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Gujarat High Court · body

2017 DIGILAW 789 (GUJ)

State of Gujarat v. Jayantibhai Muljibhai Vasava

2017-04-11

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 15.4.2005 rendered by learned Special Judge, Bharuch in Special Corruption Case No. 5 of 1999. 2. The short facts giving rise to the present appeal are that on 28.11.1998, when the complainant was taking meal at Kevadiya, at that time, the accused person who was serving in Rajpipla Police Station came with one police man there and told the complainant that one criminal case was lodged against the complainant and that the complainant absconded and hence, they came to arrest him. It is alleged that the accused told that they would arrest the complainant and take the remand and hence the complainant requested to settle the matter. It is alleged that therefore the accused demanded Rs. 5000/- for the said settlement being the amount of illegal gratification. It is alleged that the complainant requested to reduce the said amount to Rs. 3000/- which was later on requested to be reduced to Rs. 2000/-. It is alleged that the accused denied to receive less amount. As the complainant did not want to pay the said amount, he lodged the complaint before the ACB office, Bharuch against the accused person. 3. 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. 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 trial, after recording the statement of the accused under section 313 of the Criminal Procedure Code, 1973 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 State has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that 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 State has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that 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. 5.1 Mr. K.L. Pandya, learned APP appearing for the appellant State has reiterated and urged the grounds mentioned in the memo of appeal. Learned APP has taken this Court through the paper-book and evidence on record and argued that the finding recorded by learned trial Court is based upon the presumptions and surmises. He further submitted that learned trial Court has not rightly appreciated the evidence on record in its proper perspective and wrongly acquitted the accused though from the evidence of the shadow witness as well as other police official, vital ingredients i.e. demand and acceptance are being established. In his submission, learned trial Court has failed to appreciate the evidence on record and wrongly recorded the judgment of acquittal which is required to be reversed and the respondent is required to be convicted, as such. 6. On the other-hand, Mr. J.N. Patel, learned advocate for the respondent accused has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. He submitted that learned trial Judge has recorded ample reasons while delivering the judgment and based its findings on the evidence available on record and that there is no evidence on record to link the respondent accused with the crime in question. He submitted that the complainant was declared hostile and he disowned his complaint coupled with the fact that he went to say to the extent that the respondent accused has not demanded any amount, but one another constable i.e. Samsunbhai Ratilal demanded the amount and therefore, the demand and acceptance cannot be said to be proved against the respondent accused. He submitted that the complainant was declared hostile and he disowned his complaint coupled with the fact that he went to say to the extent that the respondent accused has not demanded any amount, but one another constable i.e. Samsunbhai Ratilal demanded the amount and therefore, the demand and acceptance cannot be said to be proved against the respondent accused. He submitted that the complainant has admitted that he had for the first time in his life time seen the present respondent accused in the court and he never demanded any amount of illegal gratification. He submitted that in view of the decision of the Apex Court in the case of M.R. Purushotham v. State of Karnataka, reported in (2015) 3 SCC 247 and when the complainant has disowned his complaint, the evidence of the shadow witness leads no further the case of the prosecution. He submitted that though Police Inspector PW 6 was also named as one of the accused, however, he has been examined as prosecution witness and similarly PW 5 - Shamsunbhai Ratilal has demanded and accepted the amount of illegal gratification as per the deposition of the complainant, but he has been examined as prosecution witness. He submitted that there appears no fair investigation in the present case though PW 6 was named as accused as per the complaint, but he has been shown as prosecution witness. He submitted that the even the complainant refused to identify the present respondent accused before learned trial Court and also refused to attribute him as demander of any amount of illegal gratification, on the contrary, the complainant has involved PW 5 Shamsunbhai Ratilal as demander and acceptor of illegal gratification. He, therefore, submitted that in view of the evidence on record and in view of the decision of the Apex Court in the case of M.R. Purushotham (supra) referred above, it cannot be said that the learned trial Judge has committed any error in passing the impugned order acquitting the respondent accused, and therefore, the present appeal deserves to be dismissed. 7. This Court has heard Mr. K.L. Pandya, learned APP for the appellant State and Mr. J.N. Patel, learned advocate for respondent accused. 8. This Court has minutely gone through the impugned judgment and order rendered by learned trial Court as well as the evidence on record in the nature of paper book. 7. This Court has heard Mr. K.L. Pandya, learned APP for the appellant State and Mr. J.N. Patel, learned advocate for respondent accused. 8. This Court has minutely gone through the impugned judgment and order rendered by learned trial Court as well as the evidence on record in the nature of paper book. As per the prosecution version, the respondent accused was serving as police constable in the prohibition branch and Mr. S.J. Vasava was Police Inspector in the said branch. Said Mr. Vasava carried out the raid under the provisions of the Bombay Prohibition Act on 27.11.1998 wherein other two accused came to be apprehended at the place, whereas the present complainant was found to be absconded and therefore the present respondent when seen the said absconded accused, i.e. the complainant herein demanded Rs. 5000/- for not arresting him and not asking for remand and for enlarging him on bail which scaled down to Rs. 3000/-. Thereafter, the complainant was directed to hand over the said amount on 17.12.1998 at the Prohibition Police Station, Rajpipla. As per the prosecution case, tainted currency notes were found from the otla of the police station and the accused came to be apprehended from another place and thereby the respondent accused committed the offence, as alleged. 9. PW 1 - Devlabhai Jemabhai has been examined at Exh. 6. The witness has deposed that he was requisitioned as shadow witness who at the relevant time was working as Junior Clerk in Fisheries Department. The witness has deposed that he was made to understand as to how the trap is to be carried out and as to how the anthracene powder is to be applied on the currency notes and he was instructed to remain with the complainant all throughout. The witness has deposed that on the day of trap, when he along with the complainant reached to the office of the accused, the complainant shown the present respondent accused being seated on the wooden stool, at that time, the respondent accused came nearby the complainant and asked as to whether he had brought the amount as per previous conversation, in turn, the complainant told him that he has brought Rs. 2000/- and Rs. 1000/- would be paid later on for which he has also brought surety. The witness has deposed that thereafter the complainant handed over the amount of Rs. 2000/- and Rs. 1000/- would be paid later on for which he has also brought surety. The witness has deposed that thereafter the complainant handed over the amount of Rs. 2000/- to the accused and the accused counted the same and placed in his hand and hence, the complainant raised prearranged signal and therefore the members of the raiding party arrived there. The witness has deposed that therefore the accused throw away the said tainted currency notes and ran away from the place of incident and thereafter he was apprehended on 22.12.1998. 10. PW 4 - Dineshbhai Bachubhai Tadvi - complainant has been examined at Exh. 14. The witness has deposed that in the month of November 1998 while he was passing through the market of Kevadia, at that time, one police man i.e. Shamsunbhai Ratilal and the accused met him, at that time, said Shamsunbhai Ratilal told him that he has been shown as absconded accused in one prohibition case. The witness has deposed that said Shamsunbhai Ratilal thereafter demanded Rs. 3000/- from him for not beating him and he was further directed to pay the said amount within 2-3 days. The witness has deposed that as he was not willing to pay the bribe amount, he lodged the complaint before the ACB office, Bharuch wherein he stated that said Shamsunbhai Ratilal has demanded Rs. 3000/- from him for not beating him. Thereafter, the witness was declared hostile. Learned APP made extensive cross examination, but he denied all the recital made in the complaint at Exh. 42. In the cross examination, the witness has admitted that he has studied upto 7th standard and he has merely seen Exh. 42 and he did not know as to what was written in the complaint. In the complaint, the witness named Shamsunbhai Ratilal as accused and the said Shamsunbhai Ratilal is not present before learned trial Court. The witness has admitted that for the first time, he has seen the accused in his life. 11. PW 5 - Shamsunbhai Ratilal has been examined at Exh. 17. The witness has deposed regarding the prohibition raid carried out on 27.11.1998 wherein the present complainant was shown as absconded. 12. PW 6 - Shantilal Jethabhai Vasava has been examined at Exh. 18. 11. PW 5 - Shamsunbhai Ratilal has been examined at Exh. 17. The witness has deposed regarding the prohibition raid carried out on 27.11.1998 wherein the present complainant was shown as absconded. 12. PW 6 - Shantilal Jethabhai Vasava has been examined at Exh. 18. The witness has deposed that he was serving as Police Inspector at Rajpipla Prohibition Police Station and that Shamsunbhai Ratilal - prosecution witness and the accused were also serving as police constables with him. The witness has deposed that as per the secret information, he carried out prohibition raid on 27.11.1998 wherein he was accompanied by Shamsunbhai Ratilal - prosecution witness and the present respondent. The witness has deposed that in the said prohibition case, the complainant has been shown as absconded. On the day of trap, he seen tainted currency notes lying on the otla of the police station and he did not know as to who has accepted the said tainted currency notes, but the said tainted currency notes were recovered by Police Inspector Mr. Koralwala. In the cross examination, the witness has admitted that on 17.12.1998, he seen the present respondent accused present in the police station, but after 10.00 O'clock, he has not seen the accused in the police station. The witness has admitted that he has also seen the complainant on that day, but prior to the trap, the accused was not present. The witness has admitted that since the arrival of the complainant in the prohibition police station and till the conclusion of raid, he has not seen the respondent accused in the police station. 13. PW 8 - Nareschandra Bhikhabhai Koralwala has been examined at Exh. 41. The witness has stated that he was working as Police Inspector at the relevant time and he has carried out the trap and also detailed as to how the trap is carried out. 14. On overall analysis of the aforesaid evidence on record and having perused the impugned judgment and order, it appears that learned trial Judge has recorded ample reasons while acquitting the respondent accused. Learned trial Judge has recorded the finding that the prosecution has miserably failed to establish the vital ingredients as regards to demand and acceptance as the complainant himself has turned hostile. In the complaint at Exh. Learned trial Judge has recorded the finding that the prosecution has miserably failed to establish the vital ingredients as regards to demand and acceptance as the complainant himself has turned hostile. In the complaint at Exh. 42, the complainant, inter alia, stated that on 28.11.1998 while he was passing through the market, at that time, respondent accused and one another police person met him and the respondent accused told him that PW 6 - Shantilal Jethabhai Vasava, Police Inspector is about to apprehend him and thereafter beat him; at that time, the complainant requested not to do so and therefore, the said respondent told that Police Inspector - PW 6 has demanded Rs. 5000/- from him which came to be scaled down to Rs. 3000/-. On going through the said complaint, it appears that the complainant has lodged the complaint against PW 6 - Police Inspector as well as the present respondent showing them as accused, however, the police after investigation, filed the charge-sheet against the present respondent only. Furthermore, on going through the evidence on record, the complainant appears to be history-sheeter and involved in the prohibition case wherein he has been shown as absconded accused. He lodged the complaint involving the present respondent as well as PW 6- Police Inspector of the Prohibition Police Station. However, during the course of trial, the complainant absolved the present respondent from all the allegations and implicated PW 5 - Shamsunbhai Ratilal as demander as well as acceptor of bribe and therefore, he was declared hostile. During the course of cross examination of the complainant, he totally disowned the complaint and merely admitted his signature over Exh. 42 and in short, he did not support the complaint itself as well as the prosecution case. In this view of the matter, this Court is of the considered opinion that learned trial Judge has rightly not believed the case of the prosecution as the complaint at Exh. 42 no more survives on record. It is by now well settled that demand has to be proved by adducing clinching evidence. Under the circumstances, in absence of specific and clinching evidence to prove all such acts by the respondents accused, acquittal recorded by learned trial Judge cannot be converted into conviction. 15. 42 no more survives on record. It is by now well settled that demand has to be proved by adducing clinching evidence. Under the circumstances, in absence of specific and clinching evidence to prove all such acts by the respondents accused, acquittal recorded by learned trial Judge cannot be converted into conviction. 15. So far as the evidence of shadow witness - panch is concerned, it is totally dependent upon the evidence of the complainant as well as recital made in the complaint at Exh. 42. Without resorting the recital of the complaint as well as the evidence of the complainant, the evidence of the shadow witness is not spelling out as regards to demand and acceptance by the present respondent accused. 16. In view of the aforesaid nature of evidence, this Court is of the considered opinion that the case in hand is squarely covered by the decision of the Apex Court in the case of M.R. Purushotham (supra). 17. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. 18. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in acquitting the respondent accused of the charges leveled against him. This Court finds that the findings recorded by learned trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by learned court below and hence finds no reasons to interfere with the same. 19. In the result, this appeal fails and accordingly, it is dismissed. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith.