STATE OF GUJARAT Vs. OSMAN ALIBHAI HATHALIYA

JUDGEMENT

(1.) This appeal has been filed by the appellant - State under Sec. 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dtd. 15/6/2007 passed by the learned Special Judge, Porbandar (herein after referred to as 'the learned Trial Court') in Special (ACB) Case No. 3 of 1999, whereby, the learned trial Court has acquitted the respondents from the offences punishable under Ss. 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act (herein after referred to as 'the Act'). That, in all, the appeal was filed against four Armed Police Constable and during the pendency of the appeal, the respondent No. 1 - original accused No. 1 Osman Alibhai Hathaliya, Armed Police Constable, Porbandar expired and hence the appeal qua Respondent No. 1 was abated by an order dtd. 14/10/2008 of this Court. The respondents are hereinafter referred to as 'the accused' in the rank and file as they stood in the original case, for the sake of convenience, clarity and brevity.

(2.) The brief facts that emerge from the record of the case are as under:-

(3.) Being aggrieved and dissatisfied with the said judgement and order of acquittal, the Appellant- state has filed the present appeal mainly stating that the order of acquittal passed by the learned trial Court is contrary to law and evidence on record and the learned trial Court has failed to appreciate the oral evidence of 9 witnesses and the documentary evidence which have been produced by the prosecution in support of their case. That the learned trial Court has not appreciated the evidence and has committed a grave error, which is apparent on the record of the case and has failed to consider that the accused were public servants and they had demanded and accepted the amount of Rs.20.00 to Rs.50.00. That50/ as illegal gratification from the decoy panter. That the complainant, Mr. R.A.Belim, who has been examined at Exh: 69 has fully supported the case of the prosecution and the panch witness has also witnessed the demand but the learned trial Court has not relied on the evidence of the decoy panter truck driver and the panch witnesses as they have been declared hostile before the learned trial Court. That it is settled principles of law that even if the witness has turned hostile, the portion of evidence to which the witness supports the case of the prosecution, can be read in evidence but the learned trial Court has not considered the same and has passed the impugned judgement and order, which is contrary to the evidence on record of the case. That the panch witness, who is a totally independent witness has, upto some extent, supported the case of the prosecution, but the charge against the accused is proved from the evidence of other witnesses and the learned trial court has not appreciated the evidence properly and though the tainted currency notes were recovered from the position of the accused without resorting to the presumption under Sec. 20 of the PC Act, the learned trial Court, by the impugned judgement and order, has acquitted the accused, which is illegal, invalid and improper and the same deserves to be quashed and set aside. That the appeal must be allowed, and the accused must be found guilty for the said offences.