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 25.6.1999 passed by the learned Special Judge, Panchmahals at Godhra, in Special Case No. 09 of 1997, whereby, the learned Judge has acquitted the respondents – accused for the offences under Sections 7, 12, 13(1)(d), & 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 the complainant Mr.
J.K. Bhagora, Police Inspector, A.C.B., Godhra, District Panchmahals, had filed complaint before A.C.B. Office on 31.1.1997 that he had received information that the officers and staff members of R.T.O. and Sales Tax at the Check Posts at Dahod, through their persons, in the name of entry fees, are demanding and accepting Rs.20 to Rs.300/- as illegal gratification from the driver of heavy vehicles who are passing through the said road, without doing any legal procedure. On receipt of said information, the ACB office called two panchas and preliminary panchnama was prepared. Thereafter, the raiding party, along with panchas, have proceeded for raid from Godhra to village Khusari Patiya, which is going towards Indore. There, they have stopped one truck bearing GJ 12 T 7945 and the driver of the said truck was convinced by them to co-operate in the raid. Thereafter, the panchnama was carried out. The driver of the truck carried the truck at check post where accused No.2 asked the driver as to what is there in the truck and thereafter he demanded Rs.200/- from the truck driver. The truck driver paid the said amount, which was accepted by the accused No.2 in presence of Panch No.1. The said amount was accepted by the accused No.2 with the consent of accused No.1, who was serving as Motor Vehicles Inspector, for not filing the case against the truck driver. On receiving the signal, the raiding party rushed to the place and raid was carried out. Thereafter, the offence was registered against both the accused.
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 respondents – accused for the offences, as narrated herein above.
4. Thereafter, the charge was framed against the respondents - accused. The respondents – accused have pleaded not guilty to the charge and claimed to be tried.
5. In order to bring home the charge levelled against the respondents - accused, the prosecution has examined the witnesses and also relied upon the documentary evidence.
6. Thereafter, after examining the witnesses, further statement of the respondents - accused under sec. 313 of Cr PC was recorded in which the respondents - accused have 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 25.06.1999 acquitted the respondents – accused from the charges alleged against them.
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. Hansa Punani, learned APP, appearing on behalf of the appellant – State and Learned Advocate Mr. Dave, appearing on behalf of the respondents – original accused.
10. Learned APP, appearing for the appellant – State has contended that the learned Judge has not properly appreciated the oral as well as documentary evidence produced on the record and erred in acquitting the respondents from the charges alleged against them. She has contended that looking to the evidence it clearly appears that in connivance of respondent No.1, who was serving as Inspector of R.T.O., being the public servant while performing his duties, the respondent No.2 has demanded Rs.200/- from the witness No.1 – driver of the truck, and the said amount was accepted by the accused No.2, in presence of Panch No.1, as illegal gratification. She has contended that the learned Judge has erred in not considering the evidence of Karsanbhai Parbatbhai Koli (Exh.7) who is a decoy witness, has fully supported the case of prosecution. She has contended that the decoy witness and the panch witness have fully supported the case of the prosecution. She has contended that the presence of anthracene powder was found on finger tips of right hand and the muddamal notes were also recovered from the respondent – accused in presence of panchas and, therefore, demand, acceptance and the recovery of amount from the possession of the accused is proved beyond reasonable doubt. 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 respondents – 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 respondents – accused from the charges alleged against them 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.
13. It is pertinent to note that Karsanbhai Parbatbhai Koli is a decoy witness, examined by the prosecution at Exh.7. From his evidence, it clearly appears that this witness has not supported the case of the prosecution and there are material contradictions in the deposition of this witness. This witness has narrated different story then the case of the complainant. However, the prosecution has not declared him hostile. This witness has deposed that no body has demanded any money from him at the Check Post. This witness has deposed that at his own he had given the money to the person who was standing out side the Check Post and went away. From the deposition of witness No.2 – Balvantsinh Mathurbhai Bariya (Exh.8), who was examined as Panch witness No.1, it clearly appears that there are material contradictions in the evidence of this witness and decoy witness No.1 – Driver of the truck. It also appears that this witness has also not stated in his statement before the Police that when the respondent No.2 – accused No.2 accepted the amount, at that time, respondent No.1 came and told the word “get- out”. It appears that many things have not been stated in the statement before the Police, but, for the first time, the same has been deposed before the Court. Therefore, his evidence is also not reliable and trust-worthy. It has also not come in evidence that as per the instruction of respondent No.1, the respondent No.2 had accepted the amount. From the deposition of P.W.3 Jivabhai Khemabhai, A.C.B. Inspector, who is the complainant, examined vide Exh.13, in cross examination, he has admitted that he has not noted down the entry in the Police Station diary. From the evidence of this witness, it clearly appears that there are material contradictions in his deposition and the deposition of decoy witness. The story put-forward by this witness is totally a different then the story narrated by the decoy witness. I have also gone through the further statements of the respondents, recorded under Section 313 Cr.P.C. The respondent No.1 has categorically stated in his statement that he does not know the respondent No.2 and for the first time he met him when the officer of ACB brought before him. The respondent No.2 has stated that he was waiting out-side the check-post for the vehicle of his relative for going towards Godhra and at that time, all of a sudden, Police personnel came and arrested him. He does not know the respondent No.1. This witness has stated that he has not asked for any money or accepted it. I have also considered other evidence and the documentary evidence produced on the record and from the over-all evidence, in my opinion, the prosecution could not be able to establish its case beyond reasonable doubt. There are also material contradictions in the evidence of witnesses. 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 respondents and, therefore, the learned Judge has rightly acquitted the respondents – accused from the charges alleged against them. The decoy witness has 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 respondents – 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.
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 evidence of panchs are also not fully supported the case of the prosecution. The decoy witness – P.W. 1 has stated totally a different story and from his evidence it is very difficult to believe the case of the prosecution. 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 25.06.1999 passed by the learned Special Judge, Panchmahals at Godhra, in Special Case No. 09 of 1997 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