STATE OF GUJARAT Vs. JAY SINGH DALUBHAI BHARIYA

JUDGEMENT

(1.) The State of Gujarat in this Appeal challenges the order of acquittal passed by the learned Special Judge, Vadodara in Special Case No.2 of 1981 whereby he acquitted the accused of the offences with which he was charged.

(2.) The facts as alleged by the prosecution may be briefly stated as follows The accused is serving as a beat-guard in Forest Department at village Turkheda in Vadodara District, his immediate superior being Round Forest Officer at Hanfeshwar. The accused went to Amba Dunger and took with him one Bhagubhai Maganbhai Kotwal and then went to Handlabari Falia at village Turkheda. On about 6-12-1980 be went to the place of one Padyi Jala (hereinafter referred to as the complainant for the sake of convanience and brevity) and also to the huts of other persons. The accused searched the house of the said complainant and found two mostles (containers in which food-grains are stored) prepared from bamboo chips. The accused told the complainant that he- had prepared the mostles from bamboo of the forest and a complaint shall have to be filed against him for the same. The complainant told the accused that he had not brought the bamboos from the forest situate within the limits of Gujarat State but had brought them from beyond the river i.e. beyond the limits of the Gujarat State. The accused did not accept this say of the complainant and asked him to go to the house of one Kalia at Amba Falia with mostles. The complainant agreed to do so and thereafter the accused and Bhagubhai left the hut of the complainant. The accused and Bhagubhai had a night halt at the house of Kalia at Amba Falia at Turkheda. On the next day i.e. on 7-12-1980 which was Sunday, in the early morning the accused sent one Chhagan to call the complainant at the house of Kalia and accordingly Chhagan went to the house of the complainant and told him that he was required at the house of Kalia by the accused. The complainant was told that be need not take the mostles with him. The complainant thereafter went to the house of Kalia accompanied by one Navsingh Tentia to meet the accused. The 8 to 4 told the complainant that he will not file a case against him provided be pays him Rs. 200/-. The complainant told the accused that he cannot pay this much amount and that be will be in a position to pay Rs. 140/-. The accused agreed to accept that, much amount, but the complainant bad. not got that amount with him and so the accused told him that the complainant should go to his place on the second Monday i.e. the Monday next after the following Monday and the complainant agreed to do so. The complainant did not want to pay the amount to the accused and hence the went to the office of Anti Corruption Bureau at Vadodara on 14-12- 1980 and told the Police Inspector about the demand made by the accused. The Police Inspector Mr. Desai recorded his complaint. The Police Inspector accompanied by the complainant and the members of the staff of his office went to village Raipur in a jeep car. They first went to the house of the Police Patel and arranged for the two punchas. The two panchas who were selected on that night were asked to see the police officer on the next day in the early morning at Adivasi Hostel at Raipur. Necessary instructions were given to the Panchas at Raipur and thereafter the Police Inspector, the complainant and the members of the staff of the Anti Corruption Bureau went to Panwad and bad a night halt there. On the next day, the Police Inspector, the complainant and the members of the staff of Anti Corruption Bureau went back to Raipur in the early morning. Two panchasmet them at Raipur. Instructions were given to panch Motibhai that he had to accompany the complainant and hear the talk between the complainant and the accused and see what is happening. Currency notes of Rs. 140/- (one currency note of Rs. 20/- denomination and 12 currency notes each of the denomination of Rs. 10/-) were then produced by the complainant. The, effect of phenolphthalein powder on Soda-bi-carb was demonstrated in the presence of the panchas. Phenolphthalein powder was then sprinkled over the currency notes and they were handed over to the complainant. Usual panchnama was then made about the said demonstration and then the party left for the place where the accused was residing. The jeep was stopped at some distance from Chikbli village and then all the occupants of the jeep car got down from the jeep-car and the complainant and the panch Motibhai proceeded towards the house of the accused, while the other panch and the police officer and other members of the raiding party stood at different spots. The complainant and the Panch Matibhai then went to the house of the accused. The accused was standing in the adali (open verandah). The accused on seeing the complainant said that be had come much earlier and thereafter he asked the complainant and Motibhai to sit. The accused then told the complainant that he may get sisodia seeds collected and if sufficient quantity was collected, he will give juvar in exchange for the said seeds. The complainant agreed to the same and thereafter the complainant told the accused that he had brought the amount and be wanted to- go away. The accused then went inside the house and brought a hand kerchief and handed over to the complainant and told him to place the money in the said handkerchief The complainant then took out the currency notes from his pocket and placed the same in the handkerchief. the folded tile handkerchief and than handed over the same to the accused. The accused was told to count the notes, but the accused said that he had complete faith in the complainant. Panch Motibbai then went out of the adali on the road and gave a signal by raising his two hands. The complainant also in the meanwhile came on the road. On panch Motibhai giving the signal the Police Inspector and other members of the raiding party and the other panch 7 started for going to the house of the accused. The accused was seen going out for answering call for nature with a tin in his hand. He was stopped and the Police Inspector gave his introduction to him. All of them then went to the house of the accused. The handkerchief containing the currency notes was then found from a basket which was lying in the adali of the accused. It was found that the currency notes were the same which were placed in the pocket of the complainant at the time of the first part of the panchnama and it was found that the solution containing soda-bi-carb became pink on emerging the same currency notes in the said solution. Same was the effect when the len hand of the accused was emersed in the solution of soda-bi-carb. The panchnama was then completed and the currency notes as well as the handkerchief were attached by the Police Inspector under the said panchnama. Necessary sanction from the Conservator of Forests for prosecuting the accused was obtained and the charge-sheet was submitted to the Court of the learned Special Judge, Vadodara against the accused for an offence punishable under section 161 I.P.C. as well as under section 3(1)(d) read with section (62) of the Prevention of Corruption Act, 1947. Charge for the said offence was framed against the accused to which he pleaded riot quality. At the close of the prosecution evidence the statement of the accused was recorded under section 313, Cr. P. C. the accused denied the allegation that the had demanded the amount from the complainant. He also denied the allegation that he had given the handicerchlef to the compliant and the complainant placed the currency notes in the said handkerchief and then the handkerchief was handed over to him by the complainant along with the currency notes. His case was that the complainant and panch Motibhai came to his place and there was a talk about collecting sisodia seeds and thereafter he went for answering a call of nature while the complainant and panch Motibhai remained in his adati. It is his case that when he was returning after answering the call of nature, he was apprehended by the police and he was then asked to pick up the handkerchief containing the currency notes from the basket and that is how his hands, when dipped in soda-bi-carb solution. became pink. The learned Special Judge, on examining the evidence and appreciating the same and after taking into consideration that statement of the accused, came to the conclusion that the prosecution had failed to establish beyond reasonable doubt the guilt of the accused and accordingly acquitted him of the same. Being aggrieved by the said order of acquittal, the State of Gujarat has come in appeal before this Court.

(3.) Before going to the discussion of the evidence on record, it would be proper to refer to some decisions which lay down the principles to be borne in mind by a Court hearing an appeal against an order of acquittal. The first case is reported in Sheo Swamp v. King Emperor. The Privy Council observed that there was no foundation for the view, apparently supported by the judgments of some Courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact except in cases in which the lower Court has obstinately blundered or has through incompetence, stupidity or perversity reached such distorted conclusions as to produce- a positive miscarriage of justice, or has in some other way so conducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result. After making the above observations, the Privy Council laid down the correct principles to be borne in mind while hearing an appeal against acquittal in the following words Sections 417,418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that, evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. The above principles have been reiterated time and again by the Supreme Court in several decisions. (Vide Samson Evan Kankmar v. State of Maharashtra, Bhim Singh Rup Singh and others v. State of Maharashtra, Narpal Singh and others v. State of Haryana, Satbir Singh and another v. State of Punjab, and K. Gopal Reddy v. State of Andhra Pradesh). A Division Bench of this High Court has also reiterated the r same principles in the case reported in C.R.P. Pandya v. Matilal Lallu.