BHARATSINH GANDAJI DABHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this appeal, the appellants, accused of Special (ACB) Case No.8 of 1998, have challenged their conviction recorded by learned Special Judge (ACB), Mehsana, vide judgment and order dated 10.8.2001. Out of the two accused, accused no.2 has passed away and his heirs have decided to continue with this litigation so that the bad name to their father is wiped off and if ultimately the appeal results into acquittal, they would be entitled to all the benefits, which would accrue in his favour.

(2.) IT is the case of the prosecution that both the accusedappellants were serving in Pilvai Outpost as Police Constable and Head Constable respectively. They used to visit the residence of the complainant lady Divaben Udaji Thakor and threatening her for arresting in connection with offence under the Prohibition Act and for not arresting or lodging case under the Prohibition Act, it is alleged that they were demanding bribe. It is further the prosecution case that on 27.11.1997 both the accused had come to her residence and demanded Rs.400/ - by way of illegal gratification and as the said amount was not with her, she agreed to make payment on 1.12.1997. Thereafter, the complaint was given on 1.12.1997 before ACB Police Station. Accordingly, the prosecution was moved into motion by the complainant and on investigation being completed the investigating authority lodged the charge sheet under the provisions of Sections 7, 12 and 13 (1) of the Prevention of Corruption Act.

(3.) MR .Anandjiwala, learned advocate for the appellants submitted that despite the fact that the complainant turned hostile the learned trial Judge on enunciation of the principle that evidence of hostile witness if corroborated by others can be made the basis for conviction, convicted the appellants herein, oblivious of the fact that prime genesis of demand was not proved. He submitted that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 13 (1) (d) of the Act. In support of this submission, he has relied on the following decisions.