- (1.)THE present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgement and order of acquittal dated 19. 10. 1991 passed by the learned Special Sessions Judge in Special Case No. 6/1986, whereby the accused have been acquitted of the charges leveled against them.
(2.)MR. Joshi for Mr PM Thakkar has stated that the accused no. 2 has expired on 26. 6. 1997, and therefore, appeal qua accused no. 2 stands abated.
(3.)THE brief facts of the prosecution case are as under:
3. 1 The complainant Shambhubhai Shankarbhai Patel, has land on Kheralu road in the sim of Visnagar in the name of his father Shambhubhai Kalidas Patel. The complainant gave an application on 16. 9. 1983 in the name of his father in the office of Mamlatdar, Visnagar and paid Rs. 3/- by challan for the same. As he did not get any reply, he went to the office of Mamlatdar 15 days before the date of trap i. e. 23. 5. 1984 and he was informed that the said application was sent to the Kasba Talati, i. e. accused no. 1 Ambalal Brahmbhatt, for doing needful. Thereafter, he went to Visnagar Kasba Talati accused no. 1 in his office and Hiralal Joitaram Patel accompanied him. On inquiry, accused no. 1 told the complainant that he had received the application but necessary case papers were to be prepared for the same. The accused no. 1 further told that for preparing the case papers of the application of the complainant, he has to pay something. The accused no. 1 said that he would have taken Rs. 1000/- for the same but Rs. 700/- will do. On 22. 5. 1984, the complainant went to the accused no. 1 and had a talk with him. Accused no. 1 has asked to pay the amount and he will immediately do the work of preparing the case papers. After some negotiations the amount of illegal gratification was fixed at Rs. 500/- and at noon time on 23. 5. 1984 the complainant was required to approach accused no. 1 with the money. As the complainant did not want to pay the amount, and approached ACB Office at Mehsana and gave his complaint. The PSI, ACB, Mr. Qureshi, after obtaining sanction from the Chief Judicial Magistrate, Mehsana, proceeded with the matter. PSI called the panch from the office of Civil Surgeon, Mehsana and in the presence of the panch and the complainant, produced 5 currency notes each of Rs. 100/-, totalling to Rs. 500/- and after spreading anthracene powder and after proper procedure, the trap was arranged. The accused no. 1 was not present at first time, so the complainant and the panch went again for the second time and accused no. 2 told that he was instructed by accused no. 1, who is his superior officer, to accept the money and by gesture asked the complainant to put the bribe amount of Rs. 500/- in his drawer. The complainant gave signal by putting hand on his head, so the other members of the raiding party including panch no. 2, came there and found the money from the drawer of accused no. 2. 3. 2 Thereafter, after obtaining necessary sanction from the District Development Officer, Mehsana, necessary, charge-sheet was filed against the respondents-accused and thereafter the case has been numbered as Special (ACB) Case No. 6/1986 in the Court of Special Judge, Mehsana. The trial was initiated against the respondents. 3. 3 To prove the case against the present accused, the prosecution has examined the following witnesses: pw-1 Shambhubhai Shankarbhai Ex. 17 pw-2 Arvindkumar Damodar Pandya Ex. 22 pw-3 Ahmadbhai Ex. 25 to prove the case, the prosecution has also produced following documentary evidence. Production report Ex. 1 pursis for police papers Ex. 10 statement of accused no. 1 Ex. 15 statement of accused no. 2 Ex. 14 copy of challan Ex. 18 fir Ex. 21 mark 16/2 panchnama Ex. 23 mark 16/4 panchnama Ex. 24 sanction to prosecute Shri A. B. Barot Ex. 26 sanction to prosecute Shri D. K. Barot Ex. 27 letter dated 23. 5. 84 from ACB Ex. 28 letter dated 23. 5. 84 from ACB Ex. 29 3. 4 At the end of trial, after recording the statement of the accused under section 313 of Cr. P. C. , and hearing arguments on behalf of prosecution and the defence, the learned Special Judge acquitted the respondents of all the charges leveled against them by judgement and order dated 19. 10. 1991. 3. 5 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Special Court the appellant State has preferred the present appeal.