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2017 DIGILAW 682 (GUJ)

State of Gujarat v. Dilipsinh Bhavansinh Waghela

2017-03-24

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. The appellant 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 07.06.2005, rendered by learned Presiding Officer (Fast Track Court No. 1), Ahmedabad (Rural), Ahmedabad in Special (ACB) Case No. 10 of 2000, whereby the accused has been acquitted from commission of the offences under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short "the Act"). 2. The short facts giving rise to the present appeal are that as per the prosecution case, there was a dispute between complainant -Jivabhai Bhurabhai and Chikabhai Vaghari. In respect of the said dispute, one complaint was lodged with Barvala Police Station. In connection with the same, the complainant was taken to the Police Station and produced before Police Inspector - Mr. Borisagar by the accused. Thereafter, Police Inspector - Mr. Borisagar demanded Rs. 4,000/- from the complainant in presence of the accused for not seeking any remand and for not producing before the Magistrate and also to pay Rs. 2,000/- after he was released on bail. Thereafter, the complainant gave Rs. 4,000/- to Police Inspector - Mr. Borisagar in presence of the present accused. Thereafter, the present accused and Police Inspector - Mr. Borisagar started demanding Rs. 2,000/- and also threatened to implicate him in bogus case, if he fails to give money. As the complainant did not desire to give any amount to the present appellant-accused, the complainant approached the ACB office. After the complainant lodged the complaint, necessary formalities in respect of trap were carried out at ACB Office and the trap was arranged. The present accused was caught red handed while accepting bribe. Hence, the complaint came to be lodged against the respondent-accused for the offence punishable under Sections 7, 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the 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 six witnesses and also produced several documentary evidences. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the 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 six witnesses and also produced several documentary evidences. 3.2 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, 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. This Court has heard Mr. K.P. Raval, learned APP for the State and Mr. K.B. Aanandjiwala, learned senior advocate assisted by Mr. Vishal Anandjiwala for the present accused. 6. By way of preferring the present appeal, Mr. K.P. Raval, learned APP for the appellant -State has 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 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. 7. Mr. K.B. Aanandjiwala, learned Senior advocate for the respondent - accused argued that there is no iota of the evidence available on the record to link the accused with crime in question as the complainant was declared hostile and did not support the prosecution case. Similarly, the panch No. 1 who alleged to have accompanied with the complainant at the time of trap has neither viewed anything nor heard any conversation took place between the accused and the complainant. Therefore, the prosecution miserably failed to prove vital ingredients such as demand and acceptance and therefore, the judgment of acquittal recorded by the learned Special Judge calls for no interference. He has further urged that the judgment delivered by the learned trial Judge may be confirmed. He has also supported the judgment rendered by the learned Special Judge. Therefore, the prosecution miserably failed to prove vital ingredients such as demand and acceptance and therefore, the judgment of acquittal recorded by the learned Special Judge calls for no interference. He has further urged that the judgment delivered by the learned trial Judge may be confirmed. He has also supported the judgment rendered by the learned Special Judge. He has further stated that the learned Trial Court has not committed any error in relying upon the evidence and the learned Trial Court has rightly recorded findings which are based upon the material evidence and this Court should not interfere with the findings recorded by the learned Special Judge. He has further urged that this Court should not disturb the findings recorded by the learned Special Judge. 8. 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. 9. In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to reverse the judgment and order passed by the learned trial Court. 10. Keeping in mind the principle laid down by the Supreme Court in the series of decisions in light of the rival submissions came to be made by the learned advocates for the respective parties, the question arises for determination of this Court whether the prosecution has proved beyond reasonable doubt that the vital ingredients of demand, acceptance and recovery of illegal gratification of Rs. 2,000/- or not. 11. P.W. No. 1 - Jeeva Bhurabhai Bharvad -complainant was examined vide exhibit 14. He has deposed that he was resident of Village Bagad, Taluka - Ranpur. He was looking after animal husbandry business. One Cheekabhai lodged one complaint against him before about two - three years. Therefore, he was arrested and presented before the Court. He lodged one complaint with regard to the fact that he may not be harassed by the police. In pursuance of the aforesaid complaint made by Chhekabhai Vaghari, he was apprehended by Police Constable - Deelipsinh and was presented before Police Inspector - Mr. Borisagar. Thereafter, he did not support the prosecution case and therefore, he was declared hostile. He lodged one complaint with regard to the fact that he may not be harassed by the police. In pursuance of the aforesaid complaint made by Chhekabhai Vaghari, he was apprehended by Police Constable - Deelipsinh and was presented before Police Inspector - Mr. Borisagar. Thereafter, he did not support the prosecution case and therefore, he was declared hostile. In the extensive cross examination carried out by the learned APP, he did not accept as regards the fact mentioned in the complaint as well as his previous statement. However, in the cross examination carried out by the learned advocate for the accused, he admitted that prior to the day of trap, he was called by P.I. Maisurwala and his signature was obtained over the paper and the complaint was not read over to him. No test of ultraviolet lamp or anthracene powder was carried out in his presence. Further, he clearly and categorically admitted that neither Police Inspector - Mr. Borisagar nor the present accused - Deelipsinh demanded any amount of illegal gratification from him. He also admitted that they had not demanded any amount and he had not paid any amount of illegal gratification. He also admitted that at the time of trap, Deelipsinh was standing and working over the table and he thrusted money into the pocket of Deelipsinh. Further, he admitted that Police Inspector - Mr. Borisagar had never demanded any amount of illegal gratification and not accepted and therefore, he executed one affidavit to the ACB Office in that regard. 12. P.W. No. 2 - Chandresh Shantilal Modi has been examined vide Exhibit 20. He deposed that he was requisitioned as a panch by the ACB Office. He was working as a Junior Assistant in Gujarat Electricity Board. Mr. Maisurwala requisitioned him as a panch No. 1 and he was directed to accompany the complainant. He accompanied the complainant - Jeevabhai accordingly on the day of trap. When they reached to the Police Station where accused Deelipbhai was working. At that time, Deelipbhai asked as to with whom you have come. Then, Jeevabhai replied that he is his uncle. His name is Revabhai. Thereafter, Deelipsinh told him that he would have to go outside and he would call him if he requires. Therefore, he went outside. Thereafter, Deelipsing and Jeevabhai went inside the Police Station and he was sitting outside. Then, Jeevabhai replied that he is his uncle. His name is Revabhai. Thereafter, Deelipsinh told him that he would have to go outside and he would call him if he requires. Therefore, he went outside. Thereafter, Deelipsing and Jeevabhai went inside the Police Station and he was sitting outside. Thereafter, the complainant - Jeevabhai came out from the room and gave pre-arranged signal. In the cross examination, he admitted that as he was outside the room, he has not heard any conversation took place between the accused and the complainant and also not viewed the incident took place on the day of trap. 13. As noted above, nothing implicating the accused is forthcoming from the evidence of the complainant as well as the panch No. 1 as regards the establishment of vital ingredients like demand and acceptance. Therefore, the evidence of the rest of the witnesses is immaterial. 14. On the overall analysis of the aforesaid evidence on the record, when the complainant himself has disowned his complaint and even after filing the complaint and completion of successful trap, he let off Police Inspector Mr. Borisagar by way of tendering affidavit with regards the fact that he had never demanded and accepted any amount. In consequence whereof, the present respondent who was serving as an ASI came to be charged, however nothing is coming out against him from the mouth of the complainant as well as panch No. 1 i.e. P.W. Nos. 1 and 2 as regards the demand and acceptance as the complainant was declared hostile. As the panch No. 1 was outside the room, he could not hear any conversation took place between the accused and the complainant as well as he could not view the episode occurred during the course of trap. In the result, there appears no evidence on the record to establish the vital ingredients as regards demand and acceptance. In view of the aforesaid nature of evidence, the judgment of acquittal recorded by the learned Special Judge is in accordance with law which calls for no interference. 15. In view of the above, this Court is in agreement with the view taken by the lower Court. In view of the aforesaid nature of evidence, the judgment of acquittal recorded by the learned Special Judge is in accordance with law which calls for no interference. 15. In view of the above, this Court is in agreement with the view taken by the lower Court. Moreover, learned Public Prosecutor is not in a position to show any evidence on record so as to take a contrary view in the matter or to conclude that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored material evidence while acquitting the accused. Under the circumstances, this Court is of the considered opinion that the Court below has not committed any error in acquitting the respondent-accused of the charges leveled against him and, therefore, this Court finds no reason to entertain this appeal. 16. For the foregoing reasons, the Criminal Appeal is dismissed. The impugned judgment and order of acquittal dated 07.06.2005, rendered by learned Presiding Officer (Fast Track Court No. 1), Ahmedabad (Rural), Ahmedabad in Special (ACB) Case No. 10 of 2000, whereby the accused has been acquitted from commission of the offences under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988, is hereby confirmed. Bail bond, if any, stands canceled. Registry to return the R&P to the concerned trial Court forthwith.