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 28.2.1994 passed by the learned Special Judge, Bhavnagar, in Special Case No. 01 of 1988, whereby, the learned Judge has acquitted the respondent – accused for the offences under Sections 7 of Prevention of Corruption Act, 1988 (for short “the Act”) and under Section 161 of I.P. Code.
2. The brief facts of the prosecution case are as under:
It is the case of the prosecution that in October, 1987, the respondent (original accused) was serving as Head Constable in Ghadhada Police Station, District Bhavnagar. It is alleged that the respondent – accused was inquiring the complaint, filed by the brother of the complainant in the present case. It is alleged that the respondent – accused told that he will inquire into the case properly if he is paid Rs.400/-. Ultimately, the matter was settled for Rs.200/-. It is alleged that on 27.10.1987, the respondent – accused came to the shop of the complainant and the complainant paid him Rs.100/- and agreed to give the remaining amount of Rs.100/- on the next day. As the complainant was not willing to pay the said amount of Rs.100/- and, therefore, he approached the A.C.B. Office, Bhavnagar. After recording the complaint, P.I. arranged for the trap, Panchas were called. The raiding party, along with panchas and the complainant proceeded to Ghadhada in the early morning and reached at the shop of the complainant. The panch No.1 remained with the complainant. It is alleged that at around 10.00 O'clock the respondent – accused came to the shop of the complainant and demanded Rs.100/-. After some negotiation, the complainant paid Rs.100/- to the respondent – accused, which he put in the left pocket of the shirt. Thereafter, on receiving the signal from the complainant, the raiding party rushed to the place and caught the accused. The currency note was seen to have powder marks in the lamp light and so also the fingers and hands of the complainant showed the powder marks. The shirts of the accused was attached, further statement of the complainant was recorded and detailed panchnama was drawn and the Panch had signed the panchnama there.
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 of the P.C. Act and Section 161 of the I.P. Code.
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 28.02.1994 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, Bhavnagar, 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 appeared on behalf of the respondent – accused.
10. Learned APP, appearing for the appellant has contended that though the complainant and the panch witness have fully supported the case of the prosecution, the trial Court, on some minor discrepancies, has erred in not considering the case of the prosecution. From the evidence produced on the record and from the evidence of panch witness, the prosecution has proved its case beyond reasonable doubt and, therefore, the impugned Judgment of the trial Court may be quashed and set aside. 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. 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 the panch witnesses are selected witnesses. The trial Court has also observed that the Panch witness has admitted that he had gone to ACB Office on 2 to 3 occasion to act as Panch witness. It is also come in evidence that usually the ACB office called 16 to 17 staff members as panch witness from the same office. The trial Court has also relied upon the decision of this Court in the case of STATE OF GUJARAT v/s RAVJIDAN, reported in 1984 G.L.H. 572 wherein it is held that the Police Inspector chose person from the same department in ACB raid cannot be considered independent witnesses. The trial Court has also observed that both the panchas were called by name from their residence in the same locality and of the same Department and, therefore, it is not prudent and safe to place implicit reliance on the panch witness. Calling a particular person from 3 to 4 kilo meter away whereas the Government colony is just near the ACB office is itself a strong circumstance to hold the panch to be selective. The trial Court has also categorically observed that panch witness has not heard the dialogue between the complainant and the accused. The trial Court has also observed that there are contradictory statements in the evidence of PSI Shri Goswami and the panch witness.
14. 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 panchs are also selected witnesses. 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.
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 28.02.1994 passed by the learned Special Judge, Bhavnagar, in Special Case No. 01 of 1988 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