Gujarat High Court
Babubhai Haribhai Parmar vs State Of Gujarat on 18 June, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1133 of 2005
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 No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BABUBHAI HARIBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
VISHAL K ANANDJIWALA(7798) for the Appellant(s) No. 1
MS. JIRGA JHAVERI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 18/06/2024
ORAL JUDGMENT
1. This appeal has been filed by the appellant under
Section 374 of Code of Criminal Procedure, 1973 against the
judgement and order of conviction passed by the learned
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Special Judge (ACB) and 6th Fast Track Judge, Mehsana,
(hereinafter referred to as "the learned Trial Court") in
Special (ACB) Case No. 8 of 1999 on 20.05.2005, whereby,
the learned Trial Court has convicted the appellant for the
offence punishable under Sections 7, 13(1)(d) and 13(2) of
the Prevention of Corruption Act, 1988 (hereinafter referred
to as "the PC Act").
The 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 was working as an Assistant Sub-
Inspector in the Kadi Police Station in the year 1998 and as
a public servant. That two cow calves belonging to
Prabhatbhai Vashrambhai Rabari were stolen and a
complaint was filed against the complainant - Bhagwanbhai
Karamshibhai Rabari regarding the theft of the cow calves
at Kadi Police Station. That the accused and Police
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Constable - Mandanbhai had gone to the house of the
complainant and the complainant and his son - Ajju were
called to the Police Station and made to sit in the Police
Station for two days and were pressurized to confess to the
crime of theft of the cow calves. That they were allowed to go
their house at 09.00 pm and were once again called to the
Police Station on the next day and to wind up the case
against the complainant and his son, the accused had
demanded for an amount of Rs. 2000/- and after bargaining
the amount was fixed at Rs. 1500/-. That the complainant
had Rs. 300/- with him which were three currency notes of
denomination of Rs. 100/- which were given to the accused
and the remaining amount of Rs. 1200/- was to be paid by
Friday before afternoon at the Kadi Police Station. That the
complainant did not want to give the amount of illegal
gratification and went to the ACB Police Station, Mehsana
on 10.12.1998 and filed the complaint under Section 7,
13(1)(d) and 13(2) which was registered as C.R. No. 15/1998
on 14.12.1998. That the Trap Laying Officer called the
panch witnesses and the demonstration of anthracene
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powder and ultraviolet lamp was carried out in the presence
of the complainant and the panch witnesses and the
characteristics of anthracene powder and ultraviolet lamp
was explained to the complainant and the panch witnesses.
That the complainant gave 12 currency notes of the
denomination of Rs. 100/- each and anthracene powder
was applied on these currency notes and placed in the left
side pocket of the t-shirt of the complainant and the trap
was arranged. That necessary instructions were given by the
Trap Laying Officer to the complainant and the panch
witnesses, and the complainant, panch witnesses and
members of the raiding party went to the Kadi Police
Station. That the accused was not in the Police Station and
the complainant and the panch witness waited and at that
time, Constable Mandanbhai told the complainant to come
on the next day or on Monday with his sureties and hence,
the complainant and the panch witness returned to the
place where the members of the raiding party and the Trap
Laying Officer were. That the trap was once again arranged
on 14.12.1998 and on that day, the complainant and the
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panch witnesses came to the ACB Police Station at 09.00
am and came to Kadi Police Station for the trap and in the
vehicle, the complainant was made to sit and the Trap
Laying Officer took the currency notes which were earlier
laced with anthracene powder and 12 currency notes of
denomination of Rs. 100/- each and placed them in the left
side t-shirt pocket of the complainant. That the complainant
and the shadow witness walked towards Kadi Police Station
and they saw the accused standing opposite the Mamlatdar
compound near the cart of H.P. Parawala. The complainant
and the panch witness went and met the accused and the
accused asked the complainant whether he had brought his
son and the surety and also demanded the amount of illegal
gratification. The complainant took the tainted currency
notes and gave it to the accused who accepted the tainted
currency notes with his right hand and without counting
them placed them in his back pant pocket. That the
complainant gave the predetermined signal and the
members of the raiding party came and caught the accused
red handed. The Investigating Officer recorded the
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statements of the connected witnesses and after the order of
sanction for prosecution was received, a charge-sheet came
to be filed before the Sessions Court, Mehsana which was
recorded as Special ACB Case No. 8/1999.
2.2. 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 was completed a charge was framed by the
learned Trial Court at Exh. 7 and the statement of the
accused was recorded at Exh. 8. 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.
Sr. No. PW Particulars Exh.
2.4 The prosecution also produced the following
documentary evidence to bring home the charge against the
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accused.
Sr. No. Particulars Exh.
2.5 After the closing pursis was submitted by the learned
APP at Exh. 33, the further statement of the accused under
Section 313 of Code of Criminal Procedure was recorded,
wherein, the accused stated that the complainant has filed a
false complainant against him but even on the date of the
trap, the accused did not demand for any illegal
gratification. That no complaint of theft of cow calves was
filed and a false complaint was filed against the accused as
the complainant had filed a case against Prabhatbhai
Vashrambhai Rabari which was being investigated by the
accused and the complainant was called to the Police
Station for his sureties to be taken but the complainant did
not bring the sureties and while the accused was sitting at
the tea stall and talking to some other people, the
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complainant came and sat near him and when the accused
went to pay the amount for the tea, the complainant had
certain amount in his hands but some persons came and
caught the accused and the accused told them that he had
not accepted any amount and asked the officer to search
him and they searched him on the spot but no tainted
currency notes were found from him. That the officer told
him that further investigation would be required and they
took him to the CPI Office at Kadi and even at that time, no
tainted currency notes were found from him or no marks
were found on his hands or his pants. That a false
panchnama was drawn and he has never demanded or
accepted any amount of illegal gratification from the
complainant. 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 simple imprisonment for one year and fine of
Rs. 2,000/- and in default, simple imprisonment of two
months for the offence under Section 7 of the PC Act and
rigorous imprisonment for three years and fine of Rs.
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3,000/- and in default, simple imprisonment of two months
for the offence under Sections 13(1)(d) read with Section
13(2) of the PC Act.
3. Being aggrieved by and dissatisfied with the said
judgement and order of conviction, the appellant has filed
the present appeal mainly stating that the learned Trial
Court has erred in convicting the appellant and has failed to
appreciate the evidence of the witnesses and has not
weighed the pros and cons of the same and has wrongly
convicted the appellant. The learned Trial Court has failed
to appreciate that the appellant has not demanded any
amount of illegal gratification from the complainant and
there were no sufficient evidences on record to draw the
presumption and inferences under Section 20 of the PC Act.
The learned Trial Court has failed to appreciate that mere
recovery of money divorced from the circumstances under
which it is paid, is not sufficient to convict the accused
when the substantive evidence in the case is not reliable.
The learned Trial Court has failed to appreciate that there
was no corroboration to the reiteration of demand for bribe
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by the appellant and there was no evidence at all to prove
that any demand for illegal gratification was made by the
accused. That the shadow witness did not depose as to what
transpires in the conversation between the accused and the
complainant and the other witness too was not clear about
the conversation that preceded the passing of the currency
notes. That the learned Trial Court has failed to appreciate
that in the absence of demand, no offence can be said to
have been made out against the appellant and there are a
number of contradictions in the statement of the
complainant and major contradictions are found in respect
to the manner of demand and payment of bribe amount to
the accused. That there was no evidence to prove the
demand and the learned Trial Court has failed to appreciate
that in corruption cases, first of all the prosecution has to
prove the demand and thereafter, the prosecution should
prove the acceptance and recovery. In the present case, the
prosecution has failed to prove all the ingredients from the
evidence on record and the entire case is a false and got up
story which is not proved by the prosecution. As per the
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case of the prosecution, the trap was near the Mamlatdar
Office and the accused was taken to the office of the Circle
Police Inspector at Kadi which was far away from the scene
of offence and there is no cogent, reliable and
unimpeachable evidence establishing that the accused had
received the amount of illegal gratification from the
complainant. That the learned Trial Court has failed to
appreciate that there are material contradictions and
omissions in the story of the prosecution case and the
accused ought to have been acquitted but the impugned
judgement and order is passed on the basis of the
inferences drawn and presumptions made and the
conclusion is arrived in favour of the prosecution which is
contrary to law, evidence on record and unwarranted. That
there is no evidence to convict the accused.
4. Heard learned advocate Mr. Vishal K. Anandjiwala for
the appellant and learned APP Ms. Jirga Jhaveri for the
respondent State.
5. Learned advocate Mr. Vishal K. Anandjiwala for the
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appellant has taken this Court through the entire evidence
of the prosecution and has submitted that there is no iota of
evidence to convict the accused in the present case as there
are number of contradictions and omissions in the evidence
of the prosecution. That the initial demand is not proved
and the case of the prosecution is that one FIR was
registered by Prabhatbhai Vashrambhai Rabari and the
accused and another Constable Mandanbhai had come to
his house. The prosecution has not examined Mandanbhai
and there is no evidence that Prabhatbhai Vashrambhai
Rabari had filed the complaint against the complainant for
the theft of his cow calves. That if the evidence is perused,
the case lodged by Prabhatbhai Vashrambhai Rabari was
settled and it appears that the demand was not made from
the present appellant but it was for the settlement of
dispute with Prabhatbhai Vashrambhai Rabari. That the
complaint was filed against the accused and Police
Constable - Mandanbhai but the charge-sheet was not filed
against Mandanbhai who belongs to the Rabari Community.
That the first trap arranged on 11.12.1998 had failed as the
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accused was not in the Police Station and hence, the second
trap was arranged on 14.12.1998. That in the evidence it
has emerged that on the date of the trap, the accused was
sitting near the tea stall and when the accused went to
given the amount for the tea, the complainant took the
tainted currency notes and place it on the bench and gave
the predetermined signal. That in the evidence of the Trap
Laying Officer, it has emerged that the accused was directed
to take out the currency notes from his pocket and there is
no evidence to corroborate the fact that the accused had in
fact accepted the amount of illegal gratification and placed it
in his pocket. That the defence of the accused is also
required to be considered and the complainant did not come
with his surety and hence, the work remained incomplete
and taking disadvantage of this position, the trap was
arranged. It is on record that the accused was talking to
other persons who were present at the tea stall but there
was no conversation with the complainant regarding any
demand of illegal gratification and at the time of the trap,
the accused had clearly challenged the Trap Officer to
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search him and find out if any bribe amount was found
from his person. That on search, no amount was found from
the person of the accused and hence, he was taken to the
chamber of CPI, Kadi and all the documents have been
falsely prepared. That the prosecution has not established
the requirements of initial demand, demand, acceptance
and recovery which are to be proved beyond reasonable
doubts by the prosecution and hence, learned advocate Mr.
Vishal Anandjiwala has urged this Court to allow the appeal
of the appellant and acquit the appellant from all the
offences.
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 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 judgement and order
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and the appeal of the appellant must be rejected and the
judgement and order of conviction must be confirmed.
7. 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.
8. In the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of
Delhi) reported in 2022 0 Supreme (SC) 1248, the Hon'ble
Apex Court has held as under:
"68. What emerges from the aforesaid discussion is
summarised as under:
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(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.
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(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 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
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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
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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."
9. In view of the above settled principles of law, in
conviction appeals, it is necessary to dissect and
reappreciate the oral and documentary evidences produced
by the prosecution and to bring the home the charge against
the accused, the prosecution has examined PW1 -
Bhagwanbhai Karamshibhai at Exh. 13. The witness is the
complainant and he has stated that Prabhatbhai
Vashrambhai Rabari of his village had filed a case against
him and his son Ajju regarding theft of cow calves and the
accused and Police Constable - Mandanbhai were
investigating the matter. That he and his son were called to
the Kadi Police Station and were threatened and a demand
of Rs. 2000/- was made from them. That he had given an
amount of Rs. 300/- to the accused for settlement of the
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case and an amount of Rs. 1500/- was settled after
bargaining and the remaining amount of Rs. 1200/- was to
be paid after two days. That he did not want to pay the
amount of illegal gratification and hence, he went to the
ACB Police Station, Mehsana and filed the complaint. That
he had given 12 current notes of the denomination of Rs.
100/- each to the officer and some powder was applied on
the notes and they are placed in the pocket of his t-shirt.
That he went to the Police Station to inquire about the
accused but Mandanbhai told him that the accused was not
present and he would be available the next day and hence,
he returned to the Trap Laying Officer and told him the
same. That on the next day, he was told to come from
Jotana village at goddess Jogni Temple and when he went
there, the same notes were placed in his t-shirt pocket. That
he alone went from the government hospital and the ACB
Officials and the panch witnesses and his son came after he
had given the money. That the accused was sitting on a
bench under a tree and he went and had a conversation
with the accused and the accused had asked him whether
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he had brought the money and he told the accused that he
had brought the money and took the amount from his t-
shirt pocket and gave it to the accused who took the money
and placed it in his back pant pocket. That he gave the
predetermined signal and the members of the raiding party
came and caught the accused. That they took the accused
to the CPI Office and the official told the accused to take out
the money and the accused took out the money from his
back pant pocket. The witness has produced the complaint
at Exh. 14. During the cross-examination by the learned
advocate for the accused, the witness has stated that he
had not stated that Mandanbhai was demanding for any
amount and Prabhatbhai had filed the complaint of theft
against him. That a compromise was arrived at in that case
and both of them had withdrawn the cases filed against
each other. That at the time of the compromise with
Prabhatbhai, the bail of his son had to be given and he had
gone to the Police Station along with the sureties and at that
time, the accused had taken the sureties and the case was
settled and concluded. That on the date of the trap, when
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the accused was seated below the Neem Tree near the ice
cart, the accused did not ask for the sureties. That he does
not know how much amount he had on the second day
when he had gone near goddes Jogni Temple and he had
used both the hands to give the predetermined signal which
was to open his turban and tie it again. That his hands were
tested under the ultraviolet lamp and there was no mention
as to whether traces of anthracene powder were found on
his hands. That in his statement, it is not stated as to
whether the shining marks were found on his t-shirt or not.
That when he went to the tea stall, the accused was seated
on a bench and drinking tea and had called for tea for them
also and they had tea. That he had placed the currency
notes on the bench and stood up and gave the
predetermined signal and when he gave the predetermined
signal, the panch witness was far away from him. That at
that time, there were a number of persons at the tea stall
surrounding the place where they were standing and after
he gave the predetermined signal, the witnesses caught the
accused and no one had demanded for any amount.
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9.1 The prosecution has examined PW2 - Champuji
Mohansinh Solanki at Exh. 16 and the witness is the panch
witness who has stated that on 11.12.1999, he was called
along with Ratilal Vastaram Chavda to the ACB Office,
Mehsana. That when they reached the office, they met the
complainant and the witness has narrated all the incidents
that had taken place on the first day when the trap was
unsuccessful and thereafter, they were called on the next
day and he had gone as a shadow witness as instructed
along with the complainant. That when they reached the
compound of the Mamlatdar Office, there were a group of
people and a policeman was seated on a bench and they
went and met the accused. That he did not hear the
conversation between the complainant and the accused as
he was seated far away and after the conversation of the
complainant and the accused, the complainant placed the
amount on the hands of the accused and at that time, the
hand of the accused was on the bench. That he did not see
where the accused had placed the amount as he was
looking to the complainant as to whether the complainant
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had given the predetermined signal and at that time, the
ACB Officers came and caught the accused and took him to
the CPI Office. That in the receipt at Exh. 20, it is not
mentioned from whom the 12 currency notes of
denomination of Rs. 100/- each were found and in the
seizure memo at Exh. 18, the items that were seized from
Unarmed First Track Jamadar (ASI) Kadi is mentioned but it
is not mentioned that items were seized from the pant
pocket of the accused. That there is no mention in the
panchnama that traces of anthracene powder were found on
the hands of the complainant and on 11.12.1998, at the
time of the panchnama part-1, no conversation of demand
of illegal gratification had taken place but Mandanbhai had
told the complainant to bring the sureties and come as the
accused had gone for a raid. That when they came back, the
tainted currency notes were taken from the complainant but
the signatures of the panch witnesses were not taken and
after the first trap, no test on the clothes of the complainant
were done and no test of the ultraviolet lamp on the turban
of the complainant was done. That he had not dictated the
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panchnama.
9.2 The prosecution has examined PW3 - Ratilal Vastaram
Chavda at Exh. 24 and the witness is the panch witness of
the panchnama who had gone to the ACB Office along with
the shadow witness - Champuji Mohansinh Solanki. The
witness has supported the case of prosecution and has
stated all the events that had taken place when he and the
other panch witness - Champuji Mohansinh Solanki had
gone to the ACB Office and thereafter, he was instructed to
remain with the members of the raiding party. That he had
seen the complainant giving the amount to the accused and
after the predetermined signal was given, he had gone along
with the other members of the raiding party to the accused
and he had taken out the currency notes from the pant
pocket of the accused. That thereafter, the police officials
and they all went to the Police Station and the ultraviolet
lamp test was done. During the cross-examination by the
learned advocate for the accused, the witness has stated
that he has not stated in the panchnama that he had seen
the accused taking the amount of illegal gratification. That
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at the time of incident, there were a number of persons at
the tea stall and he did not know who would come to take
the amount of illegal gratification at the time of the trap.
That no one had introduced the accused to him at the place
of the trap and in the panchnama it is not written that the
amount of illegal gratification was accepted. That in the
complainant, the complainant had not stated who was to be
given the amount of illegal gratification and the complaint
was not recorded in his presence. That at the time of the
trap, he was far away from the complainant and the
accused and there were many persons at the tea stall. That
he does not know who were the persons present there and
besides the accused, no other person was interrogated at
that place. That he has only affixed his signatures on the
panchnama and has not affixed his signature on any other
document. That there were other currency notes in the
pocket of the accused but he did not remove those currency
notes and even though he had to search the accused, he
had not taken the other amount from the pocket of the
accused. That he does not remember how much money was
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with the accused at that time.
9.3 The prosecution has examined PW4 - Kachrabhai
Dalabhai Parmar at Exh. 25 and the witness is the Trap
Laying Officer who has deposed in detail about the entire
events that had taken place from the time that the
complainant came to the office till the trap was successful.
The witness has called the panch witnesses and has
arranged the trap on both the days and has during the
cross-examination by the learned advocate for the accused
stated that the panchnama does not mention that the
hands of the complainant were found with traces of
anthracene powder and as per the panchnama, besides the
Rs. 1200/-, Rs. 765/- was found, but the same is not
mentioned. That no shinning marks were found on the
sweater of the complainant and the tainted currency notes
were not recovered at the place of the trap. That he has not
seen the exchange of currency notes and he has not
recorded the statements of any independent witnesses at
the place of the spot. That in the seizure memo at Exh. 18,
it is not mentioned that the tainted currency notes of Rs.
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1200/- were found from the pocket of the accused. That the
complainant was given the predetermined signal to remove
his turban but no traces of anthracene powder were found
on the turban of the complainant. That the seizure memo of
the items seized from the pocket of the accused was not
prepared immediately.
9.4 The prosecution has examined PW5 - Bharatsinh
Mangalsinh Jadeja at Exh. 27 and the witness is the
Investigating Officer who has recorded the statements of the
connected witnesses and after the order of sanction for
prosecution was received which is produced at Exh. 28, the
further investigation was handed over to Police Inspector -
Mr. N.B. Patel who filed the charge-sheet before the
Sessions Court, Mehsana. During the cross-examination by
the learned advocate for the accused, the witness has stated
that in the statement of the complainant, it is not
mentioned that shining marks of anthracene powder were
found and no traces of anthracene powder were found on
the turban of the complainant. That there is no mention in
the statement of the panch witness that traces of
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anthracene powder were found on the hands of the
complainant and the turban of the complainant and a
proforma (rough charge-sheet) was sent for the order of
prosecution.
10. On minute appreciation of the entire evidence of the
prosecution, the infirmities in the case of the prosecution
have emerged on record and there is no iota of evidence of
any demand made by the accused. It is on record that the
first trap on 11.12.1998 was not successful as the accused
was not in the Police Station and Mandanbhai had met the
complainant and the panch witness but there was no
mention of any demand made by Mandanbhai and he had
only told him to come with his sureties to the Police Station.
In the complaint produced at Exh. 14, the complainant has
filed the complaint against the accused and Mandanbhai
and has stated that both the policemen had demanded for
the amount of Rs. 2000/- and after bargaining the amount
was settled at Rs. 1500/-. That in the evidence on the day of
the first trap, the complainant and the shadow witness met
Police Constable - Mandanbhai but at that time, no demand
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for any illegal gratification was made by Mandanbhai and if
there was any initial demand by both the policemen then at
that time Mandanbhai would have demanded for the
amount of illegal gratification and accept the same but the
only conversation that had taken place between the
complainant and Mandanbhai was regarding the sureties to
be given by the complainant.
10.1 The events on the date of the trap i.e. on 14.12.1998
are also not proved beyond reasonable doubts as
admittedly, the place of the trap, as per the case of the
prosecution, is under a tree near the tea stall and at that
time, there were a number of persons surrounding the
place. The complainant has stated that he had taken the
amount and given it to the accused but the panch witness
had not heard the conversation between the complainant
and the accused and has stated that the complainant took
the tainted currency notes and placed it on the hand of the
accused which was on the bench at that time. In the entire
evidence, the demand is not established and there is no iota
of evidence that on the date of the trap, the accused had
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made any demand for illegal gratification which is a sine
qua non for the offence under the PC Act.
10.2 As far as the evidence of PW - Ratilal Vastaram
Chavda is concerned, in his examination-in-chief, he has
stated that he had seen the accused accepting the amount
of illegal gratification but it appears to be an afterthought as
in the panchnama or in his statement, the witness has not
mentioned that he had seen the accused accepting the
amount of illegal gratification from the complainant.
10.3 As per the case of prosecution, the complainant had to
take out his turban and tie it once again to give the
predetermined signal and as per the say of the complainant,
he had given the tainted currency notes to the accused and
had thereafter, removed his turban and tied it once again
and gave the predetermined signal but there is evidence on
record that no traces of anthracene powder were found on
the turban of the complainant. In the evidence of the Trap
Laying Officer, there is no evidence to prove the demand or
acceptance by the accused and in the entire evidence, there
is no evidence regarding the complaint of Prabhat
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Vashrambhai Rabari filing a complaint of theft against the
complainant and his son Ajju in which the accused was the
Investigating Officer.
11. In view of the above discussion, the infirmities in the
case of prosecution have come on record and the evidence is
not sufficient to come to a conclusion that the accused had
demanded of any amount of illegal gratification as except for
the bald allegations of the complainant in the complaint
that both the accused and Police Constable Mandanbhai
had demanded for the amount of illegal gratification from
him, there is no other evidence to corroborate the say of the
complainant.
12. Considering the law settled in the case of Neeraj Dutta
(supra), there is no iota of demand of any illegal gratification
made by the accused and the infirmities in the case of
prosecution have surfaced on record. As discussed above,
there are major contradictions and these contradictions are
fatal to the case of the prosecution and the learned Trial
Court has completely misread the evidence and has passed
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the impugned judgement and order of conviction which is
not sustainable. Consequently, the appeal is allowed and
the impugned judgement and order passed by the learned
learned Special Judge (ACB) and 6th Fast Track Judge,
Mehsana, in Special (ACB) Case No. 8 of 1999 on
20.05.2005 is quashed and set aside and the appellant is
acquitted from all the charges levelled against him.
13. Bail bond stands cancelled. Fine to be refunded to the
appellant after due verification. Record and Proceedings be
sent back to the Trial Court forthwith.
(S. V. PINTO,J)
VASIM S. SAIYED
