PURSHOTTAM KALUBHAI BARIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant has filed this Appeal challenging the judgment and order of conviction and sentence passed by the learned Special Judge Ahmedabad city in Special Case No.12 of 1994 dated 31.3.1998, by which the appellant accused is convicted and sentenced for the offences punishable under Sections 7, 13(1)(d) and Section 13(2) of the Prevention of Corruption Act. The learned Special Judge has convicted the appellant accused for the offence punishable under Section 7 of the Prevention of Corruption Act and awarded sentence to the appellant to suffer rigorous imprisonment for 1 year and to pay a fine of Rs.500/, i/d, to further undergo simple imprisonment for three months, whereas the appellant was ordered to suffer one year rigorous imprisonment for the offence punishable under Sections 13(2) & 13(1)(d) of the Act and to pay a fine of Rs.500/, i/d. to suffer three months simple imprisonment. The learned Special Judge has ordered that all the sentences shall run concurrently.

(2.) THE prosecution version as reflected in the complaint to be briefly stated, is the effect that the complainant Ashokbhai Becharbhai was residing at 1054, Ambika Krupa Society in the year 1993. In the said society, one Kanubhai Maganbhai was residing and he used to try to meet the wife of the complainant, but the wife of the complainant resisted and therefore, said Kanubhai administered threat to the wife of the complainant to kill her. Therefore, the complainant gave intimation for extending police protection to his family at Odhav Police Station, on 22.7.1993, but the Police had not investigated into the matter. Therefore, on 17.8.1993, one more application was given to the Odhav Police Station. Thereafter, the investigation of the said matter was entrusted to the accused, present appellant and Chapter Case was filed. In connection of the said case, the accused demanded Rs.500/ towards illegal gratification from the complainant on 29.7.1993. On 9.8.1993, the complainant gave Rs.300/ to the accused and he promised the accused to give the remaining amount of Rs.200/ later on and thereafter, the accused made frequent demand of said amount from the complainant, as the complainant was unable to give said amount of Rs.200/ to the accused. Thereafter, the complainant did not want to give money towards illegal gratification to the accused and therefore, he approached the ACB Police Station, Ahmedabad, for lodging the complaint against the accused. After completing necessary formalities, one preliminary panchnama was prepared in the presence of two panchas and trap was arranged. Thereafter, the ACB personnel and complainant went to the Odhav Police Station on 10.9.1993, where the accused was available and the complainant gave the amount of bribe to the accused on demanding by the accused and the accused was caught by accepting the said amount of Rs.200/ from the complainant. Thereafter, panchnama was prepared and sanction was obtained from the competent authority for proceeding ahead against the accused.

(3.) LEARNED advocate Ms. Nidhi Barot appearing on behalf of the appellant submitted that the judgment and order is bad in law, illegal and unwarranted. She further submitted that learned Sessions Judge has seriously erred in convicting the accused without properly appreciating the evidence. She also submitted that the charge and the statement of the accused U/s. 313 of the Code are not in conformity with the provisions of the Code. She further submitted that the appellant was performing his service as Head Constable at Odhav Police Station. She has read the evidence of complainant P.W.1 Ashokbhai Becharbhai Panchal and submitted that the main material aspect of demand is not proved from the evidence of this witness. She further submitted that the application which was made by the wife of the complainant at Mark 8/54, is not proper and there are so many editions and erasion in the said application. Even the recovery was made the ACB Personnel from the file and not from the accused. The application which was made by the wife of the accused, was pending and therefore, there is no question of demanding any bribe amount as there was no power with the accused being Head Constable of the Odav Police Station. She further submitted that from the crossexamination, the allegations levelled against the accused that the accused demanded bribe amount from the complainant is not cogently proved. She further stated that looking to application made by the wife of the complainant, it appears that there was dispute with one Kanubhai and the complainant only wanted protection, as said Kanubhai administered threat to the wife of the complainant. The accused had performed his duty properly and on the part of the accused, the demand was not made by the accused. She further stated this witness is interested witness and therefore, it can be said that his evidence is not trustworthy and reliable. She read the oral evidence of P.W.2 Naginbhai Laxmanbhai Dave at Exhibit 18, who is panch of the said trap. This witness is also interested witness and he has not properly proved the talk which was between the accused and complainant during the trap, by his oral evidence. She also submitted that from the evidence of this witness, the demand is not proved, especially in the presence of this witness. She drew attention to the oral evidence of P.W. 3 Kirankumar Manubhai Rathod, who is I.O. of the incident, working as P.I. of the ACB Branch. This witness stated in his evidence that nothing was recovered from the accused and the spot, where the trap was carried out. This witness also admitted that he had no further knowledge about the anthracene powder, which was used in the trap, except to apply to the currency notes and thereafter, during the course of experiment of ultra violet lamp, as per his say, the white marks were found on the currency notes as well as other articles. She further submitted that the trap was not carried out properly and without cogent proof against the accused, the accused was held guilty for the offence alleged under the Act. She further submitted that in this case, only three witnesses were examined. From the contents of the panchnama, the allegations alleged against the accused, are not supported by the evidence of the witnesses examined on record. Even the contents of the complaint are not supported by the evidence of the witnesses and the documents are not corroborated with the evidence of the witnesses. She further submitted that the accused made his defence in the statement recording under Section 313 of the Cr.P.C., but the learned Special Judge has not properly appreciated his defence.