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 conviction and sentence dated 17.05.1995 passed by the learned Special Judge, Panchmahals at Godhra, in Special (Corruption) Case No. 06 of 1991, whereby, the learned Judge has acquitted the respondent – accused for the offences under Sections 7, 13(1)(d) and 13(2) of Prevention of Corruption Act, 1988 (for short “the Act”).
2. The brief facts of the prosecution case are as under:
It is the case of the prosecution that as the complainant Kalubhai Mevabhai Bhabhar was suffering from headache and fever on 12.12.1989, he approached Jaswada Government Hospital for treatment on 13.12.1989 where the respondent (original accused) had examined him and gave two days' medicine. It is alleged that though it was a Government Hospital where the treatment is free of charge, the respondent – accused had demanded Rs.20/- from the complainant, which was paid by him. The complainant thereafter approached the A.C.B. Office and filed complaint on 14.12.1989. After recording the complaint, P.I. Arranged the trap, Panchas were called. The raiding party, along with panchas, went to the Hospital on 15.12.1989, and Panch No.1 was instructed to come at the Hospital as bogus patient and to wait and hear the conversation between the complainant and the doctor and see the demand and acceptance of the bribe. Thereafter, on receiving the signal from the complainant, the raiding party rushed to the Hospital and caught the accused. It is alleged that the number of notes, which were noted in the Panchnama, were found.
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 under Section 7, 13(1)(d) and 13(2) of the P.C. Act.
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 17.05.1995 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, Panchmahals at Godhra, the present appellant – State has preferred this appeal.
9. Heard Ms. Jirga Jhaveri, learned APP, appearing on behalf of the appellant – State. Though served, nobody has appaared on behalf of the respondent – accused.
10. Learned APP, appearing for the appellant has read the charge Exh.3 as well as the complaint (Exh.20) and contended that the prosecution has proved its case beyond reasonable doubt. She has contended that, no doubt, the complainant has not fully supported the case of the prosecution, but, the learned should have considered the evidence of Panch witness and the Investigating Officer. She has contended that looking to the evidence, produced on the record, the demand and acceptance is proved 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. The other side is served, but, nobody is appearing on his behalf. I have gone through the papers produced before me and also gone through the Judgment and order of the trial Court.
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. It is pertinent to note that 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.
13. From the Judgment of the trial Court, the learned Judge has categorically observed that from the perusal of the oral evidence of the complainant, it clearly appears that has has not supported the case of prosecution and, therefore, he has been declared as hostile. In his cross- examination by the learned P.P., the complainant has admitted that prior to two months of lodging the complaint, the respondent – accused had lodged complaint against his brother in Dahod Police station and the case is pending in the Court. From the evidence of the complainant, it clearly appears that he is an interested witness and, therefore, his evidence cannot be said to be trust-worthy, natural and reliable to prove the case of the prosecution. The learned Judge has also observed that as per the evidence of Panch witness, he has produced the amount of Rs.6/-, however, the Police Inspector has produced the amount of Rs.20/- and, therefore, there are material contradictions in the evidence of witnesses. The learned Judge has categorically observed that the panch witness is a selected witness and his say is not supported by the say of the complainant. The panch witness is selected only with a view to help the case of prosecution and, therefore, he cannot be said to be an independent witness.
14. Looking to the overall evidence of the prosecution witnesses, it is clearly established that the respondent has not made any demand from the complainant. Even the panch witness has also not stated that whether any demand has been made by the respondent from the complainant. It is also clearly established that as the respondent had filed complaint against the brother of the complainant and the case is pending against him at Dahod Court, the complainant has filed false case against the present respondent. 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.
15. 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.
16. In view of above, the Appeal is dismissed. The Judgment and order dated 17.05.1995 passed by the learned Additional Sessions Judge, Panch Mahals at Godhra, in Special (Corruption) Case No. 06 of 1991 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