2024 Supreme(Guj) 635
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.V. PINTO, J.
Balvantsinh Vakhatsinh Rathod – Appellant
Versus
State of Gujarat – Respondent
Criminal Appeal No. 3009 of 2008
Decided On : 09-04-2024
Advocates:
Advocate Appeared:
For the Appellant : J.M. Panchal, K.J. Panchal.
For the Respondent: Jirga Jhaveri.
The prosecution must prove the demand and acceptance of illegal gratification beyond reasonable doubt; mere suspicion is insufficient for conviction.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 374 - Prevention of Corruption Act, 1988 - Section 13(1)(d)(ii)(2) - Appeal against conviction - Accused, a public servant, was convicted for demanding illegal gratification - Prosecution failed to prove demand, acceptance, or recovery of bribe - Evidence was vague and uncorroborated, leading to a lack of confidence in the prosecution's case. (Paras 10, 11, 12)
(B) Criminal Jurisprudence - Burden of proof lies on prosecution - Accused is presumed innocent until proven guilty beyond reasonable doubt - Suspicion cannot replace proof. (Paras 7, 12)
Facts of the case:
The accused, an Unarmed Head Constable, was alleged to have demanded Rs. 1,000/- from the complainant for serving a summons related to a rape case. The complainant filed a complaint after the accused's demand, but the trap laid by the ACB failed on two occasions.
Findings of Court:
The prosecution failed to establish the demand for illegal gratification, leading to the conclusion that the conviction was unsafe.
Issues: Whether the prosecution proved the demand, acceptance, and recovery of illegal gratification.
Ratio Decidendi: The court emphasized that mere suspicion is insufficient for conviction; the prosecution must prove the demand of illegal gratification beyond reasonable doubt.
Result: Appeal allowed; conviction quashed and set aside.
JUDGMENT :
S.V. PINTO, J.
1. This appeal has been filed by the appellant under Section 374 of Code of Criminal Procedure, 1973 against the judgment and order of conviction passed by the learned Presiding Officer, Fast Track Court No. 2, Vadodara, (hereinafter referred to as “the learned Trial Court”) in Special Case No. 15 of 2004 on 12.11.2008, whereby, the learned Trial Court has convicted the appellant for the offence punishable under Section 13(1)(d)(ii)(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the PC Act”).
The appellant is hereinafter referred to as the accused as he stood in the original case for the sake of convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as under:
2.1 That the accused was working as an Unarmed Head Constable in the Panvad O.P. Kavanth Police Station, Vadodara Rural and was a public servant and Kandubhai Malubhai Rathva - the complainant was a panch witness in a case filed under Section 376 of the Indian Penal Code by a prosecutrix who was a resident of Raisa village. That the complainant was the panch of the panchnama by which the clothes were seized by the police and on 14.02.2004, the complainant had gone to Chhotaudepur and at that time, the accused had come to his village and as the complainant was not found, he had left a message to send the complainant to Panvad O.P. That on 15.02.2004, the complainant went to Panvad O.P. and met the accused and at that time, the accused told him that as he was a panch witness in Sessions Case No. 62/2003, he had to go to the Court at Chhotaudepur on the date of adjournment i.e. 20.02.2004 and gave him the summons and took his thumb impression on the summons. That the accused took him aside and demanded for an amount of Rs. 1,000/- for expenses of petrol as he had come to Kanalva village for serving the summons. The complainant told him that he was poor but the accused demanded for the amount and as the complainant did not have the amount, the accused told him to come on Wednesday to the Panvad O.P. and give him the amount of Rs. 1000/- and threatened to file a case against him and put him behind bars if the amount was not paid. The accused also told him that when he brought the amount of illegal gratification he was to call him aside and give the amount to him only and he took the summons and went home. That the complainant did not want to give the amount of illegal gratification and hence, went to the ACB Police Station, Vadodara and filed the complaint which was registered at C.R. No. 4/2004 on 18.02.2004 under Sections 7, 15 and 13(1)(d) and 13(2) of the PC Act. That the complainant only had Rs. 300/- and the Trap Laying Officer arranged for the remaining amount of Rs. 700/- and called the panch witnesses and the experiment of phenolphthalein powder and sodium carbonate was done and explained to the panch witnesses and the complainant and the currency notes of Rs. 1,000/- which were ten currency notes of the denomination of Rs. 100/- each were laced with anthracene powder and given to the complainant. That the shadow witness and the complainant went to the Panvad O.P. and at that time the accused suspected the complainant and the panch witness and did not accept the amount of illegal gratification and the trap failed. That as the accused had demanded the amount of illegal gratification, the Investigating Officer carried out the necessary investigation, recorded the statements of the connected witnesses, drew the panchnama and after the order of sanction for prosecution was received, a charge-sheet came to be filed before the Sessions Court, Vadodara which was registered as Special Case No. 15/2004.2.2. That the accused was duly served with the summons and the accused appeared before the learned Trial Court and after the procedure under Section 207 of Code of Criminal Procedure, 1973, the charge was framed by the learned Trial Court at Exh.6 and the statement of the accused was record
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