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2020 Supreme(Guj) 294
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
B.N. KARIA, J.
State of Gujarat – Appellant
Versus
Ranjitsinh Shivubha Zala and Others – Respondents
Criminal Appeal No. 34 of 2006
Decided On : 19-02-2020
Advocate Appeared:
For the Appellant : Ms. Monali Bhatt.
For the Respondents: Mr. Kamal M. Sojitra, Mr. Y.N. Ravani.
Point of Law:
Proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.
Headnote:
Criminal Procedure Code, 1973 – Appellant State of Gujarat has challenged impugned judgment and order - Appeal against original accused - Respondents accused were discharging their duties as Head Constable and Police Constable respectively at Police Station and thus they were public servant contemplating Act - Upon receiving intelligence tip that all respondents accused were stopping truck on National Highway near boundary and taking on pretext of entry fee from truck driver decoy trap was arranged accused demanded from Prosecution witness with conspiracy of other accused and accepted same - Investigation was initiated against respondents accused and after completing charge-sheet came to be filed before competent Court and said came to be transferred as Special – Held, Court careful observations of above mentioned and evidence on record in careful examination of rival legal contentions urged on behalf of parties with reference to extracted portions of evidence of this Court is of considered view that prosecution has failed to prove demand and acceptance recovery of illegal gratification by accused from Truck Driver upon whose evidence much reliance has been placed - Mere recovery of tainted money from accused is not sufficient to convict accused when substantive evidence is in case is not reliable mere recovery by itself cannot prove charge of prosecution against accused in absence of any evidence to prove payment of bribe or to show accused voluntarily accepted money knowing it putting bribe -There is no substantive evidence in this regard and accused was rightly acquitted for charges framed against him - Prosecution has failed to prove factum of demand of bribe money made by accused - Complainant himself was passed away during pendency was not examined - Proving factum of demand through another witness in absence of complainant cannot be based for conviction of accused – Appeal dismissed (Paras 15 and 16).
Facts of the Case:
That the respondents-accused were discharging their duties as Head Constable and Police Constable respectively at Wankaner Taluka Police Station and thus, they were public servant contemplating under the Act. Upon receiving the intelligence tip that all the respondents-accused were stopping truck on the National Highway near Bamanbore boundary and taking Rs. 20 on the pretext of entry fee from truck driver, decoy trap was arranged.
Finding of the Court:
Court careful observations of above mentioned and evidence on record in careful examination of rival legal contentions urged on behalf of parties with reference to extracted portions of evidence of this Court is of considered view that prosecution has failed to prove demand and acceptance recovery of illegal gratification by accused from Truck Driver upon whose evidence much reliance has been placed - Mere recovery of tainted money from accused is not sufficient to convict accused when substantive evidence is in case is not reliable mere recovery by itself cannot prove charge of prosecution against accused in absence of any evidence to prove payment of bribe or to show accused voluntarily accepted money knowing it putting bribe -There is no substantive evidence in this regard and accused was rightly acquitted for charges framed against him - Prosecution has failed to prove factum of demand of bribe money made by accused - Complainant himself was passed away during pendency was not examined - Proving factum of demand through another witness in absence of complainant cannot be based for conviction of accused.
Result: Appeal dismissed.
JUDGMENT :
B.N. KARIA, J.
1. By way of preferring this Criminal Appeal, appellant-State of Gujarat has challenged the impugned judgment and order dated 30.08.2005 passed by learned Special Judge (F.T.C. No. 4) Morbi in Special A.C.B. Case No. 7 of 1997.
2. Learned APP for the appellant-State of Gujarat has submitted report of the Police Inspector ACB Police Station, Morbi dated 17.02.2020 and submitted that accused No. Ranjitsinh Shivubha Zalamar, accused No. 2-Gafarbhai Hasamkhan Pathan and accused No. 3-Suryakant Fulshankar Joshi have passed away. Learned APP has produced xerox copies of their death certificates on record. It is requested by learned APP to abate this appeal against original accused Nos. 1, 2 and 3.
3. Considering the submissions made by learned APP for the appellant as well as report along with death certificates of the accused Nos. 1 to 3, who have passed on 24.08.2018, 16.07.2008 and 29.03.2019 respectively, this appeal would not survive against the accused Nos. 1 to 3 and therefore, this criminal appeal stands abated against the accused Nos. 1 to 3, as they have passed away.
4. The brief facts are as under:
“That the respondents-accused were discharging their duties as Head Constable and Police Constable respectively at Wankaner Taluka Police Station and thus, they were public servant contemplating under the Act. Upon receiving the intelligence tip that all the respondents-accused were stopping truck on the National Highway near Bamanbore boundary and taking Rs. 20 on the pretext of entry fee from truck driver, decoy trap was arranged. The accused No. 1 demanded Rs. 20/- from Prosecution witness Shanker Thakor with conspiracy of other accused and accepted the same on 29.04.1993 at about 1:25, near Chandrapur, Village: Patiya, National Highway Road and thus, investigation was initiated against the respondents-accused and after completing the investigation, charge-sheet came to be filed before the competent Court and said came to be transferred as Special A.C.B. Case No. 7 of 1997 before the Concerned Court.”
4.1 The Hon'ble Special Judge, Morbi was pleased to frame charge for the offence punishable under Sections 7, 12, 13, 13(1), 13(g)(h), 1-2-3 and 13(2) of the Prevention of Corruption Act. Plea of the each of the respondents-accused were recorded, wherein the respondents-accused pleaded no guilty and claimed to be tried.
4.2 During the course of trial, the prosecution produced elaborate evidence both documentary as well as oral and examined as many as 3 witnesses and produced as many as 12 documentary evidence. The Hon'ble Sessions Court was pleased to acquit the respondents-accused on the ground that the prosecution has failed to establish beyond reasonable doubt the charge by granting benefit of doubt.
4.3 The State of Gujarat being aggrieved with the judgment of acquittal, has preferred this Appeal against the order of acquittal passed by learned Special Judge (F.T.C. No. 4), Morbi in Special A.C.B. Case No. 7/1997. It is therefore, respectfully prayed to grant leave to appeal against the order of acquittal on 11.12.2007 this appeal was admitted by this Court.
5. Heard learned APP for the appellant and learned advocate for the respondent No. 4.
6. Learned APP for the appellant-State of Gujarat has submitted that judgment and order of acquittal is contrary to law, evidence on record and principles of justice. That, the judgment and order of acquittal is based on inference not warranted by facts of the case and also on presumption not permitted by law. That, the learned Special Judge has not properly appreciated oral as well as documentary evidence on record of the case. That learned Special Judge has not appreciated the version of prosecution witness No. 1 who has been examined vide Exh.10, who is the prosecution witness and was with truck driver at the relevant point of time and was instructed to hear conversation of the accused persons and the driver. This witness has admitted to have seen the experiment with
