R/CR.A/1162/2005(GJHC240489982005) CAV JUDGMENT DATED:

31/08/2026

Reserved On : 15/06/2026

Pronounced On : 31/08/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 1162 of 2005

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE VIMAL K. VYAS sd/-

==========================================================

Approved for Reporting Yes No

Yes

==========================================================

DAYASHANKAR BHULAN TRIPATHI & ORS.

Versus

STATE OF GUJARAT

==========================================================

Appearance:

MR ROHAN MAJMUDAR, LD. ADVOCATE FOR MR NK MAJMUDAR(430)

for the Appellant(s) No. 1,2

DELETED for the Appellant(s) No. 1.1

MR AM BHATASARA(5846) for the Appellant(s) No. 1,2

MR BHARGAV PANDYA, LD. ADDITIONAL PUBLIC PROSECUTOR for the

Opponent(s)/Respondent(s) No. 1

==========================================================

CORAM:HONOURABLE MR. JUSTICE VIMAL K. VYAS

CAV JUDGMENT

1.The present appeal has been preferred under Section

374 of the Code of Criminal Procedure, 1973 (for short,

‘Cr.P.C.’) by the appellants-convicts (original accused)

against the judgment and order of conviction and sentence

dated 27.05.2005 passed by the learned Special Judge, Fast

Track Court No.1, Patan, in Special (ACB) Case No.6 of 2002

(Old Special ACB Case No.10 of 1999).

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2.By the aforesaid judgment and order of conviction and

sentence, the trial Court held the present appellants-

original accused guilty for the commission of the offences

punishable under Sections 7, 12, 13(1)(d) read with Section

13(2) of the Prevention of Corruption Act, 1988, and

consequently, sentenced them to undergo rigorous

imprisonment for 2 years along with the fine of Rs.1,000/-,

and in default of payment of fine, to undergo further simple

imprisonment for 1 month.

Facts of the case, in brief, are as follows :

3.The brief facts of the prosecution case are that the

original complainant, namely, Bhanuprasad Dhirajlal Oza, a

resident of Patan, lodged a complaint on 13.01.1999 before

the Police Inspector, Anti-Corruption Bureau (ACB),

Mehsana. The complainant stated that he resides in Patan

and earns his livelihood by operating an auto-rickshaw

bearing registration No. GJ-2U-2146. He has stated that he

has also employed one Kaniya Mal, who drives the said

auto-rickshaw.

4.On 08.01.1999, while the complainant’s auto-rickshaw

was plying on the road from Pipla Gate to Bus Stand within

Patan city, it met with an accident involving a cyclist. In

connection with the said incident, an offence was registered

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at Patan City Police Station. At the relevant point of time,

one Jamadar Pandit (the present appellant- accused No.1 -

Dayashankar Bhulan Tripathi) was investigating the case.

5.On 09.01.1999, the complainant was informed by the

appellant No.1- Dayashankar Bhulan Tripathi, Assistant

Sub-Inspector (ASI), Patan City Police Station, to produce

the Driver and the ownership documents of the auto-

rickshaw.

6.On 11.01.1999, the appellant No.1 informed the

complainant that the auto-rickshaw would be seized and its

owner would be arrested in connection with the said

incident. Upon the complainant's making inquiry as to

whether the seizure and arrest could be avoided, the

appellant No.1 demanded an illegal gratification of

Rs.1,500/- for not arresting him and not seizing his auto-

rickshaw, and after negotiations, it was reduced to

Rs.900/-. The complainant paid Rs.800/- on the same day

at around 2:00 p.m. and informed him that the remaining

amount of Rs.100/- would be paid subsequently.

7.On 12.01.1999, the appellant-accused No.1 Jamadar

Pandit, accompanied by a police personnel, came to the

residence of the complainant and demanded the remaining

amount of bribe of Rs.100/-. Thereafter, he instructed the

complainant to meet him at Pipla Gate Police Station on

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13.01.1999 between 4:00 p.m. and 7:45 p.m. with the

remaining amount of bribe of Rs.100/- and the documents

pertaining to the auto-rickshaw. As the complainant was

unwilling to pay the remaining amount of bribe, he

approached the Anti-Corruption Bureau (ACB), Mehsana,

and lodged a complaint on 13.01.1999, and on the strength

of the complaint, a trap was laid, and the accused were

caught red-handed accepting the amount of bribe. The

raiding party, thereafter, recovered the currency notes

smeared with anthracene powder from the possession of the

accused.

8.Upon completion of the investigation, sanction to

prosecute the accused persons was obtained from the

competent authority, and thereafter, charge-sheet was filed

against both the accused persons for the commission of the

offences punishable under Sections 7, 12, 13(1)(d), and

13(2) of the Prevention of Corruption Act, 1988. The trial

Court, after complying with the provisions of Section 207 of

the Cr.P.C., framed the Charge vide Exh.9 against the

accused persons. The Charge was read over and explained

to the accused, who abjured their guilt and pleaded not

guilty and claimed to be tried.

9.To bring home the charge, the prosecution had

examined 06 witnesses and adduced 19 documentary

evidence in support of their case, which are as follow :

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PW

NO.

WITNESSES NAME EXHIBIT

1.Bhanuprasad Dhirajlal Oza (original

complainant)

15

2.Babubhai Somabhai Prajapati (Panch witness) 19

3.Bharatsinh Mangalsinh Jadeja (Police Officer

who received the complaint)

27

4Jayantilal Ramjibhai Solanki (ASI) 32

5Kachrabhai Dalabhai Parmar (Investigating

Officer)

36

6Devabhai Chhatrabhai Bhabhor (Investigating

Officer)

48

DOCUMENTARY EVIDENCE

SR.

NO.

DESCRIPTION OF THE DOCUMENT EXHIBIT

1Complaint given by Bhanuprasad Dhirajlal Oza 16

2Trap Panchnama 20

3Seizure Memo regarding a copy of Patrol Book

seized from accused No.1

21

4Seizure Memo relating to the articles recovered

from accused No.2

22

5Slips on the mudamal 23 to 26

6List of panchas received for trap 28

7A copy of the relevant register 33

8True copy of the case diary of C.R. No.4/99 in

Patan city

34

9Relevant extract of the arrest register of Patan

City Police Station

37

10True copy of the complaint against the original

complainant’s rickshaw driver

38

11Relevant extract of station diary of C.R.No.4/99

in Patan City Police Station

39

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12True copy of job duty distribution of accused

No.1

40

13True copy of job duty distribution of accused

No.2

41

14True copy of the plan/map showing the

replacement/ arrangement relating to Pipla Gate

Police Station

42

15True copy of appointment letter of accused No.1 43

16True copy of service book of accused No.1 44

17True copy of appointment letter of accused No.2 45

18True copy of service book of accused No.2 46

19Xerox copy of sanctioned order for prosecution of

the accused.

47

10.Upon completion of the recording of the evidence, the

trial Court explained the incriminating circumstances

appearing in evidence against the accused. The accused, in

their further statements recorded under Section 313 of the

Cr.P.C., denied all the allegations levelled against them by

the prosecution of accepting the bribe. Thereafter, they

pleaded innocence and stated that they have been falsely

implicated in the alleged offences.

11.On completion of the trial, after appreciating the entire

evidence, the trial Court, vide judgment and order dated

27.05.2005, convicted the present appellants for the

commission of the offences punishable under Sections 7,

13(1)(d) read with Section 13(2) of the Prevention of

Corruption Act.

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12.Being aggrieved and dissatisfied with the aforesaid

judgment and order of conviction and sentence, the present

appellants (i.e. the original accused) have preferred the

captioned Criminal Appeal before this Court, which came to

be admitted by a Coordinate Bench of this Court (Coram :

J.R.Vora, J.) vide order dated 14.06.2005.

Submissions on behalf of the Appellants-Accused :

13.Learned advocate Mr.Rohan Majmudar for

Mr.N.K.Majmudar, learned advocate appearing for the

appellants, in the course of his detailed submissions, raised

the following principal contentions, which may be

summarized as under:

(i)There is no material on record to substantiate the

alleged initial demand.

(ii)The material on record clearly suggests that there

is no cogent and credible evidence on record to

substantiate the prosecution’s case that the accused

No.1 had, on 11.01.1999 at around 11:00 a.m.,

initially demanded an illegal gratification of Rs.1,500/-

from the complainant as consideration for not

arresting him and for not seizing his auto-rickshaw,

and that, after negotiations, he agreed to accept

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Rs.900/-, pursuant to which, he accepted a sum of

Rs.800/- from the complainant at around 2:00 p.m. on

the same day. Furthermore, there is absolutely no

evidence on record to substantiate the allegation that

on the next day, i.e. on 12.01.1999, the accused had

visited the complainant’s residence and demanded the

remaining amount of bribe of Rs.100/-. It is submitted

that the prosecution has failed to adduce any cogent

and reliable evidence in support of the said allegations.

(iii)The complainant, Bhanuprasad Dhirajlal Oza

(PW-1), in his deposition at Exh-15, has narrated the

facts, which are wholly inconsistent with the

prosecution’s case. He deposed that, on the day of the

trap, when he and the shadow witness reached at the

police outpost, the gate of the outpost was closed. After

sometime, a police constable arrived at the outpost,

and approximately 15 minutes thereafter, one Head

Constable came to the outpost. However, he

categorically stated that this Head Constable was not

the person, who had demanded the bribe amount. The

complainant has further deposed that he had handed

over the auto-rickshaw documents to the said Head

Constable, and thereafter, put the tainted currency

notes into the pocket of another police personnel who

was standing nearby. He also unequivocally stated in

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his evidence that the Head Constable to whom he had

earlier paid a sum of Rs.800/- was not present at the

spot. Thus, the conduct of the complainant, as

reflected in his own testimony, is wholly inconsistent

with the prosecution’s case and gives rise to serious

doubt regarding the veracity and credibility of the

entire case.

(iv)A conjoint reading of the testimonies of the

complainant- Bhanuprasad Dhirajlal Oza (PW-1), the

shadow witness- Babubhai Somabhai Prajapati (PW-

2), along with the original complaint (at Exh-16) and

the panchnama (at Exh-20), it clearly reveals that the

complainant had produced the relevant documents of

his auto-rickshaw before the Head Constable present

at the police outpost. The evidence further reveals that

when the complainant tendered the currency notes to

the Head Constable, he expressly declined to receive

them. Thereupon, the complainant, on his own

volition, put the said currency notes into the pocket of

the accused No.2. These circumstances unequivocally

established that neither of the accused person had

demanded the alleged illegal gratification nor

voluntarily accepted the same. Thus, the essential

ingredients of demand and acceptance, which are sine

qua non for constituting an offence under the

Prevention of Corruption Act, remain wholly unproved.

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(v)There are significant inconsistencies between the

version deposed by the complainant- Bhanuprasad

Dhirajlal Oza (PW-1), in his evidence at Exh-15 and

the version narrated in the original complaint at Exh-

16.

(vi)Admittedly, there is no material on record to

substantiate the allegation of initial demand of illegal

gratification. Furthermore, the evidence of the

prosecution witnesses with regard to the alleged

demand on the date of the trap is mutually

inconsistent and contradictory. The version of the

alleged demand, as reflected in the panchnama, also

materially differs from the oral testimony of the

prosecution witnesses, thereby rendering the

prosecution case highly doubtful.

(vii)The evidence clearly indicates that the core

witnesses of the prosecution have concealed and

suppressed the material facts concerning the events

that took place on the day of the trap. Moreover, the

testimonies of all the witnesses regarding the entire

trap proceedings are mutually inconsistent, conflicting

and contradictory. Such inconsistencies and

contradictions cast a serious doubt on the veracity of

the case of the prosecution.

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(viii)The evidence of the complainant- Bhanuprasad

Dhirajlal Oza (PW-1) and the shadow witness-

Babubhai Somabhai Prajapati (PW-2), clearly proves

that, on the day of the trap, neither of the accused

persons demanded the alleged illegal gratification nor

accepted any amount in pursuance thereof. The trial

Court, however, has completely overlooked this vital

evidence and proceeded to convict both the accused

solely on the basis of the recitals contained in the

panchnama (Exh-20) and the oral testimony of the

Trap Laying Officer, Bharatsinh Mangalsinh Jadeja

(PW-3), thereby committing a grave error of law and

appreciation of the evidence.

(ix)The trial court, while appreciating the evidence,

has laid much emphasis on the provisions of Section

20 of the Prevention of Corruption Act, which raises

presumption once it is established that the accused

accepted the amount. However, for the purpose of

arriving at the conclusion whether the accused

accepted the amount of illegal gratification or not, the

totality of the evidence led by the prosecution at the

trial is required to be appreciated. It is settled legal

position that in absence of any proof of demand, the

legal presumption under Section 20 of the Prevention

of Corruption Act would not arise since the proof of

demand and its subsequent acceptance is a sine qua

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non for the offence punishable under Sections 7, 13(1)

(d), 13(2) of the Prevention of Corruption Act.

Therefore, only on the basis of acceptance of the

amount without there being any proof of demand, the

accused cannot be held guilty of the offences under

Sections 7, 12, 13(1)(d) read with Section 13(2) of the

Prevention of Corruption Act. It is submitted that the

trial Court, while appreciating the evidence in this

regard, has completely lost sight of the aforesaid

settled legal position. It is further submitted that

except the bare averments in the complaint, no

evidence has been led by the prosecution to prove the

essential elements of the offence, more particularly,

the proof of demand of illegal gratification and its

subsequent acceptance, beyond reasonable doubt.

14.Thus, it is submitted that considering the entire

evidence on record, it clearly establishes that the

prosecution has failed to prove the essential elements of the

offence, i.e. demand, acceptance and recovery, beyond

reasonable doubt, and in absence of proof of demand and

its acceptance, the trial Court has committed a serious error

in raising a presumption under Section 20 of the Act. In

such circumstances, learned advocate Mr.Majmudar has

implored the Court to allow the appeal preferred by the

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appellants-convicts, set-aside the impugned judgment and

direct the acquittal of the appellants-convicts from the

charges levelled against them.

Submissions on behalf of the respondent- State:

15.Vehemently opposing the appeal filed by the

appellants-convicts and the submissions canvassed by

learned advocate Mr.Rohan Majmudar for

Mr.N.K.Majmudar, learned advocate appearing for the

appellants-convicts, learned APP Mr.Bhargav Pandya

appearing for the respondent- State has submitted that the

trial Court has convicted the appellants-accused for the

offences punishable under Sections 7, 12, 13(1)(d) read with

Section 13(2) of the Prevention of Corruption Act, and

consequently, sentenced them to undergo rigorous

imprisonment for 2 years along with the fine of Rs.1000/-.

Learned APP Mr.Pandya has submitted that the prosecution

has proved all the three essential elements of the offence,

i.e. demand, acceptance and recovery, beyond reasonable

doubt, through the cogent and convincing evidence of the

core witnesses, i.e., the complainant- Bhanuprasad

Dhirajlal Oza (PW-1), the shadow witness- Babubhai

Somabhai Prajapati (PW-2), and the trapping officer-

Bharatsinh Mangalsinh Jadeja (PW-3).

16.Learned APP Mr.Bhargav Pandya, while referring to the

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evidence of the core witnesses, i.e., the complainant-

Bhanuprasad Dhirajlal Oza (PW-1), the shadow witness-

Babubhai Somabhai Prajapati (PW-2), and the trapping

officer- Bharatsinh Mangalsinh Jadeja (PW-3), has

submitted that the evidence of the complainant-

Bhanuprasad Dhirajlal Oza (PW-1) and the shadow witness-

Babubhai Somabhai Prajapati (PW-2), who had

accompanied the complainant at the time of the trap, are

clear, cogent and convincing. It is submitted that the

evidence of both these witnesses have remained unshaken

and the same are in corroboration with the evidence of the

Trapping Officer, Bharatsinh Mangalsinh Jadeja (PW-3),

Police Inspector, who laid the trap. It is submitted that the

evidence of all these witnesses are in corroboration with the

allegations made by the complainant- Bhanuprasad

Dhirajlal Oza (PW-1) in his complaint at Exh-16.

17.Learned Additional Public Prosecutor Mr.Bhargav

Pandya has further submitted that if the evidence of the

witnesses be read in juxtaposition with the documentary

evidence on record, there remains no doubt about the case

of the prosecution and, therefore, no error could be said to

have been committed by the trial Court while appreciating

the evidence and arriving at the conclusion of the guilt of

the appellants-accused. He has, therefore, urged that the

conviction and sentence recorded by the trial Court do not

call for any interference by this Court and the criminal

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appeal preferred by the appellants-convicts challenging their

conviction and sentence, may be dismissed.

Findings and Analysis:

18.Before adverting to the facts and circumstances of the

case, it would be apt to reiterate the fundamental principle

of criminal jurisprudence as affirmed by the highest court

that, in criminal trial it is for the prosecution to bring home

the guilt of the accused since the burden of proving the guilt

beyond reasonable doubt always rests upon the

prosecution. It is also settled that the prosecution has to

stand on its own legs and cannot take advantage or undue

advantage of the defence put forth by the accused. The

Supreme Court, in the case of Rabindra Kumar Dey vs.

State of Orissa, AIR 1977 SC 170 , reiterated three

cardinal principles, namely, (i) that the onus lies

affirmatively on the prosecution to prove its case beyond

reasonable doubt, and it cannot derive any benefit from

weakness or falsity of the defence version while proving its

case; (ii) that in a criminal trial the accused must be

presumed to be innocent unless he is proved to be guilty;

and (iii) that the onus of the prosecution never shifts. Thus,

it is well-settled that in a criminal trial, the guilt of the

accused must be proved beyond reasonable doubt in order

to convict him.

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19.The Supreme Court, in the case of State of Uttar

Pradesh vs. Krishna Gopal , reported in (1988) 4 SCC

302, has held that the person has, no doubt, profound

rights not to be convicted of an offence, which is not

established by the evidential standard of proof beyond

reasonable doubt.

20.Bearing in mind the aforesaid legal position, this Court

has considered the submissions canvassed by the respective

parties and carefully perused the materials produced on

record. It is well-settled that for establishing the commission

of an offence under Section 7 of the Prevention of

Corruption Act, the proof of demand of illegal gratification

and the subsequent acceptance is sine qua non. Moreover,

the presumption under Section 20 of the Prevention of

Corruption Act can be invoked only on proof of facts in

issue, namely, the demand of illegal gratification by the

accused and the acceptance thereof. The Constitutional

Bench of the Supreme Court in the case of Neeraj Dutta vs.

State (Government of NCT of Delhi), reported in (2023) 4

SCC 731 has, in paragraph-68 of the judgment, held as

under :

“68.What emerges from the aforesaid discussion is

summarized as under :

(a)Proof of demand and acceptance of illegal

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gratification by a public servant as a fact in issue by the

prosecution is a sine qua non in order to establish the

guilt of the accused public servant under Sections 7 and

13 (1)(d) (i) and(ii) of the Act.

(b)In order to bring home the guilt of the accused, the

prosecution has to first prove the demand of illegal

gratification and the subsequent acceptance as a matter

of fact. This fact in issue can be proved either by direct

evidence which can be in the nature of oral evidence or

documentary evidence.

(c)Further, the fact in issue, namely, the proof of

demand and acceptance of illegal gratification can also

be proved by circumstantial evidence in the absence of

direct oral and documentary evidence.

(d)In order to prove the fact in issue, namely, the

demand and acceptance of illegal gratification by the

public servant, the following aspects have to be borne in

mind:

(i)if there is an offer to pay by the bribe giver

without there being any demand from the public

servant and the latter simply accepts the offer and

receives the illegal gratification, it is a case of

acceptance as per Section 7 of the Act. In such a

case, there need not be a prior demand by the

public servant.

(ii)On the other hand, if the public servant

makes a demand and the bribe giver accepts the

demand and tenders the demanded gratification

which in turn is received by the public servant, it is

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a case of obtainment. In the case of obtainment,

the prior demand for illegal gratification emanates

from the public servant. This is an offence under

Section 13 (1)(d)(i) and (ii) of the Act.

(iii)In both cases of (i) and (ii) above, the offer by

the bribe giver and the demand by the public

servant respectively have to be proved by the

prosecution as a fact in issue. In other words, mere

acceptance or receipt of an illegal gratification

without anything more would not make it an

offence under Section 7 or Section 13 (1)(d), (i) and

(ii) respectively of the Act. Therefore, under Section

7 of the Act, in order to bring home the offence,

there must be an offer which emanates from the

bribe giver which is accepted by the public servant

which would make it an offence. Similarly, a prior

demand by the public servant when accepted by

the bribe giver and in turn there is a payment

made which is received by the public servant,

would be an offence of obtainment under Section

13 (1)(d) and (i) and (ii) of the Act.

(e)The presumption of fact with regard to the demand

and acceptance or obtainment of an illegal gratification

may be made by a court of law by way of an inference

only when the foundational facts have been proved by

relevant oral and documentary evidence and not in the

absence thereof. On the basis of the material on record,

the Court has the discretion to raise a presumption of

fact while considering whether the fact of demand has

been proved by the prosecution or not. Of course, a

presumption of fact is subject to rebuttal by the accused

and in the absence of rebuttal presumption stands.

(f)In the event the complainant turns 'hostile', or has

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died or is unavailable to let in his evidence during trial,

demand of illegal gratification can be proved by letting

in the evidence of any other witness who can again let

in evidence, either orally or by documentary evidence or

the prosecution can prove the case by circumstantial

evidence. The trial does not abate nor does it result in

an order of acquittal of the accused public servant.

(g)In so far as Section 7 of the Act is concerned, on

the proof of the facts in issue, Section 20 mandates the

court to raise a presumption that the illegal gratification

was for the purpose of a motive or reward as mentioned

in the said Section. The said presumption has to be

raised by the court as a legal presumption or a

presumption in law. Of course, the said presumption is

also subject to rebuttal. Section 20 does not apply to

Section 13 (1) (d) (i) and (ii) of the Act.

(h)We clarify that the presumption of law under

Section 20 of the Act is distinct from presumption of fact

referred to above in point (e) as the former is a

mandatory presumption while the latter is discretionary

in nature.”

21.Thus, it is held by the Supreme Court that in order to

bring home the charge, the prosecution has to prove beyond

reasonable doubt the “demand of illegal gratification” and

the “subsequent acceptance ” either by direct or by

circumstantial evidence.

22.The cases of corruption largely depends on the

testimonies of three crucial witnesses; (i) the complainant,

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(ii) the shadow witness, and (iii) the trapping officer. These

witnesses play a decisive role in determining the fate of the

accused. As such, the testimonies of the complainant-

Bhanuprasad Dhirajlal Oza (PW-1), the shadow witness-

Babubhai Somabhai Prajapati (PW-2), and the trapping

officer- Bharatsinh Mangalsinh Jadeja (PW-3), must be

examined with great care and caution. It is expected that

their statements should be consistent, credible and of

sterling quality. If there are significant contradictions in

their evidence on material aspects, such discrepancies

cannot be overlooked. In such circumstances where the

evidence allows for two possible interpretations, the one

which is in favour of the accused, must be considered. This

is because the law firmly upholds the principle that “no

innocent persons should be wrongfully punished”.

23.Keeping in mind the aforesaid legal position of law and

also keeping in mind the ratio of the above-mentioned

judgments, the evidence led by the prosecution, in the

instant case, is to be analyzed to find out, whether the

prosecution has proved the fact that the accused-convicts

demanded and accepted the amount of illegal gratification

from the complainant.

24.This Court has given anxious consideration to the

evidence on record. The scrutiny of the evidence reveals

multiple inconsistencies with the case of the prosecution. As

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per the original complaint at Exh-16 and the charge at Exh-

9, it is the case of the prosecution that the complainant-

Bhanuprasad Dhirajlal Oza was the owner of the auto-

rickshaw bearing registration No. GJ-2U-2146, which was

being plied on hire through its Driver- Kaniya Mal. While

the said Driver was driving the auto-rickshaw, an accident

involving a cyclist occurred, leading to the registration of an

offence at the Patan Police Station. The investigation of the

said offence was being carried out by the appellant- accused

No.1.

25.The prosecution alleges that on 11.01.1999, the

appellant-accused No.1 had demanded an amount of

Rs.1,500/- from the complainant as illegal gratification for

not arresting him in connection with the said offence and

for not seizing the auto-rickshaw. It is the case of the

prosecution that, upon negotiation, the amount of illegal

gratification was reduced to Rs.900/-. Pursuant thereto, the

complainant allegedly paid Rs.800/- to the appellant-

accused No.1, who was then serving as a police Jamadar

(Head Constable) at around 2:00 p.m. on the same day,

assuring him that the remaining amount of Rs.100/- would

be paid subsequently.

26.According to the prosecution, on the next date, i.e., on

12.01.1999, a police personnel visited the residence of the

complainant and demanded payment of the remaining

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amount of Rs.100/. The complainant was also asked to

produce the documents pertaining to the auto-rickshaw.

The complainant informed the said police personnel that he

would produce the documents along with the remaining

amount on the next day. Thereafter, the appellant No.1

directed the complainant to meet him between 4:00 p.m. to

5:00 p.m. on 13.01.1999, carrying the balance amount of

Rs.100/- along with the documents relating to the auto-

rickshaw. Therefore, the complainant reported the matter to

the ACB, Mehsana, on 13.01.1999, prompting a trap. It is

alleged that during the trap, the appellants-accused were

caught red-handed accepting the amount of bribe.

27.It is an undisputed fact that there is no direct evidence

of the initial demand made by the appellants-convicts.

Albeit, the complainant has made specific allegation in this

regard in the complaint at Exh-16 and has deposed in his

evidence at Exh-15 that despite having paid a sum of

Rs.800/- as a bribe, the police personnel visited his

residence and demanded the remaining bribe amount of

Rs.100/- along with the documents pertaining to his auto-

rickshaw.

28.It is noteworthy that normally such initial demand of

illegal gratification is not made publicly or in presence of

any third person; therefore, there might not be a direct

evidence regarding the same. In such circumstances, if

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during the trap, the appellants-accused had asked for the

same demand and accepted it, then that can prove the

factum of the initial demand made by the appellants-

accused. Therefore, the evidence of these core witnesses,

i.e., the complainant- Bhanuprasad Dhirajlal Oza (PW-1),

the shadow witness- Babubhai Somabhai Prajapati (PW-2),

and the trapping officer- Bharatsinh Mangalsinh Jadeja

(PW-3), are required to be examined carefully. It is needless

to say that the evidence of these core witnesses must reflect

consistent version and must be mutually coherent, reliable

and trustworthy.

29.So far as the elements of demand of the illegal

gratification and the subsequent acceptance are concerned,

the evidence of the prosecution is inconsistent and

contradictory. The testimonies of all the three core

witnesses, i.e., the complainant, the shadow witness, and

the trapping officer are mutually inconsistent, which raises

suspicion towards the version of the prosecution.

30.As narrated hereinabove, the version of the

prosecution is that the accused No.1 had initially demanded

an illegal gratification of Rs.1,500/- from the complainant

and, after negotiation, he agreed to accept Rs.900/-. It is

alleged that the accused No.1 accepted Rs.800/- towards

the said illegal gratification on the same day and, during the

trap proceedings, he demanded the remaining amount of

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bribe of Rs.100/-. When the complainant tendered the

same, the accused No.1 instructed him to hand it over to

the accused No.2. Accordingly, the complainant handed

over the tainted currency notes to the accused No.2, who

accepted the same.

31.If the evidence of the complainant- Bhanuprasad

Dhirajlal Oza (PW-1), is scrutinized in this context, it

emerges that, he, in his deposition at Exh-15, has put forth

a version, which is wholly inconsistent with the

prosecution’s case. He has deposed that when he, along

with the shadow witness, reached the police outpost, the

gate of the outpost was closed. After about 15 to 20

minutes, one police constable arrived at the outpost, and

approximately 15 minutes thereafter, the Jamadar of the

said outpost also came there. However, according to the

complainant, the said Jamadar was not the person, who

had earlier demanded and accepted the illegal gratification

from him.

32.Thereafter, he along with the shadow witness entered

into the police outpost and handed over the documents

pertaining to his auto-rickshaw to the Jamadar present over

there. He has categorically stated that the person, who had

earlier demanded the bribe of Rs.900/- and accepted the

amount of Rs.800/- as illegal gratification, was not present

at the police outpost at that time. Despite this, he himself

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consequently, put the tainted currency notes into the pocket

of another police personnel, who was present there, and

thereafter came out of the police outpost, and passed the

prearranged signal to the members of the raiding party. He

has further unequivocally deposed that the appellant-

accused No.2 did not accept the tainted currency notes at

the instance of the appellant- accused No.1. Even during his

cross-examination by the defence, he admitted that the

appellant-accused No.1 had neither demanded any amount

from him nor had he paid any such amount to him.

33.Upon careful reading of the aforesaid testimony of the

complainant, it clearly indicates that, despite there being no

demand of illegal gratification by anyone, he himself, on his

own, put the tainted currency notes in the pocket of another

police personnel (accused No.2) standing nearby and

thereafter, passed the prearranged signal to the members of

the raiding party. It clearly emerges from the evidence that

the complainant himself has not supported the version of

the prosecution and has turned hostile.

34.In this context, if we look at the evidence of the

shadow witness, Babubhai Somabhai Prajapati (PW-2), he,

in his evidence at Exh-19, has stated that after he and the

complainant (PW-1) entered into the police outpost,

Jamadar Pandit demanded the documents pertaining to the

complainant’s auto-rickshaw. Accordingly, the complainant

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produced and handed over the said documents. Thereafter,

when the complainant took out the tainted currency notes

from his pocket and tendered the same to the Jamadar

Pandit, he refused to accept the amount and instead,

instructed him to hand over the same to the police

personnel sitting beside him. The said police personnel

thereafter accepted the tainted currency notes and kept it in

his pocket, whereupon the complainant came outside of the

police outpost and passed the prearranged signal to the

members of the raiding party.

35. At this juncture, it is significant to note that no such

fact has been stated by the complainant- Bhanuprasad

Dhirajlal Oza (PW-1) in his evidence at Exh-15.

Furthermore, on a careful scrutiny of the evidence of the

shadow witness, it clearly emerges that even during the trap

proceedings, none of the accused persons had made any

demand for the alleged illegal gratification. Thus, on

conjoint reading of the evidence of the complainant (PW-1)

and the shadow witness (PW-2), material discrepancies,

inconsistencies, and contradictions reveal in their respective

versions, particularly with regard to the essential elements

of demand and acceptance of the alleged bribe amount.

36.Now, in this context, if we examine the panchnama at

Exh-20, the entire sequence of the events has been

described in a completely different manner. It reflects from

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the panchnama that upon the appellant-accused No.1

demanding the remaining amount of bribe of Rs.100/-, the

complainant tendered the tainted currency notes,

whereupon the appellant-accused No.1 instructed him to

hand over the same to the police personnel sitting beside

him. However, as discussed hereinabove, neither the

complainant nor the shadow witness had deposed any such

facts in their respective testimonies. Thus, the version

recorded in the panchnama with regard to the demand of

the bribe amount does not find corroboration from the

evidence of the aforesaid two star witnesses.

37.Now, in the same context, if we examine the evidence

of the Police Inspector - Bharatsinh Mangalsinh Jadeja (PW-

3), who laid the trap, he, in his testimony at Exh.27, has

affirmed and reiterated the very same fact, as narrated in

details in the panchnama at Exh-20.

38.A careful evaluation of the foregoing evidence clearly

establishes that the evidence of the complainant -

Bhanuprasad Dhirajlal Oza (PW-1), the shadow witness-

Babubhai Somabhai Prajapati (PW-2) and the trapping

officer- Bharatsinh Jadeja (PW-3) regarding demand and

acceptance of the alleged bribe amount is not consistent

with each other. Furthermore, the sequence of events as

recorded in the panchnama at Exh.20 are entirely different

from the facts stated by all these witnesses.

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39.As noted earlier, in such case where the fate of the

accused depends only on the testimonies of the

complainant, the shadow witness and the trapping officer, it

is essential that their evidence should be consistent, reliable

and of sterling quality. Therefore, the inconsistencies and

contradictions in the testimonies of these witnesses cannot

be overlooked.

40.For the foregoing discussion, it clearly established that

the evidence of the core witnesses is inconsistent and

contradictory with each other as well as with the case of the

prosecution.

41.The Supreme Court, in the case of Mallappa vs. State

Of Karnataka, reported in (2024) 3 SCC 544, has held

thus :-

“26.It may be noted that the possibility of two

views in a criminal case is not an extraordinary

phenomenon. The two-views theory has been

judicially recognized by the Courts and it comes

into play when the appreciation of evidence results

into two equally plausible views. However, the

controversy is to be resolved in favour of the

accused. For, the very existence of an equally

plausible view in favour of innocence of the

accused is in itself a reasonable doubt in the case

of the prosecution. Moreover, it reinforces the

presumption of innocence. And therefore, when

two views are possible, following the one in favour

of innocence of the accused is the safest course of

action….”

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42.In view of the aforesaid as well as considering the

discrepancies in the evidence of all three core witnesses

regarding the acceptance of illegal gratification, when two

views are possible, certainly the one in favour of innocence

of the accused, must be considered.

43.Thus, on examination of the entire evidence, this Court

is of the considered opinion that the prosecution has failed

to establish beyond reasonable doubt, the essential

elements of demand of bribe and acceptance of illegal

gratification. The law in this regard is well settled that for an

offence to be constituted under the Prevention of Corruption

Act, the proof of demand and acceptance of illegal

gratification by a public servant, as a fact in issue by the

prosecution, is a sine qua non in order to establish the guilt

of the accused. A mere recovery of the tainted currency

notes is not sufficient to convict the accused if the core

evidence in the case is unreliable, unless there is a proof

that the money was voluntarily accepted as a bribe.

44.Since the prosecution has failed in establishing the

foundational fact by leading cogent and convincing evidence

regarding the aspects of demand and its subsequent

acceptance, the question of presumption under Section 20

of the Prevention of Corruption Act does not arise in the

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present case.

45.In view of the aforesaid discussion and re-appreciation

of the entire evidence on record, this Court is of the

considered opinion that the prosecution has not proved the

case beyond reasonable doubt by leading cogent and

convincing evidence and the trial court has not appreciated

the entire evidence in its true perspective. Further, when

the essential elements of demand and its subsequent

acceptance, i.e. the fact in issue, has not been proved

beyond reasonable doubt, mere recovery of the tainted

currency notes cannot constitute the offence punishable

under Section 7 of the Prevention of Corruption Act since it

is not proved beyond reasonable doubt that the accused had

voluntarily accepted the amount knowing it to be the illegal

gratification. Therefore, the appellant-accused cannot be

held guilty by taking aid of the presumption under Section

20 of the Prevention of Corruption Act, more particularly,

when the basis and the foundation of the prosecution case,

i.e. the demand and its acceptance, has not been proved.

46.Keeping in mind the cardinal principles of the criminal

jurisprudence as stated herein above and considering the

evidence on record, this Court is of the considered opinion

that in the instant case, it cannot be said that the

prosecution has proved the case beyond reasonable doubt

by leading cogent and convincing evidence and, therefore,

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the benefit of doubt goes in favour of the appellants-

accused. Thus, it appears that the trial court has made an

error while convicting the present appellants-accused for

the alleged offence and, therefore, interference by this Court

is warranted.

47.In the result, the appeal preferred by the appellants-

convicts succeed, and the same is hereby allowed. The

impugned judgment and order of conviction and sentence

dated 27.05.2005 passed by the learned Special Judge, Fast

Track Court No.1, Patan, in Special (ACB) Case No.6 of 2002

(Old Special ACB Case No.10 of 1999), is hereby quashed

and set-aside. The appellants-accused are set free from all

the charges.

48.Bail bonds stand cancelled. The amount of fine, if any,

paid shall be refunded to the appellants-accused. Records

and proceedings be returned to the trial court forthwith.

sd/-

(VIMAL K. VYAS, J)

DIPTI PATEL

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