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Gujarat High Court · body

2024 DIGILAW 1008 (GUJ)

State of Gujarat v. Mohanbhai Kalubhai Dama

2024-04-24

S.V.PINTO

body2024
JUDGMENT : S.V. PINTO, J. 1. This appeal has been filed by the appellant-State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 22.06.2007 passed by the learned Special Judge & Additional Sessions Judge, Bharuch in Special (ACB) Case No. 07 of 2001, whereby, the learned trial Court (hereinafter referred to as the learned trial Court) was pleased to acquit the respondent from the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act (herein after referred to as ‘the P.C. Act’). The respondent is hereinafter referred to as ‘the accused’ as he stood in the original case, for the sake of convenience, clarity and brevity. 2. The brief facts that emerge from the record of the case are as under: 2.1 That the accused was working as an unarmed Police Constable in the G.I.D.C. Ankleshwar Police Station and was a Public Servant. That the complainant Neelkanth Keshulal Palivan was residing at G.I.D.C. Ankleshwar and was working at the hotel of his uncle Pratapsinh Devisinh and was earning a salary of Rs. 2,500/- per month. That three years prior to filing of the complaint, a case under the provisions of the Prohibition Act was filed against him at Ankleshwar G.I.D.C. Police Station and thereafter he had stopped doing the business of the liquor. That the accused, who was working in the G.I.D.C. Ankleshwar Police Station came to Shreenath Hotel, the place where the complainant was working and asked the complainant as to whether he was doing the business of liquor and when the complainant refused, the accused got angry and demanded for an installment as illegal gratification from him and stated that if any person was found in a drunken position near the hotel, he would have file a case against him. That the accused told the complainant that he would to pay an amount of Rs. 2,500/- per month as installment and also threatened to get the hotel closed. That on 08/02/2005, in the evening, the accused came to the hotel and started abusing the complainant and got angry and physically assaulted the other workers in the hotel. That the accused also threatened the complainant that he would place liquor in the hotel and get the hotel closed and demanded the amount of Rs. 2,000/- as illegal gratification. That on 08/02/2005, in the evening, the accused came to the hotel and started abusing the complainant and got angry and physically assaulted the other workers in the hotel. That the accused also threatened the complainant that he would place liquor in the hotel and get the hotel closed and demanded the amount of Rs. 2,000/- as illegal gratification. That the complainant did not have the amount of Rs. 2,000/- with him and hence the accused told him to give Rs. 1,000/- and thereafter to pay the remaining amount of Rs. 1,000/- on 10/02/2005 and stated that he would come to the hotel on 10/02/2005 between 03:00 pm to 04:00 pm to collect the amount of illegal gratification. That the complainant gave the accused an amount of Rs. 1,000/- and as the complainant did not want to pay the remaining amount of Rs. 1,000/- as illegal gratification, the complainant went to the ACB Police Station, Bharuch and filed the complaint under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, which was registered as C.R. No. 1 of 2005 on 10.02.2005. The Investigating Officer called the panch witnesses and demonstrated the use of the experiment of phenolphthalein powder and the solution of sodium carbonate and explained to the panch witnesses and the complainant about the characteristics of phenolphthalein powder and the solution of sodium carbonate, and a trap was arranged and the complainant and the panch witness went to Shreenath Hotel along with other panch witness and the members of the raiding party. That the accused came to Shreenath Hotel and demanded the amount of Rs. 1,000/- and the complainant gave the currency notes that were smeared with phenolphthalein powder and the accused took the tainted currency notes with his right hand and placed it in his right pant pocket and the complainant gave the predetermined signal and the members of the raiding party came and caught the accused red-handed. 2.2 That the Investigating Officer recorded the statements of the connected witnesses, sent the seized muddamal to the Forensic Science Laboratory, Surat and drew the necessary panchnama and after the order of sanction for prosecution was received, a charge sheet was filed before the Sessions Court, Bharuch, which was registered as Special ACB Case No. 7 of 2005. 2.2 That the Investigating Officer recorded the statements of the connected witnesses, sent the seized muddamal to the Forensic Science Laboratory, Surat and drew the necessary panchnama and after the order of sanction for prosecution was received, a charge sheet was filed before the Sessions Court, Bharuch, which was registered as Special ACB Case No. 7 of 2005. 2.3 That the accused was duly served with the summon from the learned trial Court and the accused appeared before the learned trial Court and after the due procedure of Section 207 of the Code of Criminal Procedure, 1973 was followed, a charge at Exh.12 was framed against the accused and the statement of the accused was recorded at Exh.13. The accused denied all contents of the charge and the evidence of the prosecution was taken on record. 2.4 The prosecution has examined four witnesses and has produced seventeen documentary evidence in support of their case and after the learned Additional Public Prosecutor filed the closing pursis at Exh.56, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. That, after the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused was heard, by the impugned judgment and order dated 22.06.2007 the learned Special Judge & Additional Sessions Judge, Bharuch in Special (ACB) Case No. 07 of 2001, acquitted the accused from the said offences. 3. Being aggrieved and dissatisfied with the said judgment and order of acquittal, the appellant-state has filed the present appeal mainly stating that the judgment and order of acquittal is contrary to law and evidences on record and the learned trial Court has erred in holding that the prosecution has failed to establish the case beyond reasonable doubts. That the prosecution has produced oral evidences of 4 witnesses and has produced 17 documentary evidences in support of their case, but the learned trial Court has failed to appreciate the evidence in true and proper perspective. That the oral as well as documentary evidences fully support the case of the prosecution and the learned trial Court has failed to appreciate that the accused was an unarmed Police Constable in the Ankleshwar GIDC Police Station and was a member of the disciplined force. That the prosecution has proved that the accused had demanded the amount of Rs. That the oral as well as documentary evidences fully support the case of the prosecution and the learned trial Court has failed to appreciate that the accused was an unarmed Police Constable in the Ankleshwar GIDC Police Station and was a member of the disciplined force. That the prosecution has proved that the accused had demanded the amount of Rs. 2,000/- as illegal gratification and accepted the amount of Rs. 1,000/- on 10/02/2005 and was caught red handed and the tainted currency notes were recovered from the possession of the accused. That, the act of the accused who was working as an Unarmed Police Constable is unbecoming of a public servant and the demand and the acceptance is clearly proved from the evidence of the complainant as also the panch witness. That the learned trial Court has not appreciated the evidence of this witnesses and the learned trial Court has erred in not believing the evidence of this witnesses. That the learned trial Court has not resorted to the presumption of under Section 20 of the PC Act and erred in acquitting the accused and the impugned judgment and order is illegal, invalid and improper and the same deserves to be quashed and set aside. That when the traces of phenolphthalein powder was found from the hands of the accused and the amount of illegal gratification was recovered, the learned trial Court ought to have concluded that the amount was accepted by the accused as illegal gratification from the complainant. That the impugned judgment and order of acquittal is improper, perverse and bad in law and is required to be quashed and set aside and the accused must be found guilty for the said offences. 4. Heard learned Additional Public Prosecutor, Ms. Jyoti Bhatt for the appellant-state and learned advocate Mr. Param Buch for learned advocate Mr. Hriday Buch appearing for the respondent. Perused the impugned judgment and order of acquittal and have re-appreciated the entire evidence of the prosecution on record of the case. 5. Learned APP Ms. 4. Heard learned Additional Public Prosecutor, Ms. Jyoti Bhatt for the appellant-state and learned advocate Mr. Param Buch for learned advocate Mr. Hriday Buch appearing for the respondent. Perused the impugned judgment and order of acquittal and have re-appreciated the entire evidence of the prosecution on record of the case. 5. Learned APP Ms. Jyoti Bhatt has taken this Court through the entire evidence of the prosecution produced before the learned trial Court and has submitted that the prosecution has examined 4 important witnesses and has also produced 17 documentary evidences, which prove beyond reasonable doubts the main ingredients of demand, acceptance and the recovery of the tainted currency notes from the possession of the accused but the learned trial Court has not believed the evidence and has relied upon minor contradictions and omissions in the evidence. That even though, the complainant has not identified the accused and has not supported the case of the prosecution and has not been declared hostile before the learned trial Court, as per the settled principles of law, the portion of the evidence where the witnesses support the case of the prosecution can be read in evidence and the panch witness who was the shadow witness along with the complainant on the date of the trap has fully supported the case of the prosecution. That the Trap Laying Officer and the Investigating Officer have fully supported the case of the prosecution and from their evidence, the prosecution has proved the case against the accused beyond reasonable doubts but the learned trial Court has failed to appreciate the entire evidence in proper perspective and in fact the accused has committed the offence and must be found guilty for the said offences. Learned Additional Public Prosecutor Ms. Jyoti Bhatt has urged this Court to allow the appeal of the appellant and find the accused guilty for the said offences. 6. Learned Advocate Mr. Param Buch for the respondent has submitted that in the entire evidence of the prosecution, the complainant has not supported the case of the prosecution and has been declared hostile and has completely resilled from the complaint. That the complainant has not identified the accused and when the complaint is not proved and the factum of demand is not proved, the presumption under Section 20 of the PC Act would not be available to the prosecution. That the complainant has not identified the accused and when the complaint is not proved and the factum of demand is not proved, the presumption under Section 20 of the PC Act would not be available to the prosecution. Proof of demand of illegal gratification is a sine- qua-non for an offence under PC Act and in a instance case, when the prosecution has not proved the factum of demand, the accused cannot be convicted. The learned trial Court has considered all these aspects and in the well-reasoned judgment and order has discussed the entire evidence of the prosecution and there is no evidence on record to suggest that the accused had , in fact, demanded for any amount of illegal gratification or had earlier taken the amount of Rs. 1,000/- as illegal gratification from the complainant. That the impugned judgment and order is legal and well-reasoned and all the evidence has been properly appreciated by the learned trial Court and hence the appeal must be rejected and the judgment and order passed by the learned trial Court must be confirmed. 7. Before the evidence of the prosecution is appreciated and dissected, it is essential to reiterate the cardinal principles of criminal jurisdiction as settled by the Honourable Apex Court in a Catena of decision and the first cardinal principle is that the prosecution in a criminal trial is required to prove the case against the accused beyond reasonable doubts and the prosecution cannot benefit from the weaknesses of defence. The second cardinal principle is that in a criminal trial, the accused is presumed to be innocent unless and until he is found guilty by the evidence produced by the prosecution beyond reasonable doubts and the third cardinal principle of law is that the onus of burden of proof never shifts from the prosecution. 8. Before adverting to the facts of the case on hand, it would be apt to refer to the scope of the learned trial Court in acquittal appeals and the Honourable Apex Court in Criminal Appeal No. 1167 of 2018 in the case of Ballu @ Balram @ Balmukund and Another vs. State of Madhya Pradesh in Para Nos. 8 and 9 has observed thus: “8. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. 8 and 9 has observed thus: “8. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt. 9. Apart from that, it is to be noted that the present case is a case of reversal of acquittal. The law with regard to interference by the Appellate Court is very well crystallized. Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted. Though, there are a catena of judgments on the issue, we will only refer to two judgments which the High Court itself has reproduced in the impugned judgment, which are as reproduced below: “13. In case of Sadhu Saran Singh vs. State of U.P. (2016) 4 SCC 397, the Supreme Court has held that: “In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. Appellate Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, has no absolute restriction in law to review and re-look the entire evidence on which the order of acquittal is founded.” 9. As per the settled principles of law, in acquittal appeals, the presumption of innocence in favour of the accused and it is imperative that the appellate Court re-appreciates and reevaluates the evidence produced by the prosecution before the learned trial Court. In the instant case, the prosecution has examined PW-1 Neelkanth Keshulal Palivan at Exh.14. The complainant has stated that earlier he was doing the business of liquor in GIDC and a case was registered against him under the P.C. Act. In the instant case, the prosecution has examined PW-1 Neelkanth Keshulal Palivan at Exh.14. The complainant has stated that earlier he was doing the business of liquor in GIDC and a case was registered against him under the P.C. Act. That he had gone to his native place in Rajasthan and thereafter his uncle had called him to work at his Hotel. That the accused had come to the Hotel and asked him why he had come back and had also asked as to whether he was contemplating restarting starting the liquor business. That the complainant had stated that he does not do any business of liquor and the accused had demanded an amount of Rs. 2,500/-. That his uncle had taken him to Bharuch and he had to go with his uncle and he stood below the office and his uncle had gone into the office. That he does not know which office his uncle had gone into and thereafter they returned to the hotel. That a car with seven persons came and he was sitting on the counter and at that time his uncle had given him Rs. 1,000/- to Rs. 1,200/- and told him that the a thin man would have come and he had given the amount to that person. That he had not asked the person his name and suddenly the police came and caught the person. The witness has refused to identify the accused and has stated that the person to whom he had given the amount was not present before the Court. That the Police had taken his signature and he does not remember the denomination of the currency notes that were taken. The witness has not supported the case of the prosecution and has been declared hostile before the learned trial Court and has been cross examined at length by the learned Additional Public Prosecutor. During the cross examination by the learned advocate for the accused, this witness has stated that he was not educated and he does not know Gujarati at all. That he had affixed his signature at the Hotel and whatever was written in the paper was written by his uncle and he has not done anything. That his uncle had not told him that what was written in the paper. That he had affixed his signature at the Hotel and whatever was written in the paper was written by his uncle and he has not done anything. That his uncle had not told him that what was written in the paper. That there is always a huge crowd in the hotel and on the day of the incident, the hotel was very crowded. That the police had come but as the hotel was over crowded they went away within 10 minutes. 9.1 The prosecution has examined PW-2 Prakashkumar Keshavbhai Chaudhary at Exh.26. The witness is the panch witness and the witness has fully supported the case of the prosecution and has narrated that all the events that had taken place from the time that he and other panch witness Shekh Saeed Gulambhai Patel had gone the ACB. The witness has stated that the accused was Kalubhai and the complainant had told him that he was Kalubhai and the accused came to the counter and asked the complainant what had happened about the outstanding amount. The complainant had told the accused that the amount was arranged and the accused took the currency notes with his right hand and had placed it in his right pocket. That the complainant gave the predetermined signal and the members of the raiding party came and caught the accused red handed. The witness has also stated that a filter paper was rubbed on the right side pocket of the accused and the filter paper was placed in the sodium carbonate solution and it turned pink. That the right hand of the accused was dipped in the solution of sodium carbonate and the solution turned pink whereas the colour of the sodium carbonate solution did not turn pink when the left hand of the accused dipped in. During the cross examination by the learned advocate for the accused, this witness has stated that the ACB officers had given him the copy of the panchnama before his deposition to read so that he would not make any mistake in his deposition before the learned trial Court. During the cross examination by the learned advocate for the accused, this witness has stated that the ACB officers had given him the copy of the panchnama before his deposition to read so that he would not make any mistake in his deposition before the learned trial Court. The witness has also stated that he is well aware that if he declared hostile by the learned Additional Public Prosecutor if he does not support and state as per the panchnama, a report can be filed against him and a Departmental Inquiry can be initiated and hence he has to be very careful while giving his deposition before the learned trial Court. The witness has also stated that on the previous date when they had gone to Ankleshwar, they did not find anyone and hence they came back. Moreover, the counter was 12 to 15 feet away from the table and behind the table was a bench and he was seated at the table which was near the bench. That the customers were continuously visiting the hotel and there were a number of vehicles coming to the hotel. That from where he was seated , he could not see, who had come outside and he had identified the accused on the previous day. That the complainant had left the counter and gone outside two to three times and the complainant was taking money from the drawer and for his pocket for making the transaction with the customers. That few signatures were made by him at the spot and few signatures were made by him at ACB office. 9.2 The prosecution has examined PW-3 Indravadan Balkrushna Vyas at Exh.41. The witness is the Trap Laying Officer and he has narrated in detail all the events that had taken place from the time the complainant gave the complaint till the trap was successful. The witness has stated that he had rushed in when the complainant gave the predetermined signal and had caught the accused red-handed. During the cross examination by the learned advocate for the accused , the witness has stated that Police Inspector Mr. Vala was with him during the entire trap and in the office, he and Mr. Vala, Police Inspector sit on adjacent tables. That from the complaint, he had known that the accused was a police employee and he had also known that the complainant had criminal past. Vala was with him during the entire trap and in the office, he and Mr. Vala, Police Inspector sit on adjacent tables. That from the complaint, he had known that the accused was a police employee and he had also known that the complainant had criminal past. That there were ill feeling between the complainant and the accused and he had not inquired as to how the complainant had made arrangement for illegal gratification. That the experiment of phenolphthalein powder was not done by him but was done by the head constable and at the time of incident the accused was not in a uniform. That the place of trap was a crowded place and surrounding the place there are a number of shops and vehicles were moving around as also customers were frequenting the hotel. 9.3 The prosecution has examined PW-4 Ranjeetsinh Desabhai Vala at Exh.44. The witness is the Investigating Officer who had taken over the investigation from Police Inspector Mr. I.B. Vyas. The witness has fully supported the case of the prosecution and has stated that after collecting the necessary documents and recording the statements of witnesses and receipt of the order of sanction for prosecution, he had filed the charge sheet before the learned trial Court. During the cross examination by the learned advocate for the accused, the witness has stated that he was a member of the raiding party and was present during the entire procedure. That the raid was carried out by the Trap Laying Officer Mr. I.B. Vyas and during the investigation, he has not recorded the statement of the Trap Laying Officer. That during the investigation that he had found that the complainant had criminal antecedents and cases have been filed against the complainant. That the place where the trap was laid was a crowded place and there were a number of persons frequently visiting the hotel. That at the time of trap, there were a number of customers in the hotel but he has not recorded the statements of these customers. That he has mentioned the names of the persons who had shops surrounding the place of trap in the charge sheet. 10. That at the time of trap, there were a number of customers in the hotel but he has not recorded the statements of these customers. That he has mentioned the names of the persons who had shops surrounding the place of trap in the charge sheet. 10. On appreciating the entire evidence produced by the prosecution on record of the learned trial Court, the complainant has turned hostile and has not supported the case of the prosecution and has not identified the accused before the learned trial Court. The complainant has stated that he gave the amount of Rs. 1,000/- to some person but that person was not before the learned trial Court and the complainant has not identified the accused. The panch witness has also made a mistake in the name of the accused and the accused is Mohanbhai whereas the panch witness has stated the accused was named Kalubhai. In the entire evidence of the panch witness, the panch witness has not stated that the accused had in fact demanded the amount of illegal gratification and the panch witness has stated that the accused had asked whether the amount was arranged to which the complainant had replied in the affirmative. Moreover, it has also come on record that the panch witness was seated at the place about 15 to 20 mtrs away from the counter and the place was buzzing with customers and traffic. There is no evidence on record that the panch witness has heard the conversation between the complainant and the accused. It has also come on record that the Investigating Officer is Mr. Ranjeetbhai Desabhai Vala was a member of the raiding party and he and the Trap Laying Officer Mr. I.B. Vyas were colleagues and they had their table next to each other in their office. That the Investigating Officer was along with the Trap Laying Officer and other members of the raiding party from the inception and it cannot be said that he is an independent person, who has investigated the matter in the right perspective. In the entire evidence, there is no iota of demand of any illegal gratification made by the accused and the complainant has stated his uncle had taken him to the ACB office. In the entire evidence, there is no iota of demand of any illegal gratification made by the accused and the complainant has stated his uncle had taken him to the ACB office. Admittedly at the time of the trap, there were a number of people in the hotel which was over crowded and there were a number of shops surrounding and very near to the hotel but no independent witnesses have been examined by the prosecution. Moreover, the uncle of the complainant has not been examined before the learned trial Court and when the factum of demand was not proved beyond reasonable doubts, the presumption under Section 20 of the Act could not be invoked before the learned trial Court. 11. Learned trial Court has in the impugned judgment and order has discussed entire evidence adduced by the prosecution and has discussed all the aspects and as the factum of demand was not proved by the prosecution in the entire evidence adduced on record, the learned trial Court has passed the impugned judgment and order of acquittal. 12. In view of the decision of the Apex Court in the case of Ballu @ Balram @ Balmukund (supra), this Court is of the opinion that the learned trial Court has appreciated the entire evidence of the prosecution and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. 13. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed. The impugned judgment and order dated 22.06.2007 passed by the learned Special Judge & Additional Sessions Judge, Bharuch in Special (ACB) Case No. 07 of 2001 is hereby confirmed. Bail bonds stand canceled. 14. Record and proceedings be sent back to the concerned Trial Court forthwith.