CR.A/959/1992 1/62 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 959 of 1992 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ========================================================= 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 ? ========================================================= NATWARLAL MOHANLAL ZALA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR KB ANANDJIWALA for Appellant(s) : 1, MS DARSHANA PANDIT, ADDL. PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 29/03/2007 CAV JUDGMENT 1. The present appeal is filed by the appellant-accused under section 374 R/w section 386 of the CrPC challenging the legality and validity of the judgment and order of CR.A/959/1992 2/62 JUDGMENT conviction and sentence passed by the ld. Special Judge, Ahmedabad (Rural) in Special Case No. 5/1987 dated 01.09.1992. The ld. Special Judge convicted the appellant (hereinafter referred to as the accused) for the offences punishable under section 5(i)(d) R/w section 5(2) of the Prevention of Corruption Act (hereinafter referred to as the Old Act) and sentenced him to undergo R/I for 6 months and to pay a fine of Rs.700/- I/d to undergo S/I for 3 months. The accused has been held guilty of the charge of the offence punishable under section 151 of Indian Penal Code. However, no separate sentence has been awarded. 2. The charge has been framed against the accused vide exh.24. Prior to framing of the charge, original accused No.2 submitted one application before the trial court praying discharge from the charges leveled against him stating that he was a Police Patel popularly known as “Mukhi” of village Magodi of Taluka Gandhinagar. There is no role attributed to him on the day of acceptance of the amount and he has been wrongly chargesheeted merely on suspicion and there is no prima facie case against him of his involvement in the so-called agreement for acceptance of the bribe amount or actual acceptance thereof. His application was decided by the ld. Special Judge by speaking order on 05.01,1988 and accused No.2 was asked to face trial and after appreciating the oral as well as CR.A/959/1992 3/62 JUDGMENT documentary evidence led during the course of the trial, the ld. Special Judge, vide impugned judgment, decided to acquit the accused No.1 and held appellant accused No.1 guilty and convicted and sentenced him as aforesaid vide impugned judgment. 3. Mr. Anandjiwala, ld. Counsel appearing for the accused has taken me through the impugned judgment and so also through various grounds of challenge mentioned in the memo of the appeal. 4(i) To appreciate the rival contentions, firstly it would be proper to state the short facts of the case placed by the prosecution. According to prosecution, on 01.12.1985, there was some quarrel between the brother of the complainant Pratapji and one Lakhabhai Danabhai Patel and labourers in the field regarding taking the grass from the field. Regarding that incident, one criminal complaint was lodged for the offences punishable under sections 323, 506(2) etc. of Indian Penal code against three persons namely Babuji, Badarji and Parbatji at about 11.00 a.m. The appellant, in reference to that complaint had gone to village of the complainant i.e. village Magodi and in connection with the investigation of that complaint and to effect arrest of the accused named in the complaint. It is alleged that the accused asked the complainant to call all the three brothers of CR.A/959/1992 4/62 JUDGMENT the complainant so that he can arrest them. Thereupon, the complainant requested the accused that his brothers are not at home and had gone to the field for the purpose of watering the standing crop, but the accused had insisted for calling his three brothers. When the complainant was requesting repeatedly to the accused not to effect the arrest, the accused decided not to insist for the presence of their brothers, but demanded Rs.1000/ by saying that if Rs.1000/ are paid, he would not arrest his brothers. He further told the complainant that this amount of Rs.1000/ be paid to him immediately or latest by tomorrow morning i.e. 02.12.1985 in the panchayat office. He also informed the complainant that he is staying over-night in the village and the complainant should see that his three brothers remain present. When this demand was made and the complainant was informed by the accused that he is staying over-night at village itself in panchayat office, the accused No.2 Mukhi Baldevbhai (original accused NO.2) was present and thereafter both of them had left the place. On the next day i.e. on 02.12.1985, complainant went to the house of one Shanabhai Manabhai Harijan for loan of the amount, but this Shanabhai managed to arrange some amount and ultimately it was decided to give Rs.600/ to the accused. Thereafter, in the afternoon, on 02.12.1985, the complainant and his three brothers went to panchayat office and accused was there. After calling the CR.A/959/1992 5/62 JUDGMENT complainant, his three brothers and along with some other villagers, they went to Chiloda cross-roads along with uncle of the complainant namely Umedsingh in one truck and they were sitting at one hotel and there the accused demanded the amount. As the amount of Rs.600/, in the meanwhile was arranged, that amount was paid to the accused. The accused accepted that amount saying that he was to bring Rs.1000/ and why he had brought Rs.600/ only? The complainant in turn requested the accused to accept this much of amount stating that he could arrange only for that much amount and so said amount of Rs.600/ was accepted by the accused. At that time, accused told the complainant to bring Rs.200/ on th next day i.e. on 03.12.1985. The complainant told the accused that he would not be in a position to arrange for Rs.200/. However, it may be possible for him to bring and pay Rs.100/ only. It was also decided that the complainant would bring his all the three brothers i.e. the accused named in the complaint, at Gandhinagar Court so that in the Court, necessary arrangements for bail can be made there in the Court and the brothers of the accused may not have to suffer any actual confinement after formal arrest. (ii) It is the case of the complainant that on 03.12.1985, he approached the office of Anti Corruption Bureau (ACB for short) for the purpose of lodging a complaint and after lodging the complaint, two panchas CR.A/959/1992 6/62 JUDGMENT were called from the office of Regional Transport Office (RTO for short) and thereafter, the first part of the panchanama was drawn. Formalities of applying anthracene powder on muddamal currency notes were completed by raiding party with the help of the staff members and as members of the first part of the panchanama, raiding party left for Gandhinagar. The Court at Gandhinagar was located in Sector 30. The complainant with panch No.1 and members of the raiding party had reached sector No.30, Gandhinagar at 2.30 p.m. Thereafter, the accused called one Chetanbhai Solanki, an advocate practising there. The advocate was instructed to fill up three bail bonds and arrange for bail. The accused thereafter with the complainant and panch No.1 went to the tea-stall of one Bachubhai Shah. The accused occupied the chair and demanded the bribe amount. On demand, the complainant took out the currency notes of Rs.50/ each from the pocket of his bushirt and handed over to the accused. The accused accepted that amount by his right hand and put the muddamal currency notes in the pocket of his bushirt having a flap on the pocket. On acceptance, signal was given and ultimately the accused was trapped by the members of the raiding party at the place near the tea- stall of Mr. Bachubhai Shah. Thereafter, formalities of drawing of panchanama of the second part were completed and after investigation, the accused came to be chargesheeted. CR.A/959/1992 7/62 JUDGMENT 5. Mr. Anandjiwala, ld. Counsel appearing for the appellant has taken this court through the explanation given by the accused while responding to the questions asked by the Court under section 313 of CrPC and the written statement of the accused which is at page 139 of the paper-book. He has also read the evidence of three important witnesses namely complainant PW.1 Pratapji Thakor (exh.37), PW.2 Babubhai Amthabhai Patni- Panch Witness No.1 (exh.45) and PW.4 Baburao Ramchandra Patil, PI, ACB i.e. Trapping Officer (exh.17). There is one more oral evidence of PW.3 Umedsingh Nathusing (Exh.16) who is the uncle of the complainant. Evidence of PW.5 PI Gobarbhai Khodabhai Desai of ACB (exh.73) is the evidence of formal nature because this witness has filed chargesheet in the case after obtaining sanction from the competent authority to prosecute the accused. Of course, Mr. Anandjiwala argued at length and has pointed out certain infirmities in the case of the prosecution and also absence of probabilities and basic improbabilities in the case of the prosecution. He has also drawn the attention of the Court to certain contradictions and omissions made by the key witnesses like the complainant and panch No.1 and so also Umedsingh PW.3. It is possible for the Court to capsule the arguments advanced by Mr. Anandjiwala putting them in following grannuals :- CR.A/959/1992 8/62 JUDGMENT (i) There is no link of convincing nature to prove the demand of bribe of Rs.1000/ as alleged on 02.12.1985 and some independent evidence was required to be led especially when there is no link evidence to prove that the accused had stayed over-night in panchayat office at village Magodi. (ii) When it is the case of the prosecution that Rs.1000/ was demanded and even as per the story put forward by the prosecution, Rs.400/ were remained to be paid, then the accused would not accept Rs.100/ against remaining amount of Rs.400/. Placing reliance on the decision of the Apex Court in the case of Hari Dev Sharma v/s State (Delhi Administration), AIR 1976 SC 1489, it is argued that acceptance of only 10% of the actual bribe demand could not have been linked with the so-called demand of bribe. Accused would not have accepted such a petty amount of Rs.100/ against the original demand of Rs.1000/. So, the ld. Trial Judge ought to have discarded the evidence and the basic story of the prosecution. (iii) There is no convincing evidence that the amount allegedly given to the accused by the complainant was the bribe amount because it is in CR.A/959/1992 9/62 JUDGMENT evidence that accused had arranged or suggested for a lawyer and had instructed the lawyer to make necessary arrangement by moving a bail plea before the Court. So, the Court was supposed to consider one of the probabilities whether the amount could be against the remuneration of a lawyer and/or towards the costs. So, mere recovery of the amount from the accused can not lead to an inference of acceptance of the bribe amount or illegal gratification. It may be a case of innocent acceptance of the amount on behalf of the lawyer arranged by the accused. (iv) The basic story of the prosecution is that the accused No.2 was actively involved and practically he was a party in demanding the bribe and was interested to see that Rs.1000/ is paid to accused No.1. Of course, in plain words, the prosecution has not said this, but the implied allegation is that accused No.2 was the abettor and it is likely that he might get some share from the bribe amount. Even then, none of the prosecution witnesses have assigned any active role to accused No.1 being a person of their village. So, the witnesses who have attempted to side one of the accused so that he can be saved, why and how the version of such witnesses could CR.A/959/1992 10/62 JUDGMENT have been accepted as reliable piece of evidence for linking the accused with the crime, is also a question and the same has not been appropriately addressed by the trial Court. This is one of the basic infirmities which would go to the route of the case of the prosecution. (v) The allegation as to the demand of the amount of bribe at Chiloda cross-roads by the accused is highly improbable. When the accused had stayed over-night at village Magodi and had insisted to bring the amount, why it was neither paid to the accused voluntarily by the complainant nor the amount was demanded by the accused till they reached Chiloda cross-roads, is also a question which makes the prosecution case doubtful as to repetition of the demand of bribe at Chiloda cross-roads and that too at the tea-stall and payment of Rs.600/ there which can be said to be an initial payment made by the complainant. This improbability in the story of the prosecution makes the prosecution case doubtful. (vi) The evidence is very weak on the point qua the agreement of the accused to accept Rs.100/ only at Gandhinagar. It was not impossible for the accused to ask accused No.2 to recover the amount on his behalf or the accused would have insisted CR.A/959/1992 11/62 JUDGMENT that accused No.2 should also accompany all of them when they go to Gandhinagar for executing bail bonds in the Court. There were number of occasions for the accused to demand the amount because they had enough time even at Gandhinagar and even prior to their reaching actually to the Court at Gandhinagar with accused and brothers of complainant and formal arrest report prepared by the appellant-accused. So, the evidence of demand immediately prior to the acceptance of bribe amount ought not to have been accepted by the trial Court. When there was ample scope for the accused to demand remaining amount allegedly agreed by him, the accused would not have waited till last and, therefore, the case of the prosecution ought to have been thrown out by the trial Court on the ground of improbabilities. 6. While developing these arguments, he has taken me through the relevant part of evidence which is at page Nos. 204 to 207 of the paper-book. There is confusion about the place and about time when Rs.600/ were arranged by the complainant. Whether the amount was actually arranged and received by the complainant at village Magodi itself or arrangement could be made only at Chiloda cross-roads is again a confused situation on facts placed by the prosecution. Therefore, the Court ought not to have accepted the say of the prosecution CR.A/959/1992 12/62 JUDGMENT witnesses that Rs.600/ were actually paid to the accused at Chiloda cross-roads. According to Mr. Anandjiwala, the panchanama produced by the prosecution and proved by panch No.1, PW.2 Babubhai Patil, PI -Trapping Officer ought not to have been accepted as reliable piece of evidence. Panchanama has not been satisfactorily proved and as per the settled legal position, the prosecution is under obligation to prove that same was dictated by the panch and it was the objective and transparent recording of the facts stated therein. In the present case, panch himself has admitted that certain wrong references have been made in the panchanama. At one place, panch had even accepted that he was not a party in dictating the panchanama. Panch No.1 examined by the prosecution is a peon of RTO department. He had no capacity to dictate the panchanama. The panch had not much educational qualification and had studied up to 5th Standard. The selection of a panch is also not objective and it is in evidence that ACB officers have called number of persons from the office of RTO so as to act as a panch in ACB traps. RTO department is a defamed department. In such a fact situation, the ld. Special Judge ought to have observed that trapping officer has not cared to select a reputed person as a panch and it would adversely affect the case of the prosecution. The mode of recovery of currency notes from the accused is also not proved by consistent evidence. There is material CR.A/959/1992 13/62 JUDGMENT difference in narrating the sequence of story as to the recovery of the amount. As such, there is no discussion qua the evidence on the point of engagement of a lawyer in the deposition of the panch. It is clear from this that the panch witness has attempted to put curtain on some crucial aspects of the events that had occurred after raiding team reached Sector 30 at Gandhinagar. 7. Mr. Anandjiwala has drawn attention of the Court to to certain aspects including contradictions and they are:- (i) The evidence of the complainant, in the present case, is that of an accomplice and his evidence has not been appreciated in that capacity. According to the complainant, between 11.00 p.m. And 12.00 mid-night of 01.12.1985, the accused came along with police patel i.e. Mukhi- accused No.2 for the purpose of arresting his three brothers and had demanded Rs.1000/ for the purpose of not putting the brothers of the complainant behind the bars and the complainant was asked to give the said amount on the next day morning in the panchayat office. The complainant has no-where stated in his evidence that in the night of 01.12.1985, his uncle Umedsingh was present when initial demand was made. This is CR.A/959/1992 14/62 JUDGMENT nothing but a conflict in the evidence of the complainant and Umedsingh. (ii) There is clear inconsistency in the evidence of complainant Pratapji and his uncle Umedsingh regarding giving of that amount and acceptance of it because the amount was to be accepted at panchayat office only and that too in the morning. There was no reason for the accused to wait till after-noon and to take the complainant and others to Chiloda cross-roads especially when there is some distance between village Magodi and Chiloda cross-roads. The accused would not have accepted this amount of Rs.600/ in the presence of number of persons at tea-stall (lorry). Normally such acceptance would be in a secret place and not in a public place. This improbability has been ignored while appreciating the evidence of demand and acceptance of Rs.600/. (iii) There is an error in appreciating the evidence regarding the demand made immediately prior to the acceptance of the bribe amount of Rs.100/. Witness Pratapji has stated in his evidence that the accused told him that “tomorrow you bring Rs.200/” whereas as per his own say the remaining amount would be Rs.400/, therefore, the CR.A/959/1992 15/62 JUDGMENT demand of Rs.200/ which the complainant was to pay on 03.12.1985 is not in consonance with the earlier version. According to this witness when this talk had taken place between them, his uncle, Raiji, Babaji and Punaji were present. He further says that all these persons had gone to Chiloda cross-roads in one truck. This witness is cross- examined in detail and in cross-examination he says that the appellant-accused told him to bring the remaining amount on the next day. Witness Umedsingh say that the appellant told Pratapji to give remaining amount, at that time, the complainant told him that he would pay the same tomorrow and thereafter they went home. He does not say as to how much was to be paid. He also does not say that it was agreed between them to pay Rs.100/. This witness is absolutely silent about the conversation which is alleged to have taken place between Pratapji and the appellant. The presence of this witness is admitted by Pratapji and, therefore, the evidence of Pratapji is not corroborated by the evidence of Umedsingh. Umedisingh in his cross-examination says that he never came to know as to how much amount was to be paid to the appellant. (iv) That the evidence of panch does not inspire CR.A/959/1992 16/62 JUDGMENT any confidence. There are number of contradictions and the omissions in the evidence of panch. From the bare reading of panchnama, it becomes clear that he could not be present at the relevant time when there had talk between the complainant and the accused at the time of alleged acceptance of the amount and even at the stage of demonstration being made and preparation of the panchanama. It also becomes clear that he has simply signed the panchanama. Not only that but as per his own admission when his further statement was recorded, the panchanama was read over to him and some substance was noted down by the IO in his further statement. From this statement also, number of omissions have been brought from which it appears that the panch must not have seen anything and he has simply signed the panchanama. (v) It is in evidence that when the complainant Pratapji and panch No.1 went to accused at Chiloda cross-roads on the day of trap after lodging the complaint where the accused was standing, the accused has not demanded the amount of bribe. At that time, the accused told the complainant that they were going to Sector No.30 at Gandhinagar in the Court for presenting the accused. Till the CR.A/959/1992 17/62 JUDGMENT Advocate Mr. Chetan Solanki was called and he was instructed to prepare papers for bail, no demand was made and when he was at a tea-stall (lorry) and they were standing, there was no conversation at all between the complainant and accused about the bribe amount. This fact situation has been ignored by the ld. Trial Judge while evaluating the evidence on the point of demand. (vi) Witness Pratapji says in his evidence that the accused demanded the amount of Rs.100/. The amount which was in his left hand pocket of the bushirt was taken out by his right hand. The amount was demanded in presence of panch. He handed over the amount to the accused who accepted the same by his right hand and put the same in the right hand pocket of the shirt and thereafter the signal was given. On this aspect the evidence of panch is different. He says that all of them were present when this talk and acceptance took place. As soon as they reached at the tea-stall (lorry)of Bachubhai, he took out papers from the bag and thereafter the demand-acceptance was made. It is also pertinent to note that the demonstration was made in the jeep-car itself. By putting a curtain the demonstration was made inside the jeep-car. As per the evidence of Pratapji, he was standing CR.A/959/1992 18/62 JUDGMENT outside the jeep car at the time when demonstration was being made. The question is that as to how could he see anything which happened inside the jeep car. According to his say, on right hand finger tips the powder marks were seen. Panch No.1 was called and he took out the currency notes from the right pocket of the shirt of the accused. The number tallied with the preliminary panchanama and on examining it in the light of ultra-violate lamp, powder marks were seen. The witness also says that powder marks were seen inside the pocket in the light of the lamp. He also says that the hands of panch were seen in the lamp and powder marks were seen. In cross- examination this witness has admitted that when this demonstration was being made, he was standing outside the jeep. No experiment was done on the button of the bushirt of the accused. It was the upper portion of the flap which was not seen in the lamp light. He has also stated that on the tips of the fingers, powder marks were seen. A suggestion was put to the witness that the witness had tried to put the amount in the pocket by saying as the payment to be made to the advocate and at that time the