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2024 DIGILAW 443 (GUJ)

State of Gujarat v. Dilubhai Narubhai Gadhavi

2024-03-05

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 in Special (ACB) Case No. 04 of 1998 passed by the learned 2nd Additional Sessions Judge, Jamnagar camp at Khambhaliya on 18.03.2009 (hereinafter referred to as ‘the learned Trial Court’) whereby, the learned Trial Court has acquitted the respondents from the offences punishable under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the P.C. Act’). The respondents are hereinafter referred to as ‘the accused’ as they stood in the original case, for the sake of convenience, clarity and brevity. 2. That the respondent No. 2 herein-original accused No. 2 has expired on 30.03.2019 and copy of death certificate has been produced on record and hence, the present appeal qua the respondent No. 2 stand abated and the present appeal survives qua the respondent No. 1 herein-original accused No. 1. 3. The brief facts that emerge from the record of the case are as under: 3.1. The accused No. 1 was working as unarmed Police Constable in Dwarka police station and accused No. 2 was working as unarmed police constable and was under suspension with headquarter of Jodiya Police Station, District Jamnagar. Both the accused were Class-III employees and were public servants in the year 1998. Mr. B.B. Jadeja, Police Inspector, ACB Police Station, Jamnagar has received information that both the accused were illegally collecting the amount ranging from Rs. 5/- to Rs. 20/- from the drivers after halting the trucks on the premise that the truck was overloaded or that the truck had passengers and hence, he filed a complaint and called two panch witnesses and after due procedure, the driver of the truck bearing No. GJ-11-U-8569 was arranged as a decoy punter on 09.01.1998 and the panch witnesses and the ACB police officer sat in the cabin of the truck. That when the truck reached Dwarka Bhathan toll point at 11:13 hours, both the accused halted the truck and demanded an amount of Rs. 10/- which was given by the driver punter Vejabhai Alabhai Rabari to the accused No. 1 and accused No. 1 accepted the said amount and the trap was successful. That the tainted currency note of Rs. That when the truck reached Dwarka Bhathan toll point at 11:13 hours, both the accused halted the truck and demanded an amount of Rs. 10/- which was given by the driver punter Vejabhai Alabhai Rabari to the accused No. 1 and accused No. 1 accepted the said amount and the trap was successful. That the tainted currency note of Rs. 10/- was recovered from the possession of the accused No. 1 and the offence was registered at C.R. No. 1 of 1998 on 09.01.1998 under Sections 7, 12, 13 (1)(D) and 13(2) of the P.C. Act. After due investigation, the Investigating Officer filed a charge sheet before the learned Sessions Court, Jamnagar, which was registered as Special (ACB) Case No. 4 of 1998. 3.2. The accused were summoned and after following the procedure of Section 207 of the Code, a charge was framed by the learned Trial Court at Exh.14 and the statements of both the accused were recorded at Exh.15 and 16 respectively, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. After a closing pursis was given by the learned APP, the further statements of the accused under Section 313 of the Code was recorded and the arguments of both the parties were heard and the learned Trial Court, by the impugned judgment and order dated 18.03.2009 in Special (ACB) Case No. 04 of 1998, gave the benefit of doubt to the accused and acquitted them from all the offences. 4. Being aggrieved and dissatisfied with the acquittal order, the appellant-State has filed the present appeal mainly stating that the impugned judgment and order of acquittal is contrary to law and the evidence on record and the learned Trial Court has erred in concluding that the prosecution has not proved the case beyond the reasonable doubts. The prosecution has examined 5 witnesses and has produced 31 documentary evidence in support of the case and it is proved beyond reasonable doubts. That the accused Nos.1 and 2 were illegally demanding the amount ranging from Rs. 5/- to Rs. 20/- from the truck drivers for entering into Jamnagar at Dwarka Bhathan Toll Point. The tainted currency note was found from the possession of the accused No. 1 and the demand was made by the accused from the driver punter Vejabhai Aalabhai Rabari. That the accused Nos.1 and 2 were illegally demanding the amount ranging from Rs. 5/- to Rs. 20/- from the truck drivers for entering into Jamnagar at Dwarka Bhathan Toll Point. The tainted currency note was found from the possession of the accused No. 1 and the demand was made by the accused from the driver punter Vejabhai Aalabhai Rabari. That it is settled principals of law that even if the witnesses have turned the hostile, the portion which supports the case of the prosecution has to be considered and as the prosecution has proved the case beyond reasonable doubts, the impugned judgment and order must be set aside and the appeal must be allowed. 5. Heard learned APP Mr. Bhargav Pandya and learned advocate Mr. Sandeep Limbani for the respondent accused. 6. Learned APP Mr. Bhargav Pandya for the appellant State has taken this court through the entire evidence of the prosecution before the learned Trial Court and has submitted that the driver punter has upto a certain extent supported the case of the prosecution and has stated that Mr. B.B. Jadeja, Police Inspector, ACB Police Station, Jamnagar has given him Rs. 10/- and had told him to hand over the currency note of Rs. 10/- to any policeman, who stopped the truck and near Dwarka Bhathan Toll Point, two policemen halted the truck and he had given the amount to the policemen. That in this manner, the driver punter, who has been examined at Exh.18, had supported the case of the prosecution and even the two panch witnesses have also supported the case of the prosecution. That through driver punter and the panch witnesses have been declared hostile by the learned Trial Court, the case against the accused has been proved by the evidence of PW-4 Bhikhubha Balubhai Jadeja, Trap Laying Officer and PW-5 Mahendrarai Jayashankar Dave. Moreover, the tainted currency note of Rs. 10/- which was laced with anthracene powder, has been recovered from the accused No. 1 and the same is proved by the prosecution from the evidence of the Trap Laying Officer and hence, the impugned judgment and order must be quashed and set aside and the accused must be found guilty for the said offences. 7. Learned advocate Mr. 10/- which was laced with anthracene powder, has been recovered from the accused No. 1 and the same is proved by the prosecution from the evidence of the Trap Laying Officer and hence, the impugned judgment and order must be quashed and set aside and the accused must be found guilty for the said offences. 7. Learned advocate Mr. Sandeep Limbani has submitted that there is no iota of evidence regarding any demand from the evidence of the driver punter Vejabhai Alabhai Rabari or the PW-2 Hasmukhbhai Ramjibhai Shah and PW-3 Bhagwandas Roopchand Joshi and all these three witnesses have turned hostile and have not supported the case of the prosecution and the entire investigation is done by the complainant. Mr. B.B. Jadeja, Police Inspector, who has filed the complaint. As per the settled principles of law that the complainant cannot do the entire investigation and that creates a doubt on the case of the prosecution. There is no evidence on record that there was a crowd of 8 to 10 persons and there is also evidence to show that everybody ran away from there and the members of the Raiding Party randomly caught two persons, who were the accused. That no tainted currency notes were found from the custody of any of the accused and there is no independent witness, who has supported the case of the prosecution. The learned Trial Court has rightly appreciated all the evidence produced by the prosecution and the impugned judgment and order is well reasoned and hence, no interference is required in the impugned judgment and order and the appeal must be dismissed. 8. Learned advocate for the accused has relied upon the following citations: (i) Khilli Ram vs. State of Rajasthan, (1985) 1 SCC 28 (ii) Krishan Chander vs. State of Delhi, (2016) 3 SCC 108 9. The Apex Court in the case of Krishan Chander (Supra) has held that the prosecution must prove the demand for illegal gratification made by any public servant and in the absence of proof of demand for illegal gratification, the accused cannot be convicted for the offences. The Apex Court in the case of Krishan Chander (Supra) has held that the prosecution must prove the demand for illegal gratification made by any public servant and in the absence of proof of demand for illegal gratification, the accused cannot be convicted for the offences. It is settled position of law that the demand of illegal gratification is sine qua non to constitute the offence and merely if the tainted currency notes are recovered from any persons, it cannot be said that the accused have committed the offence under Section 7 of the P.C. Act and the prosecution has to prove the case beyond reasonable doubts. That the accused had accepted the tainted currency notes knowing that it was an illegal gratification or a bribe. 10. To prove the case against the accused and the factum of the demand, the prosecution has examined PW-1 Vejabhai Aalabhai Rabari at Exh.18 and this witness is the driver punter, who was driving truck bearing No. GJ-11-U-8569 on the date of trap. That as per the case of the prosecution, the driver punter was driving the truck No. GJ-11-U-8569 and was going towards Dwarka Bhathan road and he was explained about the decoy trap and all the procedure of anthracene powder and ultraviolet lamp and the same was explained to the independent panch witnesses, who were called by Mr. B.B. Jadeja, Police Inspector, ACB Police Station, Jamnagar. The panch witnesses were to travel in the truck with the driver punter Vejabhai Alalbhai and the tainted currency note of Rs. 10/- was placed in his pocket and he was instructed to give the amount if any police stopped the truck and asked for the amount. This witness, in his deposition before the learned Trial Court, has stated that he was going with his truck and was halted by Jadeja Saheb and he was given Rs. 10/- and was given instruction to pay the amount of Rs. 10/- if any policeman halted him. The Police Inspector had come along with him in his truck to Dwarka and two persons halted the truck and he had given the currency note of Rs. 10/- to them. That some writing had taken place there but he does not remember the same. 10/- if any policeman halted him. The Police Inspector had come along with him in his truck to Dwarka and two persons halted the truck and he had given the currency note of Rs. 10/- to them. That some writing had taken place there but he does not remember the same. The witness has denied all the other suggestions put forward by the learned APP and has not identified the accused or the muddamal i.e. the tainted currency notes and during the lengthy cross-examination by the learned APP, the witness has not supported the case of the prosecution. 10.1. The prosecution has examined PW-2 Hasmukhbhai Ramjibhai Shah at Exh.21 and PW-3 Bhagwanbhai Roopchand Shah at Exh.27 and both these witnesses are the panch witnesses and as per the case of the prosecution, the panch witnesses were called and after explaining to them about the procedure of anthracene powder with ultraviolet lamp, they were instructed to sit in the truck with the driver punter Vejabhai Alarabhai Rabari and there were instructed to hear and see what had transpired between the driver punter and the accused and both the witnesses have stated that they went into the truck but they do not know what had transpired and they did not hear what conversation had taken place or any demand that was made. PW-2 Hasmukhbhai Ramjibhai Shah has stated that when they reached near Dwarka, 10-15 persons were standing and the driver halted the truck but he could not see if the driver had given the amount to any one and what conversation had taken place. He does not know as to why the amount was given and who had accepted it. The persons, who were standing down, ran away on seeing the police and the police ran behind them and caught two persons from the hotel. That during this time, the police officers have stated that currency note that was given to the driver was not found and was instructing his officers to search for the persons. PW-3 Bhagwanbhai Roopchand Shah has stated on oath that he went along with the driver punter Vejabhai but the driver had halted the vehicle little bit ahead of Dwarka and got down and then, the driver had told him that everyone were caught. PW-3 Bhagwanbhai Roopchand Shah has stated on oath that he went along with the driver punter Vejabhai but the driver had halted the vehicle little bit ahead of Dwarka and got down and then, the driver had told him that everyone were caught. That they all sat in the jeep and went to the Government circuit house and he was made to sit in another room and after the paper work was completed, they were asked to affix their signatures. That both the panch witnesses have been declared hostile and there is no evidence on record showing that any demand of any illegal gratification was made by any of the accused in the presence of the panch witnesses. 10.2. The prosecution has examined PW-4 Bhikhubha Balubha Jadeja at Exh.28. This witness is the Trap Laying Officer and the complainant, who has filed the complaint. The witness has stated that he had received secret information on 08.01.1998. The employees at Dwarka Police were standing on the toll point and were collecting the amount ranging from Rs. 10/- to 20/- from the truck that was going towards Mithapur and therefore, he had called the two panch witnesses on 09.01.1998 at about 7.30 am to the ACB Officer and had informed them about the secret information received by him. The decoy trap was arranged and the experiment of anthracene powder and ultraviolet lamp was explained to the panch witnesses and the driver punter was called and he had agreed to remain as a punter and two tainted currency note of Rs. 10/- each were given to the driver punter. They all went into the truck and at that time, the accused No. 2 had demanded the amount of illegal gratification and accepted the tainted currency notes of Rs. 10/- and the same was recovered from the accused No. 1. That the panchnama was not properly drawn and the witness has fully supported the case of the prosecution and has produced the panchnama at Exh.22. During cross examination, the witness has stated that the tainted currency notes was recovered from the possession of the accused No. 1 and the fingers and tips of his hands were found laced with anthracene powder. 10.3 The prosecution has examined PW-5 Mahendrasinh, the Investigating Officer, who has investigated the offence and received the sanction for prosecution and has filed the charge sheet against the accused. 11. 10.3 The prosecution has examined PW-5 Mahendrasinh, the Investigating Officer, who has investigated the offence and received the sanction for prosecution and has filed the charge sheet against the accused. 11. The Apex Court, in the case of Krishan Chander (Supra), has observed in Para-37, as under: “37. In P. Satyanarayana Murthy, it was held by this Court as under: (SCC p. 159, Paras 21-23) 21. In State of Kerala vs. C.P. Rao, this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in the absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 22. In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) and (ii) of the Act. It has been propounded that 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 proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Sections 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasised, could follow only if there was proof of demand. Axiomatically, it was held that in the absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 23. Such proof of acceptance of illegal gratification, it was emphasised, could follow only if there was proof of demand. Axiomatically, it was held that in the absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d) (1) and (ff) of the Act and in absence thereof, unmistakably the charge thereof, 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 corolllary, 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.” 11.1 The Apex Court, in the case of Khilli Ram (Supra), has observed in Para Nos. 12 and 13, as under: “12. Ordinarily in cases of this type the powder treatment is made. There is no material at all on the record to explain why such a process was not followed in the instant case even though detection is alleged to have been handled by experienced people of the Anti-Corruption Department. PW-6 was a very senior officer and in fact by the time the trial took place he had retired from service. It is difficult for us to accept the position that he was not aware of the powder treatinent. It has been in vogue for well over three decades now. If such powder treatment had been made, the passing of the bribe would indeed not have been difficult to be proved. 13. We are prepared to agree with counsel for the State of Rajasthan that ordinarily a case of this type is difficult to prove and the law is settled that even the uncorroborated testimony of trap witnesses can be acted upon as indicated by this Court in the case of Prakash Chand vs. State (Delhi Administration) and Kishan Chand Mangal vs. State of Rajasthan, but in the present case the evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced, the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. In these circumstances we are of the view that sufficient material has been brought out to merit interference in this appeal. We allow the appeal, set aside the conviction of the appellant and acquit him. He is discharged from his bail bond.” 12. On minutely scrutinizing the evidence of the prosecution, there is nothing on record to suggest that there was any demand of any amount made by any of the accused from the driver punter Vejabhai Aalalbhai Rabari in the presence of both the panch witnesses. Moreover, there is no evidence to show as to who had accepted the amount of illegal gratification and there is no evidence to show that traces of anthracene powder were found on the fingers or clothes of any of the accused. What comes on record from the evidence of the prosecution is that there were 10 to 12 persons at the place of trap and all of them ran away and at that time, two persons were caught and the police inspector was saying that they could not find that tainted currency notes. That the driver punter Vejabhai Alalbhai Rabari and both the panch witnesses Hasmukhbhai Ramjibhai Shah and Bhagwandas Roopchand Shah have turned hostile and there is no iota of evidence to prove any demand or acceptance of the tainted currency notes by any of the accused persons. That there is evidence on record that the police personnel ran and caught two persons and the only evidence on record is the evidence of the Trap Laying Officer and even though, other independent witnesses, who were present at the time of decoy trap, have not been examined. 13. That there is evidence on record that the police personnel ran and caught two persons and the only evidence on record is the evidence of the Trap Laying Officer and even though, other independent witnesses, who were present at the time of decoy trap, have not been examined. 13. In view of the settled position of law in the decision of the cases of Krishan Chander (Supra) and Khilli Ram (Supra) and appraisal of the evidence produced by the prosecution, the demand of illegal gratification, which is a condition precedent to constitute an offence under the P.C. Act is not proved and there is not iota of witness that any demand for any illegal gratification was made by any of the accused or that the accused had accepted any amount of illegal gratification and the reasons assigned by the learned Trial Court are just and proper. This Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused from the charges levelled against them and the findings against the accused are just and proper and this Court is in full agreement with the reasons, ultimate conclusion and the resultant order of acquittal by the learned Trial Court. 14. 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 of acquittal in Special (ACB) Case No. 04 of 1998 passed by the learned 2nd Additional Sessions Judge, Jamnagar camp at Khambhaliya on 18.03.2009 is hereby confirmed. Bail bonds stand cancelled. 15. Record and proceedings be sent back to the concerned Trial Court forthwith.