Date : 18/07/2012 1. The appellant – State of Gujarat has preferred this appeal under sec. 378 of the Code of Criminal Procedure, against the judgment and order of acquittal dated 29.3.1993 passed by the learned Special Judge, Ahmedabad (Rural), in Special Case No. 14 of 1989, whereby, the learned Judge has acquitted the respondent – accused for the offences under Sections 7, 13(1) (c),1,23, & 13(2) of Prevention of Corruption Act, 1988 (for short “the Act”) and under Section 341, 342 & 201 of I.P. Code.
2. The brief facts of the prosecution case are as under:
It is the case of the prosecution that in March, 1989, the respondent (original accused) was serving as Police Sub- Inspector at Barvala Police Station. It is alleged that on 13.3.1989 the complainant had gone to his Vadi, at that time, he saw that Koli Amba, Popat, Bachu Narli, Kava Dhanu and Jeru Magan were beating his sons and the son of his brother and dragged them and confined in the office of the Panchayat. It is alleged that Bachu Narsinh had filed false complaint against the complainant and his sons for beating and looting. The investigation of the said case was carried out by the respondent – original accused. He has also arrested 9 Bharvad and sent them to the custody. It is alleged that Bhikhubha Shivubha had gone to release the said accused and Rs.2500/- was fixed to be paid to the accused by way of illegal gratification. It is alleged that at that time the complainant had paid Rs.1000/- to the accused and remaining amount of Rs.1500/- was to be paid within three days. However, accused has informed the complainant to pay the said amount on 17.3.1989 between 5.00 and 7.00 in the evening at the garage of Balu Vagha or else at the Police station. As the complainant was not willing to pay the said amount and, therefore, he along with Bhikhubha Shivubha approached the A.C.B. Office, Ahmedabad. It is alleged that as the complainant was illiterate person, the amount of bribe was to be paid through Bhikhubha. After recording the complaint, P.I. arranged for the trap, Panchas were called. The currency notes, duly smeared with anthracene powder, were kept in the right side pocket of the pant of Bhikhubha Shivubha. The raiding party, along with panchas, Bhikhubha Shivubha and the complainant proceeded to Barvala and from there Bhikhubha Shivubha and Panch No.1 proceeded on the motor cycle and behind them others were proceeded in Ambassador Car and Government Jeep. At that time, near the Rest House, the accused who was coming in Jeep, had stopped the jeep and the motor cycle was also stopped. The accused in a sitting condition, in the Jeep, had called Bhikhubha and asked about the money. After some conversation Bhikhubha has paid the amount of Rs.1500/-. Thereafter, on receiving the signal, the raiding party rushed to the place and caught the accused. The currency notes were seen to have powder marks in the lamp light and so also the fingers and hands of the complainant. Thereafter, necessary procedure was completed.
3. Thereafter, the statement of the complainant and other witnesses were recorded. Necessary sanction was obtained from the concerned Authority and after the investigation was over the charge-sheet was filed against the appellant for the offences, as narrated herein above.
4. Thereafter, the charge was framed against the respondent - accused. The respondent – accused has pleaded not guilty to the charge and claimed to be tried.
5. In order to bring home the charge levelled against the respondent - accused, the prosecution has examined the witnesses and also relied upon the documentary evidence.
6. Thereafter, after examining the witnesses, further statement of the respondent - accused under sec. 313 of Cr PC was recorded in which the respondent - accused has denied the case of the prosecution.
7. After considering the oral as well as documentary evidence and after hearing the parties, learned Judge vide impugned judgment and order dated 29.03.1993 acquitted the respondent – accused from the charges alleged against him.
8. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Ahmedabad (Rural), the present appellant – State has preferred this appeal.
9. Heard Ms. Hansa Punani, learned APP, appearing on behalf of the appellant – State and Learned Advocate Mr. Vaghela for Mr. Champaneri, appearing on behalf of the respondent – original accused.
10. Learned APP, appearing for the appellant has read the charge and the oral as well as documentary evidence produced on the record and contended that from the evidence of Panch witness (P.W.4), the prosecution has proved its case beyond reasonable doubt. She has contended that the respondent – accused has not explained as to under which circumstances he had accepted the amount. She has contended that as per Section 20 of the Act, presumption is required to be considered. She has contended that looking to the evidence produced on the record, the demand, acceptance and recovery is proved beyond reasonable doubt and, therefore, the prosecution has proved its case beyond reasonable doubt. She has, therefore, contended that looking to the evidence, produced on the record, the learned Judge has committed grave error in acquitting the respondent – accused and, therefore, the Judgment and order of acquittal passed by the learned Judge may be quashed.
11. Learned Advocate, appearing on behalf of the respondent – accused has supported the Judgment and order passed by the learned trial Judge. He has contended that the trial Court, after considering the oral as well as documentary evidence produced on the record, has acquitted the respondent – accused from the charges alleged against him and, therefore, no interference may be called for. He has contended that when the demand and acceptance is not proved beyond reasonable doubt then the presumption under Section 20 does not arise in the facts of the present case.
12. I have gone through the impugned judgment and order passed by the learned Judge and oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witnesses and also perused the charge framed against the appellant. In a case of corruption four things are required to be appreciated, viz. (i) initial demand, (ii) second demand to be made in presence of Panch, (iii) voluntary acceptance and (iv) recovery of amount. It is pertinent to note that the witnesses, viz. (i) Boghabhai Polabhai Bharwad (P.W.1), (ii) Bhikhubha Shivubha Jhala ((P.W.2), (iii) Zunbhai Bhimjibhai Parmar (P.W.3) and (iv) Gajabhai Kalabhai (P.W.5) have not supported the case of the prosecution and they have been declared hostile. The prosecution has examined Shailesh Vasubhai Dantani (P.W. 4), who was the panch No.1. He has deposed that he had accompanied Bhikhubha on motor cycle. He has categorically deposed that Bhikhubha had given Rs.1500/- to Inspector Raj, who was in the Police Jeep, but, he had not heard the conversation took place between Bhikhubha and Inspector Raj (present respondent). It is not the case of the prosecution that in the Jeep the respondent alone was there. It has come in evidence that in the jeep, along with the respondent, other police personnel were also there. Panch has categorically deposed that he had not heard the conversation took place between Bhikhubha and the respondent. It is also pertinent to note that as per the say of the panch No.4 that the amount was given to the respondent in the Jeep in presence of other police personnel, who were in uniform, but, the prosecution has not thought it fit to examine any of the Police personnel who were present in the Jeep. From the oral as well as material evidence, produced on the record, I am of the opinion that the demand is not established against the respondent and, therefore, the learned Judge has rightly acquitted the respondent – accused from the charges alleged against him. The complainant and other independent witnesses have not supported the case of the prosecution and the evidence of panch No.1 also creates some doubt and, therefore, the presumption is not required to be drawn against the respondent – accused. When the demand is not proved then mere recovery of amount would not be sufficient to hold the person guilty of the offences charged against him.
13. Looking to the overall evidence of the prosecution witnesses, it is clearly established that the demand and acceptance is not proved beyond reasonable doubt. The evidence of panchs are also not fully supported the case of the prosecution. The complainant and other independent witnesses have also not supported the case of prosecution and they were declared hostile. From the evidence of panch witness, it clearly appears that he had not heard anything about the demand made by the accused from the complainant. I am, therefore, of the opinion that the learned Judge has not committed any error in acquitting the respondent – accused from the charges of corruption alleged against him. In the decision of the Supreme Court in the case of Banarsi Das Vs. State of Haryana, reported in AIR 2010 SC 1589, the Hon'ble Supreme Court has observed that mere proof of recovery of bribe money from accused not sufficient to prove the offence. Even in the present case the demand is not established. In that view of the matter, I am of the opinion that so far as the offence of bribery is concerned, the demand of bribe amount is required to be proved beyond reasonable doubt. Therefore, in absence of any cogent evidence regarding the demand of bribe, it is difficult to believe the case of prosecution and hence, this appeal deserves to be dismissed.
14. It is settled legal position that in acquittal appeal, the Appellate Court is not required to re-write 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 and for 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.
15. In view of above, the Appeal is dismissed. The Judgment and order dated 29.03.1993 passed by the learned Special Judge, Ahmedabad (Rural), in Special Case No. 14 of 1989 is hereby confirmed. Bail Bonds, if any, shall stand cancelled. Record & Proceeding to be sent back to the trial Court immediately.
(Z.K.SAIYED, J.) sas