove its case beyond reasonable doubt against the appellant and therefore, appeal is required to be allowed and appellant is required to be acquitted from the charges levelled against him. 14.1. So far as Criminal Appeal No.910 of 1996, i.e. appeal filed by the State of Gujarat for enhancement of sentence is concerned, Mr.Ravani has contended that the alleged incident of offence has occurred in the month of May, 1987. Nearly 24 years have passed from the date of alleged offence. He has also contended that the appellant is suffering from various ailment. Mr.Ravani has further contended that the appellant belongs to lower strata of the society. No financial loss has occurred to anyone in the offence in question. It is further contended by Mr.Ravani that since the appellant is removed long back from service, he has suffered sufficiently, hence, punishment is not required to be enhanced. He, therefore, contended that the appeal is required to be dismissed. 14.2. No financial loss has occurred to anyone in the offence in question. It is further contended by Mr.Ravani that since the appellant is removed long back from service, he has suffered sufficiently, hence, punishment is not required to be enhanced. He, therefore, contended that the appeal is required to be dismissed. 14.2. So far as Criminal Appeal No.911 of 1996, i.e. appeal filed by the State of Gujarat against the order of acquittal is concerned, Mr.Ravani has contended that the learned Special Judge has passed absolutely just and proper order after appreciating the evidence, oral as well as documentary, produced on the record. He has further contended that the appellant is removed from the service and having no financial income since long. The appellant is not receiving pension or any other benefits and is financially ruined. He has also contended that looking to the facts of the case and looking to the present position of the appellant, on the ground of sympathy also, the judgment and order of acquittal from the offence under Section 5(1)(D) of the Prevention of Corruption Act is required to be confirmed. He has further contended that after nearly two-and-half decade, this Court may not prefer to consider the aspect of converting acquittal into conviction. He, therefore, contended that the appeal is required to be dismissed. 15. As against this, Mr.Kodekar, learned Additional Public Prosecutor, has contended that the judgment and order passed by the learned Special Judge is absolutely just and proper. He has contended that the prosecution has proved its case beyond reasonable doubt. He has contended that looking to the overall facts and circumstances of the case, circumstantial evidence and evidence produced on record, the order passed by the learned Special Judge is absolutely just and legal and is not required to be interfered with. He has also contended that the appellant was Constable and he was caught during the trap accepting the bribe from the complainant. Mr.Kodekar has read oral evidence of P.W. No.1-Complainant at Exhibit 16 and contended that initial demand of Rs.100/- towards expenses was made by the appellant on 03rd June, 1987 in the compound of police station. Thus, initial demand is proved beyond reasonable doubt from the oral evidence of this witness. Mr.Kodekar has read oral evidence of P.W. No.1-Complainant at Exhibit 16 and contended that initial demand of Rs.100/- towards expenses was made by the appellant on 03rd June, 1987 in the compound of police station. Thus, initial demand is proved beyond reasonable doubt from the oral evidence of this witness. He has further read the oral evidence of P.W. No.1 and contended that in paragraph 4 of his oral evidence, this witness has specifically stated that when he entered into the house of the appellant, the appellant had asked a specific question to him that as to whether he has brought money and told that if yes, then give. Therefore, P.W. No.1 took out the money from left pocket of his trouser and handed over to the appellant, which were accepted by the appellant using two hands and thereafter counted the said notes. Thereafter the appellant put the said notes in handkerchief and put the same in his trouser. After accepting money from the complainant, appellant told the complainant that now there would not be any difficulty for him. At that time P.W. No.2-panch was also present with the complainant and when the appellant asked about P.W. No.2, the complainant introduced P.W. No.2 as his relative. Thus, second demand is also proved beyond reasonable doubt from the oral evidence of P.W. No.1. The second demand is made in present of P.W. No.2-panch witness. Mr.Kodekar has read oral evidence of P.W. No.2 and contended that this witness has supported the case of the prosecution. This witness has narrated the whole story and corroborated the evidence of P.W. No.1 regarding demand made on 05th June, 1987 and acceptance by the appellant. Thus, the second demand and acceptance is proved beyond reasonable doubt through oral evidence of P.W. Nos.1 and 2. He has further contended that P.W. No.2 is a public servant and is an independent witness. He has no animosity with the appellant to falsely implicate the appellant in the offence in question. Evidence of P.W. No.2 is trustworthy, reliable and acceptable. He has further contended that public servant, i.e. the appellant in the instant case, is found in possession of currency notes smeared with anthracene powder. He has no animosity with the appellant to falsely implicate the appellant in the offence in question. Evidence of P.W. No.2 is trustworthy, reliable and acceptable. He has further contended that public servant, i.e. the appellant in the instant case, is found in possession of currency notes smeared with anthracene powder. When experiment of U.V. Lamp was carried out, on both the hands of the appellant as well as on the handkerchief and inside the trouser's pocket of the appellant, light blue fluorescent marks of anthrecene powder was found. He has also contended that from the oral evidence of P.W. No.2, search and recovery is also proved. Thus, demand, acceptance and recovery is proved beyond reasonable doubt. Mr.Kodekar has also contended that observation made by the learned Special Judge regarding signal given by the complainant is not correct as per the evidence produced on record. P.W. Nos.1 and 2 in their oral evidence have categorically stated that after the appellant accepted the money from the complainant, the complainant gave pre-arranged signal to the members of the raiding party. He has contended that even if it is assumed that there is some contradiction in oral evidence of the complainant and witnesses as per the say of Mr.Ravani, it is not fatal to the prosecution case, more particularly when demand, acceptance and recovery is proved beyond reasonable doubt. He has further read the explanation of the appellant at Exhibit 17 and contended that the appellant has failed to establish the probable defence. Thus, when demand, acceptance and recovery is proved beyond reasonable doubt and when the appellant has failed to establish probable defence, appeal of the appellant is required to be rejected. 15.1. So far as Criminal Appeal No.910 of 1996, i.e. appeal filed by the State of Gujarat for enhancement of sentence is concerned, Mr.Kodekar has contended that looking to the facts and circumstances of the case, as narrated hereinabove, initial demand and second demand is proved beyond reasonable doubt through oral evidence of P.W. Nos.1 and 2. Thus, when demand is established beyond reasonable doubt and ingredients of Section 5 (1)(d) of the Prevention of Corruption Act, 1847 is proved, the appellant is required to be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Thus, when demand is established beyond reasonable doubt and ingredients of Section 5 (1)(d) of the Prevention of Corruption Act, 1847 is proved, the appellant is required to be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. The learned Special Judge has wrongly acquitted the appellant from the offence under Section 5(1)(d) of the Act and taken too lenient view in the matter and has punished the appellant by awarding the fine for an amount of Rs.500/- only. He, therefore, contended that the sentence imposed upon the appellant under Section 161 of the Indian Penal Code is required to be enhanced. 15.2. So far as Criminal Appeal No.911 of 1996, i.e. appeal filed by the State of Gujarat against the order of acquittal is concerned, Mr.Kodekar has contended that prosecution has proved its case beyond reasonable doubt. He has further contended that when initial demand, second demand, acceptance and recovery is proved beyond reasonable doubt, it can be said that criminal misconduct is proved. The learned Special Judge has wrongly acquitted the appellant from the offence under Section 5(1)(d) of the Act, 1847. When demand, acceptance and recovery is proved beyond reasonable doubt and when appellant has failed to establish probable defence, it is sufficient to draw legal presumption under Section 4 of the Prevention of Corruption Act, 1847 against the appellant. The appellant, in the instant case, has failed to produce any rebuttal evidence. In the instant case, the appellant was not able to offer any probable defence regarding presence of anthrecene powder. Mr.Kodekar has contended that thus, the prosecution has successfully proved the ingredients of Sections 5(1)(d) of the Prevention of Corruption Act, 1847. Mr.Kodekar therefore, contended that the present appeal is required to be allowed and the appellant is required to be convicted for the offence under Section 5(1)(d) of the Act, 1847. 16. Heard learned counsel for the respective parties and perused the papers produced before me. I have also considered the submissions advanced by the learned counsel for the parties. From the perusal of oral evidence of P.W. No.1-complainant it is established beyond reasonable doubt that the appellant has demanded Rs.100/- as an illegal gratification and it was accepted by him. From the oral evidence of P.W. No.1, initial demand and second demand are proved beyond reasonable doubt. From the perusal of oral evidence of P.W. No.1-complainant it is established beyond reasonable doubt that the appellant has demanded Rs.100/- as an illegal gratification and it was accepted by him. From the oral evidence of P.W. No.1, initial demand and second demand are proved beyond reasonable doubt. I have also perused oral evidence of P.W. No.2-panch witness. This witness has supported the case of the prosecution. He has specifically admitted that in his presence, the appellant had demanded the money from the complainant and the same was accepted by the appellant. Thus, demand and acceptance is proved beyond reasonable doubt. It appears from the evidence of both these witnesses that the appellant had asked a specific question that “have you brought money? and if yes, give me.” Therefore, the complainant had handed over the money to the appellant, which was accepted by the appellant by his both the hands and put the said notes in his trouser's pocket after counting the said currency notes. P.W. No.2-panch has narrated the whole case of the prosecution. The evidence of P.W. No.1-complainant is corroborated by the evidence of P.W. No.2-panch witness, who is an independent witness. It appears from the evidence of P.W. Nos.1 and 2 that their evidence is free from all doubt and infirmities about the demand raised by the appellant. It is not the case of the defence that the P.W. No.1-Complainant is having any enmity with the appellant and therefore, false case has been filed against him. A close and careful scrutiny of the evidence of P.W. No.1 suggests that this witness has not made any mistake in narrating the entire episode in his deposition at Exhibit 16, which inspires confidence about his credibility and reliability. In the instant case, main part of the prosecution in relation to the demand raised by the appellant is corroborated with the evidence of P.W. Nos.1 and 2 coupled with the contents of panchnama. I have also perused the submission of learned counsel for the appellant that there are contradictions in the oral evidence of P.W. Nos.1 and 2. It may be that witnesses have not deposed the conversation in verbatim, but the substance of the depositions appear to be same so far as demand is concerned. A close scrutiny of depositions suggest that the appellant had demanded the amount from the complainant. It may be that witnesses have not deposed the conversation in verbatim, but the substance of the depositions appear to be same so far as demand is concerned. A close scrutiny of depositions suggest that the appellant had demanded the amount from the complainant. It appears from the evidence of PW Nos.1 and 2 that their evidence is in corroboration in relation to the demand raised by the appellant-accused for illegal gratification and this Court has no hesitation in coming to the conclusion that it is the appellant, who has demanded illegal gratification. Thus, prosecution has successfully proved the ingredients of Section 161 of the Indian Penal Code. I have also perused cross-examination of P.W. Nos.1 and 2. It is true that the appellant has tried to establish his defence version through cross-examination of these two witnesses, but with regard to contention of demand and acceptance is concerned, the defence has failed to establish its defence version through oral evidence of of P.W. Nos.1 and 2. I have not found any substance to consider that defence has proved its version beyond reasonable doubt. Section 161 of the Indian Penal Code read as under: “Section 161-Public Servant taking gratification other than legal remuneration in respect of an official act. - Whoever, being or expecting to be a public servant, accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, with the Central or any State Government or Parliament or the Legislature of any State, or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” 16.1. I have perused the said provision of law and it appears that the main ingredient of Section 161 of the Indian Penal Code is proved beyond reasonable doubt. I have also perused explanation of the appellant at Exhibit 17. I have perused the said provision of law and it appears that the main ingredient of Section 161 of the Indian Penal Code is proved beyond reasonable doubt. I have also perused explanation of the appellant at Exhibit 17. The appellant has failed to explain that for what purpose he has accepted the said amount and how the said amount is recovered from his possession. Even, the appellant has failed to explain the presence of anthrecene powder on his hands. In further statement recorded under Section 313 of the Code of Criminal Procedure, It is the duty of the appellant to rebut the presumption drawn against him. In the instant case, the appellant has failed to rebut the presumption drawn against him. I have perused Section 4 of the Prevention of Corruption Act, 1847, which described as under: “Section 4-Presumption where Public Servant accepts gratification other than legal remuneration:-- (1) Where in any trial of an offence punishable under Section 161 or Section 165 of the Indian Penal Code (or of an offence referred to in clause (a) or clause (b) of sub-section (1) of Section 5 of this Act punishable under sub-section (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 Section 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 Section 165-A of the Indian Penal Code (or under clause (ii) of sub-section (3) of Section 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 any 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 Section 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-sections (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.” 16.2. The appellant has failed to rebut the said presumption by leading probable defence. Thus, when demand and acceptance is proved and when the appellant has failed to rebut the presumption under Section 4 of the Prevention of Corruption Act, 1847, I am of the opinion that prosecution has proved its case beyond reasonable doubt. I have not found anything to accept the defence version. I am, therefore, of the opinion that the learned Special Judge has rightly convicted the appellant for the offence under Section 161 of the Indian Penal Code. 16.3. As per above observation, I found that demand of illegal gratification made by the appellant is proved beyond reasonable doubt through the oral evidence of P.W. No.1-complainant and P.W. No.2-panch witness as well as through documentary evidence produced on the record. Presence of anthrecene powder is also found on the hands of the appellant-accused and the appellant has failed to explain the presence of anthrecene powder on his hands. As per the provision of Section 4 of the Prevention of Corruption Act, 1847, presumption is required to be drawn against the present appellant and when the appellant has failed to rebut the said presumption, defence version cannot be considered, which is tried to establish by the learned counsel for the appellant. As per the provision of Section 4 of the Prevention of Corruption Act, 1847, presumption is required to be drawn against the present appellant and when the appellant has failed to rebut the said presumption, defence version cannot be considered, which is tried to establish by the learned counsel for the appellant. Hence, Criminal Appeal No.750 of 1996, i.e. appeal against conviction filed by the appellant, is hereby dismissed. 16.4. So far as Criminal Appeal No.910 of 1996, i.e. appeal filed by the State of Gujarat for enhancement of sentence is concerned, it appears that the alleged incident of offence has occurred in the year 1987 and today after about 24 years, i.e. in the year 2011, this appeal is finally heard and decided by this Court. I have also consider the submissions of learned counsel for the appellant that the appellant belongs to lower strata of the society, and since the appellant is removed long back from service, he has suffered sufficiently. Looking to the facts of the case, I am of the opinion that punishment is not required to be enhanced. Hence, appeal is of the State Government is hereby dismissed. 16.5. So far as Criminal Appeal No.911 of 1996, i.e. appeal filed by the State of Gujarat against the order of acquittal is concerned, I have perused Section 5 of the Prevention of Corruption Act, 1847, which provides for criminal misconduct. Sections 5(1)(d) reads as under: “Section 5. (1) – A public servant is said to commit the offence of criminal misconduct (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other any valuable thing or pecuniary advantage” 17. It appears from the oral evidence of P.W. Nos.1 and 2 that when they entered in the house of the appellant, they were welcomed by the appellant and then the appellant asked a specific question asking for money and when P.W. No.1-complainant handed over Rs.100/-, the appellant accepted the same and put it in his trouser's pocket. This conduct of the appellant is required to be looked into. It is proved beyond reasonable doubt that the present appellant has abused his position as public servant and obtained for himself illegal gratification of Rs.100/-from the complainant. Thus, ingredient of Section 5(1)(d) of the Act, 1847 is proved beyond reasonable doubt. 18. This conduct of the appellant is required to be looked into. It is proved beyond reasonable doubt that the present appellant has abused his position as public servant and obtained for himself illegal gratification of Rs.100/-from the complainant. Thus, ingredient of Section 5(1)(d) of the Act, 1847 is proved beyond reasonable doubt. 18. I have also perused Section 5(2) of the Act, 1847, which reads as under: “Section 5(2) – Any Public Servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine.” 19. A public servant is expected to serve or to perform his/her duties with utmost honesty and devotion. In the instant case, the appellant, who is a public servant, has demanded the amount of Rs.100/- and accepted the same from the complainant. This conduct of the appellant is required to be looked into. This shows that the appellant is guilty of criminal misconduct. 20. I have also considered the submission made by learned counsel for the appellant that High Court cannot interfere in an appeal against acquittal. The Apex Court in the case of Kilakkatha Parambath Sasi Vs State of Kerala, reported in (2011) 4 SCC 552 has observed that High Court can reappraise the evidence so as to find out as to whether the view taken by the trial court was justified or not and if it finds that the trial court's findings were not possible on the evidence, interference must be made. The Supreme Court in the case of Fahim Khan Vs State of Bihar (Now Jharkhand) reported in 2011 (2) G.L.H. 227 has observed that on the contrary, if it is found that the judgment of the trial Court was perverse or against the evidence, it would be a travesty of justice if the High Court was to sit back and not interfere in the matter. 21. In the instant case, the learned Special Judge has convicted the appellant for the offence under Section 161 of the Indian Penal Code whereas acquitted the appellant for the offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1847. 21. In the instant case, the learned Special Judge has convicted the appellant for the offence under Section 161 of the Indian Penal Code whereas acquitted the appellant for the offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1847. I am not hesitate to say that the learned Special Judge has committed error in acquitting the appellant from the offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1847. In view of above, present appeal is hereby allowed. 22. Hence, in view of the foregoing reasons, Criminal Appeal No.750 of 1996, i.e. appeal filed by the appellant against conviction, is hereby dismissed. The judgment and order of conviction and sentence dated 31st July, 1996 passed by the learned Special Judge, Junagadh, in Special Case No.05 of 1989, is hereby confirmed qua appeal against conviction. The appellant is on bail. His bail bond shall stand cancelled. The appellant is, therefore, directed to surrender himself before the Jail Authority within a period of four weeks from today to serve the sentence, failing which the Court concerned is directed to issue Non-bailable warrant against the appellant to effect his arrest. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. 23. So far as Criminal Appeal No.910 of 1996, i.e. appeal filed by the State of Gujarat for enhancement of sentence, is concerned, the same is hereby dismissed and the judgment and order of conviction and sentence dated 31st July, 1996 passed by the learned Special Judge, Junagadh, in Special Case No.05 of 1989, is hereby confirmed qua appeal for enhancement. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. 24. So far as Criminal Appeal No.911 of 1996, i.e. appeal filed by the State of Gujarat against the order of acquittal, is concerned, the same is hereby allowed. The judgment and order of acquittal dated 31st July, 1996 passed by the learned Special Judge, Junagadh, in Special Case No.05 of 1989 acquitting the respondent-accused from the charge of offence punishable under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1847, is hereby quashed and set aside. The judgment and order of acquittal dated 31st July, 1996 passed by the learned Special Judge, Junagadh, in Special Case No.05 of 1989 acquitting the respondent-accused from the charge of offence punishable under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1847, is hereby quashed and set aside. The respondent-accused is held guilty and convicted for the offence punishable under Section 5(1) (d) read with Section 5(2) of the Prevention of Corruption Act, 1847 and sentenced to undergo rigorous imprisonment for a period of one year, and to pay fine of Rs.500/-, and in default of payment of fine, to undergo simple imprisonment for a further period of three months. The respondent-accused is, therefore, directed to surrender himself before the Jail Authority to undergo the sentence within a period of four weeks from today to serve the sentence, failing which the trial Court concerned is directed to issue non-bailable warrant against the appellant to effect his arrest. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. 25. Both the sentences, viz. judgment and order of conviction and sentence confirmed in Criminal Appeal No.750 of 1996, i.e. appeal against conviction; and sentence awarded in Criminal Appeal No.911 of 1996, i.e. appeal filed by the State against acquittal, shall run concurrently.