Gujarat High Court
Bharatbhai Ambashanker Joshi vs State Of Gujarat on 1 April, 2026
NEUTRAL CITATION
R/CR.A/2578/2005 JUDGMENT DATED: 01/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2578 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes
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BHARATBHAI AMBASHANKER JOSHI
Versus
STATE OF GUJARAT
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Appearance:
VISHAL K ANANDJIWALA(7798) for the Appellant(s) No. 1
MS. C.M. SHAH, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 01/04/2026
ORAL JUDGMENT
1. The appeal is filed by the appellant – original accused
under Section 374 of the Code of Criminal Procedure, 1973
against the judgement and order of conviction passed by the
learned Presiding Officer, Fast Track Court No. 2,
Bhavnagar (hereinafter referred to as “the learned Trial
Court”) in Special (ACB) Case No. 3/2004 on 28.11.2005,
whereby, the learned Trial Court has convicted the
appellant for the offence punishable under Sections 7, 13(1)
(d) read with Section 13(2) of the Prevention of Corruption
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Act, 1988 (hereinafter referred to as “the PC Act” for short).
The appellant was sentenced to rigorous imprisonment for
three years and fine of Rs. 5000/- and in default,
imprisonment for six months for the offence under Section
7, 13(1)(d) and 13(2) of the PC Act.
1.1 The appellant is hereinafter referred to as “the
accused” as he 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:
2.1 The accused was working as a Helper in the GEB,
Vartej Subdivision and was a public servant. The
complainant – Ratilal Naranbhai Sonani (Patel) was a
resident of village Tarsamiya, Taluka & District, Bhavnagar
and had his residential house in the Tarsamiya Main Bazaar
near the primary school and 15 to 20 years prior to filing of
the complaint, he had taken an electricity connection which
was provided from the pole behind his house. The plot near
the electricity pole belonged to one Virjibhai Thakarshibhai
and at that time the electricity connection was given on
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condition that the electricity wires would be transferred to
the pole near his house. About four to five years prior to the
filing of the complaint, an electricity pole was erected in
front of the house of the complainant on the road and
Virjibhai Thakarshibhai had requested the complainant to
get the wires transferred from the pole behind his house to
the pole in the front of the house. Two to three days after
his conversation with Virjibhai, the complainant met the
accused who told him that he would have to incur an
expenditure of about Rs. 2000/- for transferring the wires
but he would do the entire procedure if an amount of Rs.
500/- as illegal gratification was given to him. The accused
also told him that if he gave the application, his work would
not be done for three to four years and on a number of
occasions, Virjibhai Thakarshibhai had requested the
complainant to get the wires transferred. On the Monday
prior to filing of the complaint, the accused came to the
house of the complainant and asked whether he wanted to
get the wires transferred and told the complainant that he
would do it in a couple of days. On 09.03.2004, the accused
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called the complainant from his residential telephone and
told him that he would come on 10.03.2004 to Tarsamiya
village and bring the necessary instruments to transfer the
wires and to stay at home. On 10.03.2004, at around 08.00
am, the accused came to the house of the complainant with
the necessary instruments and started the work of
transferring the wires and asked for the amount of Rs.
500/- but the complainant told him that he was going to his
factory and would return within two and a half hours. The
accused told him that after transferring the wires, he would
go to Vartej for his work and if he did not return before
11.00 am, he could come to his house between 08.00 pm to
09.00 pm after inquiring on the telephone and to give the
amount of Rs. 500/- to him at his home. The complainant
did not want to pay the amount of illegal gratification and
went to the ACB Police Station, Bhavnagar and the
complaint of the complainant was recorded on 10.03.2004
at 11.00 am.
2.2 The Trap Laying Officer called the panch witnesses and
the complainant gave five currency notes of the
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denomination of Rs. 100/- each. Police Constable –
Praveenbhai Bharu, under the instructions of the Trap
Laying Officer, conducted the demonstration of
phenolphthalein powder and solution of sodium carbonate
and smeared all the currency notes with phenolphthalein
powder after explaining the characteristics of the same to
the complainant and the panch witnesses. All the currency
notes were smeared with phenolphthalein powder and
folded and placed in the right pocket of the open shirt of the
complainant. The necessary instructions to all concerned
were given and the Panchnama Part-I was drawn. As
decided the complainant and panch witness went on scooter
no. GJ-4-B-7026 of the complainant and the other panch
witness and the members of the raiding party went in
government vehicle no. GJ-1-G-2383 and left the ACB Office
around 20.15 hours and went from Kaliabid Dilbahar Tanki
to Sagwadi Kaliabid area and the complainant halted the
scooter. The complainant and the panch no. 1 went and
called the niece of the complainant who came with a
suitcase and a bag and sat on the scooter as a pillion rider
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and the panch no. 1 sat in the government vehicle. They
went from Sanskar Mandal Crossroads to Sardarnagar
Circle and came to the Pachaswariya Area and the
complainant halted his scooter and the government vehicle
was also halted. The panch no. 1 alighted from the vehicle
and sat on the scooter behind the niece of the complainant
and the complainant drove the scooter and halted on the
main road opposite Bala Hanuman Temple. The
complainant and the panch no. 1 alighted from the scooter
and went to the society where the house of the accused was
surrounded by a siux feet high compound wall. The main
entrance to the house of the accused was open and the
complainant went to the compound wall and stood on the
mound of stones outside the compound wall and called the
accused. The accused came out of the house to the inside
portion of the compound wall and asked the complainant to
come inside but the complainant stated that he had guests
and that his niece was standing near the scooter and the
complainant and the panch witness went near the
compound wall. They were standing outside of the
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compound wall and the complainant had a conversation
with the accused and the accused demanded for the amount
of illegal gratification and the complainant took the tainted
currency notes with his left hand from his right pocket of
the open shirt and gave it to the accused who accepted it
with his right hand and placed it in the right pocket of his
trousers. The complainant gave the predetermined signal
and the members of the raiding party came and the accused
was caught red-handed. After the necessary procedure
inside the house of the accused, the Panchnama Part-II was
drawn and the tainted currency notes were recovered from
the pocket of the trousers of the accused. The offence was
registered at the ACB Police Station, Bhavnagar under
Section 7, 13(1)(d) and 13(2) of the PC Act at Bhavnagar
ACB Police Station, C.R. No. 2 of 2004.
2.3 The Investigating Officer recorded the statements of
the connected witnesses and seized the necessary
documents and after completion of investigation, a charge-
sheet came to be filed before the Sessions Court, Bhavnagar
and the case was registered as Special (ACB) Case No.
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3/2004.
2.4 The accused was duly served with the summons and
the accused appeared before the learned Trial Court and it
was verified whether the copies of all the police papers were
provided to the accused as per the provisions of Section 207
of the Code. A charge at Exh. 6 was framed against the
accused and the statement of the accused was recorded at
Exh. 7 wherein, the accused denied the contents of the
charge and the entire evidence of the prosecution was taken
on record.
2.5 The prosecution examined 5 witnesses and produced 9
documentary evidences on record in support of their case
and after the learned Additional Public Prosecutor filed the
closing pursis, the further statement of the accused under
Section 313 of the Code of Criminal Procedure, 1973 was
recorded. The accused denied the evidence and refused to
step into the witness box or lead any evidence and stated
that a false case has been filed against him. After the
arguments of the learned APP and learned advocate for the
accused were heard, the learned Trial Court, by the
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impugned judgment and order dated 28.11.2005, was
pleased to find the accused guilty and sentence him to
rigorous imprisonment for three years and fine of Rs.
5000/- and in default, imprisonment for six months for the
offence under Section 7, 13(1)(d) and 13(2) of the PC Act.
3. Being aggrieved and dissatisfied with the judgment
and order of conviction, the appellant has filed the present
appeal mainly stating that the learned Trial Court has failed
to appreciate that the three important aspects of demand,
acceptance and recovery have not been proved by the
prosecution beyond reasonable doubts and has erroneously
convicted the appellant. The learned Trial Court has failed
to appreciate that as per the case of the prosecution on
09.03.2004, the complainant was told by the appellant that
if the complainant gives him Rs. 500/-, he will do the
needful and it was decided to do the work on the next day.
The initial demand is not proved and the complainant has
fabricated a story of demand of Rs. 500/- to implicate the
appellant for reasons best known to him. The learned Trial
Court has failed to appreciate that the Trap Laying Officer
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has stated that the complainant did not meet him
personally on 09.03.2004 but he was instructed on the
telephone. This story is contrary to the evidence given by
the complainant himself and the story of demand put
forward by the prosecution is not proved beyond reasonable
doubts. The learned Trial Court has also failed to appreciate
the acceptance and as per the evidence of the panch
witness, the accused had accepted the amount of Rs. 500/-
in his presence but there is contradiction in the evidence of
the complainant and the panch witness regarding the
presence of the panch at the place and also the place where
the amount was accepted. The panch witness was not
present at the time of the alleged acceptance as he was
standing at some distance with the niece of the complainant
and he has not heard the conversation between the
complainant and the accused and hence, the acceptance is
also not proved beyond reasonable doubts. As far as the
recovery is concerned, it is the case of the prosecution that
after accepting the money, when the appellant was
apprehended, he was taken into his house and at that time
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he rubbed his hands. The witnesses have stated that marks
of phenolphthalein powder were found on both the hands of
the appellant. It is the case of the prosecution that the
appellant had accepted the money with his right hand and
put the amount in the right pocket of his trousers but the
evidence is contradictory in nature. As far as the tainted
currency notes are concerned, the panch witness has stated
that the amount was placed in an envelope but it was not
sealed and is not aware whether any experiment was
conducted on the trousers and whether the same is
mentioned in the Panchnama or not. The story that the
complainant rubbed his hands is not mentioned in the
Panchnama and it is admitted by the Trap Laying Officer
that the Panchnama does not mention that the appellant
had rubbed his hands together. Moreover, the Trap Laying
Officer has also admitted that the muddamal currency notes
were not sealed and not sent to the FSL and there is no
trustworthy evidence that the recovery was made from the
appellant. The learned Trial Court has failed to appreciate
this aspect and the impugned judgment in order of
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conviction passed by the learned Trial Court is illegal,
erroneous and unwarranted on the facts and circumstances
of the case and is required to be quashed and set aside and
the appellant be acquitted from the offences.
4. Heard learned advocate Mr. Vishal Anandjiwala for the
appellant and learned APP Ms. C.M. Shah for the
respondent State. Perused the impugned judgement and
order of acquittal and have reappreciated the entire
evidence of the prosecution on record of the case.
5. Learned advocate Mr. Vishal K. Anandjiwala for the
appellant has taken this court through the entire evidence
of the prosecution and has submitted that there is no pre-
verification of initial demand before the preparation of a pre-
trap Panchnama. There is no averment that the
complainant had preferred any application before the
Gujarat Electricity Board for legally carrying out the
alteration or change in the electricity line of his residence.
There is no evidence on record that any prescribed form was
filled by the complainant for shifting of the electric wires
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and the alteration in the electric connection of the
complainant’s residence would come under the ambit of
unauthorized work and not an official act nor in the exercise
of his official functions. As far as the entire evidence of the
prosecution is concerned, there is no material whatsoever to
suggest that the appellant had carried out any alteration at
the residence of the complainant and neither it is a case
that the appellant was assigned any work from the Gujarat
Electricity Board Office. There is no negotiation or
unwillingness shown by the complainant and even for
procuring materials to carry out the modification in the
electricity connection, the appellant would be required to
purchase extra wires, latches, etc. and there is no prior part
payment of any money before lodging the complaint towards
purchase of materials to the appellant. The prosecution
story is silent on this aspect and this very element
contradicts the entire prosecution story as per the
incriminating conversation of demand at the time of the
trap. The prosecution has not produced any evidence as to
whether any material was purchased by the appellant and
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Virjibhai Thakarshibhai has not been examined as a witness
before the learned Trial Court. As per the allegation, the
appellant was carrying out the work at the residence of the
complainant and in the meanwhile, the complainant under
some pretext of going to the factory, left on his motorcycle,
but no evidence whatsoever to this effect that the appellant
had undertaken the work of shifting of the electricity lines
has been proved by the evidence of any person. The conduct
of the complainant is highly suspicious as he himself has
not preferred any application for shifting or rerouting or
rewiring the residential electricity connection from one pole
to another, rather straightaway as per his say, had
approached the appellant. The appellant had informed him
about the due process required to be followed but instead
the appellant has been implicated in a false case. The
appellant had allegedly took the measurement of the wiring
that was required to be done which is about 145 meters and
an estimate of about Rs. 2000/- was given for bringing the
material and over this if Rs. 500/- was demanded as illegal
gratification for giving the services of rewiring, a total of Rs.
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2500/- would have to be incurred. There is no evidence that
the appellant had carried out the work at the residence of
the complainant on 10.03.2004. From the alleged
conversation between the complainant and the accused, it is
stated that the new electricity connection would cost only
about Rs. 500/- which is inconsistent with the total
expenses of Rs. 2500/- as per the FIR. In fact, it appears
that the complainant had come with a malicious intent and
as a counterblast strategy has come up with a false case to
shield out of any action or penalty from the Gujarat
Electricity Board. Learned advocate further submits that it
is not the case of the prosecution that the appellant
accepted the alleged bribe amount and counted it with both
hands which would have resulted in having traces of
phenolphthalein powder on both the hands leading to the
pink coloration in the hand wash of both hands. The
Panchnama does not state that the appellant had rubbed
both his hands together at the time of the trap but the Trap
Laying Officer has come up with the story that the appellant
had rubbed his hands together. The version itself is a
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fabricated and bald story put forward by the prosecution
and the evidence of the complainant is not supported by the
Trap Panchnama. The panch no. 1 also contradicts the
version of the complainant and the panch witness has
categorically stated that the filter paper which was rubbed
over the trap money was not recovered in his presence
during the Trap Panchnama and is not aware about the
hand wash of the accused. The panch witness has admitted
that he has not described the rubbing of hands by the
appellant in the Panchnama and has affirmed that before he
was examined before the learned Trial Court, he was
exhaustively trained by giving the Panchnama for reading
multiple times at the ACB Office. Learned advocate submits
that the learned Trial Court has erroneously framed charge
as well as convicted the appellant for the offence under
Section 12 of the PC Act as Section 12 prescribes
punishment for abetment of offences defined in Section 7 or
Section 11 and in the present case as there is only a sole
accused there is no question of abetment of any offence.
There is no pre as well as post verification of the electrical
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work, if any, carried out by the appellant at the residence of
the accused of the residence of the complainant and there is
no witness or document produced to ratify the case of the
prosecution that it was only the appellant who carried out
the electrical work at the residence of the complainant. The
trap was carried out at the residence of the appellant and it
is a very improbable story that the complainant himself had
come to the residence of the appellant to handover the trap
money. The appellant, has in the further statement under
Section 313 of the Code of Criminal Procedure, 1973
narrated and raised a plausible defense but the same has
not been considered by the learned Trial Court and the case
of the prosecution remains unproved and unsupported by
credible evidence and the prosecution has failed to establish
the case beyond reasonable doubts and hence, learned
advocate submits that the appeal may be allowed and the
appellant be acquitted all the charges against him.
6. Learned APP Ms. C.M. Shah for the respondent state
has submitted that in the entire evidence of the prosecution,
the ingredients of demand, acceptance and recovery have
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been proved beyond reasonable doubts and the prosecution
has examined five witnesses and produced nine
documentary evidences and all the evidences has been
properly appreciated by the learned Trial Court and the
impugned judgment and order of conviction has been
passed and no interference is required and hence, the
appeal of the appellant may be rejected.
7. Before appreciating the evidence of the prosecution on
record, it is necessary to reiterate the cardinal principles of
jurisprudence as settled by the Apex Court in a catena of
decisions and the first cardinal principle is that the
prosecution is required to prove their case beyond
reasonable doubts. The prosecution cannot take any benefit
of the weaknesses of the defense. The second cardinal
principle is that in a criminal trial, the accused is presumed
to be innocent until he is proved guilty by the evidence
adduced by the prosecution on record beyond reasonable
doubts and the third cardinal principle is that the onus of
burden never shifts from the prosecution.
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8. As far as conviction appeals are concerned, the Apex
Court in Goverdhan & Anr. Vs. State of Chattisgarh
reported in 2025 INSC 47 has observed in para 18 to 26 as
under:
18. In case of a crime committed, upon completion of investigation
by the investigation agency, the accused are brought before the
court to face trial. Under our criminal jurisprudence, the court
ordinarily is not privy to the evidence collected during the
investigation by the investigation agency. After completion of the
investigation, what is brought before the trial court is an array of
evidence, both documentary and oral, collected by the
investigating agency against the accused which are required to
be marshalled and analyzed by the court to arrive at appropriate
conclusions. The prosecution seeks to recreate the incident of
crime before the court in sequence, based on the evidence so
collected, linking the accused with the commission of crime. Such
recreation of crime by the prosecution before the court is akin to
putting the evidence together as in a jigsaw puzzle whereby all
the relevant pieces of evidence are put together to complete the
picture of the crime. The prime responsibility of the court is to see
whether this jigsaw puzzle has been properly placed by the
prosecution from which a clear picture emerges as to the
happening of the incident with the assigned role of the accused
as part of the aforesaid jigsaw puzzle. Only, thereafter, the role of
the accused in perpetrating the offence can be properly ascribed
and proved and accordingly, criminal liability fastened on the
accused.
19. As per Section 3 of the Indian Evidence Act, 1872, a fact can
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before it, the court either believes it to exist or considers its
existence so probable that a prudent man ought, under the
circumstances of the particular case, to act up on the supposition
that it exists. The court undertakes this exercise of examining
whether the facts alleged including the particular criminal acts
attributed to the accused are proved or not.
20. It is also to be noted that the law does not contemplate
stitching the pieces of evidence in a watertight manner, for the
standard of proof in a criminal case is not proof beyond all doubts
but only beyond reasonable doubt. In other words, if a clear
picture emerges on piecing together all evidence which indicates
beyond reasonable doubt of the role played by the accused in the
perpetration of the crime, the court holds the accused criminally
liable and punishes them under the provisions of the penal code,
in contradistinction to the requirement of proof based on the
preponderance of probabilities as in case of civil proceedings.
21. It will be relevant to discuss, at this juncture, what is meant
by “reasonable doubt”. It means that such doubt must be free
from suppositional speculation. It must not be the result of minute
emotional detailing, and the doubt must be actual and
substantial and not merely vague apprehension. A reasonable
doubt is not an imaginary, trivial or a merely possible doubt, but
a fair doubt based upon reason and common sense as observed
in Ramakant Rai v. Madan Rai, (2003) 12 SCC 395 wherein
it was observed as under :
“24. Doubts would be called reasonable if they are free from
a zest for abstract speculation. Law cannot afford any
favourite other than the truth. To constitute reasonable
doubt, it must be free from an overly emotional response.
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of the accused persons arising from the evidence, or from the
lack of it, as opposed to mere vague apprehensions. A
reasonable doubt is not an imaginary, trivial or a merely
possible doubt; but a fair doubt based upon reason and
common sense. It must grow out of the evidence in the case.”
22. While applying this principle of proof beyond reasonable
doubt the Court has to undertake a candid consideration of all
the evidence in a fair and reasonable manner as observed by this
Court in State of Haryana v. Bhagirath (1999) 5 SCC 96 as
follows:
“8. It is nearly impossible in any criminal trial to prove all the
elements with a scientific precision. A criminal court could be
convinced of the guilt only beyond the range of a reasonable
doubt. Of course, the expression ‘reasonable doubt’ is
incapable of definition. Modern thinking is in favour of the
view that proof beyond a reasonable doubt is the same as
proof which affords moral certainty to the Judge.
9. Francis Wharton, a celebrated writer on criminal law in
the United States has quoted from judicial pronouncements
in his book Wharton’s Criminal Evidence (at p. 31, Vol. 1 of
the 12th Edn.) as follows: ‘It is difficult to define the phrase
“reasonable doubt”. However, in all criminal cases a careful
explanation of the term ought to be given. A definition often
quoted or followed is that given by Chief Justice Shaw in the
Webster case [Commonwealth v. Webster, 5 Cush 295 : 59
Mass 295 (1850)] . He says:”It is not mere possible doubt,
because everything relating to human affairs and depending
upon moral evidence is open to some possible or imaginary
doubt. It is that state of the case which, after the entire
comparison and consideration of all the evidence, leaves the
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say they feel an abiding conviction to a moral certainty of the
truth of the charge.”‘
10. In the treatise The Law of Criminal Evidence authored by
H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.)
thus: ‘The doubt to be reasonable must be such a one as an
honest, sensible and fair-minded man might, with reason,
entertain consistent with a conscientious desire to ascertain
the truth. An honestly entertained doubt of guilt is a
reasonable doubt. A vague conjecture or an inference of the
possibility of the innocence of the accused is not a
reasonable doubt. A reasonable doubt is one which arises
from a consideration of all the evidence in a fair and
reasonable way. There must be a candid consideration of all
the evidence and if, after this candid consideration is had by
the jurors, there remains in the minds a conviction of the
guilt of the accused, then there is no room for a reasonable
doubt.’
23. The concept of reasonable doubt has to be also understood in
the Indian context, keeping in mind the social reality and this
principle cannot be stretched beyond a reasonable limit to avoid
generating a cynical view of law as observed by this Court in
Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2
SCC 793 as follows:
“6. Even at this stage we may remind ourselves of a
necessary social perspective in criminal cases which suffers
from insufficient forensic appreciation. The dangers of
exaggerated devotion to the rule of benefit of doubt at the
expense of social defence and to the soothing sentiment that
all acquittals are always good regardless of justice to the
victim and the community, demand especial emphasis in the
contemporary context of escalating crime and escape. ThePage 22 of 46
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judicial instrument has a public accountability. The
cherished principles or golden thread of proof beyond
reasonable doubt which runs through the web of our law
should not be stretched morbidly to embrace every hunch,
hesitancy and degree of doubt. The excessive solicitude
reflected in the attitude that a thousand guilty men may go
but one innocent martyr shall not suffer is a false dilemma.
Only reasonable doubts belong to the accused. Otherwise
any practical system of justice will then break down and
lose credibility with the community. The evil of acquitting a
guilty person light heartedly as a learned Author [ Glanville
Williams in ‘Proof of Guilt’.] has sapiently observed, goes
much beyond the simple fact that just one guilty person has
gone unpunished. If unmerited acquittals become general,
they tend to lead to a cynical disregard of the law, and this
in turn leads to a public demand for harsher legal
presumptions against indicted “persons” and more severe
punishment of those who are found guilty. Thus, too frequent
acquittals of the guilty may lead to a ferocious penal law,
eventually eroding the judicial protection of the guiltless. For
all these reasons it is true to say, with Viscount Simon, that
“a miscarriage of justice may arise from the acquittal of the
guilty no less than from the conviction of the innocent ….” In
short, our jurisprudential enthusiasm for presumed
innocence must be moderated by the pragmatic need to
make criminal justice potent and realistic. A balance has to
be struck between chasing chance possibilities as good
enough to set the delinquent free and chopping the logic of
preponderant probability to punish marginal innocents. We
have adopted these cautions in analysing the evidence and
appraising the soundness of the contrary conclusionsPage 23 of 46
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reached by the courts below. Certainly, in the last analysis
reasonable doubts must operate to the advantage of the
appellant. In India the law has been laid down on these
lines long ago.”
24. Further, what would be the standard degree of “proof” which
would be required in any particular case was also discussed in
the aforesaid case of Ramakant Rai (supra) in the following
words:
“23. A person has, no doubt, a profound right not to be
convicted of an offence which is not established by the
evidential standard of proof beyond reasonable doubt.
Though this standard is a higher standard, there is,
however, no absolute standard. What degree of probability
amounts to “proof” is an exercise particular to each case.
Referring to (sic) of probability amounts to “proof” is an
exercise, the interdependence of evidence and the
confirmation of one piece of evidence by another, as learned
author says : [see The Mathematics of Proof II : Glanville
Williams, Criminal Law Review, 1979, by Sweet and
Maxwell, p. 340 (342)]
“The simple multiplication rule does not apply if the
separate pieces of evidence are dependent. Two events
are dependent when they tend to occur together, and
the evidence of such events may also be said to be
dependent. In a criminal case, different pieces of
evidence directed to establishing that the defendant did
the prohibited act with the specified state of mind are
generally dependent. A juror may feel doubt whether to
credit an alleged confession, and doubt whether to infer
guilt from the fact that the defendant fled from justice.
But since it is generally guilty rather than innocentPage 24 of 46
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people who make confessions, and guilty rather than
innocent people who run away, the two doubts are not
to be multiplied together. The one piece of evidence may
confirm the other.”
24. ……………….. ………………..
25. The concepts of probability, and the degrees of it, cannot
obviously be expressed in terms of units to be
mathematically enumerated as to how many of such units
constitute proof beyond reasonable doubt. There is an
unmistakable subjective element in the evaluation of the
degrees of probability and the quantum of proof. Forensic
probability must, in the last analysis, rest on a robust
common sense and, ultimately, on the trained intuitions of
the judge. While the protection given by the criminal process
to the accused persons is not to be eroded, at the same time,
uninformed legitimisation of trivialities would make a
mockery of the administration of criminal justice. This
position was illuminatingly stated by Venkatachaliah, J. (as
His Lordship then was) in State of U.P. v. Krishna Gopal
[(1988) 4 SCC 302 : 1988 SCC (Cri) 928 : AIR 1988 SC
2154].”
25. At this point, it may be also relevant to mention an
observation made by Lord Denning, J. in Miller v. Miller of
Pensions (1947) 2 All ER 372, 373 H:
“That degree is well settled. It need not reach certainty, but it
must carry a high degree of probability. Proof beyond
reasonable doubt does not mean proof beyond the shadow of
a doubt. The law would fail to protect the community if it
admitted fanciful possibilities to deflect the court of
justice….”
26. Thus, the requirement of law in criminal trials is not to prove
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the case beyond all doubt but beyond reasonable doubt and such
doubt cannot be imaginary, fanciful, trivial or merely a possible
doubt but a fair doubt based on reason and common sense.
Hence, in the present case, if the allegations against the
appellants are held proved beyond reasonable doubt, certainly
conviction cannot be said to be illegal.
9. With regard to the cases under the PC Act, the Apex
Court, in the case of Aman Bhatia Vs. State (GNCT of
Delhi) reported in 2025 INSC 618 has observed in Para
Nos. 51 to 54 and 63 to 65 as under:
51. It is well settled that mere recovery of tainted money, by itself,
is insufficient to establish the charge against an accused under the
PC Act. To sustain a conviction under Sections 7 and 13(1)(d) of the
Act respectively, it must be proved beyond reasonable doubts that
the public servant voluntarily accepted the money, knowing it to be
a bribe. The courts have consistently reiterated that the demand for
a bribe is a sine qua non for establishing an offence under Section
7 of the PC Act.
52. A five-Judge Bench of this Court in Neeraj Dutta v. State
(Government of NCT of Delhi), reported in (2023) 4 SCC 731,
categorically held that an offer by bribe-giver and the demand by
the public servant have to be proved by the prosecution as a fact in
issue for conviction under Sections 7 and 13(1)(d)(i) and (ii) of the
PC Act. Mere acceptance of illegal gratification without proof of offer
by bribe-giver and demand by the public servant would not make
an offence under Sections 7 and 13(1)(d)(i) and (ii) of the PC
Act. The relevant observations are reproduced hereinbelow:
“88.4. (d) In order to prove the fact in issue, namely, the
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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 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 Sections 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 Sections 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 Sections
13(1)(d)(i) and (ii) of the Act.”
53. It was further explained by this Court in P. Satyanarayana
Murthyv. State of A.P., reported in (2015) 10 SCC 152, as follows:”
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23. The proof of demand of illegal gratification, thus, is the
gravamen of the offence under Sections 7 and13(1)(d)(i) and
(ii) of the Act and in absence thereof,unmistakably the charge
therefor, would fail. Mere acceptance of any amount allegedly
by way of illegal gratification or recovery thereof, dehors the
proof of demand, ipso facto, would thus not be sufficient to
bring home the charge under these two sections of the Act. As
a corollary, failure of the prosecution to prove the demand for
illegal gratification would be fatal and mere recovery of the
amount from the person accused of the offence under Section
7 or 13 of the Act would not entail his conviction thereunder.”
54. From the above exposition of law, it may be safely concluded
that mere possession and recovery of tainted currency notes from
a public servant, in the absence of proof of demand, is not
sufficient to establish an offence under Sections 7 and 13(1)(d) of
the PC Act respectively. Consequently, without evidence of
demand for illegal gratification, it cannot be said that the public
servant used corrupt or illegal means, or abused his position, to
obtain any valuable thing or pecuniary advantage in terms of
Section 13(1)(d) of the PC Act.
55.xxxxx
56.xxxxx
57.xxxxx
58.xxxxx
59.xxxxx
60.xxxxx
61.xxxxx
62.xxxxx
v. Presumption under Section 20 of the PC Act
63. Insofar as the presumption under Section 20 of the PC Act is
concerned, such presumption is drawn only qua the offence under
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Sections 7 and 11 respectively and not qua the offence under
Section13(1)(d) of the PC Act. The presumption is contingent upon
the proof of acceptance of illegal gratification to the effect that the
gratification was demanded and accepted as a motive or reward
as contemplated under Section 7 of the PC Act. Such proof of
acceptance can follow only when the demand is proved.
64. In that case, the prosecution evidence alone cannot be
considered for the purpose of coming to the conclusion. The
evidence led by the prosecution and, the suggestions made by the
defence witnesses, if any, are also required to be considered. It is
then to be seen as to whether the total effect of the entire evidence
led before the court is of a nature by which the only conclusion
possible was that the public servant accepted the amount. If the
answer is in affirmative, then alone it can be held that the
prosecution established the case beyond reasonable doubt.
65. Undoubtedly, the presumption under Section 20 arises once it
is established that the public servant accepted the gratification.
However, in determining whether such acceptance occurred, the
totality of the evidence led at the trial must be appreciated. The
evidence led by the prosecution, the suggestions made by the
defence witnesses, if any, the entire record is required to be
considered. Only if the cumulative effect of all the evidence is such
that the sole possible conclusion is that the public servant
accepted the gratification can it be said that the prosecution has
established its case beyond reasonable doubt.
10. As per the settled principles of law in conviction
appeals and as observed by the Hon’ble Apex Court in the
case of Govardhan (supra), when the appellate Court finds
that the findings of fact was based on a wholesome
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erroneous approach and the very basis of reasoning was
not in the right perspective and the intrinsic merit of the
evidence of the witness who was not considered and the
trial was perversely disposed of permitting manifest errors
and glaring infirmities, the appellate Court can interfere
and exercise the powers in a conviction appeal and a
finding on merits, after considering and meticulously
dissecting the evidence on record, is imperative. As far as
the conviction under the PC Act is concerned it is settled by
the Apex Court that the prosecution has to prove the case
beyond reasonable doubts and proof of demand is a sine
qua non for an offence under the PC Act. Only if the
demand is proved beyond reasonable doubts with cogent
and convincing evidence, the prosecution would benefit by
the presumption under Section 20 of the PC Act and the
conviction would be sustained.
11. In light of the above settled principles of law the
evidence on record is minutely dissected and the
prosecution has examined PW1 – Ratilal Narandas Sonani
at Exh. 14 who is the complainant who has narrated the
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facts as stated in his complaint which is produced at Exh.
15. The complainant has stated that on 09.03.2004 in the
afternoon, he had spoken to the accused from his
telephone and had told him that he would remain present
when the accused would come for transferring the wires
and the accused had told him that he would come on the
next day at 08.00 am after bringing the necessary material
for changing of the wires. He had contacted the ACB Office
on the same day and was made to understand to contact
the ACB Office after a proper amount and place was
decided and was advised to come to the ACB Office in-
person. The witness has stated that on 10.03.2004, the
accused came to his residence along with wires and other
equipment and started the work and inquired whether he
had made arrangements for the Rs. 500/- and at that time
on the pretext of going to the factory the complainant went
to the ACB Office and filed the complaint. The witness has
stated that he was instructed to bring the amount of illegal
gratification after 06.00 pm and accordingly, he had gone
to the ACB Office for the arrangement of the trap. The
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procedure for the trap was done and as far as the trap is
concerned, the complainant has stated that he had gone to
Kaliyabid to take his niece and had thereafter gone on his
scooter to the house of the accused. He had parked his
scooter in front of the compound wall on the road and
asked his niece to wait there and went to the compound
wall and stood on the mound of stones and called the
accused. The door of the house of the accused was open
and the accused called him in the house but the
complainant told him that he had a guest and some
luggage and called him outside and the accused came
outside at the gate of the compound wall. The complainant
told him that the lines were changed and the accused
demanded for the amount that was decided. The
complainant took the tainted currency notes with his left
hand from his right shirt pocket and counted the amount
with both his hands and gave it to the accused who
accepted it with his right hand and placed it in the right
pocket of his trousers. The predetermined signal was given
and the Trap Laying Officer came and while they were going
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to the house of the accused, the accused rubbed both his
hands together and the test was done in the house of the
accused. The tainted currency notes were recovered and
the necessary Panchnama was drawn. In the cross
examination by the learned advocate for the accused, the
witness has stated that Virjibhai was insisting for the past
one and half month for shifting of the wires and before that
he did not tell him for changing of the wires. He did not go
to the G.E.B Office regarding shifting of the wire and did
not inquire from any person about the same. He had
spoken to the accused on the 9th and on the 10th, the
accused came with all the material for shifting of the wire
and did not demand for any amount before starting the
work. After the accused had started the work at his house,
he had left his house but did not go to the factory and went
to the ACB Office at Bhavnagar. He did not contact the
accused after that and did not inquire whether the wires
were shifted by making a telephone call at his house. He
was at the ACB Office till about 11 and he was asked to
come at 06.00 pm and had gone with the amount of Rs.
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500/-. He had called the accused while he was standing on
the mound of stones and immediately thereafter, the
accused came and stood near the door. It was dark and his
niece was sitting on the scooter. He does not know the
distance between the scooter and the gate of the society
and he had a conversation with the accused about the
wires and till then the accused did not demand for any
amount of illegal gratification. During the test that were
being done at the house of the accused, the electricity
connection went off and he does not know whether the
electricity connection on the road had also gone off. He did
not take his niece in the house and he gave the
predetermined signal from the place where he was
standing. They were in the house of the accused for about 2
to 2½ hours and while they were conducting the test, no
family member of the accused was present. He took his
niece from her house to the house of the accused on the
scooter and at that time the panch no. 1 was sitting in the
jeep but he cannot say the distance at which the jeep was
following them. The witness has stated that he went to the
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ACB Office for the first time on 10.03.2004 and did not go
to the ACB Office on 09.03.2004. The initiation of recording
of his complaint began at 09.30 and concluded at 11.00
am.
11.1 PW2 – Laxmansinh Kalusinh Solanki examined at
Exh. 16 is the panch witness who has narrated the entire
procedure that was undertaken by the Trap Laying Officer
on 10.03.2004 at around 18.00 hours when he and the
other panch witness – Arvindbhai Nanjibhai Parmar went to
the ACB Office and till the trap was successful. As far as
the trap is concerned, the panch witness has stated that he
sat on the scooter of the complainant and the panch no. 2
and other members of the raiding party went in the
government vehicle and the complainant halted the scooter
at Kaliyabid and he and the complainant went inside a
house and the complainant called his niece who came with
a suitcase and a bag and sat as a pillion rider on the
scooter of the complainant and he sat in the jeep. They
followed the scooter and the scooter was halted at
Sardarnagar Area, 50 Varia Area and he alighted from the
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jeep and sat as the second pillion rider on the scooter and
went to the house of the accused. There was a mound of
stones near the wall and the complainant climbed up on
the mound of stones and called the accused who came out
and made a gesture to come inside. The complainant stated
that guests were with him and they had luggage and the
person came out and had a conversation with the
complainant. The accused told the complainant to give the
amount if he had brought, as per their conversation and
the complainant took the tainted currency notes from his
right shirt pocket with his right hand and counted them
with both hands in such a manner that the accused could
see and gave it to the accused who accepted it with his
right hand and placed it in the right pocket of his trouser.
The complainant gave the predetermined signal and the
members of the raiding party came and caught the accused
and while they were taking the accused to his house the
accused rubbed both his hands together. The test was done
at the house of the accused. The tainted currency notes
were recovered and the necessary Panchnama was drawn.
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In the cross examination by the learned advocate for the
accused, the witness has stated that he has no experience
of writing a Panchnama and the Panchnama was dictated
by the Trap Laying Officer. The muddamaal currency notes
do not bear the signature of the panch witnesses or the
Trap Laying Officer and there was no seal on the envelope
containing the muddamaal currency notes which was
opened before the learned Trial Court. There was no seal of
the ACB Bhavnagar on the envelope containing the coin of
Rs. 1/- and the niece of the complainant was standing
outside. The niece of the complainant did not come to the
ACB Office after they had gone from the house of the
accused and he is aware that if he does not depose as per
the Panchnama, action would be taken against him. He had
read the Panchnama before his deposition at the learned
Trial Court and had read the Panchnama for two to three
days at the ACB Office. He had gone to the ACB Office twice
and had asked for the Panchnama and had read the same.
11.2 PW3 – Narendrasinh Natwarsinh Gohil examined at
Exh. 21 is the Trap Laying Officer who has narrated the
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entire procedure undertaken by him on 10.03.2004 for the
trap, after the complainant came to the ACB Office and till
the trap was successful. In the cross examination by the
learned advocate for the accused, the witness has admitted
that no marks with a pen have been made on the inside of
the pocket of the trouser of the accused where the traces of
phenolphthalein powder were found and the filter paper
that was rubbed on the pocket of the accused, to test for
the presence of phenolphthalein powder, was not seized.
The filter paper was not dipped in any solution of sodium
carbonate but the solution of sodium carbonate was
sprinkled on the filter paper. The muddamaal currency
notes were not sent to the FSL and the currency notes were
placed in an envelope on which the signatures of the panch
witnesses and his signature was taken. The muddamaal
currency notes were not sealed but the bottle containing
the handwash was sealed. The currency note and the coin
of Rs. 1/- was placed in such a manner that any person
could take it out from the envelope. The complainant had
contacted him on the phone on 09.03.2004 but there is no
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mention of the telephone call in the complaint. He did not
verify whether the accused was at home and had instructed
the complainant to return if the accused was not found at
home. He had recorded the statement of the accused,
wherein, he had stated that he did not demand for any
amount of illegal gratification and had not accepted any
amount of illegal gratification. He did not inquire and
record the statement of the niece of the complainant. He did
not mention in the Panchnama that the panch witnesses
were verified or whether they knew any ACB Staff or
whether they were under any pressure or whether they
knew the accused. The Panchnama does not mention that
the accused had rubbed both his hands together and he
met the complainant for the first time on the 10.03.2004.
11.3 PW4 – Tushardev Vrujlal Joshi examined at Exh. 29 is
the FSL officer who has produced the FSL Report at Exh.
30. In the cross examination by the learned advocate for the
accused, the witness has stated that the report does not
mention the date on which the test was conducted and the
test was performed by his Assistant in his presence. He did
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not conduct any test himself and he himself had written the
finding of the test and the Assistant did not inform him the
finding.
11.4 PW5 – Ranabhai Devshibhai Ulva examined at Exh. 31
is the Investigating Officer who has narrated the procedure
undertaken by him during investigation. The witness has
stated that after the order of sanction for prosecution was
received he filed the charge sheet on 06.08.2004 before the
concerned court. In the cross examination by the learned
advocate for the accused, the witness has stated that the
complainant did not state that both the hands of the
accused were dipped in the solution of sodium carbonate
and the solution was placed in different bottles and sealed.
The accused had in his statement stated that he did not
demand for any amount of illegal gratification and did not
accept any amount of illegal gratification.
12. On a fresh and independent reappreciation of the
entire oral as well as documentary evidence on record, this
Court finds that the judgment of conviction and order of
sentence passed by the learned Trial Court suffer from
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serious perversity, material illegality and misappreciation of
evidence. The very foundation of the prosecution case,
namely the proof of demand of illegal gratification, is not
established beyond reasonable doubts. From the complaint
at Exh. 15 as well as the deposition of the complainant at
Exh. 14, it emerges that the accused had stated that
approximately 145 feet of wire would be required for shifting
the electric connection from the pole situated behind the
complainant’s house to the pole in front of the house, the
cost of which would be about Rs. 2,000/-. The allegation
that the accused agreed to do the work for Rs. 500/- does
not, by itself, unmistakably establish a demand of illegal
gratification, particularly when the work involved actual
shifting of electrical wires and expenditure thereon. The
evidence does not clearly distinguish whether the amount
was demanded as illegal gratification or towards the
legitimate cost of the work. Even the complainant’s own
version shows that when he initially approached the ACB
Office on 09.03.2004, he was asked to return only after
there was a specific demand and a fixed place for
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acceptance, which itself indicates absence of a definite prior
demand. Further, there is a material contradiction between
the complainant and the Investigating Officer, as the
complainant stated that he personally visited the ACB
Office, whereas the officer stated that he was contacted
telephonically. The prosecution has also failed to establish
the exact date, time, and place of the first demand. There is
no evidence to show that after returning from the ACB
Office on 09.03.2004, the complainant again contacted the
accused for any further demand. It is also significant that
though the complainant stated that on 10.03.2004 at about
8:00 am, the accused came with all necessary equipment
and completed the work of changing the electric wires, there
is no independent evidence whatsoever to prove that such
work was actually carried out by the accused on that day.
The owner of the open plot, namely Virjibhai Thakarshibhai,
who according to the complainant was insisting upon such
shifting of wires, has not been examined. Similarly, the
niece of the complainant, who was allegedly present at the
time of exchange of tainted currency notes, has also not
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been examined. These omissions assume significance and
create serious doubt regarding the prosecution story. As
regards the alleged demand and acceptance at the trap spot,
the evidence of the complainant and the panch witness is
not free from contradictions. The panch witness has stated
that the complainant climbed on a mound of stones and
called the accused, who came near the gate of the society;
however, there is no clarity whether thereafter the
complainant went near the accused, whether the panch
witness accompanied him, whether he too climed the
mound of stones and whether he was in a position to hear
the alleged conversation regarding demand and acceptance.
Thus, the most crucial ingredient of demand at the spot
remains doubtful. Mere recovery of tainted currency notes
cannot substitute proof of demand. Further, according to
the prosecution, the accused accepted the tainted currency
notes with his right hand and placed them in the right
pocket of his trousers, yet the Panchnama records that the
handwash of both hands turned pink and FSL examination
revealed traces of phenolphthalein powder in both bottles.
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The Panchnama does not mention that the accused had
rubbed both hands together. The subsequent improvement
made in oral evidence that the accused rubbed both hands
while being taken inside the house appears to be an
afterthought introduced only to fill this serious lacuna.
Likewise, though it is stated that the electricity connection
went off while the raiding party was present and
demonstration of sodium carbonate solution was being
conducted, this important circumstance is conspicuously
absent from the Panchnama at Exh. 17. It has also come on
record that the Panchnama was dictated by the Trap Laying
Officer and that the muddamal currency notes were not
properly sealed, thereby affecting the sanctity of the trap
proceedings. The panch witness has further admitted that
he had repeatedly read the Panchnama and had visited the
ACB Office twice prior to his deposition, which adversely
affects the spontaneity and reliability of his testimony. Even
on the aspect of charge and sentence, the learned Trial
Court has committed patent illegality. The charge was
framed under Sections 7, 12, 13(1)(d) and 13(2) of the PC
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Act though there was no case of abetment involving any
other person so as to justify invocation of Section 12 of the
PC Act. Further, while convicting the accused, the learned
Trial Court imposed a composite sentence of rigorous
imprisonment for three years with fine of Rs. 5,000/-
without awarding separate sentences for each distinct
offence, which reflects non-application of mind and
procedural irregularity. In view of these serious infirmities,
contradictions, omissions, and lack of proof of the essential
ingredients of demand and acceptance of illegal
gratification, the prosecution has failed to establish the guilt
of the accused beyond reasonable doubts. The learned Trial
Court, while recording conviction, has ignored material
contradictions and has proceeded on assumptions rather
than legally admissible proof. The findings recorded are
therefore unsustainable in law and suffer from perversity
and illegality.
13. The impugned judgment and order of conviction in
Special (ACB) Case No. 3/2004 passed by the learned
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Presiding Officer, Fast Track Court No. 2, Bhavnagar on
28.11.2005 is perverse, bad in law and against the settled
principle of law and is hereby quashed and set aside and
the accused is acquitted from all the charges against him.
14. Bail bonds stand cancelled. Fine to be refunded to the
accused after due verification. Record and proceedings, if
any, be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
VASIM S. SAIYED
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