CR.A/113619/1993 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1136 of 1993 With CRIMINAL REVISION APPLICATION No. 384 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ====================================== 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 Versus VINAYAKRAO S SHINDE & ANOTHER ====================================== Appearance : Mr Maulik Nanavati, Additional Public Prosecutor for the Appellant MR MR BAROT for Opponent(s) : 1, MR ATUL H MEHTA for Opponent(s) : 1, MR VIRENDRA BAHETI for Opponent(s) : 1 - 2. ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD CR.A/113619/1993 2/6 JUDGMENT and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 28/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal has been preferred by the State of Gujarat challenging the judgment and order dated 19.07.1993 passed by the Special Judge, Mehsana in Special Case No.4 of 1990. Shri Vinayakrao Shinde and Shri Bhupatsinh Zala – the present respondents were charged and tried by the Sessions Court for offences punishable under Sections 161, 165A and 201 of the Indian Penal Code and also under Section 5(2) of the Prevention of Corruption Act, 1947. Both were acquitted by the Sessions Court of all the charges. Today, when the matter is called out for final hearing, we are informed by Mr Virendra Baheti, advocate for the respondents that Shri Vinayakrao Shinde has expired during the pendency of the present appeal. A copy of the death certificate is produced and the same is taken on record. In view of this, appeal against Shri Shinde stands abated. As regards original accused No.2 – Bhupatsinh Zala, it has been submitted by the learned counsel for the respondent that he was serving as MOV Head Constable in Patan City Police Station in the month of February 1988. In his capacity as a Constable he has accompanied accused No.1 who was serving as Police Inspector in Patan Police Station to the house of the complainant on 1.2.1988 to conduct a raid. It has been further submitted that other Constables had also accompanied CR.A/113619/1993 3/6 JUDGMENT accused No.1 and accused No.2 for carrying out the raid. While they were at the house of the complainant, accused No.1 is alleged to have made a demand of Rs.1 lakh from the complainant to settle the matter and not register any criminal complaint against him. It is not the case of the prosecution that any demand was made by accused – Bhupatsinh. In view of the fact that there was no demand by accused – Bhupatsinh and further that no money has been paid to him, the trial court has rightly acquitted the respondent. These facts have not been seriously disputed by the learned Prosecutor appearing for the State. A perusal of the evidence on record shows that on 1.2.1998 Inspector Shinde along with 2-3 members of the police had gone to the complainant in the evening and seized palmolive oil tins which, at the relevant point, was a controlled item. To settle the matter and see that no case is registered against the complainant, accused Shinde is alleged to have made a demand of Rs.1 lakh from the complainant and on the complainant expressing his inability to pay such huge sum, ultimately, settled for an amount of Rs.50,000/-. As per the prosecution case, accused Shinde is alleged to have told the complainant to arrange for the money by 2.2.1988, but the complainant could not make available the funds on that day and instead went on 3.2.1988 to the bungalow of accused Shinde and paid Rs.15,000/-. The complainant assured to pay the balance money on 4.2.1988. Thereafter, in the morning of 4.2.1988 a complaint was lodged with ACB, Ahmedabad by the complainant and thereafter the police officers of the Anti Corruption Bureau along with the complainant and panch witnesses laid a trap. The complainant and one of the panch witnesses went inside the house of Shinde and on his instructions kept Rs.35,000 on the table. Other members of the raiding party arrived at the scene and accused Shinde was arrested. A complaint was registered against PI Shinde and one CR.A/113619/1993 4/6 JUDGMENT unknown police officer. This unknown polic officer was later identified by wife of the complainant in TI parade held after almost about one year of the incident. No explanation has been offered by the prosecution for holding such a belated TI parade. It is now well settled that the purpose of holding Test Identification Parade is to enable the witness identify the correct accused and that such parade should be held at the earlier point of time when the image of the accused is fresh in mind of the witness. From the evidence it also appears that during this period of one year both the complainant and his wife have visited the police station several times and therefore the possibility of respondent – Zala having been seen by the complainant and his wife or having been shown to them cannot be ruled out. It is also not in dispute that accused Zala did not make any demand from the complainant. It is not even the case of the complainant or his wife that accused Zala demanded any money of them. Concededly, accused Zala was not present when Rs.15,000 was allegedly paid to PI Shinde at his residence nor was accused Zala present when the trap was laid and PI Shinde was caught accepting the balance Rs.35,000/-. Except for his presence as a member of the police party who had gone to the house of the complainant, no act, much less an overt act has been attributed or even alleged by the prosecution against accused – Zala. In this view of the matter, we are in complete agreement with the finding of the learned Sessions Judge that there is absolutely no evidence on record, much less cogent and reliable evidence to connect respondent Zala with the crime. We therefore have no hesitation in upholding the order of acquittal passed by the Sessions Court. In the result, appeal against respondent No.2 – Bhupatsinh Zala stands dismissed. CR.A/113619/1993 5/6 JUDGMENT Bail bonds stand cancelled. CRIMINAL REVISION APPLICATION No. 384 of 1993 The present revision has been filed by the applicant – original complainant challenging the order dated 19th July 1993 passed by the Special Judge, Mehsana in Special Case No.4 of 1990 confiscating the amount of Rs.30,000/- to the State Government. When the matter was called out along with the appeal, none had remained present on behalf of the revisionist. In the interest of justice, matter was passed over, but no lawyer remained present even on the second call. Therefore, we have heard this revision application with the assistance of the learned Additional Public Prosecutor. As observed in the judgment, it was pointed out to the Court that the main accused – Vinayakrao S Shinde has expired during the pendency of the appeal and, therefore, the appeal against him stood abated. The learned Public Prosecutor has submitted that because of this circumstance, this Court has had no opportunity to examine the correctness and legality of the order of acquittal passed by Sessions Court qua the main accused. Also, the correctness of the version given by the complainant that a demand of bribe to settle the matter was made by P.I. Shinde and it was in pursuance to this demand that the complainant had given Rs.30,000/- which has now been ordered to be confiscated, has not been examined. He has, therefore, submitted that that the order of confiscation passed by the trial Judge should not be disturbed. We are in agreement with the submission advanced by the learend Additional Public Prosecutor on behalf of the State that the veracity of the claim of the complainant to have paid money pursuant to a demand by the accused has not been adjudicated and, therefore, it would not be possible to conclusively pronounce either way on the CR.A/113619/1993 6/6 JUDGMENT truthfulness of the demand and payment of bribe. Even otherwise as observed above despite sufficient accommodation no one has remained present on behalf of the applicant. In view of the above, finding no infirmity with the order passed by the Special Court, we dismiss the revision application. Registry is directed to inform Special Judge, Mehsana to withdraw the amount presently invested in the Bank by way of fixed deposit and deposit the same along with interest accrued thereon with the State Exchequer. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd