1. By way of present appeal, filed under Section 378 of the Code of Criminal Procedure, 1973, the appellant has challenged the judgment and order of acquittal dated 28.6.1993 passed by the learned Special Judge, Nadiyad at Kheda, in Special Case No.2 of 1990. The said case was registered against the respondents– original accused for the offences punishable under Sections 161 and 165(A) of the Indian Penal Code and under Sections 5(1)(b) and (2) of the Prevention of Corruption Act.
2. According to the prosecution case, the incident happened on 17.9.1987 near Dakor Bus Stand traffic chokdi. The A.C.B. Inspector Mr.Moriya had information that Police Officials and Regional Traffic Officials were illegally collecting money in the name of entry fees at Umreth, Ladvel Chokdi, Kapadvanj and Kathlal Chokdi. On receiving this information, on 17.9.1987, Inspector Mr.Moriya arranged a running trap. On the same day at 10:00 O'clock in the morning trapping officer alongwith raiding party reached at the railway crossing, DakorSevaliya. At Laheripura they stopped one truck bearing No.GRX5356 going towards Dakor and one panch sat in the truck in the cabin of driver. When the truck reached near Dakor S.T.Bus Stand road going towards Nadiyad, at that time accused No.1 blew whistle and gave signal to stop the truck. Thereafter accused no.1 came and asked for Rs.5/ as entry fee from Rajubhai and accused No.2 told to give the amount. Accordingly Rajubhai gave tainted note of Rs.5/ to the accused No.2. As the accused No.2 put that note in the pocket of his shirt the driver gave signal to raiding party by raising hand. After completing necessary formalities the accused persons were caught redhanded and statement of the witnesses were recorded by the trapping officer and then before the learned Special Judge chargesheet was filed.
3. Thereafter, investigation was carried out and after following the necessary procedure, and on grant of sanction, the chargesheet against the accused persons came to be submitted before the Court.
4. Thereafter, the charge was framed against the respondents to which the respondents – accused pleaded not guilty and claimed to be tried.
5. In order to bring home the charge levelled against the respondents accused, the prosecution has examined witnesses and also produced documentary evidence on record of the trial Court.
6. After examining the witnesses, further statement of the respondentsaccused under Sec. 313 of Cr. PC was recorded wherein the respondentsaccused have denied the case of the prosecution.
7. After considering the oral as well as documentary evidence and after hearing the parties, learned Special Judge, Nadiyad at Kheda, vide impugned judgment and order dated 28.6.1993 passed in Special Case No.2 of 1990, held the respondents – accused not guilty of the charge levelled against them and acquitted as stated herein above.
8. Being aggrieved by and dissatisfied with the impugned judgment and order of acquittal passed by the learned Special Judge, Nadiyad at Kheda, the present appellant – State has preferred this appeal.
9. Heard Ms.Jirga Jhaveri, learned APP for the appellant – State, Mr.G.D.Bhatt, learned advocate for the respondent No.1 and Mr.R.M.Chauhan, learned advocate for the respondent No.2.
10. Mr.Jhaveri has contended that the impugned judgment and order passed by the learned Judge is contrary to law and evidence on record. She has contended that the learned Judge has not properly appreciated oral as well as documentary evidence adduced by the parties in its proper perspectives.
11. She has contended that the learned Judge ought to have believed the fact that the respondent No.1 demanded Rs.5/ from the witness Rajubhai Ex.19 and he told to give said amount to the respondent No.2. The learned Judge ought to have appreciated the evidence of Govindbhai Babubhai Ex.28. She has contended that the learned Judge ought to have appreciated the evidence of panch that the respondent No.1 demanded amount of Rs.5/ in the form of entry fees.
12. She has contended that the learned Judge ought to have appreciated the fact that respondent No.1 admitted that he was on duty at the traffic point, Dakor, as Traffic Constable. She has contended that the learned Judge ought to have accepted the fact that the respondent No.1 stopped the truck by whistling and both the respondents went near the truck and respondent No.1 demanded the amount from the driver in the form of entry fees and the said amount was to be given to the respondent No.2 and the respondent No.2 accepted the same.
13. She has contended that the learned Judge ought to have raised presumption about the fact that the currency notes were found from the respondent No.2 and the said fact has been admitted by the respondents. When the bribe amount was given to the respondent No.2, the respondent No.1 was present and therefore, he ought to have come to the conclusion that there was relationship between the respondents. Lastly, she has read observations of the learned Judge and contended that the observations made by the learned Judge are not proper in the eye of law and therefore, judgment and order of the learned Judge is required to be set aside.
14. Heard Mr.Girish D. Bhatt, learned advocate for the respondent No.1– accused. He has contended that there are four stages i.e.
(1) initial demand (2) second demand to be made in the presence of the panch (3) acceptance and (4) recovery, in the corruption cases which are required to be proved through evidence of the complainant and there should be corroboration to all the four stages from the independent and reliable evidence. He has contended that looking to the provisions of Section 8 of the Evidence Act conduct of the driver is relevant in the eye of law. He has read crossexamination of the driver and contended that when the demand is not proved beyond reasonable doubt from the evidence of the truck driver, the prosecution has failed to prove case. In absence of the demand case of the prosecution become fatal.
15. Heard Mr.R.M.Chauhan, learned advocate for the respondent No.2. He has contended that there is no evidence to show that there was common understanding of respondent Nos.1 and 2 to collect illegal gratification from the driver of the vehicle. There is no evidence on record to show that present respondent No.2 is abettor or conspirator with respondent No.1. He has contended that, primafacie, case of the appellant is not proved beyond reasonable doubt and therefore, learned Judge has rightly acquitted the respondent No.1 accused. He has prayed to dismiss the Appeal.
16. Heard learned advocates for the respective parties. I have gone through the impugned judgment and order passed by the learned trial Judge and oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witnesscomplainant and also perused the charge framed against the accused. I have also considered the submissions advanced by the learned advocates for the respective parties.
17. In corruption cases demand of illegal gratification is required to be proved beyond reasonable doubt. In the present case, it is the admission of the driver that original accused No.1 and 2 have not made demand of Rs.5/ in the name of entry fees and it also appears from the evidence of the driver that when the respondent No.2 accepted the amount at that time respondent No.1 was not present there. Simply it was conveyed by him that in the name of respondent No.1 it is accepted by the respondent No.2. But when the demand is not made by the respondent No.1 the failed to prove its case.
18. I have perused Sections 161 and 165(A) of the Indian Penal Code. So far as ingredients of Sections 161 and 165(A) of the Indian Penal Code are concerned, prima facie misconduct of the public servant must be proved through oral as well as documentary evidence. In the present case when the material witness driver is declared hostile, he has admitted that no demand is made by public servant and even he has not conveyed to respondent No.2 to handover Rs.5/ to respondent No.1 hence in the result of admission of this witness prosecution has failed to prove case.
19. In a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran
decision the Court has observed as under: “16.From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to reappreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.”
20. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
21. It is settled legal position that in an acquittal Appeal, the Appellate Court is not required to rewrite the Judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondents – accused and adopting the said reasons as well as the reasons aforesaid, in my view, the impugned Judgment is just, legal and proper and requires no interference by this Court at this stage. Hence, this Appeal requires to be dismissed.
22. In the result, the Appeal is hereby dismissed. The impugned Judgment and order dated 28.6.1993 passed by the learned Special Judge, Nadiyad at Kheda, in Special Case No.2 of 1990 acquitting the respondents – accused, is hereby confirmed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z.K.SAIYED, J.) kks