Research › Search › Judgment

Gujarat High Court · body

2023 DIGILAW 806 (GUJ)

State of Gujarat v. Laxmanbhai Amrabhai Jamang

2023-07-06

HEMANT M.PRACHCHHAK

body2023
JUDGMENT : HEMANT M. PRACHCHHAK, J. 1. The appellant-State of Gujarat has preferred the present appeal under Section 378 of Criminal Procedure Code, 1973 against the judgment and order of acquittal dated 15.3.2007 passed by the learned Special Judge, Bhavnagar, Camp-Mahuva in Special A.C.B. Case No. 1 of 1997, whereby the respondent-original accused was acquitted from the charges levelled against him under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act. 2. The facts in brief giving rise to the filing of present appeal are as under: 2.1 The complainant D.S. Mehta, PI, Bhavnagar ACB Police Station had given complaint on 20.06.1996 against the accused stating that on receiving information that the Government Medical officer at Dihor Village and Tansa village Primary Medical Center, after getting non-practice allowance, doing private practice by accepting fees of Rs. 10 from the patient and also he demanded Rs. 10 to 150 as bribe. Therefore, Panch Dashrathsinh Nanma and Chandrakant Narmadashankar and as patient Shri Nagindas Naranbhai Soni who serving as Government servant were arranged trap and for that necessary procedure and panchnama has been carried out. The accused took money of bribe in the presence of the panch and the members of the raiding party including the complainant. The bribe amount was recovered from the conscious possession of the accused. Thereafter, A.C.B. Bhavnagar, arrested the accused and produced him before the Court. 2.2 The A.C.B. Bhavnagar after obtaining proper sanction from the Government and after recording evidence of relevant witnesses, prepared charge-sheet against the accused and submitted the same before the Court of Learned Chief Judicial Magistrate. The case being exclusively sessions triable, was committed to the Sessions Court, Bhavnagar, as per Section 209 of the Cr.P.C. which in turn transferred the case to the court. 2.3 Thereafter, after verifying whether the accused was given all the necessary police papers or not, the learned Special Judge framed charges against the accused to which the plea of the accused was recorded, wherein he denied his involvement in the offence. 3. To prove its case, the prosecution has examined nine witnesses and has produced various documentary evidences. However, the learned Special Judge, Bhavnagar after hearing both the parties vide his judgment and order dated 15.03.2007 acquitted the accused of the offences with which he was charged. 4. 3. To prove its case, the prosecution has examined nine witnesses and has produced various documentary evidences. However, the learned Special Judge, Bhavnagar after hearing both the parties vide his judgment and order dated 15.03.2007 acquitted the accused of the offences with which he was charged. 4. Being aggrieved and dissatisfied with the aforesaid judgment and order of acquittal by the Trial Court, the State of Gujarat has filed present Appeal. 5. Heard Mr. Tirthraj Pandya, learned Additional Public Prosecutor for the appellant-State of Gujarat and Mr. Ankur Oza, learned advocate for the respondent at length. 6. While referring to the evidence on record, Mr. Pandya, learned Additional Public Prosecutor for the appellant-State of Gujarat has vehemently submitted that in the present case, there is cogent evidence regarding demand by accused and has accepted the amount. He has submitted that though the trapping officer, panch witnesses and the complainant have duly supported the version of the prosecution regarding demand and acceptance of the amount by accused, the learned Special Judge has disbelieved the case of the prosecution. He has submitted that though the prosecution has led the sufficient evidence and proved the case with regard to illegal gratification and acceptance by the accused person beyond reasonable doubt, the learned Special Judge has failed to appreciate the evidence in its true and proper spirit. He has submitted that the learned Special Judge has ought to have believed that mere acceptance of illegal gratification, which is recovered from accused is attracted the provisions of Sections 7 and 13(1)(d) and 13(2) of the Act. He has submitted that though there is sufficient evidence produced by the prosecution, the learned Special Judge has not considered the same in proper manner and, therefore, the learned Special Judge has committed an error by overlooking to the evidence while passing the impugned judgment and order of acquittal. He has submitted that the learned Special Judge has not properly appreciated the fact that the accused has not sufficiently explained in his statements recorded under Section 313 of the Cr.P.C. and he has not taken specific defence under Section 20(2) of the Act. He has submitted that the amount was found from the accused and the same was recovered at the instance of accused and it ought to have believed by the learned Special Judge. He has submitted that the amount was found from the accused and the same was recovered at the instance of accused and it ought to have believed by the learned Special Judge. According to him, all the three ingredients of offences are proved beyond reasonable doubt and, therefore, the Trial Court ought to have convicted the accused and punished him for the said offences. He has prayed to allow the present appeal and to quash and set aside the impugned judgment and order of acquittal. 7. Per contra, Mr. Ankur Oza, learned advocate for the respondent accused has vehemently submitted that there is no clear cut evidence on record to connect accused with the alleged offence of bribe. He has submitted that the entire version of the prosecution is not believable and from the evidence of the complainant and panch witnesses, there is material contradictions regarding main ingredients. He has referred and relied upon Sections 7 and 13 of the Act and has submitted that the prosecution has failed to establish the case against the accused beyond reasonable doubt. According to him, the learned Special Judge has properly appreciated the evidence and has rightly acquitted the accused from the charges levelled against him. He has submitted that the impugned judgment and order of the learned Special Judge is perfect one and there is no perversity and the same is required to be confirmed by this Court. He has prayed to dismiss the present appeal. 8. I have perused the evidence on record as well as impugned judgment and order of the Trial Court. At this stage, it is relevant to take into account Sections 7 and 13 of the Act, which read thus: “7. He has prayed to dismiss the present appeal. 8. I have perused the evidence on record as well as impugned judgment and order of the Trial Court. At this stage, it is relevant to take into account Sections 7 and 13 of the Act, which read thus: “7. Public servant taking gratification other than legal remuneration in respect of an official act - Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine. Explanation: (a) “Expecting to be a public servant.” If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section. (b) “Gratification.” The word “gratification” is not restricted to pecuniary gratifications or to gratifications estimable in money. (c) “Legal remuneration.” The words “legal remuneration” are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept. (d) “A motive or reward for doing.” A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. (d) “A motive or reward for doing.” A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. (e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other. 13. Criminal misconduct by a public servant: (1) A public servant is said to commit the offence of criminal misconduct: (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7. (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned. (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do. (d) if he: (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage. (ii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation - For the purposes of this section “known sources of income” means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.” 9. 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. 10. 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. 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. 11. It is worthwhile to refer to the decision of the Hon’ble Supreme Court in the case of Chandrappa and Others vs. State of Karnataka, (2007) 4 SCC 415 . The relevant paragraph of the decision of the Hon’ble Supreme Court in the case of Chandrappa (supra) reads as under: “The following general principles regarding powers of 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 fact and of law. (3) Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasize 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 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. (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 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. I have perused the relevant materials available on record and the evidence led by the prosecution and the arguments advanced by the learned Additional Public Prosecutor for the appellant-State and the learned advocate for the respondent-accused. I have also gone through the record and proceedings of the case and the impugned judgment and order of acquittal passed by the Trial Court. As the case put-forth by the prosecution that after getting non-practice allowance, the accused doing private practice by accepting fees of Rs.10 from the patient and also he demanded Rs. 10 to 150 as bribe and therefore the trap was arranged and the accused took money of bribe in the presence of the panch and the members of the raiding party including the complainant and therefore the case was registered against accused which fact itself is not satisfied the ingredients of Sections 7 and 13(1)(d) and 13(2) of the Act. Even otherwise, considering the ratio laid down by the Hon’ble Supreme Court as well as this Court in the case of A. Subair vs. State of Kerala, (2009) 6 SCC 587 , State of Kerala and Another vs. C.P. Rao, (2011) 6 SCC 450 , Neeraj Datta vs. State (Govt. of NCT of Delhi), AIR 2023 SC 330 and State of Gujarat vs. Ratilal Hirji Jobanputra, 2023 Law Suit (Guj.) 783, this Court is of the opinion that the present appeal being meritless deserves to be dismissed. 13. On perusal of the impugned judgment and order of the Trial Court, it clearly transpires that the Trial Court has taken into consideration all the facts while acquitting the accused. 13. On perusal of the impugned judgment and order of the Trial Court, it clearly transpires that the Trial Court has taken into consideration all the facts while acquitting the accused. It also appears from the impugned judgment and order that the Trial Court has appreciated the entire evidence in its true perspective and has come to the right conclusion in acquitting the accused. In paragraph No. 18 of the judgment and order the trial Court has dealt with all relevant aspect in its true and proper spirit. The impugned judgment and order of the Trial Court is not perverse one and it is based on the evidence on record. The same does not warrant any interference at the hands of this Court and the same is sustainable in the eyes of law. This Court is in complete agreement with the impugned judgment and order of the learned Special Judge. 14. 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 15.3.2007 passed by the learned Special Judge, Bhavnagar, Camp-Mahuva in Special A.C.B. Case No. 1 of 1997 is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.