CR.A/466/1993 1/32 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 466 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= NARANBHAI A PRAJAPATI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : Ms. Dilbur Contractor with Mr P.R. Nanavati for Appellant( : MR L R Pujari, Addl.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 16/04/2008 ORAL JUDGMENT 1. This appeal is directed against the judgment and order dated 2.4.1993 passed by the learned Special Judge, Mehsana in Special Case No.21/89 whereby the present CR.A/466/1993 2/32 JUDGMENT appellant-accused No.1, Naranbhai Amthabhai Prajapati was convicted and sentenced for the offence punishable under sections 7, 12 and 13 of the Prevention of Corruption Act, 1947 (for short, “the Act”) as well as for the offence punishable under sections 13 ((1)(d)(i), (ii) and (iii) of the Prevention of Corruption Act. The appellant-accused was sentenced to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs.500/-, in default, he shall undergo further Rigorous Imprisonment for six months for the offence punishable under section 7 of the Act. The appellant-accused was also sentenced to suffer Rigorous Imprisonment for a period of one year and to pay fine of Rs.500/-, in default he shall undergo further Rigorous Imprisonment for a period of four months for the offence punishable under section 13 ((1)(d)(i), (ii) and (iii) of the Act. Both the sentences were ordered to run concurrently. The facts necessary for disposal of the present appeal, in brief, are as under: 2. The appellant-accused, Naranbhai Prajapati was serving as Medical Officer with Primary Health Centre, village Santhal during April, 1989 whereas accused No.2, Baijubhai Khodabhai Prarmar was serving as a peon in the CR.A/466/1993 3/32 JUDGMENT said hospital. On 5th April, 1989, the complainant, Gabhabhai Ramabhai Parmar of village Memadpur was assaulted by one Abhesing Gopalsing Rajput and the complainant was inflicted knife injury on his right hand in the portion between his first finger and thumb. In connection with the said incident, the complainant lodged complaint at 3.00 p.m. on the same day i.e. on 5.4.1989 before the P.S.O., Santhal police station. After registering the offence, complainant was sent with police yadi to the Government Hospital, Santhal by the police. Thereafter the complainant came to the hospital for medical treatment before accused No.1, who was Medical Officer there at the relevant time. The complainant was treated by accused No.1 and the injury was stitched and dressing was also done. After treatment was over, the complainant asked accused No.1 to issue him a medical certificate, as the police had demanded it. Thereupon accused No.1, Dr Prajapati started preparing medical certificate and he wrote name of the complainant in the certificate and during that time, accused No.1 demanded Rs.60/- from the complainant. The complainant told him that at that time he did not have any money but later on he will arrange and hand over to him. Thereupon accused No.1 told the complainant that after paying Rs.60/- he will issue medical certificate. On saying so, he kept CR.A/466/1993 4/32 JUDGMENT aside the incomplete certificate. Thereafter the complainant went to his home. Meanwhile the police started investigation of his complaint and the Investigating Officer Head Constable Ramakant Pande told the complainant to bring the treatment certificate so that the case can be proceeded expeditiously. On 9.4.1989, Sunday, at 6.00 p.m., the complainant went to Santhal Medical Hospital and met accused No.1. Then, accused No.1 asked the complainant as to why he has not taken the injury certificate. The complainant replied that he has come there for taking the injury certificate but he could not manage Rs. 60/-. The complainant requested accused No.1 to reduce the said amount. Thereupon accused No.1 told the complainant to meet him between 4.00 p.m. and 6.00 p.m. on the next day i.e. on 10.4.1989 at Medical Hospital, and he made it clear that he will not reduce the amount and only after paying Rs. 60/-, the complainant will receive the injury certificate. The complainant went to his home and as he was not willing to pay bribe amount of Rs.60/- to accused No.1, on 10.4.1989, he went to the Anti Corruption Bureau office at Mehsana. After recording the complaint, to arrange trap, Mr G.P. Puwar, P.I., ACB, Mehsana called two panchas from the office of the Collector, Mehsana through yadi. The complainant and the panchas were introduced with the CR.A/466/1993 5/32 JUDGMENT members of the raiding party. The complainant narrated the facts before the panchas and the complaint was also read over to the panchas and both the panchas were made to sign the complaint (Exh.28). Thereupon the complainant produced Rs. 60/- (20 x 2, 5 x 4) denominations) before the P.I., ACB. The currency notes as also the hands of the complainant, panchas and other staff were observed in ordinary light and nothing significant appeared. Thereafter, the currency were smeared with anthracene powder and inspected in the light of ultra violet lamp and glowing marks of bluish powder were found. Head Constable Mr Jivanji Doluji Barad put the said tainted currency notes in the right pocket of the trouser worn by the complainant and was instructed not to touch the currency notes except for the purpose of giving them to the accused No.1 The preliminary panchnama, Exh. 24 was drawn in which also the number of the currrency notes were mentioned. Necessary instructions were given to the complainant as well as both the panchas how to act during the trap. Panch No.1 was instructed to observe the exchange of bribe amount and to hear the talk that may take place between the complainant and the accused. Thereupon the complainant, panchas and the members of the raiding party proceeded to Santhal, where the accused was residing and the hospital also situates in the same CR.A/466/1993 6/32 JUDGMENT compound. They reached at 4.30 p.m. at Santhal and the vehicle was stopped on the way of Dhanpura-katosan road. Thereafter the complainant and panch No.1, Chandubhai Amrutbhai Modi went to the Primary Health Centre where the accused No.1 was working and the remaining members of the raiding team scattered themselves around the hospital and waited there. The residential quarters of accused No.1, Dr. Prajapati is also situated in the same compound as of the Hospital. The complainant and panch No.1 went near the quarters of accused No.1. At that time, accused No.1 was standing near the quarters. Then accused No.1 asked the complainant as to why he came late and the complainant replied that he had to come by S.T. Bus and the bus was late. Thereupon accused No.1 enquired about the identity of the person who acccompanied the complainant i.e. about Panch No.1. The complainant told the accused that he was his uncle. Thereupon the complainant showed his injured hand and accused No.1 removed the bandage and asked the complainant to come to the hospital for removing the stitch. Thereupon the complainant, panch no.1 and accused No.1, Dr. Prajapati came to the chamber of Dr.Prajapati. Dr. Prajapati occupied his chair and the complainant sat on a stool. Accused No.1 removed the stitch and asked the complainant to go for applying medicine. At that time, the complainant asked the accused No.1 about the medical CR.A/466/1993 7/32 JUDGMENT certificate. Accused No.1 asked whether he had come with money as per the previous talk. Then, the complainant requested accused no.1 that he is a poor person and requested to reduce the amount. Accused no.1 agreed to that and asked the complainant to give him Rs.50/- instead of Rs.60/- and he told him that he will not reduce more than Rs.10/-. Then the complainant took out the currency notes from his trouser pocket and from the currency notes, he separated a note of Rs.10/- and extended the remaining amount of Rs.50/- towards Dr. Prajapati, accused no.1. At that time, accused no.2, Baijubhai Parmar, the peon of the hospital suddenly came to the chamber of Dr. Prajapati and on seeing Baijubhai, Dr. Prajapati asked the complainant to hand over the money to accused No.2. Thereupon, the complainant handed over the tainted currency notes of Rs.50/- to the peon, accused no.2 and accused no.2 accepted it by his right hand and went to another room. Thereupon the complainant signalled the members of the raiding team, as instructed, and the raiding team rushed to the chamber of accused no.1 where panch no.1 and the complainant were present. P.I., G.D. Puwar, after giving introduction to the accused, asked the accused to sit in the same position and not to move. Accused no.2, peon was also called in the chamber of accused no.1. Head Constable, Jivanji inspected the CR.A/466/1993 8/32 JUDGMENT hands and clothes of the accused No.1 in ultra violet lamp and no anthracene power marks were found on the hands as well as the clothes worn by the accused no.1. But in anthracene powder marks were found on the thumb and on the tip of the first finger of accused No.2 in the light of ultra violet lamp. Panch No.1 recovered Rs. 10/- (Rs. 5 x 2) from the pocket of the complainant and it was also inspected in the ultra violet lamp and marks of anthracene powder was seen. Thereupon, accused no.2 was asked where the money which he received from the complainant was kept. The accused no.2 showed an ash colour box which was lying in the dressing room. The said box and the currency notes were also inspected in the ultra violet lamp and they were also found to have been stained with anthracene powder. The numbers of the currency notes were tallying with the numbers mentioned in the preliminary portion of the panchnama. Thereafter, the certificate book and the treatment papers of the complainant were attached. Accused no. 1 was asked by the I.O. as to why the certificate was incomplete and he replied that it was his practice to write the certificate after removing the stitches. Thus the second part of the panchnama was completed. The I.O., during the investigation recorded the statements of the concerned persons and also recovered necessary documents in connection with the crime. At the CR.A/466/1993 9/32 JUDGMENT end of the investigation, charge sheet was filed in the Special Court, The learned Special Judge framed charge at Exh.11 on 20.1.1993. for the offences punishable under sections 7, 12, 13 (1)(d)(1), (ii) and (iii) of the Act and it was read over to the accused and the accused denied the charges levelled against them and claimed to be tried. To prove its case, the prosecution examined the following witnesses: 1. PW 1 Panch No.1, Chandubhai A Modi Exh.22 2. PW 2 Complainant, Gabhabhai R Parmar Exh.27 3. PW 3 I.O., G.P. Puwar Exh.45 The prosecution has also produced the following documentary evidence: 1. Complaint Exh.28 2. Sanction to prosecute accused No.2 Exh.47 3. Sanction to Prosecute accused No.1 Exh.46 4. Medical case papers of the complainant Exh.52 5. Receipt of muddamal seized Exh.23 6. Panchnama Exh.24 7. Copy of challan Exhs.53 & 56 and other documents. CR.A/466/1993 10/32 JUDGMENT 3. Further statement under section 313 of the Criminal Procedure Code was recorded after evidence of prosecution side was over. The accused No.1 has denied the charges and the allegations levelled against him and submitted that he was falsely involved in the trap as he never demanded money. According to the case of the accused No.1, the complainant came to him at 6.00 p.m. on 5.4.1989 after he was assaulted by one Abhesingh Rajput and was inflicted knife blow in his hand. After preparing medical case papers, the complainant was treated by him. It is further stated that the complainant demanded a medical certificate but he (accused No.1) told the complainant that he will directly send it to the police station. It is also submitted by accused no.1 that as the complainant was insisting on issuing medical certificate for fracture which he had not suffered and as he refused to issue such a false certificate he told the complainant that he will issue the certificate according to the actual injuries received by him. On 8.4.1989 when the complainant came for treatment in his dispensary, he insisted that he be issued false certificate. It is also submitted by accused no.1 that on 9.4.1989 in the evening the complainant came to him and abused and threatened him with dire consequences for not issuing certificate as asked by him. When he was examining other patients, the CR.A/466/1993 11/32 JUDGMENT complainant and panch No.1 came to him. He asked them to wait and after examining the complainant, the complainant was sent for dressing in the other room. It is also submitted by accused no.1 that at that time also the complainant was insisting for a fake certificate and he was shouting. Thereupon accused called the peon (accused no.2) and asked him to take the complainant out of his room. It is also stated by him that after going outside his room, members of the raiding party came there and caught his hand. Accused no.1 also examined the defence witness Dahiben Mafabhai at Exh.49. 4. Accused No.1 further stated that the complainant is in the habit of filing false criminal cases against several persons and in certain cases he used to turn a hostile witness. Against the complainant also several criminal cases were registered including one prohibition case and fine of Rs.100/- was imposed on him and taking into consideration the character of the complainant, it is stated by him that the complainant might have insisted for issuing false certificate for grievous hurt and as the accused no.1 refused to oblige, he was involved in the false trap. 5. So far as the defence of accused no.2 is concerned, he submitted explanation in his further CR.A/466/1993 12/32 JUDGMENT statement in light of the evidence produced by the prosecution that he is not knowing anything about his case. He further stated that suddenly accused no.1 shouted and called the compounder Dahyabhai. So accused no.2 suddenly went into the room of accused no.1 where the complainant, panch no.1 and accused no.1 were talking. He further stated that accused no.1 asked him to take the money from the complainant and asked the complainant to hand it over to Dahyabhai, Compounder. It is further submitted that after handing over the said money to Dahyabhai, the compounder, he returned back to the chamber of Dr. Prajapati (accused No.1) Thereupon persons of ACB team reached there. He refused to examine any witness. However, nothing is on record about the presence of marks of anthracene powder on the fingers of accused no.1. 6. After hearing the arguments of learned APP as well as the learned advocate for the accused-appellant and after appreciating and scrutinising the evidence on record, the learned Special Judge found the accused no.1 guilty of the charges framed against him and sentenced him as aforesaid. Hence, the present appeal. 7. Accused No.2-Baijubhai Khodabhai Parmar was not found guilty for the offence punishable under section 12 CR.A/466/1993 13/32 JUDGMENT read with section 7 and section 13 (1)(d)(1), (ii) and (iii) of the Act and he was acquitted. Against his acquittal, the Government has not filed any appeal. 8. I have heard Ms. Dilbur Contractor with Mr P.R. Nanavati, learned advocate for the accused-appellant and Mr L.R. Pujari, learned APP for the State. It is argued by learned advocate Ms. Contractor that it is proved beyond reasonable doubt that the complainant is involved in so many criminal cases and he was convicted by the court in a prohibition case. She has submitted that the complainant is in the habit of filing criminal complaints and then he used to compromise and settle the disputes by declaring himself as hostile witnesss and by that act, he extort money from innocent persons. It is also submitted that so many cases have been filed against the complainant and the complainant is a man without any morale and so on the basis of the evidence of such kind of a complainant, the conviction cannot be imposed taking into consideration the fact that the present petitioner (original accused no.1) had never accepted bribe amount and the said tainted currency notes were recovered from one ash colour plastic box which was in another room. It is also argued by the learned advocate that there is no reason for the complainant to go to accused No.1, Medical Officer to CR.A/466/1993 14/32 JUDGMENT obtain medical certificate as it is the usual practice that the certificate is provided by the Medical Officer to the police. No doubt, on 5.4.1989, the complainant went with police yadi for treatment for the injury which he received in a physical assault and he was treated by accused no.1. It is also argued by her that taking into consideration the character of the complainant, it is highly probable that he demanded medical certificate for grievous hurt and as accused no.1 refused to give such certificate for grievous hurt and instead, told the complainant that according to the injuries received by the complainant, the accused no.1 will issue certificate and so the complainant frequently visited the doctor for getting false medical certificate of grievous hurt. That the defence of the accused is more probable and believable when accused no.1 had not directly accepted the bribe amount and when doubt regarding the demand is created, then benefit of doubt should be given to accused no.1. 9. It is also argued by the learned advocate that it has come out from the evidence of the Investigating Officer that the police officer who investigated the case of assault case never asked the complainant to bring the medical certificate regarding the injury of the complainant from the Medical Officer which also clearly CR.A/466/1993 15/32 JUDGMENT suggests that the complainant went to accused no.1 only with an intention to get the certificate of grievous hurt to get the advantage of keeping the accused (accused of the assault case) in jail. It is also submitted by the learned advocate that there are major contradictions in reference to the place where the demand was made and bandage and stitches were removed by accused no.1 from the hand of the complainant which creates doubt about the credibility or trustworthiness of the evidence of the complainant as well as the panch witness and hence also benefit of doubt should be given to the accused. 10. It is finally argued by the learned advocate that though independent witnesses were available, as the incident took place on a working day, no witnesses were examined by the prosecution, though available, which creates doubt about the genuineness of the entire case of the prosecution and this aspect has not been considered by the trial court and by that the court has committed error in convicting the accused. 11. Learned APP submitted that the defence put forward by the accused is not probable and not believable and the prosecution was able to prove its case by leading cogent and reliable evidence and proved the charges CR.A/466/1993 16/32 JUDGMENT levelled against the accused beyond reasonable doubt and hence the judgment and order passed by the learned Special Judge is legal and proper and the same is not required to be interfered with by this court and the appeal deserves to be dismissed. 12. It is true that the complainant is involved in so many cases and he was convicted by the court in one prohibition case. It is also true that in some cases compromise also had taken place. Merely because some criminal cases are filed against the complainant and/or the complainant filed criminal cases against other persons and merely because the complainant turned hostile in some cases in view of the compromise taken place, it cannot be said that only on this ground, evidence of the complainant should be discarded and no reliance could placed on the evidence of such kind of persons. It is rightly held by the trial court that the evidence of such kind of witness should be evaluated with great care and caution in light of the facts of the case and the evidence adduced on record. If the evidence of a witness is corroborated with oral evidence of panch witnesses, Investigation Officer and documentary evidence produced by the prosecution and if the evidence of such kind of a witness is found trustworthy and if it inspires confidence, the court can CR.A/466/1993 17/32 JUDGMENT certainly rely upon the evidence of such witnesses. So there is no substance in the argument advanced by the learned advocate for the petitioner that the evidence of such kind of a person with such background should be thrown out, in view of the fact that the accused no.1 had not directly accepted the bribe amount. 13. While perusing the evidence, it is found that on 10.4.1989, the trap was made and the complainant and panch no.1 went to the dispensary and admittedly the doctor was standing outside his residence. The accused no.1 enquired about the identity of the panch no.1 and the complainant replied that he is his uncle. It is true that on the point of removal of bandage there is some contradiction between the evidence given by the witnesses. The complainant stated that the bandage was removed near his residence and then they went to the chamber of accused no.1. Panch No.1 says that the bandage was removed in the chamber of accused no.1. It is also stated by panch no.1 that the complainant asked for the certificate to doctor near his residence to which accused no.1 told them to come to the chamber where the stitches were removed by accused no.1. The complainant does not say about the demand of the medical certificate near his residence but regarding the removal of stitches both of them have consistently CR.A/466/1993 18/32 JUDGMENT deposed that the stitches were removed in his chamber and then they were directed to go to the dressing room for applying ointment. At that time, the complainant told him as to what had happened to his certificate and the accused no.1 asked him whether he has brought the money as told by him. On this the complainant replied that he has brought the money but little less and accused no.1 replied that he will have to pay at least Rs.50/-. Panch no.1 says that after the stitches were removed the complainant asked the doctor as to how much amount he should give and the accused no.1 told him to pay Rs.50/-. At that time the complainant told accused no.1 that he has got Rs.50/- with him and before he utilises, it should be accepted. The complainant took out the tainted currency notes amounting to Rs.50/- from his right pocket with his right hand and accused no.2 suddenly came there and accused no.1 told the complainant to pay the said amount to the peon i.e. accused no.2 and accused no.2 accepted the amount with his right hand and then went to the adjacent dressing room. Regarding the allegation that panch no.1 and the complainant went into the chamber of accused no.1, he was examining the patients. But it is further proved from the evidence of defence witness Dahiben who has categorically stated that there were five female patients at that time and she was bringing those patients to accused no.1 and CR.A/466/1993 19/32 JUDGMENT at that time two persons came in his chamber and stitches were removed and he was asked to go to the dressing room for