1. The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 5.8.2000 passed by the learned Special Judge, Gandhidham Kutch in Special Case No.5 of 1999, whereby the accused has been acquitted from the charges leveled against him.
2. As per the case of the prosecution, the accused working as Police Constable working at Adipur Police Station. The accused made wrong case for prohibition against complainant and sent the complainant in custody. Thereafter, the complainant got released on bail and at the rickshaw stand, the accused met the complainant and told that he would not allow to do liquor business and if the complainant would do the same, the accused raise wrong case against the complainant. Therefore, the complainant requested the accused not to harass him and therefore, the accused told him that if the complainant would give Rs.100/ per month towards illegal gratification, he does not harass the complainant. Therefore, the complainant did not want to give the money to the accused, therefore, he approached ACB office at Bhuj. Thereafter, after completing necessary formalities, the trap was arranged and as per the case of the prosecution, the accused demanded and accepted the amount of bribe from the complainant. Therefore, the complaint for the offences punishable under Sections 5(1)(5) and 5(2) of the Prevention of Corruption Act, 1947 against the accused.
3. To prove the case against the present accused, the prosecution has produced several documentary evidence and examined witnesses like P.W.1 Ashok Revachand Sindhi at Exhibit 22, P.W.2 Mavjibhai Talshibhai, Exhibit 24, P.W 3 Kevalya Jayendrarai, Exhibit 26, P.W 4 Ramvirsinh Vadansinh Puwar Exhibit 32.
4. At the end of trial, after recording the statement of the accused under Section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Special Judge acquitted the respondent of all the charges leveled against him by judgment and order dated 5.8.2000.
5. Being aggrieved by and dissatisfied with the aforesaid judgment and order dated 5.8.2000 passed by the Special Court, the appellant State has preferred the present appeal.
6. It is submitted by learned APP that the judgment and order of the Special Court is against the provisions of law; the Special Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the present respondents. Learned APP has also taken this court through the oral as well as the entire documentary evidence. She submitted that there is direct evidence against the accused for the offence alleged. She further submitted that the complainant was declared hostile, as he was examined after about 12 years, but that variation in his statement and deposition, could not prove that the accused had not made demand of bribe from the complainant and that aspect should be required to be considered by the learned Special Judge while passing the order of acquittal. She further stated that the panch witness Mavjibhia Prajapati has supported the case of prosecution and thereby, the involvement in the offence under the Act is proved. The panchnama is leading to show the incident in which case against the accused is proved. She further read the charge, complaint and panchnama and submitted that learned Judge committed grave in acquitting the accused and therefore, the Appeal is required to be allowed by passing order of conviction in favour of the accused.
7. Learned advocate Mr. Kunal Shahi appearing for the accused, submitted that the judgment and order of acquittal passed by the learned Special Judge is just and proper. He further submitted that after appreciating the evidence in true manner and spirit, the learned Special Judge held that the charge as alleged against the accused is not proved by the prosecution. He also submitted that the material aspects of demand, acceptance and recovery are not proved. The complainant was declared hostile and therefore, it can be said that the prosecution has failed to prove the case against the accused. He submitted that no interference is called for from this Court, when the learned Special Judge rightly acquitted the accused from the charges. He submitted that the Appeal is required to be dismissed.
8. I have perused the record and considered the submissions made by the parties. I have perused the oral evidence of the witnesses examined by the trial Court. I have also read the charge framed by the trial Court. In this case, total four witnesses from the prosecution side were examined during the trial. It appears that the complainant turned hostile and looking to the contents as stated by the complainant in his evidence, it appears that the say of the complainant in his evidence is not supporting the compliant, which is lodged by himself. Herein this case, the most material aspect of demand is not proved and therefore, the question of acceptance and recovery cannot arise. There are so many contradictions in the oral evidence of witnesses examined during the trial. Therefore, learned Special Judge has rightly observed that the demand on the part of the accused is not established and therefore, the offence as alleged against the accused is not proved by the prosecution. Looking to the statement recorded under Section 313 of the Cr.P.C., the accused had very well explained the incident occurred and therefore, it is clearly established that the accused has not involved in the offence.
9. It is also a settled legal position that in acquittal appeal, the appellate court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper.
10. I have gone through the judgment and order passed by the trial Court. I have also perused the oral as well as documentary evidence led before the trial court and also considered the submissions made by learned APP for the appellantState. Thus, from the evidence itself, it is established that the prosecution has not proved its case beyond reasonable doubt.
11. Learned APP is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.
12. In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against her.
13. I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
14. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed. Bail bond, if any, stands cancelled. Record and proceedings to be sent back to trial Court, forthwith.
(Z.K. SAIYED, J.) ynvyas