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2016 Supreme(Guj) 2106
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R.P.DHOLARIA, J.
Bhupatsinh Shivsinh Waghela – Appellant
Versus
State Of Gujarat – Respondent
CRIMINAL APPEAL NO. 1278 of 1992 With 43 of 1993
Decided On : 13-12-2016
For the Appellant :Mr. Adil Mehta, Advocate For Mr. K.J. Shethna, Sr. Advocate
For the Respondent: Ms. H.B. Punani, APP
IMPORTANT POINT: Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court. If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt.
Headnote:(A) Criminal Appeal---Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court---If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt
(B) Appreciation of their evidence---Court finds that all the three witnesses have given the evidence in natural course and that their presence, pre-demand, actual demand on the day of trap, as to how the accused came to be caught red handed and as to how the amount of illegal gratification came to be recovered from the person of accused No.2 from the chamber of accused No.1 have been established in their cross examination--- Court is of the considered opinion that the said evidence of the aforesaid three witnesses is decisive evidence as regards to pre-demand, scaling down the amount of illegal gratification as well as acceptance on the day of trap itself---Even it is also established from the evidence that at the time of recovery of the amount of illegal gratification, test of ultra violate lamp was found to be positive so far as the hands as well as pant of accused No.2 and the hands of the complainant are concerned---Further, numbers of tainted currency notes have also been tallied with the numbers noted down in the preliminary panchnama.
Result: Partly Allowed
R.P. DHOLARIA, J.
1. Both these appeals arise out of the same incident and involve common questions of law and facts and hence, they are being decided by this common judgment.
2. Criminal Appeal No.1278 of 1992 is preferred by the appellant – Bhupatsinh Shivsinh Waghela – original accused No.2 against the judgment and order dated 30.11.1992 passed by learned Special Judge, Sabarkantha at Himmatnagar in Special Case No.1 of 1989 whereby original accused No.2 – appellant herein was convicted for the offence under section 165-A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three months and fine of Rs.2000/-, in default, to undergo simple imprisonment for six months. Whereas, Criminal Appeal No.43 of 1993 has been preferred by the appellant – original accused No.1 – Khemabhai Dalabhai Singada against the judgment and order dated 30.11.1992 passed by learned Special Judge, Sabarkantha at Himmatnagar in Special Case No.1 of 1989 whereby original accused No.1 – appellant herein was convicted for the offence under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act 1947 and sentenced to undergo rigorous imprisonment for one year and fine of Rs.2000/-, in default, to undergo simple imprisonment for six months and the appellant was also convicted for the offence under section 161 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and fine of Rs.1000/-, in default, to undergo simple imprisonment for three months.
3. The short facts giving rise to the present appeal are that Arjanbhai Savjibhai Patel – the complainant herein was at the relevant time residing at a place – a field known as Signal Kampa, Taluka Khedbrahmma where he had his agricultural land. He had three brothers, namely, Valjibhai Savjibhai, Jethabhai Savjibhai and Devsibhai Savjibhai. Out of 21 acres and 32 gunthas of agricultural land, complainant was in possession of 5 acres and 3/4 gunthas of land while the rest belonged to his brothers. On 21.7.1987, on the sedha of the land of the complainant and his brothers, a bull was found dead which was shot by someone. In connection with the same, the Banjaras had lodged complaint at Exh.34 which was given by Jesaji Bhat and recorded vide CR No.90 of 1987. The accused No.1 came to the house of the complainant and informed him that a complaint has been received wherein it was alleged that the complainant and his three brothers have killed the bull and that statements were required to be taken for which purpose they should go to the Police Station. The accused No.1 asked complainant to be at the police station in the evening at 6.00 O’clock. Accordingly, the complainant went to the police station in the evening. The accused No.1 then informed him that he and his brothers are required to be arrested and thereafter asked the complainant to sit there at the police station and after about one to one and half hour, the personal bond of the complainant was taken by the Head Constable and the complainant was asked to come to the police station again in the morning on 23.7.1987 at 11.00 O’clock. The complainant with his surety Mohan Savjibhai – PW 4 and advocate Waghela – accused No.2 came to the police station on 23.7.1987. The accused No.2 after meeting the accused No.1 came out from his chamber and told the complainant that accused No.1 intends to arrest him and his three brothers. The accused No.2 further added that the complainant should come with his brothers on the next day at 11.00 am to the police station. The complainant then went home and informed his brothers Valjibhai and Jethabhai, however, it was not possible for them to go to the police station at that time, and therefore, on 24.7.1987 the complainant in the compnay of Chhaganbhai Valjibhai and Mohanbhai Savjibhai went to Khedbrahmma Police Station at 11.00 am where the accused No.2 was present. The complainant informed him that his brother had not come and that he had come with h
