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Gujarat High Court · body

2019 DIGILAW 749 (GUJ)

State of Gujarat v. Ramabhai Koderbhai Vankar

2019-07-19

A.P.THAKER

body2019
JUDGMENT : A.P. Thaker, J. 1. The appellant - State has preferred the present appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order dated 27.02.2004 passed by the Special Judge (A.C.B.) and Joint District and Additional Sessions Judge, Fast Track Court, Modasa (Sabalpur) (hereinafter be referred to as "the Trial Court") in Special (A.C.B.) Case No. 8 of 1997 whereby the Trial Court has acquitted the original accused - respondent herein for the charges leveled against him for the offences under Sections 7, 13(1)(d)(1, 2, 3) and 13(2) of the Prevention of Corruption Act. 2. Brief facts of the prosecution case is that the complainant-Dinubhai Hirabhai Patel lodged the complaint with ACB Office, Himmatnagar on 09.12.1996 alleging that he was using the tractor for removing and dumping soil in the agricultural field after removing the soil from the waste land, at that time, the accused visited the site and threatened him that the land belongs to the forest department and that the complainant has no right to remove the soil. It is alleged that at that time, the complainant requested to find out some way to which the accused told that the complainant would have to pay Rs. 1,000/-, and the complainant requested to reduce the amount upto Rs. 500/- and thereupon, the accused reduced the amount to Rs. 500/-. It is alleged that subsequent to that incident, on several occasions, the accused introduced himself as a forest officer and demanded money. 2.1. On registration of the complaint, a trap was arranged by the office of the A.C.B. and on that basis, the amount of Rs. 500/- was recovered from the house, which was lying on the table, which came to be put by the complainant at the instance of the accused. According to the prosecution, after completion of the investigation, the charge-sheet came to be filed against the accused. 2.2. On filing of the charge-sheet, the charge was framed against the accused by the learned Additional Sessions Judge at the relevant time and the accused has pleaded not guilty and the evidence of the prosecution was recorded. According to the prosecution, after completion of the investigation, the charge-sheet came to be filed against the accused. 2.2. On filing of the charge-sheet, the charge was framed against the accused by the learned Additional Sessions Judge at the relevant time and the accused has pleaded not guilty and the evidence of the prosecution was recorded. Thereafter, after recording of the evidence of the prosecution, a statement under Section 313 of the Code of Criminal Procedure was recorded wherein the accused has denied of having committed any such offence and took the evidence that when he went to bring the water, the complainant has put up the currency note on the table and he has not demanded amount from the complainant. He has pleaded that he is innocent. He neither examined himself on oath nor examined any defence witness thereof. 2.3. After perusing and considering the evidence on record and after hearing both the sides, the Trial Court has, ultimately, acquitted the accused - respondent from the charges leveled against him. 3. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, the State has preferred the present appeal. 4. Heard Mr. K.P. Raval, learned Additional Public Prosecutor for the appellant - State at length and Mr. Premal Joshi, learned advocate for the respondent - accused. Perused the material placed on record. 5. While reading the entire evidence on record, Mr. K.P. Raval, learned Additional Public Prosecutor for the appellant has vehemently submitted that the prosecution was able to prove the charges levelled against the accused by cogent evidence and the Trial Court has materially erred in acquitting the accused. While referring to the evidence of the complainant and panch witness, he has submitted that from the evidence of both the witnesses, it transpires that in presence of panch No. 1, the accused had conversation with the complainant and he has directed the complainant to put the currency note on the table which was lying in his residence and, therefore, the same was recovered under the panchnama and recovery was also made from the residence of the accused. According to him, though there was no sign of anthracene powder on the hands of the accused as no amount was recovered from him, it could be presumed that the accused has accepted the bribe amount note while directing the complainant to put the currency note on the table. According to him, though there was no sign of anthracene powder on the hands of the accused as no amount was recovered from him, it could be presumed that the accused has accepted the bribe amount note while directing the complainant to put the currency note on the table. According to him, it is the case of implied acceptance of the amount from the complainant. He has submitted that there is clear cut evidence on the part of the complainant and panch No. 1 to the effect that during the conversation, at the residence of the accused, the accused has demanded the amount and on that basis, the amount was put on table by the complainant. He has submitted that the sign of anthracene power was found from the currency note as well as on the table. According to him, three ingredients i.e. demand, acceptance and recovery are proved in this case by cogent evidence, which includes the complainant, panch No. 1 and Investigating Officer and the officer, who has led the trap. According to him, the Trial Court has materially erred in appreciating the evidence on record and committed serious error of facts and law. For his submission that the amount was put on the table, at the instance of the accused, has been properly proved by the prosecution by leading evidence of the complainant and the panch No. 1, he relied on the observation of the Apex Court in the case of Ayyasami Vs. State of Tamil Nadu reported in AIR 1992 SC 644 and has urged this Court to believe that the accused has accepted the amount. He has relied upon the decision of the Apex Court in the case of Satvir Singh Vs. State of Delhi, reported in (2014) 13 SCC 143 : AIR 2014 SC 3798 . He has prayed to set aside the impugned judgment and order of acquittal and to convict and impose sentence upon the accused. 6. Per contra, Mr. Premal Joshi, learned advocate for the respondent has submitted that the entire case is based on the evidence of the complainant and panch No. 1. While referring to the evidence on record and the observations made by the Trial Court, he has submitted that the Trial Court has not committed any serious error of law in acquitting the accused. Premal Joshi, learned advocate for the respondent has submitted that the entire case is based on the evidence of the complainant and panch No. 1. While referring to the evidence on record and the observations made by the Trial Court, he has submitted that the Trial Court has not committed any serious error of law in acquitting the accused. According to him, there is no need to interfere with the impugned judgment and order of acquittal passed by the Trial Court. According to him, it was for the prosecution to prove the charges beyond reasonable doubt, whereas, in this case, there is material contradictions in the evidence of the panch No. 1 and the complainant. According to him, in this case, neither the demand nor acceptance is proved beyond reasonable doubt. According to him, from the very beginning, the stand of the complainant is that he was taking soil from the land of the forest department and at that point of time, the accused has stated to pay Rs. 1,000/- and he was ready to pay the fine and requested to reduce the amount for the same and due to which the accused has stated that Rs. 500/- be paid. While referring to the seizure memo and evidence, he has stated that the complainant himself has confessed regarding guilt of digging forest land and taking soil and has shown willingness to pay an amount of penalty. 6.1. He has submitted that in this case, acceptance is not proved and the amount was found on the table which was not touched by the accused. While referring to the evidence of the complainant and panch No. 1, he has submitted that when the entire incident has happened, one person namely Somabhai was present. However, this material witness has not been examined by the prosecution. He has submitted that preposition as put forward by Mr. Raval, learned APP that the acceptance is believed, then it is dangerous one and no public servant would be saved and any one can handle that at instance of public servant, whereby notes were put on any thing, e.g. table, teapoy etc. and there will be no scientific proof available thereof. Raval, learned APP that the acceptance is believed, then it is dangerous one and no public servant would be saved and any one can handle that at instance of public servant, whereby notes were put on any thing, e.g. table, teapoy etc. and there will be no scientific proof available thereof. According to him, it is incumbent on the part of the prosecution to prove the demand, acceptance and recovery and if any one is lacking then no conviction can be inflicted on the accused merely on the presumption or assumption. 6.2. According to him, the prosecution has to prove the guilt of the accused beyond reasonable doubt. According to him, in this case, it is found that the complainant has lifted the soil from the forest found and he has confessed and has shown his readiness to pay the amount of fine and that was to be paid to the accused as an official amount. 6.3. He has submitted that the evidence of the panch No. 1 and the complainant has properly been applied by the Trial Court. While relying the same decision in the case of Ayyasami Vs. State of Tamil Nadu (supra), which has been relied upon by the learned APP, Mr. Joshi has submitted that in that very decision, it is found that the Apex Court has set aside the conviction and sentence only on the ground that the money was recovered from the drawer and there was no independent evidence to show that the appellant demanded Rs. 100/- as bribe from the complainant and chemical solution did not inculpate him. Mr. Joshi, learned advocate has prayed to dismiss the appeal and confirm the impugned judgment and order of the Trial Court. 6.4. It is submitted by Mr. Joshi, learned advocate for the respondent that in this case, the police personnel, who has led the trap, has investigated the entire prosecution case and has led the charge-sheet and, therefore, this also goes to the root of the prosecution case. 7. It is well settled by catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. 7. It is well settled by catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 8. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime with which he is charged. 9. It is well settled by catena of decisions that in the cases of the Prevention of Corruption Act three essential ingredients namely (i) demand, (ii) acceptance and (iii) recovery are required to be proved beyond reasonable doubt by the prosecution. If any of them is not proved, being the vital part, the offence cannot be said to have constituted and, therefore, in absence of any one of them, the conviction cannot be imposed. If any of them is not proved, being the vital part, the offence cannot be said to have constituted and, therefore, in absence of any one of them, the conviction cannot be imposed. In this case, the question which is required to be determined is whether the prosecution has successfully established acceptance as well as recovery is duly proved from the fact that the amount was lying on the table and it is recovered from the top of the table. 10. In the case of Ayyasami Vs. State of Tamil Nadu (supra), the Apex Court has held and observed in para-2 as under:- 2. We have heard learned counsel for parties. There is no independent evidence to show that the appellant demanded Rs. 100/- as bribe from the complainant. The chemical solution did not inculpate him. The money was recovered from the drawer. There is no evidence apart from the complainant to show that the money was placed in the drawer by the complainant at the asking of the appellant. Under the circumstances we agree with, the learned counsel for the appellant that the conviction is based more on probabilities than on the evidence proving the guilt against him beyond reasonable doubt. 11. In the case of Satvir Singh Vs. State of Delhi, (supra), the Apex Court has held and observed that mere demand by itself is not sufficient to establish the offence under the Act. It was further held and observed therein that if there is failure on part of prosecution to prove demand and acceptance of illegal gratification by accused from complainant then no conviction can be imposed on the accused. In that case, the amount was put in a black rexine bag with a broken zip which was put on a steel cot. Under these circumstances, it was held and observed that acceptance of illegal gratification was not proved as contents of bag were not within the knowledge of the accused. It was further held and observed that as recovery of illegal gratification from the accused was not proved, no presumption under Section 20 of the Prevention of Corruption Act would be attracted. 12. It was further held and observed that as recovery of illegal gratification from the accused was not proved, no presumption under Section 20 of the Prevention of Corruption Act would be attracted. 12. In this case, the prosecution has relied upon the evidence of the complainant - Dinubhai Virabhai Patel at Exhibit 24, panch witness - Shaileshbhai Bhagabhai Prajapati at Exhibit 28, police witness - Virsinh Kalubhai Amaliyar at Exhibit 32 and police witness - Dalsukhbhai Motibhai Pargi at Exhibit 35. The case of the prosecution is that the complainant has taken away the soil from the land of the forest department and at that time, the accused has scolded him and asked him as to by whose permission, he is taking away the soil from the forest land and at that time, he has stated that the case has to be registered against him. It reveals from the FIR itself that at that point of time, the complainant has requested to find out some way and on such request, the accused has stated that Rs. 1000/- would be required to be paid and on being request to reduce the amount, the amount was reduced to Rs. 500/-. It reveals from the FIR that he has assured of making payment after selling of the groundnut and during interregnum period one Bachubhai, watchman came for recovery of that amount. It also reveals from the FIR that at the relevant time, the complainant has put up his signature on the paper. Now, on perusal of the entire evidence on record, it transpires that the complainant himself, in his chief-examination, has stated that at the time of digging soil, he has shown his willingness to pay fine, if any, and at that point of time, the accused has said him to make payment of Rs. 1,000/-. At this juncture, it is pertinent to note that one document having confessional statement of the complainant has been produced at Exhibit 27 which was recovered from the dickey of the scooter of the accused which shows that the complainant has admitted of taking away the soil from the forest land and he himself has written this note in his own handwriting and put up his signature. 13. 13. On perusal of the evidence relating to the conversation of demand at the residence of the complainant, it transpires that as per the say of the complainant, he has told the accused that sir I have come and brought Rs. 500/- and it is for the soil and, thereafter, he has handed over Rs. 500/- to the accused and at that point of time, the accused told him to put up the currency note on the table. From this conversation, it transpires that the accused has not demanded any amount of bribe. It also reveals from the evidence that he has improved his statement regarding the demand made by the accused. On reading of this evidence along with the evidence of the panch witness, it transpires that the panch witness has stated that the complainant has asked the accused whether he is well or not and at that point of time, the accused has only asked him that what has happened about that thing and at that point of time, the complainant has told him that he has brought Rs. 500/- and, thereupon, the accused told him to put up it on the table. It is stated by the panch witness that at that point of time, the complainant has told that is there any objection of taking amount at that place and on asking such thing, the accused has told that whether he is in hurry. It also reveals from the evidence of both these witnesses that when raiding party arrived at, the amount was lying on the table and on experiment of ultra violet lamp on the hands of the accused, no anthracene power was found. The signs of anthracene power was found on the table and on the hands of the panch who have hold notes at the instance of the police personnel. Thus, essential ingredients of acceptance of the amount by the accused is lacking in this case. Of course, it is submitted by the learned APP that there was implied acceptance as the accused has told to put up the amount on the table. But that fact itself cannot be considered in isolation. On perusal of the entire evidence of the complainant, it transpires that the witness is not telling truth. 14. Of course, it is submitted by the learned APP that there was implied acceptance as the accused has told to put up the amount on the table. But that fact itself cannot be considered in isolation. On perusal of the entire evidence of the complainant, it transpires that the witness is not telling truth. 14. At this juncture, it is pertinent to note that as per the evidence of the panch witness, one Somabhai was sitting with the accused when he and complainant went to his residence and everything has happened in presence of Somabhai, whereas, as per the complainant's evidence nobody was there when the transaction has taken place. At the same time, the police witness has accepted that one Somabhai was sitting with the accused, when the raid was made. Thus, the independent witness, who is Somabhai, can be said to be material witness, has not been examined by the prosecution. The presence of Somabhai is denied by the complainant, whereas, it is admitted by the panch and police personnel. As such, on relying of the evidence of panch witness along with the complainant and the police personnel, in juxtaposition, it transpires that the evidence of the panch witness and the complainant regarding the material ingredients of demand and acceptance are contradictory and cannot be believed. It is an admitted fact that the version of the complainant is that one Bachubhai has come frequently for demanding payment of bribe amount, but such witness Bachubhai was not examined by the prosecution to substantiate the say of the complainant. 15. It also transpires from the prosecution evidence that the panchnama was dictated by the police and the panchas have not dictated the panchnama. Under these circumstances, no reliance can be placed upon the such panchnama as it is not prepared on the basis of what was told by the panchas. As such, the averments in the panchnama may not be much use for convicting the accused. It also reveals from the evidence that there is no clear evidence about passing of currency note and, therefore, the demand is not clearly established and acceptance is also not established. 16. One of the submissions of Mr. Joshi, learned advocate for the respondent is regarding carrying out the investigation by the same officer, who has led the trap, has not been denied by the prosecution. 16. One of the submissions of Mr. Joshi, learned advocate for the respondent is regarding carrying out the investigation by the same officer, who has led the trap, has not been denied by the prosecution. It means that the officer, who has led the trap, has carried out the investigation also. At this juncture, it is pertinent to note that in the case of Bhagwan Singh Vs. The State of Rajasthan, reported in AIR 1976 SC 985 , the Apex Court has held and observed that if everything is done in the matter right from the recording of the complaint till completion of the earlier investigation by the same police officer, it would certainly affect the credibility of the prosecution case. In that case, the complaint was recorded by the Investigating Officer, raid was also carried out by the Investigating Officer and the search and seizure was also made by the same Investigating Officer and, thereafter, the investigation was also carried out by the same Investigating Officer till the charge-sheet was filed. 17. In view of the above preposition and considering the submissions of learned advocate for the respondent that in that case everything has been done in the matter right from recording of the complaint till completion of the entire investigation by the same police officer, it will certainly affect the credibility of the case of the prosecution and on that count, also the case of the prosecution would fail. 18. On re-appreciation of the entire evidence on record, it clearly transpires that the prosecution has miserably failed to establish the factum of demand as well as acceptance of illegal gratification by the accused. It appears from the impugned judgment and order that while reaching to the conclusion as to acquit the accused from the charges levelled against him, the Trial Court has properly appreciated the entire evidence on record in its true proper perspective and there is no any illegality or infirmity much less legal infirmity in appreciating the evidence on record on the part of the Trial Court and the same does not require any interference by this Court. 19. For the foregoing reasons, the present appeal is devoid of merits and it deserves to be dismissed. Resultantly, it is dismissed. 19. For the foregoing reasons, the present appeal is devoid of merits and it deserves to be dismissed. Resultantly, it is dismissed. The impugned judgment and order dated 27.02.2004 passed by the Special Judge (A.C.B.) and Joint District and Additional Sessions Judge, Fast Track Court, Modasa in Special (A.C.B.) Case No. 8 of 1997 is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.