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2024 DIGILAW 641 (GUJ)

State of Gujarat v. Jadavbhai Ambabhai Gorsva

2024-03-26

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 Case No. 06 of 2000 passed by the learned Special Judge and Presiding Officer, Fast Track Court No. 2, Gondal (hereinafter referred to as ‘the learned Trial Court’) on 15.10.2007, 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’ at they stood in the rank and file of the original case for the sake of convenience, clarity and brevity. 2. The relevant facts leading to filing the conviction appeal are as under: 2.1. That the accused No. 1 was working as Assistant Sub Inspector and the accused No. 2 was working as an Unarmed Police Constable in the Dhoraji Police Station, Dhoraji, District Rajkot. The accused Nos. 1 and 2, in connivance with each other, were halting the truck under the pretext of checking and were threatening the truck drivers to detain the truck and were collecting amount of Rs. 50/- and more from the truck drivers. That secret information was received by the Police Inspector, ACB Police Station, Rajkot and he filed a complaint on 30.01.2000, which was registered at ACB Police Station, Rajkot being C.R. No. 2 of 2000. The panch witnesses were called and after explaining to the panch witnesses about the use of anthracene powder and ultraviolet lamp test, the experiment was done and Sukhabhai Mumabhai Kaladavra, the driver of truck bearing No. GJ-12-V-5097 was halted and was made to understand the trap details. That he consented to be a decoy punter and the panch witnesses and the members of the raiding party sat in the truck and when the truck reached near the railway track at Dhoraji, the accused halted the truck and demanded Rs. 50/- as illegal gratification and instructed the accused No. 2 to accept the same and at that time, the members of the raiding party and the Trap Laying Officer caught both the accused red handed. After a detailed investigation, a charge sheet came to be filed before the learned Sessions Court, Rajkot, which was registered as Special (ACB) Case No. 6 of 2000. After a detailed investigation, a charge sheet came to be filed before the learned Sessions Court, Rajkot, which was registered as Special (ACB) Case No. 6 of 2000. 2.2. The accused were duly served with the summons and the accused appeared before the learned Trial Court and after the due procedure under Section 207 of the Code of Criminal Procedure, a charge was framed against all the accused at Exh.23 and the statements of the accused were recorded at Exh.24 to 25 respectively, wherein, both the accused denied the offences mentioned in the charge and the oral as well as the documentary evidence of the prosecution were taken on record. The prosecution examined 7 witnesses and produced 18 documentary evidence to bring home the charge against the accused and after the closing pursis was filed by the learned APP at Exh.54, the further statements of the accused under Section 313 of the Code were recorded, wherein, the accused denied all the evidence produced by the prosecution. After hearing the arguments of both the sides, the learned Trial Court did not find the accused guilty and acquitted both the accused under Section 235(1) of the Code, by the impugned judgment and order dated 15.10.2007. 3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court in Special (ACB) Case No. 6 of 2000, the appellant-State has filed the present appeal mainly contending that the learned Trial Court has failed in appreciating the oral as well as the documentary evidence produced by the prosecution on record and the witnesses have fully supported the case of the prosecution but the same has not been appreciated by the learned Trial Court. The accused have been caught red handed and the tainted currency note of Rs. 50/- was found from the accused No. 2. The learned Trial Court has relied upon the fact that the panch witnesses have turned hostile but the Apex Court, in a catena of decisions, has held that even if the panch witnesses have turned hostile, the evidence of the other witnesses, who have supported the prosecution is required to be considered. That the demand, acceptance and recovery have been proved by the prosecution and PW-3 Yasinkhan Ahmedkhan Shaikh, who has been examined at Exh.32, has fully supported the case of the prosecution, but the learned Trial Court has erred in not believing the evidence. That the demand, acceptance and recovery have been proved by the prosecution and PW-3 Yasinkhan Ahmedkhan Shaikh, who has been examined at Exh.32, has fully supported the case of the prosecution, but the learned Trial Court has erred in not believing the evidence. That from the evidence of PW-2 Narottambhai Mohanbhai Kavad at Exh.29, it is also proved that the demand of Rs. 50/- as illegal gratification was made by the accused and they had accepted the amount of illegal gratification from the punter driver of the truck. That even PW-1 Sukhabhai Murubhai Kalavadara, who has been examined at Exh.28, has supported the case of the prosecution and the learned Trial Court ought to have convicted the accused on the basis of the evidence of the panch witnesses as the prosecution has proved the case beyond reasonable doubts. The learned Trial Court has not appreciated the fact that both the accused are public servants working in the police department and have indulged in a grave offence of demanding and accepting the amount of bribe from the truck driver. The impugned judgment and order passed by the learned Trial Court is illegal, perverse and improper and the same is required to be quashed and set aside and the accused be convicted for the said offences. 4. Heard Additional Public Prosecutor Ms. Jirga Jhaveri for the appellant-State and learned advocate Mr. N.P. Pandya for the respondent-accused. Perused the impugned judgment and order of acquittal and re-appreciated the entire evidence of the prosecution on record of the case. 5. Learned APP Ms. Jirga Jhaveri has taken this Court through the entire evidence of the prosecution and has submitted that PW-1 Sukhabhai Murubhai Kaladavra has stated that the police, who were at the spot, had demanded the amount of Rs. 50/- and he had handed over the same to the accused. That even though, the truck driver has not fully supported the case of the prosecution, he has been declared hostile and has been cross-examined at length by the learned APP his evidence which supports the prosecution must be considered. Moreover, PW-2 Narottambhai Mohanbhai Kavad, who is the panch witness, has stated that the punter driver had given the currency note of Rs. 50/- to the two police personnel. Moreover, PW-2 Narottambhai Mohanbhai Kavad, who is the panch witness, has stated that the punter driver had given the currency note of Rs. 50/- to the two police personnel. That the case of the prosecution is proved from the deposition of PW-3 Yasinkhan Ahmedkhan Shaikh, the Trap Laying Officer and PW-5 Pradumansinh Sivubha Rathod, the lamp operator and both the witnesses have fully supported the case of the prosecution. Learned APP has submitted that the learned trial Court has not considered the evidence and has erred in not appreciating all the evidence and hence, the impugned judgment and order must be quashed and set aside and the accused must be convicted for the offence. 6. Learned advocate Mr. N.P. Pandya for the accused has submitted that driver of the truck No. GJ-12-B-1897 has been declared hostile before the learned Trial Court and he has clearly stated he does not know who had demanded the amount of illegal gratification from him. That in the lengthy cross-examination by the learned APP, the truck driver has not supported the case of the prosecution and hence, the factum of demand is not proved by the prosecution. Moreover, the panch witness, who was the shadow witness, has not stated that any demand was made by the accused. That at the time of trap, it was dark and the panchnama was not prepared on the spot. Moreover, PW-3 Yasinkhan Ahmedkhan Shaikh is the complainant and is also the Trap Laying Officer and as per the settled principles of law, the complainant and the investigating officer cannot be same person. That the learned Trial Court has appreciated all the evidence in proper perspective and no interference is required in the impunged judgment and order passed by the learned Trial Court and hence, this Court to dismiss the appeal. 7. Before appreciating the evidence produced by the prosecution on record before the learned Trial Court, it is necessary to reiterate the principles of cardinal jurisprudence as settled by the Apex Court in a catena of decision and the first principle is that the prosecution is required to prove their case beyond reasonable doubts and the prosecution cannot take any benefit of the weakness of the defence. The second cardinal principle is that in a criminal trial, the accused is presumed to be innocent until he is proved guilty by the evidence adduced by the prosecution on record beyond reasonable doubts and the third principle is that the onus of burden never shifts from the prosecution. 7.1. The Apex Court, in the case of Neeraj Dutta (Supra), has observed in Para-88, as under: “88. What emerges from the aforesaid discussion is summarised as under: 88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act. 88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. 88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. 88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind: (i) if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the e bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act. (iii) In both cases of (1) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which 9 is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act. 88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. 88.6. (f) In the event the complainant turns “hostile” or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. 88.7. The trial does not abate nor does it result in an order of acquittal of the accused public servant. 88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act. 88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.” 8. The prosecution has examined PW-1 Sukhabhai Murubhai Kaladavra at Exh.28. The witness has stated that he was driving truck No. GJ-12-V-1896 and going from Kodinar Ambuja Factory towards Chotila Temple with cement in his truck and at that time, near the toll point on Dhoraji-Junagadh road, some police personnel had halted his truck and three police personnel sat in the truck and they came to Dhoraji and when they were near the railway track at Dhoraji, the police personnel, who were sitting in the truck, asked him to halt the truck. The two police personnel, who were standing there, were taking Rs. 50/- as entry fee at the toll point, Dhoraji and he took out a currency note of Rs. 50/- which was given to him by the police personnel, who were sitting in the truck, and gave it to the police personnel, who were standing down and currency note of Rs. 50/- fell down but the police personnel, who were standing down, told the driver that they wanted to see his license and the police personnel, who was sitting in the truck, went down and caught the police personnel, who was asking for his license. That some writings were made and he was asked to leave and he went away. The witness has further stated that he does not recognize the person, who had asked for the license. That some writings were made and he was asked to leave and he went away. The witness has further stated that he does not recognize the person, who had asked for the license. The witness has not supported the case of the prosecution and has been declared hostile and he has been cross-examined at length by the learned APP. During his cross-examination, this witness has stated that the person, who had halted the truck, came to the side of the truck and his height was reaching near the window and at that time, the engine of his truck was on and there was one cleaner namely Virambhai Pokhra, a resident of Porbandar District in the truck with him. He has stated that when the truck was halted, it was night time and he was not called him by the Investigating Officer. 8.1. The prosecution has examined PW-2 Narottambhai Mohanbhai Kavad at Exh.29. This witness is the shadow witness, who was called to the ACB Police Station and this witness has narrated that he was called by the Police Inspector and had gone to the highway road near Porbandar and in his presence, certain vehicles were stopped and asked whether anyone was taking entry fees and one vehicle driver had stated that the two police personnel are standing ahead. That one truck was halted and the driver was Sukhabhai Murubhai Kaladavra and the Police Inspector Mr. Yashinkhan Ahmedkhan Shaikh gave a currency note of Rs. 50/- to the driver of the truck Sukhabhai and on the said not, some powder was applied and the punch witnesses and all the police personnel sat in the truck. That two police personnel halted the truck and the driver had given the currency note of Rs. 50/- on which, the powder was applied, but at that time, the police personnel sitting in the truck went down and caught the person. This witness has identified the accused No. 2 before the Court. During the cross-examination by the learned advocate for the accused, the witness has stated that the entire writings were made in the rest house at Dhoraji and the police prepared the panchnama and the panch witnesses had affixed their signatures. This witness has identified the accused No. 2 before the Court. During the cross-examination by the learned advocate for the accused, the witness has stated that the entire writings were made in the rest house at Dhoraji and the police prepared the panchnama and the panch witnesses had affixed their signatures. The witness has further stated that the panchnama was not dictated by him or by the other panch witnesses, but it was written by the staff member of ACB and the member of the ACB staff told this witness and the other panch witness Pareshbhai to sign on the panchnama and they had signed the panchnama. That the entire panchnama was written within 15-20 minutes and the witness has stated that no panchnama was prepared at the ACB Police Station, Rajkot or at Porbandar or on the Porbandar-Dhoraji Highway. That at the time of incident, it was dark and therefore, they had gone to Dhoraji Rest House. He has stated that as he was sitting in the truck he could not see the persons who were standing outside the truck and he does not know what conversation had taken place between the driver and the accused. 8.2. The prosecution has examined PW-3 Yasinkhan Ahmedkhan Shaikh, who has filed the complaint, which is produced at Exh.33. This witness is also the Trap Laying Officer and he has narrated chronology of all the events that had taken place. During the cross-examination, this witness has stated that he had given the tainted currency note of Rs. 50/- to the truck driver and he had given the same from the secret money. That he had not taken any amount from ACB Office at Rajkot before leaving for the trap and in the complaint at Exh.33, it is not stated that the experiment of anthracene powder and the ultraviolet lamp was done on the currency note of Rs. 50/-. Moreover, the number of the currency note of Rs. 50/- is not also mentioned in the complaint. During the cross-examination, this witness has stated that he cannot say as to which part of the panchnama was written at which place. 8.3. The prosecution has examined PW-4 Narpatsinh Dolatsinh Jetavad at Exh.35. This witness is the Investigating Officer, who has recorded the statement of the truck driver Sukhabhai Murubhai Kaladavra. The prosecution has also examined PW-5 Pradumansinh Shivubha Rathod at Exh.36. 8.3. The prosecution has examined PW-4 Narpatsinh Dolatsinh Jetavad at Exh.35. This witness is the Investigating Officer, who has recorded the statement of the truck driver Sukhabhai Murubhai Kaladavra. The prosecution has also examined PW-5 Pradumansinh Shivubha Rathod at Exh.36. This witness is the lamp operator, who has done the ultraviolet lamp test and was also a member of the raiding party and at the time of trap, he was in the truck. During the cross-examination, the witness has stated that he does not know as to whether the engine of the truck was on or not. He does not remember as to after how much time, the hands of the punter driver Sukhabhai Murubhai Kaladavra were examined in the ultraviolet lamp test. Moreover, the witness has also admitted that at the time of incident, the accused had a stick, but he does not know what happened to the stick during the procedure of the panchnama. 8.4. The prosecution has examined PW-6 Narendrabhai Vijendraprasad Pandey at Exh.52. This witness is the writer of Mr. F.S. Mahida, the Investigating Officer, who has expired. The witness has stated that the depositions of the witnesses were written on behalf of Mr. F.S. Mahida, Police Inspector and he had collected all the documents during the investigation of the offence. During the cross-examination, this witness has stated that the currency note that was used in the trap was of the personal ownership of the Trap Laying Officer and it was taken from the office of ACB but there was no written instruction or receipt to that effect. 9. The prosecution has examined PW-7 Dilipsinh Pratapsinh Chavda at Exh.53. This witness is the Investigating Officer, who had got the sanction for prosecution, which is produced at Exh.47. 10. It is the case of the prosecution that the decoy trap was laid and the punter driver of truck No. GJ-12B 5097 was given the tainted currency note of Rs. 50/- and was asked to hand over the currency note whenever any police personnel demanded the same. Accordingly, the trap was laid on 30.01.2000. That both the accused had halted the truck of the punter driver Sukabhai Murubhai Kaladavra and had demanded the amount of Rs. 50/- and when the punter driver had handed over the currency note of Rs. 50/- and was asked to hand over the currency note whenever any police personnel demanded the same. Accordingly, the trap was laid on 30.01.2000. That both the accused had halted the truck of the punter driver Sukabhai Murubhai Kaladavra and had demanded the amount of Rs. 50/- and when the punter driver had handed over the currency note of Rs. 50/- to the accused No. 1, the accused No. 1 had told him to give the currency note to the accused No. 2 to accept the same and accordingly, the tainted currency note was recovered from the possession of the accused No. 2. That the prosecution has examined the punter driver Sukhabhai Murubhai Kaladavra at Exh.28 and this witness has not supported the case of the prosecution. This witness has not clearly stated that the demand of Rs. 50/- as illegal gratification was made by any of the accused. This witness has not identified any of the accused before the learned Trial Court and this witness has, in fact, categorically stated that the accused had demanded for his license and they had not demanded for any amount of illegal gratification. The panch witness Narottambhai Mohanbhai Kavad, who was the shadow witness, has deposed at Exh.29 and has clearly stated that he does not know what conversation had taken place between the truck driver and the accused and he could not hear the conversation that had taken place. Moreover, from the deposition of the witness, it has also come on record that no procedure of any sort was conducted at the place and the entire panchnama was drawn at Dhoraji Rest House. Admittedly, at the time of the trap, it was dark and no writings of the panchnama were done and the panch witness or the second panchnama Pareshbhai has not dictated the panchnama and they do not know how to write/ dictate the panchnama. That there is clear evidence on record that the entire panchnama was written by the police and the panch witness has merely signed the panchnama after it was drawn and they were instructed to affix their signatures. 11. That there is clear evidence on record that the entire panchnama was written by the police and the panch witness has merely signed the panchnama after it was drawn and they were instructed to affix their signatures. 11. In the entire evidence, the prosecution has not proved the demand of any illegal gratification made by the accused and there are major contradictions regarding the place where the panchnama was prepared and in fact, the Trap Laying Officer and the complainant PW-3 Yasinkhan Ahmedkhan Shaikh has stated that the panchnama was prepared on the spot. The Trap Laying Officer has not clearly stated whether the primary panchnama was prepared at the circuit house or at the ACB office, Rajkot or at the ACB office at Porbandar. Moreover, the currency note of Rs. 50/- was of the personal ownership of the complainant and it was not from the secret money of the ACB office, Rajkot. It has also come on record that the experiment of anthracene powder and ultraviolet lamp was not conducted on the tainted currency note prior to the trap and the number of the currency note that was used in the trap was not written by the complainant in the complaint. That the prosecution has failed to prove that there was any demand of illegal gratification or acceptance by the accused and the demand, acceptance and recovery of tainted currency note have not been proved beyond reasonable doubts by the prosecution. 12. In view of the settled principle of law in the case of Neeraj Dutta (supra) and particularly, appreciating the evidence produced by the prosecution and there is no iota of evidence that any demand of illegal gratification was made by any of the accused and in fact, there is evidence that the accused had demanded for the license of the punter truck driver. The panch witness who was the shadow witness has also not heard the demand made by any of the accused and the panch witness has not seen the acceptance of the illegal gratification by the accused. That the demand and acceptance which is a sine qua non to bring home the charge against the accused has not been proved and the learned Trial Court has appreciated all the evidences produced by the prosecution and the reasons assigned by the learned trial Court are just and proper. That the demand and acceptance which is a sine qua non to bring home the charge against the accused has not been proved and the learned Trial Court has appreciated all the evidences produced by the prosecution and the reasons assigned by the learned trial Court are just and proper. This Court is of the considered view that the learned Trial Court has rightly acquitted both accused from the charges levelled against them and this Court is in complete agreement with the findings, ultimate conclusion and resultant order of acquittal. 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 of in Special Case No. 06 of 2000 passed by the learned Special Judge and Presiding Officer, Fast Track Court No. 2, Gondal on 15.10.2007 is hereby confirmed. Bail bonds stand cancelled. 14. Record and proceedings be sent back to the concerned Trial Court forthwith.