CR.A/104/1990 1/93 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 104 of 1990 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 ? ========================================================= NATHUBHAI MOTIBHAI PATEL & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR AD SHAH for Appellant(s) : 1 - 2. MR AJ DESAI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 11/05/2007 CAV JUDGMENT 1. The appellants are the original accused of Special (ACB) Case No.48 of 1988 (hereinafter referred to as `the accused') who have been held guilty of the charge of offence punishable under Section 161 of the Indian CR.A/104/1990 2/93 JUDGMENT Penal Code and also for the offence punishable under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to either as `the Act'). 2. The learned Special Judge, City Civil Court, Ahmedabad, after hearing learned counsel for the parties, vide judgment and order dated 20.12.1989, convicted and sentenced both the accused and imposed identical punishment for both the offences. The appellants have been sentenced to undergo 2 years RI and to pay a fine of Rs.3,000/- and in default to undergo RI for 9 months for the offence punishable under Section 161 of the Indian Penal Code and to undergo sentence of 2 years RI and to pay a fine of Rs.3,000/- and in default to undergo RI for 9 months for the offence punishable under Section 5(1)(d) r/w. Sec.5(2) of the Act. 3. Both the accused have assailed the legality and validity of the judgment and order of conviction and sentence dated 20.12.1989, CR.A/104/1990 3/93 JUDGMENT directing the present appeal under Section 374 r/w. Sec.386 of the Criminal Procedure Code. The judgment is assailed on various grounds mainly mentioned in para 6 of the memo of appeal and Mr.Shah has taken us through the main grounds of challenge during the course of oral submissions. 4. The accused No.1 was a Police Constable attached to Naroda Police Station and accused No.2 was a Head Constable in the same police station. Pending the appeal, original accuse No.2 i.e. appellant No.2 has expired and now his son, Indrajitsinh Rathod is proceeding with the appeal, as per the order dated 27.10.2005 passed by this court in Criminal Misc. Application No.11343 of 2004. However, Mr.Shah has clarified that Shobhanaben, widow of the deceased is still there and she is one of the legal heirs along with her two sons and two daughters. Applicant-Indrajitsinh had prayed that he may be permitted to proceed with the proceedings, but it should be construed that the widow – Shobhnaben also is CR.A/104/1990 4/93 JUDGMENT with the applicant and none of the heirs has decided to give up the stand taken by the deceased – original appellant No.2. 5. I have heard Mr.A.D.Shah and learned APP Mr.A.J.Desai, at length. Before entering into the details of the submissions made before the Court by both the learned counsel for the parties, it would be appropriate for the court to state the basic story of the prosecution that was placed before the Trial Court. 6. It is the case of the prosecution that one Sales Tax Inspector had filed a complaint against (1) Premjibhai, (2) Laxmanbhai Premjibhai, and (3) Ms.Laxmiben Ambalal for the offences punishable under Section 78 of the Sales Tax Act at Naroda Police Station on 5.12.1986. The allegation against the accused in the complaint made by the Sales Tax Officer was that the accused persons have not paid the Sales Tax amount to the tune of Rs.55,820/- and thereby committed breach of Sales Tax CR.A/104/1990 5/93 JUDGMENT Rules 31 and 32 punishable under Section 78 of the Sales Tax Act. This complaint was registered as CR No.361 of 1986 and the investigation was handed over to original accused No.2, who was the Head Constable. One of those 3 accused persons named in the compliant filed by the Sales Tax Inspector, Laxmanbhai Premjibhai Patel, is the complainant in the present case. Complainant Laxmanbhai along with other two persons was running business of timber in the name and style of `Jai Hind Timber Mart' and the same was situated near Galaxy Cinema. According to the prosecution, accused No.1 had gone to the business premises of the complainant on 8th December and inquired about the partners and informed that he had come from Naroda Police Station as there was a Sales Tax case wherein the partners were required to be arrested and thereafter they may be taken on remand. The accused No.1 thereafter instructed the complainant to keep the partners present on the next day. But on 8th of December, the name CR.A/104/1990 6/93 JUDGMENT of accused No.1 was nor revealed. 7. One Sureshbhai, an advocate, was looking after Sales Tax matters of the complainant firm and, therefore, the complainant contacted his advocate Sureshbhai and called him at his office on 9th December. As nobody had turned up from police station on the next day i.e. on 9th December, the complainant and his advocate Sureshbhai decided to go to Naroda Police Station and inquired about the case through the police officer present in the police station. The officer present in the police station had informed the complainant that they should remain at the office and the work will be completed by Police at that place only. The complainant realized at that time that the police constable, who had come to his office / business premises on 8th December was not present at the police station. Thereafter, both of them came out of the police station and they went away. Both of them had paid visit at about 3.00 p.m. at Naroda Police CR.A/104/1990 7/93 JUDGMENT Station and at about 3.30 p.m, two police personnel had reached the office of the complainant. One of the police personnel was having a file bearing a slip in the name of Somabhai Patel. The complainant inferred / believed that one of these two police personnel was Somabhai Patel, but he was not able to gather from the two police personnel that who is Somabhai and what is the name of another policeman. The accused No.1 then asked the complainant to keep all partners present so that the necessary work can be completed. The complainant was informed that partners were to be taken on remand and when the complainant told both the police personnel that father of the complainant was quite aged and may not be in a position to undergo remand. In reply to it, the policemen told the complainant to keep him present without fail. It is alleged that Police had insisted the woman named Laxmiben Ambalal present there and declared the intention to take her also on remand. The complainant was threatened by the CR.A/104/1990 8/93 JUDGMENT police personnel that they can do whatever they like after the arrest and the remand order was passed. At that time, the police personnel were informed by the complainant that Laxmiben was wife of his younger brother and such remand should not be asked against her. The complainant was manhandled and then he was given a hint that the complainant should understand the matter and when complainant inquired what he was required to do, the police personnel allegedly made a demanded of Rs.5,000/-. It was further alleged that after some bargaining, the police personnel reduced the demand to Rs.3,000/-. As the police personnel were insisting for this amount, the son of the complainant went out and arranged for Rs.1,200/- and that amount was paid to the policemen, who had come on 8th December. At that time, the complainant was asked to keep the remaining amount of Rs.1,800/- ready and he was informed that the same person, who had accepted Rs.1,200/-, will come on the next day at about 9.30 a.m for CR.A/104/1990 9/93 JUDGMENT collecting the remaining amount. At that time also, accused had insisted to keep all partners and two witnesses present. When the complainant informed that it will not be possible to arrange for Rs.1,800/- in such a short period and the same can be arranged after opening of the bank and, therefore, the accused persons agreed to come at 11.30 a.m. 8. According to the prosecution, the complainant had no desire to make the payment and, therefore, on the next day, he left his place for `darshan' at `Camp Hanuman'. It was alleged that son of the complainant had gone to his office and when the complainant returned in the auto-rickshaw from `Camp Hanuman', he went to `Gayatri Temple' and at that time he saw the board of Anti-Corruption Bureau. Instead of going to Gayatri Mandir, the complainant went to the office of Anti- Corruption Bureau (hereinafter referred to as `the ACB'). It is the say of the prosecution that the complainant contacted his son on telephone and learnt that two policemen had CR.A/104/1990 10/93 JUDGMENT come and they were to come again at about 3.30 p.m. It is the say of the prosecution that the complainant had filed a complaint before the ACB and Police Inspector Mr.G.K.Desai, after calling Panchas and performing necessary tests of anthracene powder, arranged for a trap. Thus, on 9th December, the demand of Rs.5,000/- was initially made by the accused persons, but ultimately, it was reduced to Rs.3,000/- for showing favour of not seeking remand after arrest in a case instituted by Sales Tax Department at Naroda Police Station. At the time when the initial demand was made, the amount of Rs.1,200/- was paid and the amount was arranged by Sureshbhai Laxmanbhai Patel, son of the complainant. According to prosecution, Rs.800/- were collected from one of the friends of Sureshbhai and Rs.400/- were paid by his mother. These notes were in the denomination of Rs.50/- and Rs.20/- and also in other denominations. The date of the complaint was 10th December and the same has registered at 11.00 a.m. The members of the CR.A/104/1990 11/93 JUDGMENT raiding party had reached to the office of the complainant and waited at the office. Both the accused came at the office one after another. Accused No.2 completed the procedure of obtaining signatures of surety on that day i.e. 10th of December. But, the accused left the place without making any demand and as the demand was not made, there was no scope for the complainant to offer the amount of bribe. Thereafter, both the accused did not turn up till 6.30 p.m and the trap officer decided to give up the attempt and second part of Panchnama was completed showing the trap as `unsuccessful'. 9. It is alleged that on 10th of December accused No.1 went to the residence of the complainant at about 9.00 p.m and suddenly made the demand. The complainant expressed his inability to make payment and the accused No.1 was told that the amount collected by him for paying them now has been returned by him to the persons from whom he had borrowed and he does not have the amount with him. But, as CR.A/104/1990 12/93 JUDGMENT the complainant was apprehending hackle, the wife of the complainant took out Rs.800/- and handed over the same to accused No.1. The accused No.1, after accepting the amount of Rs.800/-, threatened the complainant that if he makes excuses in making payment, his life will be ruined and asked the complainant to pay the remaining amount of Rs.1,000/- on the next day. 10. It is the say of the prosecution that the complainant again contacted ACB Office on 11th of December and at that time P.I., Mr.Jadav was present. Mr.Jadav recorded further complaint and called Panch Witnesses, who were called by Mr.Desai on previous day. The complainant then produced Rs.1,000/- and after performing necessary test of anthracene powder, the raiding party reached at Jai Hind Timber Mart i.e. The office and business premises of the complainant. According to prosecution, on that day it was decided that amount of bribe may be paid on demand, by Sureshbhai, son of the complainant and Panch CR.A/104/1990 13/93 JUDGMENT No.1 was asked to be in the company of Sureshbhai as well as the complainant. It is alleged that accused No.1 came in auto- rickshaw and went in the chamber. It is alleged that accused No.1 inquired from Sureshbhai about the complainant. Sureshbhai then informed the accused No.1 that his father has gone out. According to prosecution, accused No.1 inquired as to what has been done in respect of money as agreed to be paid on previous night. According to prosecution, Sureshbhai informed accused No.1 that with great difficulty they had collected the amount and there should not be any harassment to his father and other partners in the case. According to prosecution, accused No.1 told that he will manage everything and while saying so demanded Rs.1,000/-. On this demand being made, Sureshbhai paid Rs.1,000/- smeared with anthracene powder (Muddamal) to accused. No.1. The accused No.1, after accepting the amount kept the same in his right side pant pocket. Thereafter, the CR.A/104/1990 14/93 JUDGMENT accused No.1 left the office premises of the complainant and sat in auto-rickshaw. At that point of time, Sureshbhai gave signal. By that time, the auto-rickshaw started, therefore, the members of the raiding party chased that auto-rickshaw. The Trap Officer had followed the auto-rickshaw by calling the jeep car, which was parked at nearby vicinity and the auto-rickshaw wherein the accused No.1 was there, was intercepted and stopped. The accused No.1 then was brought along with auto- rickshaw to Jai Hind Timber Mart. The currency notes of Rs.1,000/- smeared with anthracene powder were found from the pocket of the accused and after performing necessary panchnama, the raid was completed. 11. It is the case of the prosecution that the accused No.2 was called from Naroda Police Station and from his portfolio, three blank papers containing signatures of Panch No.1 as well as papers of Sales Tax Office were recovered. These documents were seized along with Muddamal currency notes. Seizure memo CR.A/104/1990 15/93 JUDGMENT was also prepared and the receipt for the same was passed over to the accused. It is alleged that accused No.1 had come in the auto- rickshaw bearing Registration No.GRS-3597 and this auto-rickshaw was driven by one driver named Dattatrey Sudama. 12. After successful trap, the search of the residence of both the accused persons was carried out and during the search of residence of accused No.1, one iron bag containing Rs.2,000/- was recovered. This amount was in the currency notes of different denominations. On completion of the investigation and obtaining necessary sanction required under the act, both the accused came to be charge- sheeted and at the conclusion of the Trial, both the accused were found guilty for the charges levelled against them. 13. Mr.A.D.Shah, learned counsel appearing for both the accused has taken this Court through the oral evidence of the following witnesses: CR.A/104/1990 16/93 JUDGMENT PW-1 Exh.8 Laxmanbhai Premjibhai Patel (Complainant) PW-2 Exh.18 Sureshbhai Laxmanbhai Patel PW-3 Exh.19 Dalpatbhai Somabhai (Panch Witness) PW-4 Exh.27 Gobarbhai Khodabhai Desai (P.I., Trap Officer, who had arranged trap on 10.12.1986) PW-5 Exh.28 Kanchan R. Jadav, P.I., A.C.B. and Investigating Office of the trap that was arranged on 11th of December, 1986 14. Mr.Shah learned counsel for the accused and learned APP Mr.Desai have taken this court through the details of complaint Exh.9, Panchnama of unsuccessful trap dated 10th December Exh.20, Panchnama of successful trap dated 11th December Exh.23, receipt signed by accused No.1 dated 11th December Exh.21 and receipt signed by accused No.2 dated 11th December Exh.22. 15. Exhs.29 and 30 are sanctions to prosecute both the accused which are at page Nos.226 and 231 of the paper book. But, the sanction accorded by the authorities was neither seriously disputed before the Trial Court nor the legality and validity of both the sanctions have been disputed before this court. Panchnama Exh.20 of unsuccessful trap dated CR.A/104/1990 17/93 JUDGMENT 10th December is a vital and important document considering the nature of charges levelled against accused No.2 because the demand of illegal gratification is also the offence independently punishable and such a public servant can be held responsible under Section 161 of the Indian Penal Code as the Scheme of the said section is concerned with the conduct of a public servant. 16. Arguments advanced by Mr.A.D.Shah can be decided mainly on the following six separate parts; the first part relates to the anthracene powder test carried out in the present case and the infirmity ultimately emerging from the oral as well as documentary evidence led in this regard and its effect. The second part covers the area of errors alleged to have been committed by the learned Trial Judge while appreciating the evidence of the complainant – Laxmanbhai and his son Sureshbhai. Third part is with regard to the infirmities that have emerged from the evidence of Panch Witnesses, including the CR.A/104/1990 18/93 JUDGMENT selection of Panch-Dalpatbhai Somabhai PW-3. Fourth part covers the area of improbabilities emerging from the evidence led by prosecution and the lack of transparency in the investigation that has resulted into serious prejudice to the accused persons, including certain contradictions and omissions that have emerged as contradictions or conflicts in the evidence of Prosecution Witnesses examined or not. Fifth part is in the nature of alternative argument and it is submitted that the learned Trial Judge has not cared to consider one crucial aspect and, that is, whether the prosecution has proved the accusation against both the accused with the same quality and quantity of evidence and whether the accused No.2 could have been given benefit of doubt as he was not present on any subsequent date that of 9th December when the amount of Rs.1,200/- was allegedly recovered by both the accused persons, in absence of any corroborative piece of evidence to the version of the complainant. The sixth part of the CR.A/104/1990 19/93 JUDGMENT argument covers the effect of non-examination of some important witnesses i.e. advocate Sureshbhai and auto-rickshaw driver Dattatrey Sudama and Panch No.2, who had seen accused No.2 accompanying accused No.1 on 10th when the signature of Panch No.1 was obtained on one paper as person surety to the accused named in the case registered by Sales Tax Officer, especially, when the offence registered under the Sales Tax Act is a bailable offence. 17. According to Mr.Shah when the evidence of complainant about his first visit to the ACB office on 10th December, 1986 sounds unnatural and highly improbable, and the evidence of complainant and his son form infirmities as regard to arranging an amount of Rs.1,800/- and thereafter approaching the office of ACB again saying that now amount of Rs.1,000/- has been demanded, throws the case of the prosecution behind thick cloud of doubt. As the evidence as to the presence of anthracene powder on the hands and cloths of accused No.1 CR.A/104/1990 20/93 JUDGMENT also does not sound the ring of truth, both the accused ought to have been acquitted by the learned Trial Judge. The appeal, therefore, requires to be allowed and consequently the accused are required to be acquitted. 18. The arguments of Mr.Shah have been seriously resisted by learned APP Shri A.J.Desai. According to Mr.Desai, this case is with regard to highly corrupt police officials, who have attempted to extort money in a case registered in their police station, which was undisputedly a bailable offence. While replying to each argument advanced by Mr.Shah, Mr.Desai learned APP has developed the following points : 19. The improvements made by complainant or some inconsistencies found in the evidence of complainant as well as his son Sureshbhai are easily separable and if these exaggerations / improvements are considered, they are CR.A/104/1990 21/93 JUDGMENT insignificant in nature unless the court reaches to the conclusion that improvements made by Prosecution Witnesses affect adversely to the case of the prosecution or the veracity of the witnesses examined, then only it can be said to be infirmity in the evidence. As per the settled legal position the Trial Judge through the fact finding machine is supposed to try to separate wheat and chuff. When it is not possible, then such improvements and exaggerations should be ignored. While dictating the complaint, the complainant is not supposed to divulge each word of version or the conduct of the accused putting them minutely in the complaint, so the consistency in the basic story put forth by the complainant vis-a-vis, his deposition in the court should be looked into and the learned Trial Judge cannot be said to have committed any error in appreciating evidence of complainant Laxmanbhai or his son Sureshbhai. According to Mr.Desai, the complaint is in two parts. The details given to the Trap Officer, CR.A/104/1990 22/93 JUDGMENT P.I., Mr.Jadav, is also a part of FIR and this could have been read as a corroborative piece of evidence. The first complaint is regarding demand of Rs.1,200/- by the accused persons and the subsequent story of acceptance of the amount by accused No.1, paying visit at the house of the complainant and second part of the compliant is regarding demand of Rs.1,000/-. This further complaint was produced vide Mark 7/3. This document has not been exhibited formally, but as the contents of the document Mark 7/3 have been proved, this court should consider this document in evidence. 20. According to Mr.Desai, even for the sake of argument, if the document 3/7 is not considered as part of complaint i.e. FIR, then also the same does not affect the substratum of the story placed by the prosecution. On the contrary, the version of the complainant and his son Sureshbhai emerges as story consistent to the case placed by the CR.A/104/1990 23/93 JUDGMENT prosecution. Amount of Rs.1,000/- accepted by accused No.1 was recovered immediately by the Trap Officer in the presence of Panch. PW-2 Sureshbhai and PW-3 Dalpatbhai when have satisfactorily proved the demand of bribe by accused No.1, then the recovery of Muddamal i.e. currency notes of Rs.1,000/- from accused No.1 becomes significant. Direct evidence of these two witnesses corroborated by P.I., Mr.Jadav is sufficient to hold the accused No.1 responsible for acceptance of illegal gratification by misusing his status, as observed by Hon'ble Supreme Court, to bring home all the charges punishable under Section 161 of the Indian Penal Code, the prosecution requires to prove that the person, who has accepted the gratification is a public servant, he himself has accepted the gratification and the gratification is accepted as a motive or reward for rendering or attempting to render any service or the service to any person. So, keeping this law in mind the learned Trial Judge has CR.A/104/1990 24/93 JUDGMENT appreciated the evidence. Initially, amount of Rs.1,200/- was recovered by both the accused and out of the remaining amount of Rs.1,800/- from the originally reduced amount of Rs.3,000/-, the amount Rs.800/- was recovered by the accused on 10th of December. Of course, the wife of the complainant has not been examined. But, no declaration was required to prove these facts when two different prosecution witnesses viz. the complainant and his son were competent to prove the fact of visit of accused No.1 at the residence of the complainant on 10th of December between 8.30 and 9.00 p.m., the defence cannot accept nor the prosecution is obliged to examine all witnesses to prove one fact. It has come in evidence that on two different occasions wive of the complainant had arranged for money. This evidence impliedly corroborates the evidence as tot he success of the trap and recovery of Rs.1,000/- from Accused No.1. It is clear