STATE OF GUJARAT Vs. TRAMBAKLAL FULSHANKER TRIVEDI
HIGH COURT OF GUJARAT
STATE OF GUJARAT
TRAMBAKLAL FULSHANKER TRIVEDI
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(1.) This is a States appeal against an order of acquittal passed by the learned Special Judge Jamnagar in special case No.7 of 1976 acquitting the respondent-accused for the offences under sec. 161 of the Indian Penal Code as also sec. 5(2) of the Prevention of Corruption Act 1947
(2.) In the instant case there is one striking infirmity in the prose- cution case which goes to the root of the matter and strikes a fatal blow to the prosecution case relied upon for establishing that the accused demanded and accepted as illegal gratification the said sum of Rs. 75.00 at the time when the complainant and panch Bhikhubhai were with the accused near the Dela. The prosecution has relied on the evidence of the complainant supported by the panch witness. But on going through the evidence of panch Bhikhubhai we find that while describing what happ- ened after the accused came out of the power house Bhikhubhai says that while he was standing at the Panshop he saw the accused and the complainant talking with each other Dear the Dela for about 5 to 10 minutes and while talking they sat near the Dela. The only conversation to which he refers as taking place between the complainant and the accused is that the accused while referring to the talk of the complainant with regard to the certificate stated that if he waited for sometime he would give a thought to the matter. This is the only conversation between the accused and the complainant to which the panch refers. He also does not refer to any passing of the currency notes from the side of the complainant to the side of the accused as is the prosecution case and he straightway states that on the prearranged signal being given the raiding party closed in and the accused was apprehended. The accused was then first taken to the police station and thereafter to the panchayat office where anthracene powder test was carried out and the currency notes and his bush shirt were attached. There is therefore no cogent reliable and unimpeachable evidence establishing that the accused received from the complaint the said amount of Rs. 75.00 as illegal gratification. The question of presumption therefore will not arise in the present case. It would be unsafe and not prudent in the facts and circumstances of this case to record a finding of acceptance of money solely on the evidence of the complainant when he is not at all supported by the panch witness.
(3.) But Mr. Vaidya submits that in any event on the prosecution establishing that ultimately at the panchayat office the marked currency notes were found from the pocket of the accused as is evident from the fact that on the anthracene powder test being carried out with the ultraviolet lamp powder was found on the bush-shirt pocket as well as on the hands of the accused a presumption about acceptance of money should be raised. We are unable to accept this submission of Mr. Vaidya. If there is no evidence worth the name regarding the initial passing of the currency notes from the side of the complainant to the side of the accused accompanied by conversation in this behalf which the panch witness was specifically directed to so hear it would be hazardous to record a finding with regard to acceptance simply because on the evidence of the complainant. the panch and P.S.I. it emerges that from the bush shirt pocket of the accused the said notes were found and that on the test being carried out the hands of the accused and his bush shirt pocket revealed presence of the anthracene powder. It would be in such a case unsafe to rely on the oral evidence of these three witnesses in this connection particularly when there is a missing link with regard to the initial passing of the notes and hearing of the conversation at the time when the notes are alleged to have passed from the side of the complainant to the side of the accused. It may be significant in this behalf to note that after the accused was apprehended by the police near the Dela he was first taken to the police station and thereafter to the Panchayat office where as the oral evidence of witnesses shows the said notes were found from his bush-shirt pocket. In this view of the evidence in our opinion it would not be prudent to set aside the order of acquittal passed by the learned Special Judge on the assessment of the evidence done by him of witnesses examined before him and to replace it by an order of convicted ion. In any event it cannot be said that the matter is free from doubt and the benefit of that doubt as a matter of course must go to the accused.;
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