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Gujarat High Court · body

2023 DIGILAW 267 (GUJ)

State of Gujarat v. Dahyabhai Kalidas Parmar

2023-02-07

MAUNA M.BHATT

body2023
JUDGMENT : 1. This is an appeal preferred by the State of Gujarat under Section 378(3) of Code of Criminal Procedure, 1973 (“The Code” for short) against the judgment and order of acquittal dated 19.12.2005, recorded by learned Presiding Officer and Additional Sessions Judge, Fast Track Court No.12, Vadodara in Special (A.C.B.) Case No.14 of 1995, whereby the learned trial Judge acquitted the respondent – accused of the charges for the offences punishable under Sections 7, 12, 13(1) (d) read with 13(2) of the Prevention of Corruption Act, 1988 (‘the Act’ for short). 2. Brief facts leading to prosecution case is that the complainant – Janaksinh Harnarayansinh Rathod is resident of Vadodara and was doing business in the name of Princeraj travels. The mini luxury bus owned by complainant bearing No. GJ-6T-9287, at the relevant time was running within the State of Gujarat on a daily route from Vadodara to Sankheda via Dabhoi. On 30.3.1995, at about 11.30 a.m. the bus of the complainant bearing No. GJ-6T-9287 was going towards Sankheda from Vadodara and was detained by police constable Mr. Dashrathsinh and Mr. Dahyabhai (respondent herein) at Dabhoi Sinor Chowkdi at around 12:00 p.m. noon. It was case of the prosecution that, at the relevant time Mr. Vikramsinh Solanki and Mr. Jayantibhai was driver and conductor respectively of the said bus. Police constable Mr. Dashrathsinh issued a memo to driver Mr. Vikramsinh without any cause and also told driver Mr. Vikramsinh to get an amount of Rs.2,200/- for plying luxury bus on Dabhoi route. Further, if the owner of the bus is not ready and willing to pay the amount, the said bus was not allowed to be plied on the road and will be detained. The driver Mr. Vikramsinh was also informed to call the owner of the bus and as a consequence Mr. Vikramsinh went to his owner. It was case of the prosecution that pursuant to the above incident, the complainant along with driver Mr. Vikramsinh went to Dabhoi to meet respondent – accused who was police constable at the relevant time. At that time though the amount of Rs.2,200/- was demanded, the complainant gave Rs.1200/- and assured to give Rs.1,000/- on 4.4.1995 at about 4:00 p.m., and on that assurance the luxury bus was released. It was also case of the prosecution that police constable Mr. At that time though the amount of Rs.2,200/- was demanded, the complainant gave Rs.1200/- and assured to give Rs.1,000/- on 4.4.1995 at about 4:00 p.m., and on that assurance the luxury bus was released. It was also case of the prosecution that police constable Mr. Dashrathsinh had informed the complainant to give balance amount of Rs.1,000/- either to him or to Mr. Dahyabhai who is respondent – accused in the present case. 3. Upon the receipt of the complaint, the P.I. of ACB, Vadodara (Rural) arranged a trap and during course of trap, an amount of Rs.1,000/- was recovered from Mr. Dashrathsinh – respondent herein (accused). Therefore, the offence punishable under Sections 7, 12, 13(1) (d) read with 13(2) of the Act was registered against the respondent – accused. 4. Necessary investigation was carried out and statements of several witnesses were recorded. During course of investigation the respondent was arrested and thereafter released on bail. Ultimately, charge-sheet was filed before the learned Presiding Officer and Additional Sessions Judge, Fast Track Court No.12, Vadodara where the case was registered as Special (A.C.B.) Case No.14 of 1995. The trial was initiated against the respondent. 5. To prove the case against respondent - accused, the prosecution has examined in all four witnesses and also produced several documentary evidences. 6. At the end of trial, after recording the statement of the accused under Section 313 of the Cr.P.C. and hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted the respondent of all the charges levelled against him by the impugned judgment and order. 7. Being aggrieved and dis-satisfied with the aforesaid judgment and order passed by learned trial Judge the appellant State has preferred the present appeal. 8. Heard Ms. Jirga Jhaveri, learned Additional Public Prosecutor for the appellant – State and Mr.Jarjeeskhan, learned advocate for the respondent – accused. 9. Appearing for the State, learned APP submitted that learned Presiding Officer and Additional Sessions Judge has not properly appreciated the evidence and ought to have held that the evidence of independent panch witnesses who are the shadow witnesses is sufficient to establish the charge levelled against the respondent – accused. 9. Appearing for the State, learned APP submitted that learned Presiding Officer and Additional Sessions Judge has not properly appreciated the evidence and ought to have held that the evidence of independent panch witnesses who are the shadow witnesses is sufficient to establish the charge levelled against the respondent – accused. She further contended that learned trial Judge had erred in not properly appreciating the evidence led by the prosecution looking to the provisions of the Act which establishes that all the ingredients of alleged charges are proved against the present respondent. By taking this Court to oral as well as documentary evidence, learned APP contended that the learned trial Judge’s order of acquittal is based on inference not warranted by the facts of the present case and it is based on the presumption which is not permitted under law. By taking this Court to the deposition of independent panch witnesses, she contented that when the demand was raised, respondent – accused was aware of the said demand and on behalf of Mr. Dashrathsinh, the respondent – accused has accepted the illegal gratification. Therefore, the learned trial Judge has committed an error by acquitting the respondent from alleged offences under Sections 7, 12, 13(1) (d) read with 13(2) of the Act, which is required to be reversed particularly, when the amount was recovered from the respondent – accused in the trap arranged. Relying upon the deposition of P.W.3 (R.T.O Officer) who was independent panch witness, she submitted that the respondent – accused had told the complainant that the amount which was demanded earlier is to be given to him and, therefore, it is clear case of demand and thereafter acceptance by the respondent – accused. She, therefore, submitted that the appeal is required to be allowed. 10. This Court has minutely perused the oral as well as documentary evidence on record and gone through the impugned judgment and order passed by the trial Court as well as paper book and evidence adduced by the prosecution in its entirety and has also considered the submissions made by learned APP for the appellant – State and learned advocate for the respondent. 11. In the case of Chandrappa v. State of Karnataka, reported in (2007) 4 SCC 415 , the Hon’ble Apex Court laid down the following principles: “42. 11. In the case of Chandrappa v. State of Karnataka, reported in (2007) 4 SCC 415 , the Hon’ble Apex Court laid down the following principles: “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: 1. An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. 2. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of act and of law. 3. Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusion”, “glaring mistakes”, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. 4. An appellate Court, however, 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. 5. 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.” 12. Similar principle has been laid down by the Hon’ble Supreme Court in the case of State of Uttar Pradesh v. Ram Veer Singh, reported in 2007 AIR SCW 5553, that while exercising the appellate power even if two reasonable conclusions are possible on the basis of evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the learned trial Court. 13. Further in the case of M.R.Purushotham v. State of Karnataka, reported in (2015) 3 SCC 247 , it has been held as under: “7. 13. Further in the case of M.R.Purushotham v. State of Karnataka, reported in (2015) 3 SCC 247 , it has been held as under: “7. In such type of cases the prosecution has to prove that there was a demand and there was acceptance of illegal gratification by the accused. As already seen the complainant PW1 Ramesh did not support the prosecution case insofar as demand by the accused is concerned. No other evidence was adduced by the prosecution to prove the demand made by the accused with the complainant. In this context the recent decision of a three Judge bench of this Court in B. Jayaraj vs. State of Andhra Pradesh reported in 2014(4) Scale 81 is relevant and it is held as follows : “8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Exbt.P- 11) before LW-9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW- 1 and the contents of Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial Court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive in so far as the offence under Section 13(1)(d)(i)(ii) is concerned as 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 established.” 14. The above also will be conclusive in so far as the offence under Section 13(1)(d)(i)(ii) is concerned as 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 established.” 14. Further in the recent decision in the case of K. Shanthamma v. State of Telangana reported in (2022) 4 SCC 574 it has been held as under: “10. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing the offence under Section 7 of the PC Act. 11. In P. Satyanarayana Murthy v. State of A.P., this Court has summarised the well-settled law on the subject in para 23 which reads thus: “23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d) (I) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.” 15. In the facts of the present case as can be seen from the record that P.W. 1 Pritamchand Angroop Thakur in his deposition at Exh.18 had clearly stated that he had only sanctioned the prosecution based on the evidence available on record. He had stated that he was neither a witness to the incident nor aware about any demand and acceptance as alleged in the complaint. Further, in the deposition of P.W.2 Janaksinh Harnarayansinh Rathod (complainant) at Exh.36, had stated that as told by his driver, the amount of Rs.1200/- was given to Mr. Dahyabhai. He had stated that he was neither a witness to the incident nor aware about any demand and acceptance as alleged in the complaint. Further, in the deposition of P.W.2 Janaksinh Harnarayansinh Rathod (complainant) at Exh.36, had stated that as told by his driver, the amount of Rs.1200/- was given to Mr. Dahyabhai. He had further stated that as Mr. Dashrathbhai was not present at Dabhoi bus station police chowki, the amount of Rs.1200/- was given to respondent – accused. In relation of tainted notes, he had deposed that as he had not touched the tainted notes, no significant change could be seen on his hand. Further he had stated in his cross-examination that the incident had happened because his driver Vikramsinh had given the amount of Rs.1,000/- as an installment to Mr. Dashrathsinh. Further he had stated that the complaint was lodged against Mr. Dashrathsinh and not against respondent – accused. Most importantly he had stated that neither at the time of incident nor prior to the complaint, respondent – accused had demanded any illegal gratification from him. 16. Further in the deposition of independent witness Mr. Iswarbhai Dalsukhbhai Nayak at Exh.41 had stated that the complainant Janaksinh Harnarayansinh Rathod had lodged a complaint against one Mr. Dashrathsinh and the amount as alleged in the complaint was to be paid to Mr. Dashrathsinh and not to respondent – accused. Even the memo was given to the driver of luxury bus by Mr. Dashrathsinh and not by respondent – accused. Most importantly in cross-examination at Exh.41, the respondent had stated that the complainant had given this money to him of Mr. Dashrathsinh. 17. Therefore, on overall analysis of evidence on record, the complainant himself had disowned in his deposition that the demand was raised by respondent – accused. Moreover, in the deposition of P.W. 3, independent panch witness had stated that the complaint was made against Mr. Dashrathsinh for demand of illegal gratification and not against Mr. Dahyabhai. Further even after the trap Dahyabhai had stated that as informed by complainant this amount is of Mr. Dashrathsinh. Therefore, the prosecution has failed in establishing that the demand was raised by respondent – accused. Further, in the deposition of P.W. 4 at Exh.44 an investigating officer, had stated that the complaint was not lodged against respondent – accused but against Mr. Dashrathsinh. Dashrathsinh. Therefore, the prosecution has failed in establishing that the demand was raised by respondent – accused. Further, in the deposition of P.W. 4 at Exh.44 an investigating officer, had stated that the complaint was not lodged against respondent – accused but against Mr. Dashrathsinh. Therefore, also the deposition of P.W.4 at Exh.44 remains no evidence as to demand and the same looses its evidential value as regards the demand and acceptance. The evidence of shadow panch also become meaningless as from the evidence of shadow panch, nothing concrete is revealing that the accused ever demanded any amount of illegal gratification from the complainant and in response thereto, the complainant handed over Rs.1000/- to the accused. 18. In view of the aforesaid nature of evidence, learned Presiding Officer and Additional Sessions Judge, Fast Track Court No.12, has rightly recorded the finding of acquittal thereby rightly acquitted the accused which calls for no interference of this Court. Even otherwise also, the case is squarely covered by the decision of M.R.Purushotham (supra) and on that count also, there appears no merit in the appeal. This Court finds that the findings recorded by the 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 the Court below and hence find no reasons to interfere with the same. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings when the reasons assigned by the Court below are found to be just and proper. Accordingly, present appeal is devoid of any merits and requires dismissal. 19. In the result, the present appeal is hereby dismissed. Record and proceedings to be sent back to the trial Court, forthwith.