The present acquittal Appeal has been filed by the appellant - original complainant, State of Gujarat under Section 378 of the Cr. P.C., against the Judgment and order dated 31.3.1995 rendered by the learned Special Judge, Panchmahal at Godhra, in Special Case No.4 of 1992. The said case was registered against the present respondent original accused for the offence under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act.
According to the prosecution case that, one Babarbhai Vechatbhai is residing at Bordi Village with his family. He has two daughters i.e. Savi and Mangi. Savi was married with Shivabhai Ranchhodbhai of Sadara village. During their marital life Savi delivered one daughter. Thereafter, there was dispute between Savi and her husband due to illicit relation of her husband with another lady. Therefore, Savi was driven out by her husband with the child. Savi filed an application for maintenance against her husband in Godhra Court. After sometime, child of Savi got ill and during the treatment she expired. Therefore, her husband filed a complaint against father-in-law in police. In the investigation Sukhabhai Jamadar came to his village and contacted the complainant and told him that if he would not give him an amount of Rs.1,000/- he would arrest him and if he would pay the said amount there would be settlement between the parties. Hence the complainant paid the said amount to the present accused Jamadar. After four to five days he again came to his village and demanded an amount of Rs.1,000/- but he had no money and he tried to gather the money but he failed to do so. Thereafter, on 4.2.1991, he went to Godhra Police Station and lodged complaint about the same. After completing necessary formalities the raid was carried out, statement of the witnesses were recorded by the trapping officer and then before the learned Special Judge charge-sheet was filed.
On the basis of above allegations, charge was framed, read-over and explained to the accused for the offence punishable under Sections 7, 13(1)(d) and 13(2) of the P.C.Act The accused pleaded not guilty to the charge and claimed to be tried.
Thereafter, after filing closing pursis by the prosecution, further statements of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused person has denied the case of the prosecution and submitted that a false case is filed against him.
At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondent - accused.
Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 31.3.1995 rendered by the learned Special Judge, Panchmahal at Godhra, in Special Case No.4 of 1992, the appellant - State has preferred the present appeal before this Court.
Heard Ms.Hansa Punani, learned APP for the appellant - State. She has read contents of the complaint and the panchnama and contended that from the complaint and oral evidence, prosecution has proved contents of the panchnama. She has contended that in connection of the demand made by the respondent to the complainant, the complainant approached investigating agency and then preliminary panchnama was carried out in presence of panchas and that contention is proved through oral version of the prosecution witnesses.
She has contended that the complainant and the panch witness have supported the prosecution case. The complainant has stated that the accused had taken Rs.1,000/- earlier and had thereafter demanded Rs.500/- to windup the investigation of the case filed against him. Thereafter he had lodged a complaint before the ACB and trap was arranged. The panch has also supported the case.
She has contended that the complainant and panch witness have stated that they had gone to the accused as per the trap and accused had asked the complainant whether he had brought Rs.500/- and had asked the complainant to pay the money as per the say of the accused. The raiding party then caught the accused and recovered the money. She has contended that as per exchange of words between the complainant and the accused the demand is proved. She has contended that, no doubt, amount is not recovered from physical possession of the respondent - accused but demand is proved beyond reasonable doubt.
She has contended that learned Judge has observed that panchas are selected witness. To prove that observation there must be some cogent reason to consider conduct of the panchas as a selected witnesses. She has contended that when demand is proved beyond reasonable doubt then judgment and order of acquittal passed by the learned Judge is required to be set aside. She has read panchnama, complaint and 313 statement and contended that respondent - accused has never disclosed any probable defence in the statement recorded under Section 313 of the Criminal Procedure Code.
Heard Mr.Jayesh A. Dave, learned advocate for the respondent - accused. He has contended that in case of corruption demand, acceptance, recovery and presumption must have to be proved through oral as well as documentary evidence beyond reasonable doubt. He has read oral evidence of the complainant and panchas and contended that in the oral version of the complainant he has stated that, at the place of offence he uttered that as per your say sir I have brought it here, that words cannot cover that present respondent has demanded any illegal gratification from the complainant. He has contended that trap amount is recovered from the table and nothing is recovered from the physical possession of the respondent accused. He has contended that even anthracene powder could not be seen on fingers, thumb, tips and palms on both hands of the respondent - accused. Lastly he has contended that no interference is required in the judgment and order passed by the learned Judge.
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 witness-complainant and also perused the charge framed against the accused. I have also considered the submissions advanced by the learned advocates for the respective parties.
It is pertinent to note that in corruption cases, 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 true that sanction is not challenged and that is not the issue before this Court. As per say of Mr.Dave demand is not proved beyond reasonable doubt, I have minutely observed meaning of the statement of the accused, it shows that he has not demanded any amount for favourable work or any illegal gratification in the form of money or any article. It is true that in case of corruption demand is required to be proved beyond reasonable doubt. Simple recovery of the muddamal trap amount or any other article is not sufficient to convict the accused for the offence punishable under the provisions of Corruption Act.
In the present case, prosecution has failed to prove that respondent - accused demanded any amount from the complainant. Even from the physical possession of the respondent - accused muddamal trap amount is not recovered. It is also proved beyond reasonable doubt that amount was not accepted by the present respondent and in the result during the search anthracene powder could not be seen on fingers, thumb, tips and palms on both hands of the respondent - accused. It is also observed by the learned Judge that the said trap amount is recovered from the table.
In the latest 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 is not sufficient to prove the offence. In that view of the matter, I am of the opinion that so far as offence of bribery is concerned, the demand and acceptance of money is required to be proved beyond reasonable doubt and mere recovery of bribe money from accused is not sufficient to prove the offence and to hold the person guilty. Presumption cannot be raised when demand is not proved in this case. Therefore, in absence of any evidence regarding the demand, mere alleged recovery is not sufficient to convict the present respondent accused and hence, this appeal deserves to be dismissed. The ratio laid down in aforesaid decision is squarely applicable to the facts of the present case because in the case on hand, the demand is not proved and the complainant had not stated about the demand made by the accused and, therefore, mere alleged recovery is not sufficient to prove the case against the respondent accused. Even the recovery is also not proved as per law.
In view of the above, the Appeal is hereby dismissed. The impugned judgment and order dated 31.3.1995 rendered by the learned Special Judge, Panchmahal at Godhra, in Special Case No.4 of 1992, acquitting the respondent - accused is hereby confirmed. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z.K.SAIYED, J.) kks Top