Gujarat High Court
State Of Gujarat vs Raghuvir Chinubhai Joshi on 5 August, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 311 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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STATE OF GUJARAT
Versus
RAGHUVIR CHINUBHAI JOSHI
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
SHIVANGI D VYAS(10117) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 05/08/2024
ORAL JUDGMENT
1. This appeal has been filed by the appellant State under
Section 378(1)(3) of the Code of Criminal Procedure, 1973
against the judgement and order of acquittal passed by the
learned Special Judge, Fast Track Court No. 3, Jamnagar
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(hereinafter referred to as "the learned Trial Court") in
Special Case No. 3/1997 on 30.11.2005, whereby, the
learned Trial Court has acquitted the respondent for the
offence punishable under Sections 7, 13(1)(d) and Section
13(2) of the Prevention of Corruption Act, 1988 (hereafter
referred to as "the PC Act" for short)
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 a Senior Chemist in the
Jamnagar Dairy managed by Gujarat Dairy Development
Board Ltd, Gandhinagar and was a public servant. That the
complainant - Vijaybhai Govindbhai Bhada Bhanushali
residing at village Lavadiya, Taluka and District Jamnagar
was working as the Secretary of Shree. Lavadiya Milk
Producers Cooperative Union Ltd. and was earning a
monthly salary of Rs. 8000/- per month. That the milk
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producers of the Union would deposit the milk of cows and
buffaloes twice a day in the Lavadiya Milk Producers
Cooperative Union Ltd. and the complainant had to check
the fat content in the milk with the Fat Testing Machine and
make an entry in the pass-book of the members. That the
amount, as per the quanity and quality of milk was to be
paid to the members by cash and all the milk that was
deposited in the Union was taken by a Chhakda Rickshaw
in cans to the Jamnagar Dairy at Jamnagar. That the
accused who was the Laboratory Assistant at Jamnagar
Dairy, Jamnagar used to weigh the milk and measure the
fat and give a slip about the milk fat but the accused used
to show three to four litres less milk and also less fat in the
milk deposited by the complainant. Moreover, even if the
milk was good, the accused would say that the milk has
turned sour and had demanded an amount of Rs. 1000/-
per month as illegal gratification. That the complainant had
given Rs. 500/- and on 21.03.1995, when the complainant
went with his Chhakda Rickshaw to deposit milk at the
Jamnagar Dairy, Jamnagar, the accused demanded for the
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remaining amount of installment of RS. 500/-. That the
accused did not have the amount with him and requested
the accused to keep the amount of monthly installment of
Rs. 500/- but the accused threatened that he would show
less weight and less fat and would close the milk supply
from the Union and hence, the complainant agreed to pay
the remaining amount of Rs. 500/- on the next day i.e. on
22.03.1995 when he would come to the Jamnagar Dairy to
deposit the milk between 09.30 am and 10.00 am. That the
complainant did not want to give the amount of illegal
gratification and went to the ACB Police Station, Jamnagar
and filed the complaint under Sections 7, 13(1)(d) and 13(2)
of the PC Act which was registered at C.R. No. 4/1995 on
22.03.1995.
2.2 The Trap Laying Officer called the panch witnesses and
the panch witnesses were introduced to the complainant
and the panch witnesses were informed about the complaint
of the complainant and both the panch witnesses affixed
their signatures on the complaint of the complainant. That
the complainant gave five currency notes of the
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denomination of Rs. 100/- each and Head Constable - G.G.
Jadeja did the demonstration of anthracene powder and
ultraviolet lamp in the presence of the complainant and the
panch witnesses, and the characteristics of anthracene
powder and ultraviolet lamp were explained to the panch
witnesses and the complainant. That Head Constable - G.G.
Jadeja smeared anthracene powder on all the currency
notes and placed the tainted currency notes after folding
them in the left shirt pocket of the complainant and the
panchnama part-I was drawn and the trap was arranged.
That necessary instructions were given to the complainant
and the panch witnesses and as decided, the complainant,
panch witnesses and members of the raiding party sat in
the government jeep at about 09.55 am and left the ACB
Office, Jamnagar and went via Khambhaliya Gate, S.T.
Depot, Seven Roads, Section Road and reached the
Jamnagar Dairy and halted the jeep in a lane near the dairy
at about 10.15 am. That the complainant and the panch no.
1 went walking to the dairy and the panch no. 2 and other
members of the raiding party followed them on foot. That
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the complainant and the panch no. 1 entered into the main
gate of the dairy and the complainant met the accused and
the accused went near the scooter no. 1755 which was
parked and started the scooter and told the complainant
that he had some urgent work and would return after some
time and drove the scooter and went away. That the
complainant and the panch no. 1 waited near the tea stall
outside of the compound of the dairy and after about 15
minutes, the accused came back on his scooter and parked
his scooter in the compound of the dairy and came to where
the complainant and the panch no. 1 were waiting. That the
complainant gave order for tea and they all had tea and the
accused demanded for the amount of Rs. 500/- and the
complainant gave the tainted currency notes to the accused
but the accused made a gesture to the complainant to put
the currency notes in his pant pocket. That the complainant
placed the currency notes in the right pant pocket of the
accused and gave the predetermined signal and the
members of the raiding party came and caught the accused
and the tainted currency notes were recovered from the
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right side pant pocket of the accused. That the panchnama
part-II was drawn and the necessary test of ultraviolet lamp
was done in a room in the dairy building.
2.3 The Investigating Officer recorded the statements of
the connected witnesses and after the necessary documents
were seized, the Investigating Officer filed the charge- sheet
before the Sessions Court, Jamnagar which was registered
as Special ACB Case No. 3/1997.
2.4 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 the Code of
Criminal Procedure was followed, a charge at Exh. 5 was
framed against the accused and the statement of the
accused was recorded at Exh. 6, wherein, the accused
denied all the contents of the charge and the entire evidence
of the prosecution was taken on record.
2.5 The prosecution examined 7 witnesses and produced
18 documentary evidences on record in support of their
case and after the learned Additional Public Prosecutor filed
the closing pursis at Exh. 45, the further statement of the
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accused under Section 313 of the Code of Criminal
Procedure, 1973 was recorded. After the arguments of the
learned Additional Public Prosecutor and the learned
advocate for the accused were heard the learned trial Court
by the impugned judgement and order dated 30.11.2005
was pleased to acquit the accused from all the charges
levelled against him.
3. Being aggrieved and dissatisfied with the said
judgement and order of acquittal, the appellant - State has
filed the present appeal mainly stating that the impugned
judgement and order of acquittal passed by the learned Trial
Court is contrary to law and evidence on record of the case
and the learned Trial Court ought to have believed the
deposition of the complainant who has been examined at
Exh. 9. The complainant has stated that the accused had
demanded the amount of Rs. 1000/- as monthly installment
and Rs. 500/- was paid by him earlier and thereafter, on
the day of the trap, the remaining amount of Rs. 500/- was
recovered from the pant pocket of the accused. That the
learned Trial Court has not appreciated that the same
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currency notes which were smeared with anthracene
powder were found from the pocket of the accused and the
evidence of the complainant is fully corroborated with the
version of the prosecution witness no. 2 - Ishwarbhai
Jadavbhai Gosai who was the panch witness and has heard
the conversion of the complainant and the accused. During
the cross-examination, nothing adverse has come on record
but the learned Trial Court has not believed the evidence of
this witness and has erroneously come to the conclusion
and has acquitted the accused. That the Trap Laying Officer
has also fully supported the case of the prosecution and
there was no reason to disbelieve the version of this witness
but the learned Trial Court has committed a grave error in
not believing the evidence led by the prosecution and
acquitted the accused. That even if there are omissions in
the evidence of the Investigating Officer, the whole evidence
cannot be discarded but the learned Trial Court has
committed a grave error by giving undue weightage to this
aspect. That the other witnesses have also supported the
case of the prosecution and all the ingredients of demand,
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acceptance and recovery have been proved beyond
reasonable doubts but the learned Trial Court has not taken
these aspects into consideration. That the judgement and
order of acquittal is contrary to law and evidence on record
and deserves to be quashed and set aside.
4. Heard learned APP Ms. Jirga Jhaveri for the appellant
State and learned advocate Mr. Nishith P. Acharya for
learned advocate Ms. Shivangi D. Vyas for the respondent.
Perused the impugned judgement and order of acquittal and
have reappreciated 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 even though the complainant has turned
hostile but the complainant has narrated the version as
mentioned in the complaint and the ingredients of demand,
acceptance and recovery have been proved by the
prosecution beyond reasonable doubts. That the panch
witness has fully supported the case of the prosecution and
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the impugned judgement and order has not been passed
after considering all the evidences of the prosecution and
the same is required to be quashed and set aside and the
respondent must be found guilty for the said offences.
6. Learned advocate Mr. Nishith P. Acharya for learned
advocate Ms. Shivangi D. Vyas for the respondent has
submitted that the complainant has turned hostile and
there is no iota of evidence in the deposition of the
complainant that he had given any amount as illegal
gratification to the respondent. That there is no iota of
evidence that any demand for illegal gratification was made
by the respondent from the complainant or that the
respondent had accepted the amount of illegal gratification
knowing it to be the amount of illegal gratification. That the
learned Trial Court has appreciated the entire evidence in
proper perspective and no interference is required in the
impugned judgement and order and learned advocate has
urged this Court to reject the appeal of the appellant.
7. At the outset, before discussing the facts of the present
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case, it would be appropriate to refer to the observations of
the Apex Court in the case of Mallappa & Ors. Vs. State of
Karnataka passed in Criminal Appeal No.1162 of 2011 on
12.02.2024, wherein, the Apex Court has observed in Para
Nos. 24 to 26, as under:
"24. We may firstly discuss the position of law regarding the
scope of intervention in a criminal appeal. For, that is the
foundation of this challenge. It is the cardinal principle of
criminal jurisprudence that there is a presumption of innocence
in favour of the accused, unless proven guilty. The presumption
continues at all stages of the trial and finally culminates into a
fact when the case ends in acquittal. The presumption of
innocence gets concertized when the case ends in acquittal. It is
so because once the Trial Court, on appreciation of the evidence
on record, finds that the accused was not guilty, the
presumption gets strengthened and a higher threshold is
expected to rebut the same in appeal.
25. No doubt, an order of acquittal is open to appeal and there
is no quarrel about that. It is also beyond doubt that in the
exercise of appellate powers, there is no inhibition on the High
Court to re-appreciate or re-visit the evidence on record.
However, the power of the High Court to reappreciate the
evidence is a qualified power, especially when the order under
challenge is of acquittal. The first and foremost question to be
asked is whether the Trial Court thoroughly appreciated the
evidence on record and gave due consideration to all material
pieces of evidence. The second point for consideration is
whether the finding of the Trial Court is illegal or affected by an
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error of law or fact. If not, the third consideration is whether the
view taken by the Trial Court is a fairly possible view. A decision
of acquittal is not meant to be reversed on a mere difference of
opinion. What is required is an illegality or perversity.
26. It may be noted that the possibility of two views in a
criminal case is not an extraordinary phenomenon. The 'two-
views theory' has been judicially recognized by the Courts and it
comes into play when the appreciation of evidence results into
two equally plausible views. However, the controversy is to be
resolved in favour of the accused. For, the very existence of an
equally plausible view in favour of innocence of the accused is
in itself a reasonable doubt in the case of the prosecution.
Moreover, it reinforces the presumption of innocence. And
therefore, when two views are possible, following the one in
favour of innocence of the accused is the safest course of action.
Furthermore, it is also settled that if the view of the Trial Court,
in a case of acquittal, is a plausible view, it is not open for the
High Court to convict the accused by reappreciating the
evidence. If such a course is permissible, it would make it
practically impossible to settle the rights and liabilities in the
eyes of law. In Selvaraj v. State of Karnataka,
"13. Considering the reasons given by the trial Court and
on appraisal of the evidence, in our considered view, the
view taken by the trial Court was a possible one. Thus,
the High Court should not have interfered with the
judgment of acquittal. This Court in Jagan M. Seshadri v.
State of T.N. [(2002) 9 SCC 639] has laid down that as the
appreciation of evidence made by the trial Court while
recording the acquittal is a reasonable view, it is not
permissible to interfere in appeal. The duty of the High
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Court while reversing the acquittal has been dealt with by
this Court, thus:
"9. ...We are constrained to observe that the High
Court was dealing with an appeal against acquittal. It
was required to deal with various grounds on which
acquittal had been based and to dispel those
grounds. It has not done so. Salutary principles while
dealing with appeal against acquittal have been
overlooked by the High Court. If the appreciation of
evidence by the trial Court did not suffer from any
flaw, as indeed none has been pointed out in the
impugned judgment, the order of acquittal could not
have been set aside. The view taken by the learned
trial Court was a reasonable view and even if by any
stretch of imagination, it could be said that another
view was possible, that was not a ground sound
enough to set aside an order of acquittal."" (emphasis
supplied) In Sanjeev v. State of H.P., the Hon'ble
Supreme Court analyzed the relevant decisions and
summarized the approach of the appellate Court
while deciding an appeal from the order of acquittal.
It observed thus:-
"7. It is well settled that: -
7.1. While dealing with an appeal against acquittal, the
reasons which had weighed with the trial Court in
acquitting the accused must be dealt with, in case the
appellate Court is of the view that the acquittal rendered by
the trial Court deserves to be upturned (see Vijay Mohan
Singh v. State of Karnataka5, Anwar Ali v. State of H.P.)
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7.2. With an order of acquittal by the trial Court, the normal
presumption of innocence in a criminal matter gets
reinforced (see Atley v. State of U.P.)
7.3. If two views are possible from the evidence on record,
the appellate Court must be extremely slow in interfering
with the appeal against acquittal (see Sambasivan v. State
of Kerala)."
7.1 In Para - 36, the Apex Court, in the case of
Mallappa (Supra), has observed as under:-
"36. Our criminal jurisprudence is essentially based on the
promise that no innocent shall be condemned as guilty. All
the safeguards and the jurisprudential values of criminal
law, are intended to prevent any failure of justice. The
principles which come into play while deciding an appeal
from acquittal could be summarized as:-
(i) Appreciation of evidence is the core element of a criminal
trial and such appreciation must be comprehensive -
inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in
a miscarriage of justice and is in itself a ground of
challenge;
(iii) If the Court, after appreciation of evidence, finds that
two views are possible, the one in favour of the accused
shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view,
mere possibility of a contrary view shall not justify the
reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal
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in appeal on a re-appreciation of evidence, it must
specifically address all the reasons given by the Trial Court
for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the
appellate Court must demonstrate an illegality, perversity or
error of law or fact in the decision of the Trial Court.
7.2 The Apex Court, in the case of Neeraj Dutta Vs. State
(Govt. of N.C.T. of Delhi) reported in 2022 0 Supreme (SC)
1248, has observed in Para No. 68 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.
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(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 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
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inturn 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. 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
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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. The law with regard to acquittal appeals is well
crystallized and in acquittal appeals, there is presumption
of innocence in favour of the accused and it has finally
culminated when a case ends in an acquittal. That the
learned Trial Court has appreciated all the evidence and
when the learned Trial Court has come to a conclusion that
the prosecution has not proved the case beyond reasonable
doubts, the presumption of innocence in favour of the
accused gets strengthened. That there is no inhibition to
reappreciate the evidence by the Appellate Court but if after
reappreciation, the view taken by the learned Trial Court
was a possible view, there is no reason for the Appellate
Court to interfere in the same.
9. To bring home the charge against the accused, the
prosecution has examined PW1 - Vijaybhai Govindbhai
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Badha at Exh. 9 and the witness has stated that he was the
Secretary of the Milk Producers Union Ltd. of his village
Lavadiya and the President was one J.D. Jadeja. That all
the milk producers would deposit the milk of cows and
buffaloes in the dairy and he would check the milk with the
Fat Testing Machine and make an entry in the pass-book
regarding the quantity and fat in the milk. That the
accounts were settled every ten days and he used to pay the
amount by cash to all the members. That Jamnagar Dairy
situated in Jamnagar was managed by the Gujarat Dairy
Development Board Ltd. Gandhinagar and the accused was
the Laboratory Assistant in Jamnagar Dairy. That the
complainant would deposit about 160 litres milk everyday
but the accused would not give the proper amount and
would cut some money for the milk on one pretext or the
other. That the accused had demanded illegal gratification
from him and had demanded an amount of Rs. 1000/- per
month and he had given Rs. 500/- but did not want to give
the remaining amount and filed the complaint in Anti
Corruption on 21.03.1995. That on the next day, he gave
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Nagar Saheb five currency notes of the denomination of Rs.
100/- each and the demonstration of anthracene powder
and ultraviolet lamp was done and explained to him by G.G.
Jadeja. That anthracene powder was put on the currency
notes and folded and placed in his shirt pocket and one
panch was instructed to go with him. That they got down
from the jeep and halted the jeep in the lane near Jamnagar
Dairy and he and the panch no. 1 went into the dairy and
they met the accused in the compound. That the accused
took his scooter and went away after telling the complainant
that he had some work and that he would return after some
time. That they waited outside the compound and after 15
minutes, the accused came and parked the vehicle and
came to them. That the accused told him to place the
currency notes in his left pant pocket but immediately
thereafter, the complainant has stated that the notes were
placed in his right pant pocket. That he gave the
predetermined signal and the members of the raiding party
came and caught the accused. That the panch no. 2
removed the tainted currency notes from the pocket of the
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accused. During the cross-examination by the learned
advocate for the accused, the witness has stated that there
was only one Chhakda to ferry milk to the Jamnagar Dairy
and the Chhakda was in the ownership of his elder brother.
That he would take the milk many times in place of his
brother and the accused used to test the fat and there were
other persons who were doing the work of weighing the
milk. That in his presence, the accused had never given any
report that the milk was not of a good quality and the
accused had never demanded any amount from him. The
witness has stated that some employees from dairy had
come and told him, but he does not know the names of
those employees. That the accused had never demanded
any amount from him and he had not given the accused any
amount of Rs. 500/-. That he did not go to the ACB Office to
file the complaint and he did not give Rs. 500/- to the ACB
Officer and no experiment of anthracene powder and
ultraviolet lamp was done in his presence. That in his
presence, no currency notes of Rs. 500/- were recovered
from the pocket of the accused and he did not go with any
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ACB Officer for any trap. That the pant of the accused was
not seized in his presence and he did not give the complaint
which is produced at Exh. 11.
9.1 The prosecution has examined PW2 - Ishwargar
Jadavgar Gosai at Exh. 13 and this witness is the panch
witness who has fully supported the case of the prosecution
and has narrated all the events that had taken place when
he and the other panch witness - Girishkumar Manilal
Dholakiya had gone to the ACB Office on 22.03.1995 at
08.15 am. The witness has stated that they were introduced
to the complainant and made aware of the details of the
complaint of the complainant and thereafter, the
complainant gave five currency notes of the denomination of
Rs. 100/- and the demonstration of anthracene powder and
ultraviolet lamp was done by Head Constable - G.G. Jadeja
in their presence. That the characteristics of anthracene
powder and ultraviolet lamp were explained to them and the
currency notes given by the complainant were smeared with
anthracene powder and placed in the left shirt pocket of the
complainant. That he was instructed to be a shadow
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witness and he had gone walking with the complainant to
the gate of the dairy and at that time, the accused came to
scooter no. 1755 and took the scooter and went away. That
the accused had a conversation with the complainant and
the accused told the complainant that he would come after
some time. That they waited outside the compound and
after 15 minutes, the accused returned and demanded the
amount of Rs. 500/- and had a conversation with the
complainant and the accused told the complainant to give
the amount at his house but the complainant stated that he
had a lot of work and to take the amount and hence, the
accused told the complainant to place the amount in his
pant pocket. That the complainant took the tainted
currency notes of Rs. 500/- from his left shirt pocket with
his right hand and the accused opened his right pant pocket
and made gesture to place the currency notes in his pocket
and the complainant placed the currency notes in the right
pant pocket of the accused. That the complainant gave the
predetermined signal and the members of the raiding party
came and caught the accused. That the panchnama part-II
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was drawn and they had affixed their signatures. During the
cross-examination, the witness has stated that he was
working in the Mamlatdar Office as a Clerk and had to do
Inward and Dispatch work and he had affixed Inward
Numbers on the application of the applicants and had sent
them to the concerned branch but he could not remember
the names of the applicants whose applications he had
forwarded.
9.2 The prosecution has examined PW3 - Dilipbhai
Jethalal Chauhan at Exh. 15 and the witness has stated
that he was working as a dairy wager in the Jamnagar Dairy
and at that time, the accused was a Senior Chemist. That
no incident has occurred with the accused and he did not
get any pant from the house of the accused on the day of
the incident. The witness has not supported the case of the
prosecution and has been declared hostile and has been
cross-examined at length by the learned APP but nothing to
support the case of the prosecution has come on record. The
witness has not been cross-examined by the learned
advocate for the accused.
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9.3 The prosecution has examined PW4 - Bhikhubha
Balubha Jadeja at Exh. 16 and the witness is the
Investigating Officer who has taken over the investigation of
Jamnagar ACB Police Station C.R. No. 4/1995 on
09.12.1995. The witness has stated that he had arrested the
accused on 18.01.1997 and produced him before the
Special Judge, Jamnagar and after the order of sanction for
prosecution was received, he had filed the charge-sheet
before the Sessions Court on 27.02.1997. During the cross-
examination by the learned advocate for the accused, the
witness has stated that he did not investigate the offence
and he was orally instructed to arrest the accused in a
meeting.
9.4 The prosecution has examined PW5 - Natwarlal
Narshibhai Nagar at Exh. 17 and the witness was working
as a Police Inspector in the ACB Office, Jamnagar on
21.03.1995. The witness is the Trap Laying Officer and has
fully supported the case of the prosecution and has
narrated all the procedure that he had undertaken on
21.03.1995 and 22.03.1995 after the complainant came and
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filed his complaint before the ACB Police Station. The
witness has narrated in detail that he had called the panch
witnesses and had asked Head Constable - B.B. Jadeja to
do the demonstration of anthracene powder and ultraviolet
lamp and the complainant had given five currency notes of
the denomination of Rs. 100/- each which were smeared
with anthracene powder by Head Constable - B.B. Jadeja.
That the characteristics of anthracene powder and
ultraviolet lamp were explained to the complainant and the
panch witnesses and he had given necessary instructions to
the complainant and the panch witnesses and the trap was
arranged. That they all had gone to Jamnagar Dairy and he
along with the panch witness no. 2 and other members of
the raiding party stood scattered around and when the
complainant gave the predetermined signal, they all rushed
in and caught the accused red handed and the tainted
currency notes were recovered from the right pant pocket of
the accused. That after the trap was successful, the
panchnama was drawn and they came to the Jamnagar
ACB Police Station and registered the offence at C.R. No.
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4/1995 under Section 7, 13(1)(d) and 13(2) of the PC Act.
That he had recorded the statements of the connected
witnesses and after he was transferred from ACB Police
Station, Jamnagar to the DGP Office on 27.07.1995, the
further investigation was handed over to Police Inspector -
B.C. Bhabhor of Bhuj. During the cross-examination by the
learned advocate for the accused, the witness has stated
that he cannot identify in whose handwriting the
panchnama has been written.
9.5 The prosecution has examined PW6 - Shaileshbhai
Jaswantray Mehta at Exh. 23 and the witness was working
as the Manager in Gujarat Dairy Development Board in the
year 1992 and he has produced the service record of the
accused and the forwarding letter of Manager - M.S.
Patadiya at Exhs. 24 to 37. During the cross-examination
by the learned advocate for the accused, the witness has
stated that he had deposed on the basis of the record.
9.6 The prosecution has examined PW7 - Fabiyan Joesph
Dabhi at Exh. 44 and the witness has stated that he was
working as a Personal Secretary to the Managing Director to
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Gujarat Dairy Development Board in the year 1997 and
Mrs. S.K. Verma was the Managing Director at that time.
That he has identified the signatures of Mrs. S.K. Verma on
the documents produced at Exhs. 36 and 37.
10. After the closing pursis was filed by the learned APP,
the further statement of the accused under Section 313 of
Code of Criminal Procedure was recorded, wherein, the
accused has stated that while he was on duty on
22.03.1995 at around 09.00 am, four to five persons came
to him and introduced themselves as ACB Officer and
caught him and made him sit in the lobby and after some
time let him go and asked him to come at 03.00 pm in the
ACB Office. That his signatures were taken on some papers
without allowing him to read those papers and he has been
falsely implicated in the said offence.
11. On minute dissection of the entire evidence of the
prosecution, the infirmities in the case of the prosecution
have come on record and it is on record that the accused
was working as the Senior Laboratory Assistant and merely
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had to examine the fat content in the milk. That the milk
was weighed by some other person and the say of the
complainant that the accused was showing milk lesser than
what was brought is not proved as it was not within the
duty of the accused to weigh the milk. That the accused
merely had to verify the fat with the Fat Testing Machine
and accordingly, the amount was paid to the customers.
That the complainant, during the cross-examination, has
categorically stated that the accused did not demand any
amount of illegal gratification from him and he has not filed
the complaint before the ACB Police Station. That the
complainant has completely resiled from the facts of the
complaint and there is no iota of evidence that the accused
had demanded any amount of illegal gratification as the
complainant has refused to support the case of the
prosecution. That PW3 - Dilipkumar Jethalal Chauhan has
also not supported the case of the prosecution and hence,
the arranging of the alternative pant for the accused has not
been proved. That in the evidence, it has also emerged on
record that as soon as the Trap Laying Officer and members
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of the raiding party came and caught the accused, the
accused had immediately uttered the words that the
complainant had forcibly put the money in his pocket and
at that time, the accused become very emotional and this
fact, as stated by the complainant, is corroborated by the
version of the panch witness and the Trap Laying Officer.
12. The learned Trial Court has discussed all the evidence
produced by the prosecution on record in detail and has
also observed that the panch witness has fully supported
the case of the prosecution and has narrated the
panchnama in a verbatim manner and has observed that
the incident had taken place in the year 1995 and the
deposition of the panch witness has been recorded on
23.02.2005 and after a long gap of ten years, the panch
witness has deposed all the facts in a verbatim manner.
That there is evidence in the deposition of panch witness
that prior to his deposition before the Court, he had gone to
the ACB Office and had read the panchnama and when the
panch witness was a tutored panch, the evidence could not
be believed. Moreover, in the deposition of the panch
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witness, it has also come on record that the demonstration
of anthracene powder and ultraviolet lamp was done by
Head Constable - G.G. Jadeja and at that same time, the
same person was writing the panchnama. That this action is
not possible and even though the Trap Laying Officer was
present during the writing of the panchnama, he has stated
that he does not know in whose handwriting, the
panchnama has been written. That the learned Trial Court
has also observed that there are major contradictions in the
deposition of the complainant, panch witnesses and the
Trap Laying Officer and the trap has been successful at a
public place where there was tea stall and a Pan Shop but
no independent witnesses have been examined by the
prosecution.
13. The learned trial Court has appreciated the entire
evidence in proper perspective 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
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completely justified in acquitting the accused of the charges
leveled against him. 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. 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.
14. The impugned judgment and order passed by the
learned Special Judge, Fast Track Court No. 3, Jamnagar
in Special Case No. 3/1997 on 30.11.2005 is hereby
confirmed.
15. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J)
Vasim
