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Gujarat High Court · body

2017 DIGILAW 1074 (GUJ)

State of Gujarat v. Bhimsinh Laxmansinh Vaghela

2017-06-12

R.P.Dholaria

body2017
JUDGMENT : R.P. Dholaria, J. Today when the matter is called out for admission hearing, Mr. K.L. Pandya, learned APP has requested this Court to dispose of the matter finally. Considering the facts of the present case and request made by the learned APP, the present matter is taken up for final disposal. 2. While allowing leave to appeal, this Court had vide order dated 7.6.2017, requested the learned APP to make available deposition of the complainant and shadow panch. Accordingly, Mr. K.L. Pandya, learned APP has placed necessary deposition before this Court. 3. The State of Gujarat has preferred the present appeal under Section 378 of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 26.8.2016 rendered by the learned Special Judge (ACB), Ahmedabad Rural, in Special (ACB) Case No.4 of 2010, whereby the learned Judge has acquitted the respondent accused for the offences punishable under Sections 7, 13(1)(d) (i), (ii), (iii) read with Section 13(2) of the Prevention of Corruption Act, 1988. 4. The short facts giving rise to the present appeal are that on 22.2.2010 cousin brother of the complainant namely, Nazirbahi Jinabhai was plying a Maruti Car bearing registration No.GJ-1-K-878 and when he was coming towards Bavla from Nalsarovar, at that time, between Karala Baldana Road, within jurisdiction of Bavla Police Station, the said car met with an accident with Motorcycle and pursuant to the said accident, the motorcyclist lodged a complaint before Bavala Police Station and ASI-Bhimsinhbhai carried out the investigation. On 18.2.2010, ASI-Bhimsinhbhai asked the complainant about his cousin to which, the complainant replied that his cousin has gone out of station. Thereafter, ASI-Bhimsinhbhai told him that if he pays Rs.5,000/-, he would produce him as a driver before the Court and further assured him that he would not keep him in lockup and would not torture him. As the complainant was not willing to pay the bribe amount, he filed a complaint before Anti Corruption Bureau. Thereafter, a trap was arranged and ultimately, the accused was caught red handed. Thereafter, seizure memo and other procedure in relation to the trap was carried out in presence of the panchas. Hence, a complaint came to be lodged against the respondent accused for the offences punishable under Sections 7, 13(1)(d) (i), (ii), (iii) read with Section 13(2) of the Prevention of Corruption Act, 1988. 5. Thereafter, seizure memo and other procedure in relation to the trap was carried out in presence of the panchas. Hence, a complaint came to be lodged against the respondent accused for the offences punishable under Sections 7, 13(1)(d) (i), (ii), (iii) read with Section 13(2) of the Prevention of Corruption Act, 1988. 5. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge sheet against the respondent accused. The charge was framed against the accused wherein the accused pleaded not guilty. Thereafter, at the end of the trial, after recording the statement of the accused under Section 313 of the CrPC and hearing the arguments on behalf of the prosecution and the defence, the learned trial Court delivered the judgment and order, as stated above. Being aggrieved by the same, the appellant State has preferred the aforesaid Criminal Appeal before this Court. 6. Heard Mr. K.L. Pandya, learned APP for the State. He has taken this court through the impugned judgment and order passed by the learned trail Court as well as the depositions of complainant and shadow panch. 7. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as depositions of the complainant and shad low panch. It appears that as per the prosecution version, on 22.2.2010 cousin brother of the complainant namely, Nazirbahi Jinabhai was plying a Maruti Car bearing registration No.GJ-1-K-878 and when he was coming towards Bavla from Nalsarovar, at that time, between Karala Baldana Road, within jurisdiction of Bavla Police Station, the said car met with an accident with Motorcycle and pursuant to the said accident, the motorcyclist lodged a complaint before Bavala Police Station and ASI-Bhimsinhbhai carried out the investigation. On 18.2.2010, ASI-Bhimsinhbhai asked the complainant about his cousin to which, the complainant replied that his cousin has gone out of station. Thereafter, ASI-Bhimsinhbhai told him that if he pays Rs.8,000/-, he would produce him as a driver before the Court and further assured him that he would not keep in lockup and would not torture him. As complainant was not willing to pay the bribe amount, he filed a complaint before Anti Corruption Bureau. Thereafter, ASI-Bhimsinhbhai told him that if he pays Rs.8,000/-, he would produce him as a driver before the Court and further assured him that he would not keep in lockup and would not torture him. As complainant was not willing to pay the bribe amount, he filed a complaint before Anti Corruption Bureau. Thereafter, a trap was arranged and ultimately, the accused was caught red handed and whereby the accused committed offence punishable under Sections 7, 13(1)(d) (i), (ii), (iii) read with Section 13(2) of the Prevention of Corruption Act. 8. However, on going through the deposition of complainant-Altafbahi Bachubhai Piludiya, it reveals that he has not supported the case of the prosecution and he has disowned the complaint itself. On the contrary, in the cross examination, he has admitted that the amount which was asked by the accused was towards the amount of settlement and not for illegal gratification and he has also admitted that demand was raised by the accused was towards the amount of compensation of the victim of the accident and that the accused never demanded any amount towards illegal gratification and he voluntarily handed over the amount to the accused. The complainant further admitted that at the time of arriving at settlement, the atmosphere became hot and under this situation, he got angered and lodged a complaint alleging that the accused demanded illegal gratification from him. Similarly, PW1 Ashoksinh Nathubha Gohil Panch No.1 (shadow panch) has deposed that at the time of trap, he accompanied the complainant and when they met the accused at the police station, at that time, accused asked the complainant about demanded amount of Rs.5,000/- which previously agreed between them to which, the complainant handed over the same to the accused and nothing more was deposed further by panch No.1. 9. On going through the evidence of rest of the witnesses, it appears that they have supported the procedure carried out at the time of trap. However, as the complainant has disowned the complaint and the prosecution has failed to establish the vital ingredients i.e. demand and acceptance, therefore, evidence of the rest of the witnesses are not discussed here. 10. On going through the evidence of rest of the witnesses, it appears that they have supported the procedure carried out at the time of trap. However, as the complainant has disowned the complaint and the prosecution has failed to establish the vital ingredients i.e. demand and acceptance, therefore, evidence of the rest of the witnesses are not discussed here. 10. In view of the aforesaid evidence on record, the prosecution has miserably failed to establish main ingredients i.e. demand and acceptance, therefore, so far as the recovery of tainted currency notes are concerned, the currency notes which are recovered from the possession of the accused becomes meaningless. When the complainant himself has disowned the complaint and he himself has admitted that whatever the amount given by him to the accused was towards the settled amount of compensation to the victim. Therefore, the prosecution has not made out any case regarding demand and acceptance of illegal gratification. So far as the deposition of panch No.1 is concerned, he has deposed that at the time of trap, the accused asked the complainant as to whether he has brought the money as previously agreed between them and the complainant in his cross examination has clearly and categorically admitted that the amount given by him to the accused was towards the payment of compensation and not towards illegal gratification. ASI Bhimsinhbhai 11. 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 thereof, recovery of tainted currency notes in the trap from the respondent accused becomes meaningless. In this view of the matter, finding recorded by the 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 respondent accused, the acquittal recorded by learned trial Judge is sustainable. 12. In view of the aforesaid nature of the evidence, the prosecution has miserably failed to prove anything against the accused and so far as the demand and acceptance are concerned, nothing reveals from the evidence on record and nothing reveals from the depositions of the panch No.1 and complainant that the accused demanded and accepted bribe. 12. In view of the aforesaid nature of the evidence, the prosecution has miserably failed to prove anything against the accused and so far as the demand and acceptance are concerned, nothing reveals from the evidence on record and nothing reveals from the depositions of the panch No.1 and complainant that the accused demanded and accepted bribe. In view of that, the learned trial Court has rightly recorded the findings which calls for no interference. 13. For the reasons recorded above, no useful purpose would be served to admit the present appeal. Consequently therefore, this appeal being devoid of any merit deserves dismissal and accordingly this appeal stand dismissed.