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2017 DIGILAW 104 (GUJ)

State of Gujarat v. Kantibhai Shankarbhai Vankar

2017-01-17

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. The appellant-State of Gujarat has preferred the present appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 25.3.2004 rendered by the learned Special Judge, Fast Track Court, Patan, in Special (ACB) Case No. 15 of 2002, whereby the learned Judge has acquitted the respondents-accused for the offences punishable under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. 2. The short facts giving rise to the present appeal are that the accused No. 1 Kantibhai Shankarbhai Vankar and accused No. 2 Ishwarbhai Nagjibhai Desai were serving as Police Constables at Dhinoj Out Post, Chanasma Police Station having buckle Nos. 317 and 519 respectively. Uncle (Masa) of the complainant's Chapter Case being No. 228/99 was going on and the accused persons have demanded Rs. 3,000/- for not arresting the complainant's uncle and aunty. The complainant felt that the demanded amount is very excessive, therefore, he negotiated and the accused agreed to accept Rs. 800/-. As the complainant was not willing to give bribe amount, he approached ACB Office and lodged the complaint. Thereafter, the trap was arranged and ultimately, during the trap, the accused caught red handed with tainted currency notes of Rs. 800/-. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the respondents accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined several witnesses and also produced documentary evidences. 3.2 At the end of the trial, after recording the statement of the accused under Section 313 of the Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant-State has mainly contended that the learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. 4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant-State has mainly contended that the learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. It is further contended that the learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of acquittal is required to be reversed, as such. 6. Ms. H.B. Punani, learned APP appearing for the State has taken this Court through the entire material available on record and argued that the prosecution has successfully established the pre-demand which was raised by the accused on 2.10.1999 and in pursuance thereof, a trap was arranged on 4.10.1999 and both the accused were caught red handed along with tainted currency notes and the vital ingredient i.e. recovery is being established from the oral depositions of the complainant as well as panch No. 1. She has further argued that the judgment and order of the trial Court is against the provisions of law as the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has proved all the ingredients of alleged charges against the present respondents. It is further submitted by learned APP that the judgment and order of acquittal passed by the learned trial Judge is based on inferences not warranted by facts of the case and also on presumption not permitted by law. It is also submitted by him that the learned trial Judge has not properly appreciated oral as well as documentary evidence and thereby committed error by acquitting the respondents for the alleged offences under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, which requires to be reversed as such and the accused are required to be convicted. She has also drawn attention of this Court to the impugned judgment as well as record and proceeding of learned trial Court and stated that the order of acquittal recorded by the learned trial Court is required to be converted into conviction as such. She has also drawn attention of this Court to the impugned judgment as well as record and proceeding of learned trial Court and stated that the order of acquittal recorded by the learned trial Court is required to be converted into conviction as such. The learned APP has further argued that this Criminal Appeal is required to be allowed and the impugned judgment and order passed by the learned Trial Court is required to be quashed and set aside. 7. Mr. Mehul Sharad Shah, learned advocate for the respondents-accused has supported the judgment rendered by learned trial Court and has taken this Court through the evidence of the witnesses as well as impugned judgment and order and argued that there is no evidence to prove the involvement of the present respondents-accused in the crime in question. He has further argued that in view of the evidence at Exh. 34 and 36 i.e. station diary, on 2.10.1999 from 9:15 hours to 16:00 hours, both the accused persons were not on duty at Dhinoj Out Post, Chanasma Police Station and the same fact was admitted by the Investigation Agency. In that view of the matter, the evidence regarding pre-demand itself is not established. He has further argued that the complainant did not know the name of the accused persons and he came to know the name of the accused persons during the trial. He has further argued that during the trial, lot of improvements and contradictions came out from the deposition of the complainant. He has further argued that in the entire trial, the complainant knew the name of accused as Mr. Vyas instead of Kantibhai Shankarbhai Vankar, however the prosecution failed to explain as to how the complainant knew accused No. 1 by the name of Mr. Vyas. In that view of the matter, the prosecution has also failed to established the identity of the accused. He has further argued that on going through the evidence on record in the present case, the vital ingredients regarding demand, acceptance and recovery are required to be proved by the prosecution. He has further argued that the prosecution miserably failed to prove the guilt of the accused. He has further argued that as per the complainant, he handed over Rs. 500/- to the accused No. 1 and Rs. 300/- to the accused No. 2 and the same were recovered from their possession. He has further argued that the prosecution miserably failed to prove the guilt of the accused. He has further argued that as per the complainant, he handed over Rs. 500/- to the accused No. 1 and Rs. 300/- to the accused No. 2 and the same were recovered from their possession. However, as per the panchnama and deposition of panch No. 1, the tainted currency notes were recovered from the floor of the Octroi Office. In that view of the matter, the recovery itself becomes doubtful. He has further argued that in the series of decisions wherein the Hon'ble Supreme Court has clearly laid down that in absence of clear and cogent evidence of demand and acceptance, no conviction could be recorded as such. Therefore, the present Criminal Appeal is required to be dismissed and the impugned judgment and order passed by the learned trial Court is required to be confirmed. 8. This Court has heard Ms. H.B. Punani, learned APP for the appellant-State and Mr. Mehul Sharad Shah, learned advocate for the respondents-accused. 9. At this juncture, it would be fruitful to refer to some decisions of Hon'ble Apex Court. In the case of A. Subair vs. State of Kerala reported in (2009) 6 SCC 587 , while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act, the Hon'ble Apex Court ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction. 10. In the case of State of Kerala and another vs. C.P. Rao reported in (2011) 6 SCC 450 , the Hon'ble Apex Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 11. 11. In a recent enunciation by the Hon'ble Supreme Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined by the Hon'ble Apex Court in the case of B. Jayaraj vs. State of A.P. Reported in AIR 2014 SC (Supp) 1837, in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) & (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentially and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 12. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, the Hon'ble Apex Court in the case of Sujit Biswas vs. State of Assam, reported in (2013) 12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. 13. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. 13. In the light of the aforesaid ratio laid down by the Hon'ble Supreme Court and taking into consideration the statutory provisions contained under the Prevention of Corruption Act, 1988, evidence of the present case is required to be appreciated as such. 14. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. As per the prosecution version, the complainant visited Dhinoj Police Station on 2.10.1999 at about 10:00 a.m. for the purpose of inquiring criminal case lodged against his maternal uncle and maternal aunty and at that time, Police Officials i.e. Mr. Vyas and Mr. Desai demanded Rs. 3000/- for not keeping his uncle and aunty behind the bar but the complainant felt that the demanded amount is very excessive therefore, he negotiated and the accused persons agreed to accept Rs. 800/-. However, as he was not willing to pay Rs. 800/- as bribe to the accused, therefore, he approached the ACB and filed a complaint against the accused. On 4.10.1999, a trap was arranged and in the trap, accused No. 1 Kantibhai Shankarbhai was caught red handed and currency notes of Rs. 500/- were recovered from his possession and accused No. 2-Ishwarbhai was also caught red handed and currency notes of Rs. 300 were also recovered from his possession whereby the accused committed offences punishable under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. 15. P.W. No. 1-Complainant-Dashrathbhai Raval has deposed that on 2.10.1999, the complainant visited Dhinoj Police Station for the purpose of inquiring criminal case of his maternal uncle and maternal aunty and at that time, the accused demanded Rs. 3000/- for not keeping his uncle and aunty behind the bar but the complainant felt that the demanded amount is very excessive therefore, he negotiated and the accused persons agreed to accept Rs. 800/-. However, as he was not willing to pay Rs. 800/- as bribe to the accused, therefore, he approached the ACB and filed a complaint against the accused. 800/-. However, as he was not willing to pay Rs. 800/- as bribe to the accused, therefore, he approached the ACB and filed a complaint against the accused. On 4.10.1999, a trap was arranged and prior to holding the raid, he as well as panch and others were given detailed information as to how the raid was going to be conducted and as to how the anthracene powder is to be applied and as to how the experiment of ultra-violet lamp is to be carried out. He has further deposed that he was instructed to accompany the panch and rest of the members and panch were directed to see the incident out side the place of trap and to hear as to what conversation may take place between them. He has further deposed that after reaching the Police Station, he gave Rs. 500/- to the accused No. 1 and remaining Rs. 300/- to the accused No. 2. Thereafter, the pre-arranged signal was given to the other members of the raiding party and the ACB personnel came there and accused were caught red handed and tainted currency notes were recovered from the possession of the accused. Thereafter, detailed panchnama was carried out in the presence of accused and the said tainted currency notes were seized. In his cross-examination, he has admitted that he did not know the actual name of the accused persons. He has also admitted that he knew the name of accused No. 1 as Mr. Vyas instead of Kantibhai and he came to know the name of the accused persons during the trial. He has further admitted that when he came to know that his uncle and aunty were not released, however, the persons of the opposite party were released therefore, he got annoyed on the accused and decided to teach lesson to them. During the trial, he made lot of improvements and contradictions. 16. PW-3-Zahoorkhan Pathan-Panch No. 1 has deposed that on 4.10.1999, he was working as Junior Clerk in Social Welfare Department, Mehsana and he was requisitioned to act as panch in the trap prior to holding the raid. He as well as complainant and others were given detailed information as to how the raid was going to be conducted and as to how the anthracene powder is to be applied and as to how the experiment of ultra-violet lamp is to be carried out. He as well as complainant and others were given detailed information as to how the raid was going to be conducted and as to how the anthracene powder is to be applied and as to how the experiment of ultra-violet lamp is to be carried out. He has further deposed that he was instructed to accompany the complainant and rest of the members were directed to see the incident out side the place of trap and to hear conversation which may take place between them. He has further deposed that when he went with the complainant to the Police Station, the accused-Mr. Vyas and Mr. Desai told the complainant as to whether he has brought amount as agreed or not, to which, the complainant delivered the tainted currency notes to the accused-Mr. Vyas but Mr. Vyas threw the tainted currency notes on the floor. Therefore, the pre-arranged signal was given to the other members of the raiding party and the ACB personnel came there and the accused-respondents were caught red handed and tainted currency notes were recovered from the floor of the octroi. Thereafter, detailed panchnama was carried out in presence of the accused and the said tainted currency notes were seized. In his cross-examination, he has admitted that he is a government official and he had to depose as per the recitals made in the panchnama. He has further admitted that neither at the time of trap, the accused was present in the office of octroi nor they demanded tainted currency notes from the complainant. He has further admitted that at the time of trap, he did not know the name of the accused-respondents. He has further admitted that complainant never told him that the name of accused persons are Kantibhai and Ishwarbhai. 17. In the backdrop of the aforesaid factual position and on overall analysis of the evidence on record, the prosecution has to prove three main vital ingredients of illegal gratification, namely demand, acceptance and recovery of tainted currency notes. So far as the demand and acceptance of the illegal gratification is concerned, the complainant as well as panch have made lots of improvements and contradictions during the course of trial. Even in his evidence, the panch has clearly and categorically accepted that the accused did not demand any amount from the complainant. So far as the demand and acceptance of the illegal gratification is concerned, the complainant as well as panch have made lots of improvements and contradictions during the course of trial. Even in his evidence, the panch has clearly and categorically accepted that the accused did not demand any amount from the complainant. In that view of the matter, nothing reveals from the evidences of important witnesses i.e. complainant and panchas. 18. In view of the aforesaid nature of evidence, when demand and acceptance are not proved which are vital ingredients so far as establishing the guilt of accepting illegal gratification is concerned and in consequence whereof, recovery of tainted currency notes in the trap from the respondents-accused becomes meaningless. 19. Taking into consideration the rival submissions made by the learned counsel for the respective parties as well as the aforesaid evidence on record, it is clearly established that on 2.10.1999, at the time of raid, both the accused were not present in Dhinoj Police Station and the same fact is also established through the entry of station diary at Exh. 24 and 26 and it is also established by the Investigating Officer. In view of the aforesaid factual position, when both the accused persons were not present in the police station on 2.10.1999 between 10:00 hours and 14:00 hours, allegations of demanding bribe becomes itself collapsed. So far as the identity of the accused is concerned, in the complaint the complainant himself mentioned the name of accused No. 1 as Mr. Vyas, however, none of the accused having surname of Mr. Vyas. The prosecution has not explained as to how accused No. 1 was known for the name of Mr. Vyas on the other hand, on several occasions, complainant referred accused No. 2 as Mr. Vyas even according to the panch No. 1, he told that the name of the accused No. 1 is Mr. Vyas and that fact has not been clarified even till the trial. In the result, the identity of the accused No. 1 becomes doubtful. So far as the identity of the accused No. 2 is concerned, in the complaint, the complainant himself mentioned only his sir name as Mr. Desai instead of Ishwarbhai Nagjibhai Desai. Vyas and that fact has not been clarified even till the trial. In the result, the identity of the accused No. 1 becomes doubtful. So far as the identity of the accused No. 2 is concerned, in the complaint, the complainant himself mentioned only his sir name as Mr. Desai instead of Ishwarbhai Nagjibhai Desai. However, only his surname getting match with the recitals made in the complaint but the allegations made by the complainant is not getting corroboration from panch No. 1 regarding involvement of Mr. Desai in the crime in question. 20. In view of the aforesaid nature of the evidence, the prosecution miserably failed to prove anything against the accused and so far as the demand and acceptance is concerned, nothing reveals from the evidences on record and nothing reveals from the depositions of the complainant and panch that the accused demanded and accepted bribe and the prosecution also failed to established the identity of accused No. 1 and involvement of accused No. 2 in the crime in question. In this view of the matter, finding recorded by learned trial Court is in consonance with the evidence available on record. Therefore, as stated above, in absence of any specific and clinching evidence to prove all such acts by the respondents-accused, the acquittal recorded by learned trial Judge is sustainable. 21. In the result, this appeal fails and accordingly, it is dismissed. Bail bond, if any, stands cancelled. R & P to be sent back to the trial Court, forthwith.