Gujarat High Court
State Of Gujarat vs Ramjibhai Valjibhai Gohil on 29 August, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1795 of 2005
With
R/CRIMINAL APPEAL NO. 342 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIMAL K. VYAS Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
RAMJIBHAI VALJIBHAI GOHIL
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Appearance:
MR BHARGAV PANDYA, APP for the Appellant(s) No. 1
MR DHARMESH D NANAVATY(2396) for the Opponent(s)/Respondent.
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CORAM:HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 29/08/2025
ORAL JUDGMENT
1. The present Criminal Appeals Nos.1795 of 2005 and 342 of
2005 have been preferred under Sections 377 and 384 of the
Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') by the
State and the convict, respectively, and are directed against the
judgment and order dated 28.01.2005 passed by the learned
Special Judge and Additional Sessions Judge, Fast Track Court
No.6, Jamnagar, in Special Case No.10 of 1997.
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2. By the aforesaid judgment and order of conviction and
sentence, the trial court has held the appellant-accused guilty
and convicted him for the offences punishable under Sections 7
and 13(2) of the Prevention of Corruption Act, and consequently,
he has been sentenced to undergo imprisonment as under :-
Section Imprisonment Fine In default of
(Rs.) payment of fine
7 Imprisonment for one 1000 Simple Imprisonment
year for six months
13(2) Imprisonment for one 1000 Simple Imprisonment
year for six months
3. Since both these appeals arise from a selfsame judgment
and order passed by the trial court, they have been heard
together and are being disposed of by this common judgment
and order.
4. Being aggrieved and dissatisfied with the quantum of
sentence awarded by the trial court, the State has preferred the
Criminal Appeal No.1795 of 2005 under Section 377 of the Code
of Criminal Procedure, 1973, for enhancement of the sentence,
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mainly on the grounds that the sentence awarded by the trial
court is inadequate and disproportionate to the offences
committed by the accused and the same is less than the
minimum prescribed for the offences with which the appellant-
accused has been convicted.
5. The Criminal Appeal No.342 of 2005 has been preferred by
the convict under Section 384 of the Code of Criminal Procedure,
1973, against the judgment and order of conviction and sentence
passed by the trial court, convicting him for the offences
punishable under Sections 7 and 13(2) of the Prevention of
Corruption Act and sentencing him to suffer imprisonment for
one year.
PROSECUTION'S CASE IN A NUT-SHELL :
6. It is the case of the prosecution that on 20.03.1997, the
complainant (PW-1) Dipsang Ranaji Sodha had filed a complaint,
inter alia, stating that since he was intending to install an
electric submersible pump into the well in his agricultural land,
he had contacted the accused Ramjibhai Valjibhai Gohil, who
was discharging his duties as Gram Sevak of Aliyabada Group
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Panchayat, for the purpose of obtaining subsidy on the pump. It
is further the case of the prosecution that the accused had
demanded Rs.2,000=00 for preparing the documents for
obtaining the loan and the subsidy. It is alleged that the accused
had obtained signatures of the complainant on the loan papers
and sent it for further process to the Central Bank of India,
Aliyabada Branch as well as the Taluka Panchayat Office,
Jamanagar. As per the case of the prosecution, the complainant
had received the cheque amount of Rs.22,000=00 from the
Central Bank of India, Aliyabada Branch, therefore, the accused
had demanded Rs.2,000=00 from the complainant, and when
the complainant expressed his inability to pay the entire amount
at the time, the accused suggested him to pay him Rs.500=00
after eight days and the remaining amount to be paid as early as
possible, therefore, the complainant had paid him Rs.500=00 as
instructed, but the accused had further demanded for
Rs.1,500=00 from the complainant.
7. It is alleged that since the complainant was not willing to
pay the amount of bribe, he approached the Police Inspector Shri
Bhikhubha Balubha Jadeja, A.C.B., Jamnagar, and lodged a
complaint on 20.03.1997, and on the strength of the complaint,
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a trap was laid, and the accused was caught red-handed
accepting the amount of bribe. The raiding party, thereafter,
recovered the currency notes smeared with anthracene powder
from the possession of the accused.
8. On the basis of the complaint, the accused was arrested,
and he was charge-sheeted for the offences punishable under
Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act.
9. The trial court, after following due procedure as prescribed
under Section 207 of the Cr.P.C., framed the Charge vide Exh.5
against the accused person. The charge was, thereafter, read
over and explained to the accused, who abjured his guilt and
pleaded not guilty and claimed to be tried.
10. To bring home the charge, the prosecution had examined
eight witnesses and adduced twenty-two documentary evidence
in support of their case, which are as follows :-
NO. WITNESSES NAME EXHIBIT
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DOCUMENTARY EVIDENCE
SR.
DESCRIPTION OF THE DOCUMENT EXHIBIT
NO.
2 Panchnama of the proceedings regarding arrest of 14
the accused with the bribe amount.
3 Forwarding Letter along with the information 18
regarding the papers sent to the P.I., A.C.B. by the
Taluka Panchayat Office, Jamnagar.
4 Letter addressed to the Branch Manager, Central 19
Bank, by the Taluka Panchayat.
9 Office Order of the Taluka Development Officer. 24
12 Receipt of the Electricity Bill of the Complainant. 27
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18 Transfer Order of the District Development Agency. 33
19 Letter by the Central Bank, Aliyabada Branch. 35
22 Sanction Letter to initiate criminal proceedings 43
against the accused.
11. On completion of the recording of the evidence, the trial
court explained the incriminating circumstances appearing
against the accused. The accused, in his further statement
recorded under Section 313 of the Cr.P.C., denied the allegations
levelled against him by the prosecution of accepting the bribe
and stated that he is innocent and has been falsely implicated in
the alleged offence.
12. On completion of the trial, the trial court, vide judgment
and order dated 28.01.2005, convicted the accused for the
offences punishable under Sections 7, 13(1)(d) read with Section
13(2) of the Prevention of Corruption Act.
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13. Being aggrieved and dissatisfied with the aforesaid
judgment and order of conviction and sentence, the convict has
preferred the captioned Criminal Appeal No.342 of 2005 before
this Court, which came to be admitted on 25.02.2005 vide order
passed by a Coordinate Bench of this Court.
SUBMISSIONS ON BEHALF OF THE ACCUSED :
14. Learned advocate Mr.Dharmesh Nanavaty appearing for
the accused, while taking this Court through the evidence
adduced by the prosecution as well as the impugned judgment,
has submitted that the entire case of the prosecution is false and
fabricated. It is submitted that the prosecution has not led any
cogent and convincing evidence to prove beyond reasonable
doubt the essential ingredients of the offence, more particularly,
demand, acceptance and recovery.
15. Learned advocate Mr.Nanavaty has submitted that as per
the case of the prosecution since the complainant was intending
to install an electric submersible pump into the well in his
agricultural land, he had contacted the present accused
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Ramjibhai Valjibhai Gohil, who was discharging his duties as
Gram Sevak of Aliyabada Group Gram Panchayat, for the
purpose of obtaining subsidy on the pump. It is further the case
of the prosecution that for the said purpose, the present accused
had demanded Rs.2,000=00 for preparing the papers for
obtaining the subsidy as well as for obtaining the loan. It is
alleged that the accused had obtained signatures of the
complainant on the loan papers and sent it for further process to
the Central Bank of India, Aliyabada Branch as well as the
Taluka Panchayat Office, Jamanagar. As per the case of the
prosecution, the present accused had demanded Rs.2,000=00
from the complainant after he received the cheque of
Rs.22,000=00 from the Central Bank of India, and when the
complainant expressed his inability to pay the entire amount at
the time, the accused suggested him to pay him Rs.500=00 after
eight days and the remaining amount to be paid as early as
possible, therefore, the complainant had paid him Rs.500=00 as
instructed, but the accused had further demanded for
Rs.1,500=00 from the complainant.
16. Mr.Nanavaty, while referring to the evidence of the
complainant (PW-1) Dipsang Ranaji Sodha, has contended that
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the conduct of the complainant, as reflects from the evidence,
raises reasonable suspicion about the case of the prosecution. It
is submitted that the entire evidence of this witness is vague and
lacking specific details. For instance, the complainant stated
that the accused had demanded Rs.2,000=00 for the preparation
of the loan documents during their first meeting, to which he
had agreed. However, no specific date and time of the meeting
has been provided. The complainant further claimed that after
the loan was approved, and he collected the cheque amount of
Rs.22,000=00 from the bank, the accused again had demanded
Rs.2,000=00 outside the bank and at that time he had paid
Rs.500=00 to the accused towards the bribe amount, but again
he had failed to specify as to when this had happened. Learned
advocate Mr.Nanavaty has submitted in this regard that the case
of the prosecution is solely based upon the complainant's
uncorroborated verbal statement.
17. Mr.Nanavaty has further submitted that the evidence led
by the prosecution regarding the entire process of the trap is
completely unreliable. It is submitted that as per the case of the
prosecution, after the lodgment of the complaint, one Mr.Sodha,
a Police Constable, had demonstrated the process of anthracene
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powder and its effect under the ultraviolet light, and he then
smeared the currency notes with the anthracene powder. But,
the prosecution has not examined him as a witness.
Furthermore, the evidence of the shadow witness (PW-2)
Piyushbhai Amineshbhai Vora clearly reveals that the entire
incident of trap had occurred at a pan shop and the shopkeeper
present at the pan shop had overheard the conversation between
the accused and the complainant and had also witnessed the
exchange of the bribe money. However, he has also not been
examined as a witness.
18. Learned advocate Mr.Nanavaty, while referring to the
evidence of three star-witnesses, i.e. the complainant (PW-1)
Dipsang Ranaji Sodha, the shadow witness (PW-2) Piyushbhai
Amineshbhai Vora, and the trapping officer (PW-6) Bhikhubha
Balubha Jadeja, has submitted that the evidence of all these
witnesses regarding the presence of anthracene powder on the
currency notes of the accused after the trap is quite
contradictory to each other and, therefore, not reliable. It is
submitted that despite the fact that such evidence cannot be
relied upon to convict a public servant for such a serious charge,
the trial court fell in error in relying upon it.
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19. Learned advocate Mr.Nanavaty has submitted that it is an
important factor to bear in mind that, whether the accused had
received the illegal gratification as a motive or reward for doing
or forbearing to do any official act or for showing any favour or
disfavour in the exercise of his official function ? In the case on
hand, it is alleged that the accused had demanded a bribe of
Rs.2,000=00 for preparing the documents for obtaining the loan
as well as the subsidy. However, the evidence clearly reveals that
all the loan documents had already been submitted to the bank
about 15 days prior to the alleged incident and the loan had also
been sanctioned and even disbursed to the complainant.
Therefore, there was no reason for the accused to demand the
bribe regarding the preparation of the loan documents
thereafter. This also casts a serious doubt on the complainant's
version. Further, it is not the case of the complainant that the
accused had ever stated that if the amount of bribe is not paid,
the loan would not be sanctioned.
20. Learned advocate Mr.Nanavaty has submitted that the trial
court, while appreciating the evidence, has laid much emphasis
on Section 20 of the Prevention of Corruption Act, which raises
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presumption once it is established that the accused accepted the
amount. However, for the purpose of arriving at the conclusion
whether the accused accepted the amount of illegal gratification
or not, the totality of the evidence led by the prosecution at the
trial is required to be appreciated. It is settled legal position that
in absence of any proof of demand, the legal presumption under
Section 20 of the Prevention of Corruption Act would not arise
since the proof of demand and its subsequent acceptance is a
sine qua non for the offence punishable under Sections 7, 13(1)
(d), 13(2) of the Prevention of Corruption Act. Therefore, only on
the basis of acceptance of amount without there being any proof
of demand, the accused cannot be held guilty of the offence
under Sections 7, 13(1)(d), 13(2) of the Prevention of Corruption
Act. It is submitted that the trial court, while appreciating the
evidence in this regard, has completely lost sight of the aforesaid
settled legal position. It is further submitted that except the bare
averments in the complaint, no evidence has been led by the
prosecution to prove beyond reasonable doubt the essential
ingredients of the offence, more particularly, the proof of demand
of illegal gratification and its subsequent acceptance.
21. Thus, it is submitted that considering the entire evidence
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on record, it clearly establishes that the prosecution has failed to
prove beyond reasonable doubt the essential elements of the
offence, i.e. demand, acceptance and recovery, and in absence of
proof of demand and its acceptance, the trial court fell in serious
error in raising a presumption under Section 20 of the Act. In
such circumstances, learned advocate Mr.Nanavaty has
implored the court to allow the present appeal, set-aside the
impugned judgment and direct the acquittal of the appellant
from the charges levelled against him.
SUBMISSIONS ON BEHALF OF THE STATE:
22. Vehemently opposing the appeal filed by the appellant-
convict and the submissions canvassed by learned advocate
Mr.Dharmesh Nanavaty appearing for the appellant-convict,
learned APP Mr.Bhargav Pandya appearing for the State has
submitted that the trial court has convicted the accused for the
offences punishable under Sections 7 and 13(2) of the Prevention
of Corruption Act, and consequently, sentenced him to undergo
imprisonment for one year along with fine of Rs.2,000=00, and
in default of payment of fine, to undergo further imprisonment
for six months. He has submitted that the prosecution has
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proved all the three essential elements of the offence, i.e.
demand, acceptance and recovery, beyond reasonable doubt
through the convincing evidence of the star-witnesses, i.e. the
complainant (PW-1) Dipsang Ranaji Sodha, the shadow witness
(PW-2) Piyushbhai Amineshbhai Vora, and the trapping officer (PW-
6) Bhikhubha Balubha Jadeja. Learned APP Mr.Pandya has,
therefore, urged that the conviction recorded by the trial court
does not call for any interference by this Court and the criminal
appeal preferred by the appellant-convict, challenging his
conviction and sentence, may be dismissed.
23. Learned APP Mr.Pandya, while referring to the evidence of
the complainant (PW-1) Dipsang Ranaji Sodha and the shadow
witness (PW-2) Piyushbhai Amineshbhai Vora along with the
evidence of the witness (PW-6) Bhikhubha Balubha Jadeja, who
laid the trap, has submitted that the evidence of the complainant
(PW-1) Dipsang Ranaji Sodha and the evidence of the shadow
witness (PW-2) Piyushbhai Amineshbhai Vora, who had
accompanied the complainant at the time of the trap, are clear,
cogent and convincing. It is further submitted that the evidence
of both these witnesses have remained unshaken and the same
are in corroboration with the evidence of the witness (PW-6)
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Bhikhubha Balubha Jadeja, the police officer who laid the trap.
It is also submitted that the evidence of all these witnesses are in
corroboration with the allegations made by the complainant (PW-
1) Dipsang Ranaji Sodha in his complaint at Exh.12.
24. So far as the quantum of sentence awarded by the trial
court to the appellant-convict is concerned, learned APP
Mr.Pandya has submitted that despite there being overwhelming
evidence against the appellant-convict, the trial court has,
without assigning adequate and special reasons, awarded
inadequate and improper sentence. It is a settled position of law
that while awarding the punishment, the court should take into
consideration the nature of the offence, the circumstances under
which it was committed and the degree of deliberation shown by
the accused. Thus, the measure of punishment should be
proportionate to the gravity of the offence. In the facts of the
present case, the accused has been held guilty of the offences
punishable under Sections 7 and 13(2) of the Prevention of
Corruption Act, for which the maximum punishment is
imprisonment for a term which may extend to seven years along
with a fine. Despite there being overwhelming evidence against
the accused, the trial court has awarded a meager sentence of
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imprisonment for one year only upon the accused. Learned APP
Mr.Pandya has, therefore, submitted that awarding a meager
punishment to the appellant-convict for the alleged offence will
result in travesty of justice and also spread a wrong message to
the society.
25. In the aforesaid circumstances, learned APP Mr.Pandya
has urged before this Court to modify the sentence imposed by
the trial court by imposing the maximum punishment for the
offence with which the appellant-accused has been charged and
convicted. Hence, he has urged that the order of sentence
recorded by the trial court is required to be interfered with, and
the appeal preferred by the State for enhancement of the
sentence may be allowed.
FINDINGS AND ANALYSIS :
26. Before adverting to the facts and circumstances of the
case, it would be apt to reiterate the fundamental principle of
criminal jurisprudence as affirmed by the highest court that, in
criminal trial it is for the prosecution to bring home the guilt of
the accused since the burden of proving the guilt beyond
reasonable doubt always rests upon the prosecution. It is also
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settled that the prosecution has to stand on its own legs and
cannot take advantage or undue advantage of the defence put
forth by the accused. The Supreme Court, in the case of
Rabindra Kumar Dey vs. State of Orissa, AIR 1977 SC 170,
reiterated three cardinal principles, namely, (i) that the onus lies
affirmatively on the prosecution to prove its case beyond
reasonable doubt, and it cannot derive any benefit from
weakness or falsity of the defence version while proving its case;
(ii) that in a criminal trial the accused must be presumed to be
innocent unless he is proved to be guilty; and (iii) that the onus
of the prosecution never shifts. Thus, it is well-settled that in
criminal trial, the guilt of the accused must be proved beyond
reasonable doubt in order to convict him.
27. The Supreme Court, in the case of State of Uttar Pradesh
vs. Krishna Gopal, reported in (1988) 4 SCC 302, has held that
the person has, no doubt, profound rights not to be convicted of
an offence, which is not established by the evidential standard of
proof beyond reasonable doubt.
28. Bearing in mind the aforesaid legal position, this Court
has considered the submissions canvassed by the respective
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parties and carefully perused the materials produced on record.
It is well-settled that for establishing the commission of an
offence under Section 7 of the Prevention of Corruption Act, the
proof of demand of illegal gratification and the subsequent
acceptance is sine qua non. Moreover, the presumption under
Section 20 of the Prevention of Corruption Act can be invoked
only on proof of facts in issue, namely, the demand of illegal
gratification by the accused and the acceptance thereof. The
Constitutional Bench of the Supreme Court in the case of Neeraj
Dutta vs. State (Government of NCT of Delhi), reported in
(2023) 4 SCC 731 has, in paragraph-68 of the judgment, 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
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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.
(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)
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(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
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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
does not apply to Section 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption of 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."
29. Thus, it is held by the Supreme Court that in order to
bring home the charge, the prosecution has to prove the
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"demand of illegal gratification" and the "subsequent
acceptance" either by direct or by circumstantial evidence.
30. The cases of corruption largely depends on the testimonies
of three crucial witnesses; (i) the complainant, (ii) the shadow
witness, and (iii) the trapping officer. These witnesses play a
decisive role in determining the fate of the accused. As such,
their testimonies must be examined with great care and caution.
It is expected that their statements should be consistent,
credible and of sterling quality. If there are significant
contradictions in their evidence on material aspects, such
discrepancies cannot be overlooked. In such circumstances
where the evidence allows for two possible interpretations, the
one which is in favour of the accused, must be considered. This
is because the law firmly upholds the principle that "no innocent
persons should be wrongfully punished".
31. Keeping in mind the aforesaid legal position of law and also
keeping in mind the ratio of the above-mentioned judgments, the
evidence led by the prosecution, in the instant case, is to be
analyzed to find out, whether the prosecution has proved the fact
that the appellant-accused demanded and accepted the amount
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of illegal gratification from the complainant.
32. This Court has given anxious consideration to the evidence
on record. It appears that there are glaring inconsistencies in the
evidence led by the prosecution. As per the original complaint at
Exh.12 and the charge at Exh.5, it is the case of the prosecution
that complainant (PW-1) Dipsang Ranaji Sodha, a Forest Guard,
approached the accused Ramjibhai Valjibhai Gohil, a Gram
Sevak of Aliyabada Group Panchayat, to obtain loan and
government subsidy of Rs.5,000=00 to install an electrical
submersible pump on the well in his agricultural land. The
appellant accused promised to get it approved if the complainant
paid him Rs.2,000=00 from the subsidy amount. Thereafter, as
instructed by the appellant accused, the complainant submitted
a quotation and other necessary loan documents. The accused
forwarded the same to the Taluka Panchayat, Jamnagar, and the
Central Bank of India. Later on, the Central Bank of India,
Aliyabada Branch, issued a cheque of Rs.22,000=00 to the
complainant. The appellant-accused met the complainant
outside the bank and asked whether he received the cheque ?
He, then, reminded the complainant about their prior agreement
and again demanded Rs.2,000=00 from him. When the
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complainant told that he could not pay the entire amount
immediately, the accused then suggested him to pay Rs.500=00
after 8 days and the remaining amount of Rs.1,500=00 to be
paid as soon as possible. At that time, the complainant paid
Rs.500=00 as instructed by the appellant-accused. Later on, on
19.03.1997, the appellant-accused again contacted the
complainant demanding Rs.1,500=00 and told him to pay the
amount at the Bapu's Pan Shop in the Nagnath area on the
following day, i.e. on 20.03.1997. Since the complainant was not
willing to pay the bribe, he reported the matter to the ACB,
Jamnagar, on 20.03.1997, prompting a trap. It is alleged that
during the trap, the accused was caught red-handed accepting
the amount of bribe. In view of the aforesaid allegations
regarding the factum of demand and the subsequent acceptance
of illegal gratification, the evidence laid by the prosecution; both,
ocular and documentary, as well as the arguments advanced by
the learned advocate for the respective parties, are required to be
considered.
33. First and foremost, it is noteworthy that at the time of the
incident, the complainant himself was a Government employee
serving as a Guard in the Forest Department. However, his
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evidence lacks specific details. On a careful evaluation of his
evidence, it appears that the complainant seems to have
intentionally concealed the key information concerning the date,
time and place of the events. For instance, the complainant -
Dipsang Ranaji Sodha, in his complaint at Exh.12 and in his
evidence at Exh.11, has stated that he had contacted the
accused - Ramjibhai Valjibhai Gohil, who was serving as Gram
Sevak of Aliyabada Group Panchayat at the time of the incident,
for assistance in securing the loan and subsidy to install
submersible pump on the well in his agricultural land. The
accused, at that time, allegedly demanded Rs.2,000=00 as a
bribe for preparing the required loan documents and ensuring
approval of the loan and subsidy.
34. It is important to note that the complainant, who is also a
Government employee, did not provide any details regarding the
exact date, time or place, where this initial demand was made.
The complainant further stated that after the loan was approved,
he collected a cheque of Rs.22,000=00 from the Central Bank of
India, Aliayabada Branch. At that time, the accused met him
outside the bank and demanded Rs.2,000=00 as agreed upon,
and when the complainant expressed his inability to pay the
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entire amount at a time, he instructed to pay him Rs.500=00
after 8 days and the remaining amount to be paid as soon as
possible. He, therefore, paid Rs.500=00. Again, the complainant
could not provide any details as to on which date and time this
had happened nor has he provided any details as to on which
date, at what time and at which place the payment of Rs.500=00
towards the illegal gratification was made.
35. So far as the elements of demand and acceptance of the
bribe amount is concerned, the prosecution's evidence is
inconsistent and contradictory. The testimonies of the three star-
witnesses, i.e. the complainant, the shadow witness and the
trapping officer, are mutually inconsistent which creates
reasonable doubt towards the prosecution's version. In this
context, the complainant - Dipsang Ranaji Sodha, in his
evidence at Exh.11, has stated that after filing of the complaint
(Exh.12), the trapping officer (PW-6) Bhikhubha Balubha Jadeja
called two panch witnesses and introduced them to the
complainant. The complainant then handed over the currency
notes worth Rs.1,500=00 to the trapping officer Bhikhubha
Jadeja, who noted down the serial number of the notes.
Thereafter, one Mr.Sodha, a Police Constable, had applied
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anthracene powder on the currency notes and demonstrated its
impact under the ultraviolet light. The notes were then kept in
the pocket of the shirt of the complainant. After completing the
first part of the panchnama, they all left in a Jeep at around
4:20 pm to reach the place of the incident. The complainant and
the shadow witness were waiting for the accused at the Bapu's
pan shop in the Nagnath area. After some time, the accused
arrived and asked the complainant, whether the payment has
been arranged, to which the complainant replied in the
affirmative, adding that he had no choice. When the complainant
requested to reduce the bribe amount, the accused refused. The
complainant then gave the tainted currency notes from his
pocket to the accused, and while the accused was counting the
notes, the complainant passed on the prearranged signal. After
counting the notes, the accused then placed the same in his
pocket, and immediately thereafter, the trapping officer Shri
Jadeja and his team arrived at the place, detained the accused
and brought him to the ACB office, where the accused had
voluntarily taken out the notes from his pocket. When the notes
were examined under the ultraviolet light, the finger marks were
clearly visible. Considering the aforesaid evidence of the
complainant, it appears that he attempted to support his
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complaint as well as the case of the prosecution. However, in his
evidence, nowhere he has stated that after the accused was
taken to the ACB office, both of his hands were also examined
under the ultraviolet lamp and fluorescent marks of anthracine
powder were visible on both his hands. This seems to be a
crucial omission so far as the acceptance of the bribe amount is
concerned.
36. In this context, if we look at the evidence of the shadow
witness (PW-2) Piyushbhai Amineshbhai Vora, he, in his evidence
at Exh.13, has stated that in his presence as well as in presence
of another panch witness Bharatbhai Janmshankar and others,
one Police Constable Mr.Sodha had applied the anthracene
powder to the currency notes worth Rs.1,500=00 provided by the
complainant and also explained its impact under the ultraviolet
light. After completing the first part of the panchnama, they all
left in a Jeep to reach the place of the incident. Thereafter, the
Police Inspector Shri Jadeja had instructed him to remain with
the complainant and overhear the conversation between the two,
that is, the complainant and the accused. Later on, when he,
along with the complainant were waiting at the Bapu's pan shop,
the accused had arrived and demanded the bribe amount from
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the complainant. Thereafter, the complainant requested him to
reduce the amount, but the accused had refused, saying the
amount is fair. The complainant then took out the currency
notes from his pocket and handed over it to the accused, who
counted the notes with both his hands and put it in the left-side
pocket of his shirt. Meanwhile, the complainant passed on the
prearranged signal. Upon receiving the signal, P.I. Shri Jadeja
and his team arrived and detained the accused and brought him
to the ACB office. As per the instruction of Police Inspector, he
took out the currency notes from the pocket of the accused, and
upon examination under the ultraviolet light, fluorescent marks
were found on both the hands and shirt of the accused. The
notes and the shirt were seized and then the second part of the
panchnama was completed. During his cross-examination, this
witness has admitted that the conversation between the accused
and the complainant, which he had heard, was also heard in the
same manner by the pan shop owner. It is noteworthy that the
pan shop owner has not been arraigned as a witness and even
not examined by the prosecution to support the contention of
this witness. Thus, as per the evidence of this witness, after the
accused accepted the amount of bribe from the complainant,
upon examination under the ultraviolet lamp, fluorescent marks
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were found on both of his hands.
37. Now, in the same context, if we consider the testimony of
the trapping officer (PW-6) Bhikhubha Balubha Jadeja, he, in his
evidence at Exh.38, has stated that after completing the first
part of the panchnama, they all left in a Jeep to reach the place
of the incident. The complainant and the shadow witness were
standing at the Bapu's pan shop, while other team members
were positioned nearby in a scattered manner. Later on, upon
receiving the prearranged signal from the complainant, they
quickly reached the scene of the incident, and after inquiring as
to what had happened, they brought the accused at the ACB
office. Upon examining both the hands of the accused under the
ultraviolet light, fluorescent marks were found only on the right
hand of the accused and similar marks were also found on his
shirt. Subsequently, the currency notes and the shirt were seized
and the second part of the panchnama was completed. Thus,
according to this witness, after accepting the bribe from the
complainant in the form of the tainted currency notes, under the
ultraviolet light examination, fluorescent marks were found only
on the right hand of the accused and not on both his hands.
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38. It, therefore, clearly appears from the aforesaid evidence
that the testimonies of all the three-star witnesses are highly
contradictory. The complainant does not mention that any
ultraviolet light examination had been conducted on both the
hands of the accused after he accepted the tainted currency
notes; the shadow witness (PW-2) Piyushbhai Amineshbhai Vora
states that fluorescent marks were found on both the hands of
the accused under the ultraviolet light; whereas, the trapping
officer (PW-6) Bhikhubha Balubha Jadeja testifies that such marks
were visible only on the right hand of the accused and not on
both the hands. Thus, all the three-star witnesses gave
conflicting and contradictory evidence of the ultraviolet light
examination of the hands of the accused after he allegedly
accepted the currency notes from the complainant. These
inconsistencies naturally raises serious doubt whether the
accused had accepted the alleged amount of bribe from the
complainant.
39. The Supreme Court, in the case of Mallappa vs. State Of
Karnataka, reported in (2024) 3 SCC 544, has held thus :-
"26. It may be noted that the possibility of two views in a
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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...."
40. In view of the aforesaid, and considering the discrepancies
in the evidence of the three-star witnesses regarding the
acceptance of the illegal gratification, when two views are
possible, certainly, the one in favour of innocence of the accused,
must be considered.
41. Thus, on examination of the entire evidence, this Court is
of the considered opinion that the prosecution has failed to
establish beyond reasonable doubt, the essential element of
demand of bribe and acceptance of illegal gratification. The law
in this regard is well settled that for an offence to be constituted
under the Prevention of Corruption Act, 1988, the proof of
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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. A mere recovery of
the tainted money is not sufficient to convict the accused if the
core evidence in the case is unreliable, unless there is a proof
that the money was voluntarily accepted as a bribe.
42. Since the prosecution has failed in establishing the
foundational fact by leading cogent and convincing evidence
regarding the aspect of demand and its subsequent acceptance,
the question of presumption under Section 20 of the Prevention
of Corruption Act does not arise in the present case.
43. In view of the aforesaid discussion and re-appreciation of
the entire evidence on record, the Court is of the considered
opinion that the prosecution has not proved the case beyond
reasonable doubt by leading cogent and convincing evidence and
the trial court has not appreciated the entire evidence in its true
perspective. Further, when the essential elements of demand
and its subsequent acceptance, i.e. the fact in issue, has not
been proved beyond reasonable doubt, mere recovery of the
currency notes cannot constitute the offence punishable under
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Section 7 of the Prevention of Corruption Act since it is not
proved beyond reasonable doubt that the accused had
voluntarily accepted the amount knowing it to be the illegal
gratification. Therefore, the appellant-accused cannot be held
guilty by taking aid of the presumption under Section 20 of the
Prevention of Corruption Act, more particularly, when the basis
and the foundation of the prosecution case, i.e. the demand and
its acceptance, has not been proved.
44. Before parting with the judgment, it would be apt to
reiterate the fundamental principle of criminal jurisprudence as
affirmed by the highest court that, in criminal trial it is for the
prosecution to bring home the guilt of the accused since the
burden of proving the guilt beyond reasonable doubt always
rests upon the prosecution. It is also settled that the prosecution
has to stand on its own legs and cannot take advantage or
undue advantage of the defence put forth by the accused.
45. As noted earlier, the Supreme Court, in the case of
Rabindra Kumar Dey (supra), has reiterated three cardinal
principles, namely, (i) that the onus lies affirmatively on the
prosecution to prove its case beyond reasonable doubt, and it
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cannot derive any benefit from weakness or falsity of the defence
version while proving its case; (ii) that in a criminal trial the
accused must be presumed to be innocent unless he is proved to
be guilty; and (iii) that the onus of the prosecution never shifts.
46. Keeping in mind the cardinal principles of the criminal
jurisprudence as stated herein above and considering the
evidence on record, this Court is of the considered opinion that
in the instant case it cannot be said that the prosecution has
proved the case beyond reasonable doubt by leading cogent and
convincing evidence and, therefore, the benefit of doubt goes in
favour of the appellant-accused. Thus, it appears that the trial
court has made an error while convicting the present appellant
for the alleged offence and, therefore, interference by this Court
is warranted.
47. In the result, the appeal preferred by the appellant-convict
succeeds, and the same is hereby allowed. The impugned
judgment and order of conviction and sentence dated
28.01.2005 passed by the learned Special Judge and Additional
Sessions Judge, Fast Track Court No.6, Jamnagar, in Special
Case No.10 of 1997, is hereby quashed and set-aside. Bail bonds
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stand cancelled. The amount of fine paid, if any, shall be
refunded to the appellant-convict. Consequently, the appeal
preferred by the State for enhancement of the sentence, fails and
the same is hereby dismissed.
(VIMAL K. VYAS, J.)
/MOINUDDIN
