Kanji Keshavji Harijan (Dafda) v. State of Gujarat
2024-04-18
S.V.PINTO
body2024
DigiLaw.ai
JUDGMENT : S.V. PINTO, J. 1. This appeal has been filed by the appellant under Section 374 of Code of Criminal Procedure, 1973 against the judgment and order of conviction passed by the learned Special Judge, Kutch at Bhuj, (hereinafter referred to as “the learned Trial Court”) in Special Case No. 47 of 1992 on 18.08.2005, whereby, the learned Trial Court has convicted the appellant for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the PC Act”). 1.1 During the pendency of the appeal, the appellant-Kanji Keshavji Harijan (Dafda) expired on 23.02.2018 and hence, the legal heirs had filed Criminal Misc. Application No. 7341/2018 in Criminal Appeal No. 1770/2005 to be joined as legal heirs and pursue the appeal and by an order dated 11.04.2018, the legal heirs were permitted to be joined in the appeal. 1.2 The deceased appellant 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-Kanji Keshavji Harijan (Dafda) was the Talati Cum Mantri of Maska Village, Taluka Mandvi, District Kutch and was a public servant. That the complainant Umiyashankar Shyamji Mota was a resident of village Bagh, Taluka Mandvi, District Kutch and his uncle Pragjibhai Kalyanbhai was the owner of an agricultural land bearing Survey No. 108, Khata No. 145 and the land was to be transferred to the name of the mother of the complainant. That the application for mutating the name of the mother of the complainant was given and the complainant met the accused and the accused had demanded for an amount of Rs. 100/- as illegal gratification to mutate the name of the mother of the complainant in the revenue record and give the Khatavahi. That the complainant did not want to give the amount of illegal gratification and hence, the complainant went to the ACB Police Station, Bhuj, District Kutch and filed the complaint under Section 7, 13(1)(d) and 13(2) of the PC Act which was registered at C.R. No. 6/1991 on 31.07.1991.
That the complainant did not want to give the amount of illegal gratification and hence, the complainant went to the ACB Police Station, Bhuj, District Kutch and filed the complaint under Section 7, 13(1)(d) and 13(2) of the PC Act which was registered at C.R. No. 6/1991 on 31.07.1991. That the Trap Laying Officer called the panch witnesses and the experiment of anthracene powder and the ultraviolet lamp was carried out and explained to the panch witnesses and the complainant, and the trap was arranged. That on 31.07.1991 at 11.50 hours, the accused demanded for the amount of illegal gratification of Rs. 100/- in the Panchayat Office, accepted the same and after the predetermined signal was given, the accused was caught red handed. The Investigating Officer, recorded the statements of the connected witnesses, drew the necessary panchnamas and after the order of sanction for prosecution was received, a charge-sheet came to be filed before the Sessions Court, Kutch at Bhuj which was registered as Special Case No. 47/1992. 2.2. That the accused was duly served with the summons and the accused appeared before the learned Trial Court and after the procedure under Section 207 of Code of Criminal Procedure, 1973, the charge was framed by the learned Trial Court at Exh.5 and the statement of the accused was recorded at Exh.6. The accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. 2.3 The prosecution produced the following oral evidence to bring home the charge against the accused: S. No. PW Particulars Exhibit 1. 1 Umiyashankar Shyamji Mota 9 2. 2 Govindbhai Jentilal Jethi 10 3. 3 Vijay Nanalal Shah 14 4. 4 Nirmalsinh Kalyansinh Gohil 25 2.4 The prosecution also produced the following documentary evidence to bring home the charge against the accused: S. No. Particulars Exhibit 1. Panchnama 11 2. Sanction for prosecution 16 3. Notice under Section 135(d)(2) 19 4. Village form no. 7/12 20 5. Village form no. 6 21 6. Extract of Demand Register 22 7. Complaint 26 8. Death certificate of Prajgibhai 27 9.
Panchnama 11 2. Sanction for prosecution 16 3. Notice under Section 135(d)(2) 19 4. Village form no. 7/12 20 5. Village form no. 6 21 6. Extract of Demand Register 22 7. Complaint 26 8. Death certificate of Prajgibhai 27 9. Application for change in name given by Pragijibhai 28 2.5 That after the closing pursis was submitted by the learned APP at Exh.30, the further statement of the accused under Section 313 of Code of Criminal Procedure was recorded and after the arguments of learned APP and learned advocate for the accused were heard, the learned Trial Court was pleased to convict the accused and sentence the accused to one year simple imprisonment and fine of Rs. 150/- and in default, simple imprisonment of one month for the offence under Sections 7, 13(1)(d) read with Section 13(2) of the PC Act. 3. Being aggrieved and dissatisfied with the said judgment and order of conviction, the accused has filed the present appeal mainly stating that the judgment and order has been passed by the learned Trial Court without properly appreciating the facts and law and the judgment is based on presumptions, assumptions and surmises. That as per the case of prosecution, the accused had demanded for the amount of Rs. 100/- and there are material contradictions between the evidence of the complainant, the panch witness and the Investigating Officer. That the panch witness has not stated that he had signed the panchnama in the Panchayat Office and the reasons assigned by the learned Trial Court regarding the signature of the panch witness, is not proper. That the panchnama was in fact prepared on the next day in the ACB Office and this creates a serious doubt on the case of prosecution and the accused would be entitled for an acquittal on this ground alone. That even there is contradiction in the predetermined signal and as per the complainant, the predetermined signal was given by the complainant, whereas, the panchnama and the panch witness say that it was the panch witness who had given the predetermined signal. That in the complaint, the name of the Talati is Asharbhai and the demand was made by one Asharbhai but the appellant is Kanji Keshavji Harijan (Dafda). There is absolutely no evidence produced by the prosecution to show that Asharbhai and Kanji Keshavji Harijan (Dafda) are one and the same person.
That in the complaint, the name of the Talati is Asharbhai and the demand was made by one Asharbhai but the appellant is Kanji Keshavji Harijan (Dafda). There is absolutely no evidence produced by the prosecution to show that Asharbhai and Kanji Keshavji Harijan (Dafda) are one and the same person. That in fact, there was one Asharbhai who was the Talati of the village where the complainant was residing and this has created a serious doubt the story of the prosecution. Even the sanction produced by the prosecution on record is not proper and the documents relied by the prosecution were not produced before the Sanctioning Authority. That the impugned judgment and order is illegal and perverse and the same is required to be quashed and set aside and the accused must be acquitted for the said offences. 4. Heard learned advocate Mr. Kirtidev R. Dave assisted by learned advocate Mr. Rahul K Dave for the appellant and learned APP Ms. Jirga Jhaveri for the respondent State. Perused the impugned judgment and order and order of conviction and have reappreciated the entire evidence on record of the case. 5. Learned advocate Mr. Kirtidev R. Dave assisted by learned advocate Mr. Rahul K Dave for the appellant has submitted that the complainant had filed the complaint stating that one Asharbhai had asked for the bribe of Rs. 100/- for giving the Khedut Book of his mother. That the complainant has not deposed entirely supporting the case of prosecution and there are major contradictions in the evidence of the complainant and the panch witness. That the name of the accused is not Asharbhai and there is no evidence that the complainant had in fact, filed the complaint against the present accused. That as per the say of the complainant, he had given the predetermined signal, whereas, the witness who was accompanying the complainant states that he had given the predetermined signal. That the complainant had asked the witness to stop outside of the office and there is no evidence that the conversation between the complainant and that accused was heard by the panch witness. That in fact, the name of the mother of the complainant was mutated in the revenue records and the entry was rejected by the Superior Officer as the official dues of the land were not paid.
That in fact, the name of the mother of the complainant was mutated in the revenue records and the entry was rejected by the Superior Officer as the official dues of the land were not paid. As the name of the mother of the complainant was not entered, the accused could not give any Khatavahi to the complainant and the revenue dues of the land was to be paid by the complainant. That the Talati Cum Mantri cannot make any entry in the revenue record if the entry was rejected by the Superior Officer and it is clearly stated that the previous entry was rejected on the ground that the revenue dues were not paid. That in fact, the amount paid was the payment towards the government dues but the complainant had falsely filed the complaint and has falsely implicated the appellant. That the witness has also stated that the complainant had touched the tainted currency notes before entering the office of the accused and thereafter, shook his hands with the accused and this fact is itself fatal to the case of the prosecution. Moreover, in the entire evidence of the prosecution, the Police Inspector - Mr. Gohil has recorded the complaint, arranged for the trap and has investigated the entire case and filed the charge-sheet and this vitiates the entire case of the prosecution. That this fact itself makes the case of the prosecution doubtful and the case of prosecution must fail and the same would be an infirmity which is bound to reflect on the credibility of the case of prosecution that the learned Trial Court has failed to appreciate all these facts in correct perspective and the impugned judgment and order is illegal and perverse and the same is required to be set aside. 5.1 Learned advocate Mr. Kirtidev R. Dave has relied on Kanubhai Kantibhai Patel vs. State of Gujarat, (1998) 1 GLH 924 , wherein, this Court has observed in Para 9 as under: 9. Even if the case of acceptance is believed, mere acceptance of the amount will not constitute the offence. It must be shown that illegal gratification was demanded by accused as a motive or reward for doing or forbearing to do any official acts or for showing or forbearing to show favour or disfavour in the exercise of his official function or for rendering any services or disservice to any one.
It must be shown that illegal gratification was demanded by accused as a motive or reward for doing or forbearing to do any official acts or for showing or forbearing to show favour or disfavour in the exercise of his official function or for rendering any services or disservice to any one. Here in this case as discussed above the case of demand is not clearly established. The talk took place formerly is also not clearly established and there is nothing on record going to show that for doing a particular work namely mutation the amounts were demanded and accepted. On the contrary the evidence reveals that there is simple acceptance without any demand. In view of the above discussion, the offence simply on acceptance cannot be said to have been constituted. 5.2 Learned advocate for the appellant has relied on Gopal Lal Ghisulal Chippa and Others vs. State of Gujarat, 1998 (1) GLH 943 , wherein, this Court has observed in Para 8 as under: 8. My attention was drawn to the decision of the Supreme Court in the case of Bhagwansingh vs. State of Rajasthan wherein it is held that if everything is done by the police officer, it would be an infirmity in the case which is bound to reflect on the credibility of the prosecution case. In that case, the complaint was recorded by the Investigating Officer, raid was also carried out by the Investigating Officer, search and seizure were also made by him and thereafter the investigation was also carried out by him and the charge-sheet was also filed by him before the Court. In this case, Mr. Vyas, the P.S.I. has also done everything right from recording of the complaint till the charge-sheet was filed before the Court. When that is so, the credibility of the case of the prosecution is certainly doubtful and the prosecution case must fail on that count. Even if this tarnishing point is ignored and the evidence is considered, there is nothing which would lead me to hold that the prosecution has succeeded in establishing the charge levelled against the deceased appellant. 6. Learned APP Ms. Jirga Jhaveri for the State has submitted that the prosecution has proved the case beyond reasonable doubt and the learned Trial Court has appreciated all the evidences properly.
6. Learned APP Ms. Jirga Jhaveri for the State has submitted that the prosecution has proved the case beyond reasonable doubt and the learned Trial Court has appreciated all the evidences properly. The prosecution has proved all the ingredients of demand, acceptance and recovery and the case has been proved against the accused beyond reasonable doubt and the learned Trial Court has considered all the evidences in its true perspective. That no order of interference is required in the judgment and order and the appeal of the appellant must be rejected and the judgment and order of conviction must be confirmed. 7. In case of Neeraj Dutta vs. State (Govt. of NCT of Delhi), 2022 (0) Supreme (SC) 1248, wherein, the Hon'ble Apex Court has held as under: “68. What emerges from the aforesaid discussion is summarised as under: (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. (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. (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. (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.
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 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 Section 13 (1)(d)(i) and (ii) of the Act. (iii) In both cases of (i) 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 Section 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 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 Section 13 (1)(d) and (i) and (ii) of the Act. (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. (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.
(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. (g) In so far 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 Section 13 (1) (d) (i) and (ii) of the Act. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature.” 8. Before dissecting the evidences adduced by the prosecution on record before the learned Trial Court, it is essential to reiterate the cardinal principles of Criminal Jurisprudence as settled by the Hon’ble Apex Court in a catena of decisions and the first cardinal principle is that the prosecution is required to prove their case beyond reasonable doubts and the prosecution cannot claim any benefit of the weaknesses of the defence. The second cardinal principle is that in a criminal trial, the accused is presumed to be innocent unless he is proved guilty beyond reasonable doubts from the evidence of the prosecution and the third cardinal principle is that the burden of onus of proof never shifts from the prosecution. 9.
The second cardinal principle is that in a criminal trial, the accused is presumed to be innocent unless he is proved guilty beyond reasonable doubts from the evidence of the prosecution and the third cardinal principle is that the burden of onus of proof never shifts from the prosecution. 9. In a Criminal Appeal, it is necessary to dissect and re-appreciate the oral and documentary evidences produced by the prosecution and to bring the home the charge against the accused, the prosecution has examined PW-1 Umiyashankar Shyamji Mota at Exh.9 and the witness is the complainant who has stated that his uncle Pragjibhai Kalyanbhai had an agriculture field Revenue Survey No. 108 in Maska village and he had met the accused for transferring the same. That the Talati was Asharbhai and he had earlier given the Talati an amount of Rs. 300/- before two months. That the Talati was not doing his work and had demanded an amount of Rs. 100/- and hence, he went to the ACB Office at Bhuj and filed the complaint. That the panch witnesses were called and the experiment of the powder was done and the powder was applied on the currency note of Rs. 100/- with cotton and was shown to them. That the tainted currency note was placed in the left side shirt pocket and the panchnama was completed. That the complainant and the panch witness went to the Gram Panchayat Office and he demanded for the Khatavahi from the accused but the accused demanded for the amount and hence, he took the currency note of Rs. 100/- and gave it to the accused who placed it on a paper on the table. That the panch witness was standing outside of the office and he gave the predetermined signal and the members of the raiding party came and caught the accused. That the panch witness removed the tainted currency note from the paper on the table and the hands of the accused had blue colour marks on them. During the cross-examination by the learned advocate for the accused, the witness has stated that the dues for the land were pending and the Talati had already made an entry of his mother’s name in the record. That only after the entry was certified, the Talati could give a new Khatavahi.
During the cross-examination by the learned advocate for the accused, the witness has stated that the dues for the land were pending and the Talati had already made an entry of his mother’s name in the record. That only after the entry was certified, the Talati could give a new Khatavahi. That the panch witness Govindbhai did not come with him in the office of the accused and he had stood outside of the door. That the ACB Inspector had instructed the panch witness to go with him and when he entered into the office of the accused, there was no other person. That there were files and papers on the table of the accused and when the Talati had told him that his work was complicated and he had to pay the amount to the Superior Officer, he did not ask the name of the Superior Officer. He does not remember as to when the demand of illegal gratification was made by the accused. That he does now know how much amount was due of the land and no revenue dues were paid after the application for transfer of name was given. That he had not taken his mother to the office of the accused at any time after the application for transfer of name was given. 9.1 The prosecution has examined PW-2 Govindbhai Jentilal Jethi at Exh.10 and the witness is the panch witness who had accompanied the complainant at the time of the trap. The complainant has narrated and supported the case of the prosecution and has stated that he had gone along with the complainant and when they reached near the office, he waited at the door and the complainant went inside and shook hands with the accused and asked as to whether the land was transferred in the name of his mother and at that time, the accused had asked him for the amount and the complainant took the note from his shirt pocket and gave it to the Talati, who took it and placed it on the table in the papers below the registers. That he went out and gave the predetermined signal and the members of the raiding party came. That the complainant had filed the complaint against one Asharbhai and when the accused was asked, he stated that the name was Kanji Keshavji.
That he went out and gave the predetermined signal and the members of the raiding party came. That the complainant had filed the complaint against one Asharbhai and when the accused was asked, he stated that the name was Kanji Keshavji. During the cross- examination, the witness has stated that the characteristics of anthracene powder was not explained to them and he does not know what was the powder and what were the characteristics of the powder. That when the complainant went in the office of the accused, he stood near the table in front of the accused and his back was towards the witness. That he was instructed by Mr. Gohil to go in the Panchayat Office but the complainant had told him to stand outside and hence, he stood outside. That the Inspector had instructed the panch to give the predetermined signal and no instruction was given to the complainant to give the predetermined signal. That before they went into the office, the complainant had checked as to whether the tainted currency note was in his pocket or not and when the ACB Officer came, he had told him to take the tainted currency note from the Register and he had taken it from the Register. That he could not hear the conversation between the complainant and the accused. That his signatures were taken on the next day at the ACB Office and there was no person named Asharbhai in the Panchayat Office. That when the panchnama was being written, the panch witnesses and the complainant were waiting in the lobby. 9.2 The prosecution has examined PW-3 Vijay Nanalal Shah at Exh.14 and this witness is a clerk in the Jilla Panchayat Office. The witness has produced the order of sanction for prosecution given by the District Development Officer - Mr. V.S. Gadhvi at Exh.16. During the cross-examination, the witness has admitted that along with the papers received from the ACB Office at Ahmedabad, the proforma was also sent and he did not know as to whether the necessary papers were sent in the file to the District Development Officer. 9.3 The prosecution has examined PW-4 Nirmalsinh Kalyansinh Gohil at Exh.25.
V.S. Gadhvi at Exh.16. During the cross-examination, the witness has admitted that along with the papers received from the ACB Office at Ahmedabad, the proforma was also sent and he did not know as to whether the necessary papers were sent in the file to the District Development Officer. 9.3 The prosecution has examined PW-4 Nirmalsinh Kalyansinh Gohil at Exh.25. This witness has stated that he was working as a Police Inspector in ACB Office at Bhuj and he had recorded the complaint of the complainant and had called the panch witness and had arranged for the trap. The witness has narrated the entire chronology of events that had taken place after the complainant came to the ACB Office to register the complaint till the trap was successful. The witness has thereafter, stated that he has recorded the statements of the connected witnesses and after the panchnama was drawn, he had done necessary procedure for receipt of the order of sanction for prosecution and after the same was received, he has filed the charge-sheet before the Sessions Court, Bhuj. During the cross-examination, the witness has stated that if a cognizable offence if declared, a note has to be made in the FIR register and any demand for bribe is an offence. That on 31.07.1991, when the complainant came to the ACB Office and stated that Talati Asharbhai has demanded for an amount of illegal gratification, he had taken down the complaint on a blank paper and had taken the signature of the complainant but he had not registered the offence on that date. That he had not asked anyone as to whether the accused had a nickname Asharbhai and he had not gone to the Maska Gram Panchayat to find out who was Asharbhai. That he had seen the copy of village form no. 7/12 of the land and had found that there was a mortgage on the land but he had not inquired about the same from the complainant. That the complainant did not give him any copy of the transfer of the land and he has not recorded the statement of the person on whose name the land was.
7/12 of the land and had found that there was a mortgage on the land but he had not inquired about the same from the complainant. That the complainant did not give him any copy of the transfer of the land and he has not recorded the statement of the person on whose name the land was. That he had recorded the statement of Deputy Mamlatdar - Vinodchandra Jethalal Shah who had stated that as the revenue entry on the land was due, the entry was rejected and he had also recorded the statement of Prafulgar Mangalgar Gosai who was a member of the Gram Panchayat. That when he went to the Panchayat Office, Prafulgar Mangalgar Gosai was present and he has not supported the case of the prosecution. 10. On meticulously dissecting and reappreciating the entire evidence of the prosecution, except for the bald allegations of the complainant in the complaint that Asharbhai had demanded an amount of Rs. 100/- as the illegal gratification was to be paid to the Superior Officer as the case of the accused was complicated, there is no iota of evidence regarding the prior demand or demand of illegal gratification made by the accused. That the complaint produced at Exh.26 has been filed against the Talati Cum Mantri - Asharbhai and admittedly the name of the accused Kanjibhai Keshavji Harijan. That there is no evidence on record to show that the accused was in fact, Asharbhai who had demanded for the amount of illegal gratification from the complainant. As per the say of the complainant, the amount of illegal gratification was to be paid as Survey No. 108 was to be transferred to the name of the mother of the complainant and the entry was to be mutated in the revenue records in the name of the mother of the complainant but there is evidence on record to show that the accused had mutated the name of the mother of the complainant in the revenue records but the entry was rejected as the dues on the land were not paid. That the entry was rejected by the Deputy Mamlatdar, Mandvi on 26.01.1990 and it was also stated that the entry was to be made after the dues on the land were paid.
That the entry was rejected by the Deputy Mamlatdar, Mandvi on 26.01.1990 and it was also stated that the entry was to be made after the dues on the land were paid. It appears that when the complainant had gone to file the complaint on 31.07.1991, he was aware of the fact that the entry was already rejected by the Deputy Mamlatdar, Mandvi on 26.01.1990 but he did not disclose this fact to the ACB Officer and filed the complaint stating that the amount of illegal gratification was demanded by the accused for mutating the name of his mother in the revenue records. That as the entry was rejected, the accused could not give the Khatavahi in the name of the mother of the complainant to the complainant but the same was not disclosed before the ACB Police Inspector. There is also a contradiction about the predetermined signal and the complainant states that had gone out and given the predetermined signal, whereas, the panch witness states that he had gone and given the predetermined signal. As far as the evidence regarding the demand is concerned, when the complainant and the shadow witness went to the office of the accused, they were instructed to go in the office and the panch witness was instructed to listen to the conversation between the complainant and the accused but it has come on record when they went to the office, the complainant had instructed the panch witness to stand outside of the office and when the complainant went inside, he was standing in the front of the table of the accused and his back was towards the panch witness who was standing outside of the office of the accused. That the panch witness has not heard the conversation that had taken place between the accused and the complainant and the allegation of the complainant that the demand was made by the accused is not corroborated by the panch witness. Moreover, the panch witness has clearly stated that he had affixed his signature on the panchnama on the next day at the ACB Office at Bhuj and the panchnama was not written by the panch witnesses.
Moreover, the panch witness has clearly stated that he had affixed his signature on the panchnama on the next day at the ACB Office at Bhuj and the panchnama was not written by the panch witnesses. There is evidence to the effect that when the panchnama was being written, the panch witnesses and the complainant were standing outside in the lobby and as far as the recovery of the tainted currency notes is concerned, the recovery is said to be made from the table of the accused in the papers below the register which was lying on the table of the accused. There is also evidence to the effect that the complainant had checked the tainted currency notes in his shirt pocket and had thereafter gone and shook his hands with the accused and hence, it can be said that the traces of the anthracene powder came onto the hands of the complainant and while he shook his hands with the accused, the traces of the anthracene powder would have stuck on the hands of the accused. The possibility that the complainant has himself placed the tainted currency notes on the table of the accused cannot be ruled out and there is no evidence that the tainted currency note was recovered from the possession of the accused. It has also come on record that PW-4 Nirmalsinh Kalyansinh Gohil was the Police Inspector who had noted the complaint, arranged for the trap, investigated the entire offence and had thereafter, filed the charge-sheet before the Sessions Court and this casts a huge doubt on the case of the prosecution. As per the observation of this Court in Gopal Lal Ghisulal Chippa (supra), if everything is done by the same Police Officer, the infirmity in the case of the prosecution comes on record and this reflects on the credibility of the case of the prosecution. That the entire case becomes doubtful and on this count alone, the case of the prosecution must fail. That even if this aspect is ignored, there are ample infirmities and contradictions in the evidence of the prosecution and as discussed above, the name of the mother of the complainant was already mutated in the revenue records by the accused and the entry was rejected by the Deputy Mamlatdar on 26.01.1990.
That even if this aspect is ignored, there are ample infirmities and contradictions in the evidence of the prosecution and as discussed above, the name of the mother of the complainant was already mutated in the revenue records by the accused and the entry was rejected by the Deputy Mamlatdar on 26.01.1990. That there was no reason for the accused to demand for any illegal gratification as the rejection of the entry clearly mentions that the dues were to be paid and thereafter, the entry was to be made and it is also on record that the revenue dues on the land were not paid. 11. The learned Trial Court has not considered all these aspects in proper perspective and even though the demand was not corroborated by the evidence of the panch witness, the learned Trial Court has believed and presumed that the demand was made by the accused. Moreover, there is evidence that the traces of anthracene powder would have come on to the hands of the accused at the time when the complainant shook hands with the accused and there is no evidence produced by the prosecution to prove that the accused had in fact, demanded and accepted the amount of illegal gratification. That the learned Trial Court has misread the evidence, and the findings of the learned Trial Court are not in the right perspective and on re-appreciation of the evidence, the glaring infirmities in the evidence of the prosecution have come on record. That on the basis of the evidence produced by the prosecution, the conviction of the accused cannot be sustained and the prosecution has miserably failed to establish the ingredients of demand and acceptance beyond reasonable doubts. In the given facts and circumstances of the case, in the considered opinion of this court, the conviction of the accused cannot be sustained and consequently the appeal succeeds and the impugned judgment and order passed by the learned Special Judge, Kutch at Bhuj in Special Case No. 47 of 1992 on 18.08.2005 is quashed and set aside. The appellant is acquitted from all the charges levelled against him. 12. Bail bond stands cancelled. Fine to be refunded after due verification. Record and Proceedings be sent back to the Trial Court forthwith.