CR.A/33/1994 1/146 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 33 of 1994 with CRIMINAL APPEAL No. 491 of 1994 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= KALUBHAI DANABHAI PATEL Versus THE STATE OF GUJARAT ================================================= Appearance : MR JM PANCHAL for Appellant MR SS PATEL APP for Respondent ================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA CR.A/33/1994 2/146 JUDGMENT Date : 07/09/2006 ORAL JUDGMENT [1] Criminal Appeal No.33/1994 is preferred by the appellant – accused under Section 374(2) of the Criminal Procedure Code, 1973 and is directed against the judgment and order dated 22.04.1993 delivered by the Special Judge, Panchmahal at Godhra in Special (Corruption) Case No.10/1989 whereby the appellant of Criminal Appeal No.33/1994 came to be convicted for the offences punishable under Section 161 of the Indian Penal Code as well as under Section 5(1) (d) to r/w. Section 5(2) of the Prevention of Corruption Act, 1947 and he was sentenced to undergo rigorous imprisonment of one year for each of the above two offences and to pay fine of Rs.200/- for each of the two offences, in default to undergo rigorous imprisonment of one month. Vide impugned judgment and order, it is directed that both the sentences to run concurrently. [2] While Criminal Appeal No.491/1994 is CR.A/33/1994 3/146 JUDGMENT preferred by the State of Gujarat under Section 376 of the Criminal Procedure Code, 1973 for enhancement of the sentences awarded to the accused in Special (Corruption) Case No.10/1989 and the appellant of Criminal Appeal No.33/1994. [3] The facts leading to the prosecution against the appellant of Criminal Appeal No.33/1994 can shortly be depicted as under:- [3.1] The complainant – Jitendrakumar Nanalal Raval originally resident of village Choila, Taluka: Bayad, District: Sabarkantha joined in service as teacher in Primary Section (School) from January, 1986 at village Gundikheda, Taluka: Dahod, District: Panchmahal. In the month of February, 1986, he was required to appear in examination of Hindi and, therefore, he had to go to his native town. According to him, he obtained leave for that purpose on 15th February, 1986. Thereafter, he over stayed and could not join the duty till 18th February, 1986. During that period, the accused – Kalubhai Danabhai Patel, who was CR.A/33/1994 4/146 JUDGMENT serving as an Area Inspector, during relevant juncture, in Dahod Taluka Panchayat, Education Department, visited Gundikheda for inspection at the school where the complainant was serving. It is the say of the complainant that the accused signed his Register and, thereafter, he met with his landlord Shri Gomabhai Handa. About the absence of the complainant from the school, Shri Gomabhai Handa informed the accused that the complainant had been of station. When complainant returned from his native town, his landlord – Shri Gomabhai Handa informed him (complainant) that accused had visited and had directed the complainant to meet the accused. Shri Gomabhai Handa also stated to the complainant that he had given Rs.75/- to the accused on behalf of the complainant. On 19th February, 1986, the complainant met the accused and asked the advice about the leave period of his absence from the school for 3 to 4 days as his job was new and temporary. The accused informed the complainant that the complainant should pay Rs.100/- to him and the matter would come to an end there. Thus CR.A/33/1994 5/146 JUDGMENT on 19th February, 1986, according to the demand of the accused, complainant paid Rs.100/-. Thereafter, on 4th March, 1986, an annual inspection of the school at Gundikheda was arranged and accused – appellant visited the school of the complainant. At that time, accused threatened the complainant that the complainant was not running the school properly and that his job might be terminated. The complainant sought the advice of the accused again. There accused thereupon demanded Rs.100/- from the complainant. At that juncture, the complainant had Rs.85/- which he paid to the accused at the Bus Stand of village Gundikheda. The accused stated to the complainant that the complainant was still required to pay more amount. Thereafter, through the landlord (Shri Gomabhai Handa) of the complainant, accused conveyed the message to the complainant that he should meet the accused. The complainant could not visit the accused and instead on 27th March, 1986, he visited Gandhinagar and represented before the Hon'ble the then Education Minister Shri Hasmukhbhai CR.A/33/1994 6/146 JUDGMENT Patel about the harassment of the complainant by the accused. The Hon'ble Minister advised to file the complaint before Anti Corruption Bureau, if the accused demanded more amount. On 30th April, 1986, landlord - Shri Gomabhai Handa of the complainant informed him that the accused – appellant had summoned the complainant at Dahod to meet him. He was further informed that the complainant was required to go with all preparation. On 1st May, 1986 in the morning, complainant had been to Dahod where he came to know that the appellant – accused was to go to Godhra. Therefore, complainant went straight to Godhra and waited at S.T. Bus Stand. At about 11.45 a.m., the appellant appeared at Godhra Bus Stand and met the complainant. The appellant inquired as to why complainant had not come to Dahod. The complainant explained that he had some work so he could not come to Dahod. The appellant – accused then told to the complainant that if complainant intended to be permanent in his job, he had to pay Rs.100/- otherwise, his job would likely to be terminated. The complainant said to CR.A/33/1994 7/146 JUDGMENT the appellant that at that movement, he had no sufficient fund at hand, but he would go in the town and borrow Rs.100/- from some acquaintances. Thereupon, the appellant instructed the complainant that the complainant was required to put Rs.100/- in one envelope and that envelope was to be handed over to the appellant in the compound of District Panchayat Office at 12.30 p.m. He was specifically instructed that not to bring currency note of Rs.100/- openly but in an envelope which should be kept blank and nothing should be written on the said envelope. Thereafter, as it appears from the original prosecution case, the complainant visited Anti Corruption Bureau Office at Godhra where P.I. Shri Shri Dinkar Mangesh Rangdekar, P.W.6 was sitting alone. The complainant explained his complaint which was reduced to writing and signed by the complainant as well as P.I. Shri Dinkar Mangesh Rangdekar. In the meanwhile, PSI Shri Joshi resumed at Police Station and he was instructed to ascertain and call panchas. P.I. Shri Joshi called Panchas Shri Khumansinh CR.A/33/1994 8/146 JUDGMENT Madhavsinh Thakor, Panch No.2, P.W.5, from Mamlatdar Office and Shri Gammatsinh Chandubhai Thakor, Panch No.1, P.W.1 from the Prant Office of Godhra. As usual panchas were informed about the facts of the complaint and the complainant produced one currency note of Rs.100/- which was to be offered in bribe. An experiment of ultra violet lamp and anthracene powder were carried out by Sub-Inspector Shri Joshi and said muddamal note of Rs.100/- was smeared with anthracene powder and, thereafter, P.I. Shri Dinkar Mangesh Rangdekar took an envelope, the flap of which was opened and P.I. Shri Joshi put that currency note in the said envelope and the said envelope was then closed and put it in left hand shirt pocket of the complainant, after verifying that the said shirt pocket was empty. Thereafter, P.I. Shri Joshi destroyed blank paper which was used to smear with powder and washed his hands with soap. The anthracene powder bottle was secured in a cup-board and, thereafter in ultra violet lamp, the hands of all of them examined, but no marks of anthracene powder was found. The CR.A/33/1994 9/146 JUDGMENT complainant was instructed to accompany them till District Panchayat Office and from there with both the panchas on foot, he was to go in the compound of the District Panchayat Office and if, the appellant met him and demanded the amount of bribe, the complainant was to give that envelope put in his shirt pocket and except that, he was not to touch that envelope. Both the panchas were directed to remain with the complainant and to see what might take place and hear the conversation between the complainant and the appellant. First part of panchnama was prepared at 11.30 a.m. to 12.15 p.m. in this respect. Thereafter in official jeep, raiding party as well as panchas and the complainant went towards the District Panchayat Office. The complainant and the panchas entered in the compound of the said District Panchayat Office, while raiding party persons remained within the vicinity. At about 12.30 p.m. according to the prosecution case, the appellant came out of the room of the Education Committee and entering in compound, inquired from the complainant whether the CR.A/33/1994 10/146 JUDGMENT complainant had brought the amount. The complainant stated that he had brought the amount and then the appellant directed the complainant to go towards the canteen and started to go along with the complainant towards the southern portion where canteen was located. Both the panchas followed them. There appellant demanded the amount from the complainant and the complainant took out an envelope containing currency note of Rs.100/- of muddamal by his right hand and delivered to the appellant. The appellant accepted the said envelope with his right hand and put the same in his left shirt pocket. At that time panch No.1 indicated pre-arranged signal by putting his hands on his head. On receiving the single, raiding party in leadership of P.I. - Shri Dinkar Mangesh Rangdekar reached at the spot and Shri Dinkar Mangesh Rangdekar introduced himself to the appellant. The appellant, on inquiring, stated that he was Kalubhai Danabhai Patel, Bit Inspector of Taluka Panchayat Education Department, Dahod. Thereafter, upon instruction, Police Sub- CR.A/33/1994 11/146 JUDGMENT Inspector Shri Joshi in ultra violet lamp examined the hands of all, but no mark of anthracene powder were found upon any of the hands. Thereafter, upon direction from P.I. Shri Dinkar Mangesh Rangdekar, panch No.1 - Shri Gammatsinh Chandubhai Thakor took out white envelope from the left shirt pocket of the appellant and along with that envelope, there was one more paper and that paper was an application of teacher of village Jalad named as Natvarlal Lalubhai Modi and that application was dated 24th April, 1986 containing request to District Education Officer for his transfer. A recommendation was made by the appellant below such application. The said paper was seized and, thereafter panch No.1, upon instruction, opened an envelope found from the shirt pocket of the appellant. It was found that muddamal currency note of Rs.100/- was in the envelope which was taken out and examined in ultra violet lamp. Marks of anthracene powder on the said currency note were found and inside flap of the envelope such marks were visible. Those marks were rounded CR.A/33/1994 12/146 JUDGMENT by pen on envelope by P.I. Shri Dinkar Mangesh Rangdekar. The said note was again placed in envelope and was seized by the police. The appellant's shirt pocket etc. examined by ultra violet lamp, but no marks were found. The second part of panchnama of all these procedure was prepared in presence of panchas and was completed at 13.45 hours. Thereafter, the investigation was carried out after registering the offences by P.W.6 - Shri Dinkar Mangesh Rangdekar, P.I. and thereafter, P.W.7 – Shri Ramsinh Balusinh Chauhan, and Successor of Shri Rangdekar further investigated. A charge-sheet came to be filed against the present appellant in Special Court, Panchmahal at Godhra, for the charges levelled against him as aforesaid. [4] On 26th October, 1993, vide Ex.6 a charge came to be framed against the appellant for the offences punishable under Section 5(1)(d) to r/w. Section 5(2) of the Prevention of Corruption Act, 1947 as well as under Section 161 of the Indian Penal Code. The charge contended that before 19th CR.A/33/1994 13/146 JUDGMENT February, 1986, the appellant demanded Rs.75/- from the complainant as bribe and accepted. On 19th February, 1986, for regularization the absence of complainant, the appellant demanded gratification of Rs.100/- from the complainant and accepted the same. On 4th March, 1986, when inspection was carried out of the school of the complainant at Gundikheda, the appellant demanded Rs.100/- for making good recommendation of the appellant and accepted Rs.85/- by way of bribe at S.T. Stand. On 1st May, 1986 again the appellant demanded Rs.100/- for making the complainant permanent in his job and accepted the same amount by way of gratification. [5] The appellant pleaded not guilty to the above said charges and, therefore, the prosecution led the evidence to establish the case against the appellant. [6] In the shape of oral evidence, the prosecution examined – P.W.1 Gammatsinh Chandulbhai Thakor, at Ex.11 as panch No.1, P.W.2 CR.A/33/1994 14/146 JUDGMENT Jitendrakumar Nanalal Raval, at Ex.19, complainant, P.W.3 Balubhai Ratilal, Office Superintendent of District Panchayat Office, Godhra at Ex.29, P.W.4 Natvarlal Balubhai Modi at Ex.30 whose application was found from the pocket of the accused at the time of trap, P.W.5 Khumansinh Madhvsinh Thakor at Ex.31, panch No.2, P.W.6 Dinkar Mangesh Rangdekar at Ex.32 who carried the trap being P.I. of ACB Office at Godhra and P.W.7 Ramsinh Balusinh Chauhan at Ex.33, Investigating Officer, who submitted charge-sheet against the appellant. [7] By way of documentary evidence, prosecution submitted on record FIR at Ex.21, leave report of the complainant dated 1st May, 1986 at Ex.12, Ex.13 is also leave report of the complainant for his absence from 14th February, 1986 to 17th February, 1986, at Ex.63 monthly diary of the performance of the appellant is produced, the sanction to prosecute the appellant is produced at Ex.16, panchnama prepared in presence of panchas by P.I. Shri Rangdekar is CR.A/33/1994 15/146 JUDGMENT produced at Ex.17, explanation of the complainant about his absence from the school from 14th February, 1986 to 18th February, 1986 is submitted at Ex.23, at Ex.25 a list of primary school of Dahod Taluka coming under the area of the appellant is produced. Vide Ex.26 and 27 when order passed by the Education Officer, Godhra for recruiting primary teacher is produced and a list of appointment of such teachers is also produced. At Ex.28 a report addressed by the appellant to the District Education Officer is produced by which, it is informed by him that the appellant was not present in the school from 14th February, 1986 to 17th February, 1986 till 18th February, 1986 without any leave. Inspection report for the inspection carried out by the appellant of the school of the complainant on 4th March, 1986 is produced at Ex.37 and at Ex.39 written statement of the accused is produced. [8] This is a peculiar type of a case wherein before entering into the re-appreciation of the evidence and the contentions raised, it is utmost CR.A/33/1994 16/146 JUDGMENT necessary to look at the oral evidence recorded during trial. [9] P.W.1 – Gammatsinh Chandubhai Thakor in his deposition at Ex.11 stated that at the time of trap, he was serving as a Clerk in SDM Office at Godhra. He was summoned by Prant Officer Shri Joshi on 1st May, 1986 and instructed to accompany with PSI Shri Joshi in panch. He had shown his willingness and, therefore, he went to ACB Office. Second panch was present in the ACB office. Panch No.2 was working in Mamlatdar Office at Godhra. The complainant was present and they were introduced with the complainant in the ACB Office. The complainant declared the facts of the complaint. He produced one currency note of Rs.100/- to be offered as bribe, the number of the note was noted in panchnama. First the note was examined about the powder marks, but in natural light or in light of ultra violet lamp, the marks were not visible. Thereafter, from the cupboard anthracene powder was taken out. He stated that he could not say that in what CR.A/33/1994 17/146 JUDGMENT container the powder contained. Thereafter, the said note was placed on one blank paper and was smeared with the powder and, thereafter, that not was placed in a blank envelope. The said envelope was placed in the pocket of the complainant in left pocket of the shirt. Before that it was ascertained that whether there was anything in the said pocket. Thereafter, the blank paper was destroyed by lighting fire. The anthracene powder bottle was restored in cupboard. Upon note the powder was smeared by PSI Shri Joshi and note was examined in the machine. Thereafter, Shri Joshi washed his hands and had informed that they had to go to District Panchayat Office. He stated that he and others decided to go to the District Panchayat Office in jeep. It was also decided that PSI Shri Joshi and Constable Shri Dilipsinh were to go to District Panchayat Office on scooter. In the said jeep, he himself, complainant, PI – Rangdekar and Khumansinh went to the District Panchayat Office. The procedure which took place at Police Station was noted in the panchnama. He stated that panchnama was shown CR.A/33/1994 18/146 JUDGMENT to him and in first part, he had signed and other pancha had also signed in that panchnama. He stated that thereafter all of them started to go to District Panchayat Office from ACB Office. They alighted from the jeep near Pathik Ashram. The witness stated that he, complainant, Constable Dilipsinh and panch No.2 got down from the jeep and entered in the District Panchayat Office. There was a neem tree near Vamanrao house and according to this witness, they stood under this tree. A meeting was going on in the said Vamanrao house. The complainant – Jitendrakumar, at that time, was standing near the said Committee Hall, Shri Kalubhai Danabhai Patel (appellant) came out of the meeting. He identified the accused – appellant in the Court as Shri Kalubhai Danabhai Patel. The witness further stated that thereafter, complainant and Shri Kalubhai Danabhai Patel both started to go towards the canteen and remaining all of them stood where they were. Thereafter, the complainant gave an envelope to Shri Kalubhai Danabhai Patel. Shri Kalubhai Danabhai Patel CR.A/33/1994 19/146 JUDGMENT took that envelope and put the same in his shirt pocket. The witness further stated that thereafter, as per the instruction from Shri Rangdekar, he had given a signal by putting his hands on his head, all of them reached there. Thereafter, in a shop situated in the compound, they set there which included complainant, both panchas, Shri Kalubhai Danabhai Patel etc. Thereafter, Shri Rangdekar instructed him to examine what had been in the bushirt pocket of Shri Kalubhai Danabhai Patel. Therefore, he examined the shirt pocket of Shri Kalubhai Danabhai Patel and from left shirt pocket, he took out an envelope. Along with that envelope, there was one paper. He identified the envelope before the Court, currency not of Rs.100/- and other paper which was seized with that envelope by the police. The witness further stated that on opening of that envelope, one currency note of Rs.100/- was drawn. The witness stated that panchnama was shown to him which was the same panchnama which borne his signature. The other panch also signed in his presence and he produced CR.A/33/1994 20/146 JUDGMENT the said panchnama at Ex.17. The witness further stated that an envelope was seized and the number of the said note were tailed with panchnama. He stated that he did not know whether the envelope was examined. He stated that at the time of raid, it was examined whether there were any marks on an envelope. He could not say whether the marks were made on envelope or not. The witness stated that opening of the envelope, there were marks. He stated that panchnama was drawn, currency note was seized, but he could not remember except that what was done. He submitted that he did not know whether Shri Rangdekar had done anything to Shri Kalubhai Danabhai Patel. The witness stated that one receipt had been given to the accused for seizing currency note and envelope. That seizure memo contained his signature. He produced that seizure memo at Ex.18. He stated that police recorded his statement. In his examination-in-cross by the defence, he further stated that there was a door in District Panchayat Office and on both the CR.A/33/1994 21/146 JUDGMENT sides of the office, other buildings were situated. Entering the District Panchayat Office, a door was situated and opposite side of the door, there was a passage and from there one could go to the compound. He stated that he could not say the width of the compound. He stated that on the eastern side of the District Panchayat Office, other offices were situated. On right hand side, after entering into the said gate of the District Panchayat Office, office of Education Department was situated. He stated that he did not know that on each Monday and Thursday, the group meetings of officers and employees were arranged. He stated that he had no occasioned to visit District Panchayat Office on daily basis and, therefore, he could not say that daily in compound of District Panchayat Office at about 200 to 250 persons visit. He stated that at the time of trap, there were persons in the compound of District Panchayat Office, but how many persons were there, he could not say. He stated that there were about 50 persons. He stated that right from 1983, he had been working in SDM CR.A/33/1994 22/146 JUDGMENT Office. In their office, there was one big room and in the middle, inside one chamber was situated and on the other side, one office was situated, on left side after entering, there was one room wherein head clerk was sitting and other staff was sitting; likewise on right side also, the staff was sitting. In the back of the office of the head clerk, four persons used to sit, in second room, three persons used to sit and adjoining room, two persons used to sit. He stated that his office was situated 20 feet away from the office of the Mamlatdar and from these two offices, ACB Office was situated at a distance of 15 feet at the eastern side. He stated that in the compound of his office, jail was situated and on jail road, the canteen was situated. He denied that originally, he, PSI Shri Joshi, Khumansinh etc. used to get together in recess. The witness further stated that he was introduced with Shri Joshi on that day, before that he did not know Shri Joshi. He stated that when he entered in the chamber of his office boss, Shri Joshi was sitting there. When Shri CR.A/33/1994 23/146 JUDGMENT Joshi came to his office, he was sitting on his table. His table was situated at the side of Mahakali Temple and the window was abutting on that side. His boss summoned him through peon. When he went to his boss, PSI Shri Joshi told that he was to go in panch along with Shri Joshi. At that juncture of time, he was working on land department. At that time, one Shri P.M.Joshi was SDM. The witness further stated that he could not remember exactly what were the hours of the office. He stated that after he resumed his office at about 11.00, he was summoned by his boss. The witness stated that he had not asked that for what purpose he was required to go in panch. The witness further stated that six years before the incident, he knew panch No.2 – Khumansinh. He stated that he and Shri Khumansinh both belonged to