CR.A/293/2006 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 293 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJARAT - Appellant(s) Versus BHAGUBHAI CHHAGANBHAI GHODIA PATEL - Opponent(s) ========================================================= Appearance : MR KT DAVE, APP for Appellant(s) : 1, MR GIRISH K PATEL for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 25/02/2008 CR.A/293/2006 2/6 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) Heard learned APP Mr. Dave. 2. This is an appeal preferred by the State against acquittal of the respondent for the charges of corruption levelled against him recorded by learned Presiding Officer, Fast Track Court No.1, Valsad in judgment and order dated 15th June, 2005 in Special (Corruption) Case No.65/02 (6/95). 2.1 One Dilipbhai Raviyavhai, resident of Kaapariya village lodged an F.I.R. with the Valsad Rural Police Station alleging that his wife was raped. The said F.I.R. was lodged on 25th August, 1994. An officer from the Social Welfare Department had met him in this connection and had asked him to meet accused - Bhagubhai Chhaganbhai Dhodia Patel. He, therefore, went alongwith his wife to the office of Social Welfare. He was informed by the accused – respondent herein that they are entitled to a compensation of Rs.10,000/- from the Government because of the incident but for that purpose, a caste certificate would be necessary and for that purpose, they will have to give him Rs.3,000/-. The complainant then told the accused – respondent that he does not have money and, therefore, they may be issued the cheque and they would give the money after encashing the same. He was told by the respondent that they may come back with the caste certificate and then cheque would be handed over. Thereafter, CR.A/293/2006 3/6 JUDGMENT they were issued cheque for Rs.10,000/- and it was deposited in the bank account. The accused was alleged to have told the complainant to pay Rs.3,000/- after withdrawing the money. Thereafter, on 11th November, 1994, the complainant and his wife went to Valsad to withdraw Rs.1,500/- and while going towards the Social Welfare Office, the accused – respondent approached them and inquired as to what had happened to the cheque. At that time, the complainant informed him that the cheque was deposited. The complainant requested Bhagubhai to reduce the amount but Bhagubhai insisted for Rs.3,000/-. Ultimately, it was decided that Bhagubhai would approach the complainant on 14th November, 1994 in the afternoon at the xerox shop of Prakashbhai and the complainant was told by the accused – respondent that he may be summoned from his office and he would collect the money. Thereafter, the complainant approached the ACB Police Station and lodged the F.I.R. on 14th November, 1994 giving the details as stated above and indicated that he does not want to pay the amount of bribe. 3. A trap was set after treating the currency notes with anthracene powder and when actual raid was conducted, it was found that the notes treated with anthracene powder were found from the pocket of the accused; that there were marks of anthracene powder on the edge of the pocket and inside the pocket but there were no marks of anthracene powder on his hands or fingers. A panchnama was drawn and ultimately, CR.A/293/2006 4/6 JUDGMENT the accused came to be prosecuted. 4. Before the Trial Court, neither the complainant nor his wife were examined. The solitary panch witness who was examined did not support the prosecution case and the Trial Court, therefore, considering the fact that neither the complainant nor his wife are examined held that the first demand of bribe by the accused was not properly established. The court also found that absence of marks of anthracene powder on hands, fingers or thumb of the accused probabilises the theory of defence that the money was thrust into his pocket cannot be ruled out. The Trial Court also found that the panch witness has not supported the prosecution case although he has admitted certain aspects while being cross-examined by the Prosecutor. The prosecution case, therefore, hangs only on the evidence of the Investigating Officer. Keeping in view all these aspects, the Trial Court ultimately concluded that the evidence is not sufficient to convict the accused of the charges and ultimately recorded his acquittal. 5. We have heard learned APP Mr. Dave. He has taken us through the relevant pieces of evidence available with him. We have heard Mr. Girish K. Patel for the respondent – original accused. 6. Interestingly, neither the complainant nor his wife have been examined by the prosecution. Therefore, the first demand made before the lodgment CR.A/293/2006 5/6 JUDGMENT of the F.I.R. in the instant case is not proved. In fact, the first demand is the foundation of lodging of F.I.R. and the entire prosecution case and that is not proved by the prosecution. 6.1 Secondly, the possibility of the accused being framed up also cannot be ruled out. Firstly, for the reason that there were no marks of anthracene powder on his hands or fingers or thumbs though the notes were found from his pocket. This would mean that he had not handled the currency notes. He has explained the situation by stating that the notes were thrust into his pocket by the complainant and this does not seem to be an impossibility. 6.2 There is one more factor which adds to the prosecution story being doubtful. Even as per prosecution case, the bribe was demanded by the accused for parting with cheque of compensation of Rs.10,000/- whereas it has come in evidence that he has already parted with the cheque without accepting any money. The allegation of first demand, therefore, remains an allegation. The unproved theory of asking for bribe at a later point of time, therefore, is not enough to either record a conviction least to convert an acquittal into a conviction. 6.3 Independent witness (panch witness) has also not supported the prosecution case. Here again only one of the panch witnesses is examined and the second CR.A/293/2006 6/6 JUDGMENT panch is not even examined. 7. In our opinion, the learned Trial Judge was justified in recording an acquittal. The reasoning adopted by the learned Trial Judge and the conclusions arrived at by him cannot be said to be perverse in any manner so as to call for an interference. The view taken by the learned Judge is not an impossible one for the reason stated hereinabove. We, therefore, do not find any merit in the appeal. The appeal must fail and stands dismissed. ( A.L. Dave, J. ) ( Sharad D. Dave, J. ) hki