CR.A/484/1987 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 484 of 1987 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 - Appellant Versus KRISHNALAL G PANDYA – Respondent ========================================================= Appearance : MR PD BHATE, ADDL PUBLIC PROSECUTOR for Appellant: 1, MR RJ OZA for Respondent : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 12/08/2008 ORAL JUDGMENT CR.A/484/1987 2/6 JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal has been filed by the State of Gujarat challenging the judgment and order dated 30.4.1987 passed by the learned Sessions Judge, Bhavnagar in Special Case No. 4 of 1984, acquitting the present respondent- original accused for the offence punishable under Section 161 of IPC and under Section 5(2) of Prevention of Corruption Act. 2. The complainant Gafar Bachu used to make sale of cracker near Havmor Chowk, Bhavnagar. He is also involved in seasonal business. He is making sale of fruits and sometime he used to paddle rickshaw. 3. On 03.11.1983 at about 10=00 A.M accused as well as Nathubha constable came to him and asked him to remove his Lari and cracker. It was Diwali time and complainant requested accused as well as constable Nathubhai, to allow him to stay near the Havmor Chawk for 4-5 days. Complainant offered to him five rupees for tea purpose, but accused demanded Rs.20/- for allowing him to stay with his lari near Havmor Chawk. As per complainant, he said, he does not have Rs.20/- just now but he will give Rs.20/- in the evening. 4. After that the complainant went to Anti Corruption Department and lodged the complaint at about 2-00 PM. At that time, officer Mr. Trivedi was there, he called to panch witnesses named Shri Pravinbhai and Manubhai and the complainant was asked to keep this 4 notes CR.A/484/1987 3/6 JUDGMENT which were having powder, in his left pocket of the shirt. The complainant kept 4 notes in left side of shirt and trap was organized at around 7-00 PM. The accused went to the complainant and asked him to give money. When money was in the hands of the accused, panch as well as officers came there and caught him and panchnama was drawn and complaint was lodged against him. The chargesheet was filed and then it was committed to learned Sessions Judge for trial. Charge was framed at Exh. 5. Then accused pleaded not guilty and hence, after full-fledged trial, the accused was acquitted. 5. Being aggrieved and dissatisfied with the said judgment and order passed by the trial Court, the State Government preferred present appeal before this Hon'ble Court. The learned Addl. P.P. Mr. Bhate made following arguments on the basis of which acquittal order may be reversed considering the evidence on record. 6. It is submitted by learned Addl. P.P that prosecution has examined 4 witnesses and in support documentary evidences were also produced to strengthen the case of the prosecution. Defence witnesses PW-1 Exh. 32 in which the accused himself entered into witness box and he was also cross-examined by the learned A.P.P. 7. It is submitted by learned Addl. P.P that prosecution has examined the complainant Gafar Bachu PW-1 Exh. 7. According to his version, he stayed with his parents as well as his brother. He carries seasonal business of making sale of fruits and crackers. He also peddles CR.A/484/1987 4/6 JUDGMENT rickshaw, he states in his chief examination that on the day of incident, i.e. 13.11.1983, at about 10-00 AM accused as well as constable Nathubha came to his Lari and asked him to remove his Lari. The complainant offered him to Rs.5/- for tea, but accused demanded Rs.20/-. According to the complainant as he was not having Rs.20/- he asked accused to come during evening time, after this he went to Anti Corruption Department at about 2-00 PM and lodged the complaint. He was given Rs.20/- i.e. 4 notes of Rs.5/- which were having powder and complainant was asked to keep this notes on left pocket of shirt. At about 7-00 PM trap was organized, accused went to the complainant and asked Rs.20/-, and as soon as 4 notes of Rs.5/- were given, he was caught by the officers. In his cross examination, the witness says that he was making sale of crackers since last several years. He further says that he does not have license for sale of crackers, he knows that license is required. He further says that before this incident, no police person had demanded money from him. H says that, he knows accused since last 15 days. He says that when money was in the hands of accused punch as well as officers came their. He says that he does not know whether police has lodged complaint against his brother Satar. Exh. 8 is the copy of the FIR. Exh. 9 to 22 are FIRs, filed against complainant are produced. 8. It is submitted by Ld. APP that prosecution has examined PW-2 Exh. 23 Pravinbhai Manekbhai Bhatt, Exh. 24 is panchnama. Prosecution has also examined PW-3. Exh.25 Mahipatrai Manilal Trivedi, who is P.I and Exh.26 is CR.A/484/1987 5/6 JUDGMENT sanctioned order of authority and PW-4 Exh. 28 is Vinod Ramniklal Dave, Police Constable, who produced station diary entry. 9. Defence witness PW-1 Exh. 32 is accused himself Krishna Girjashankar Pandya. He says in his deposition that on the day of incident, his sister Ranjanben aged about 13 years with the daughter of the accused name Gayatri aged about 6 years, came with tiffin. There were 2 tiffins one for the accused and one for Nathubha. As the accused as well as Nathubha were going near Ghoghagate the daughter of the accused Gayatri started crying and demanded crackers, the witness say that he asked the complainant to give the crackers of his daughter, at that time, the complainant said that he will not give crackers without money. At that time this witness accused gave him Rs.25/- and asked him to give whatever she demanded. He said that, he will settle accounts bill. During evening at about 7-00 PM he went to the complainant asked diary and during this time, the officers came. 10.Considering the evidence of prosecution witness as well as the defence witness, learned Judge found that the complainant is a head strong person earlier arrested in PASA also and Exh. 9 to 22 proved that several cases were filed against the complainant. Moreover, one case was filed against the brother of the complainant which is at Exh. 33 is a copy of the FIR produced by the defence witness. The learned Judge has considered that the prosecution has not proved the case beyond reasonable CR.A/484/1987 6/6 JUDGMENT doubt. The complainant is head strong person and to teach lesson to the police person, he has lodged complainant. Under this circumstances, acquittal order was passed by the learned Judge. 11.We have heard the learned counsel for the parties and we are of the considered opinion that the defence has been probablised by the accused. A sum as demanded & received has been otherwise explained by the accused. In this background the findings arrived at by the trial Court do not appear to be without foundation. 12. It also should be the reason that the complainant is a person who is involved in a number of criminal cases. He can have a reasonable desire to see a man of Khakhi to be brought to book due to his past. 13. In view of the aforesaid, if a finding has been rendered by the trial Court acquitting the accused, we do not see that the same is not based on material on record. Thus we are not persuaded to disturb the same. The acquittal is affirmed. Appeal filed by the State is dismissed. Bail bonds are cancelled. Record and proceedings be sent forthwith to the trial Court. [ BHAGWATI PRASAD, J ] [ S.R. BRAHMBHATT, J ] /pallav