STATE OF GUJARAT Vs. JUJARSINH BHAVANSINH VIHOL

JUDGEMENT

(1.) Respondent No. 1 -Jujarsinh Bhavansinh Vihol, Police Constable, respondent No. 2 -Zalabhai Manjibhai Varsatap, Police Sub Inspector, respondent No. 3 -Madhukar Hilal Patil, Constable and respondent No. 4 -Somubhai Mithabhai Vankar, Driver, working in traffic branch of Vadodara City Police Station at the relevant time, who were public servants within the definition and meaning of Section 21 of the Indian Penal Code ('IPC' for short) were tried by the learned Special Judge, Vadodara, in Special Case No. 5 of 1988 for commission of offence punishable under Section 5(2) of the Prevention of Corruption Act, 1947 ('the Act' for short) and Section 161 read with Section 34 of Indian Penal Code ('IPC' for short), on the accusation that all of them, on 9.11.1985, while they were on duty, at Fatehgunj four junction, Vadodara City, had demanded Rs. 50/ - as gratification (other than the legal remuneration) under the pretext of collecting entry fee from Ambalal Savjibhai, driver of matador No. GAL 6299 which was passing from the said road and accepted the said amount from Panch No. 1, Kailashpuri Girdharpuri Gosai and in his presence also demanded and accepted gratification from other three drivers of their respective vehicles and thereby they have committed and abetted to the said offence. At the conclusion of the trial, learned Special Judge recorded the finding of acquittal and resultantly he by judgment and order dated 23.6.1992 recorded order of acquittal in favour of the respondents herein. State of Gujarat, feeling aggrieved by the aforesaid order of acquittal has filed this Criminal Appeal with the aids of Section 378 of the Criminal Procedure Code ('the Code' for short).

(2.) Brief facts giving rise to this appeal are as under:

(3.) Mr. M. A. Bukhari, learned APP after taking us through the entire testimonial collections, contended that though Panch No. 1 -Kailashpuri and the driver Ambalal in whose presence alleged demand was made and bribe of Rs. 50/ - was accepted, have turned hostile, that fact by itself is not fatal to the prosecution case because there is ample evidence with respect to the demand and acceptance of illegal gratification in the form of evidence of Police Inspector Mr. Patil, who had received information from other sources and pursuant to the said information he arranged the trap and he was very much present in the vehicle and in his presence the muddamal currency note of Rs. 50/ - was recovered from the pocket of accused No. 1 and it was the very currency note which was smeared with anthracene powder and the number of which was also noted down in the first part of the panchnama and put in the pocket of Panch witness No. 1 and Panch witness No. 1 has given at the time of demand to accused No. 1. According to Mr. Bukhari, from the said piece of evidence, the demand and acceptance of illegal gratification was proved. He further contended that this Court (Coram: K. J. Vaidya and J. M. Panchal, JJ.) on 22.7.1992 while deciding Criminal Appeal No. 542 of 1992, has laid down certain guidelines and principles with respect to appreciation of the evidence of a running trap in corruption cases and in the said case this Court has also unequivocally held that even if a decoy witness is found hostile to the prosecution case, on the basis of the evidence of Panch witnesses and the Police Inspector, order of conviction and sentence the accused can be passed in accordance with law. In view of the aforesaid facts and case law runs his further submission that in the instant case, there is ample evidence against the accused and, therefore, the judgment and order of recording acquittal is bad in law and hence the same requires to be quashed and set aside by holding the respondents/accused guilty for the said offences and accordingly they may be convicted and sentenced in accordance with law.