CR.A/1289/1993 1/42 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1289 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 ? ========================================================= BECHARBHAI S PRAJAPATI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR KJ SHETHNA for Appellant(s) : 1, Mr.L.R.Pujari,A.P.P. for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 24/08/2007 ORAL JUDGMENT 1. This appeal is directed against the judgment and order dated 5-11-1993 passed by the learned Special Judge, CR.A/1289/1993 2/42 JUDGMENT Bhavnagar, in Special Case no.9 of 1991 whereby the appellant-Becharbhai Saburbhai Prajapati was convicted and sentenced to suffer R.I. for one year in respect of offence punishable under Section 161, IPC and R.I. for one year and fine of Rs.1500/-, in default, R.I. for one year in respect of offence punishable under Section 5(2) of the Prevention of Corruption Act, however, both the sentences were ordered to run concurrently. It may be noted here that by the said judgment, the learned Special Judge had acquitted the accused nos.2 to 4 of all the charges levelled against them. 2. Briefly stated, the case of the prosecution is that on 12- 12-1990, one Luxury Bus bearing no .GTS 9919 was hired by Ramnikdas Hargovindas from Bharat Travels Company for carrying a marriage party from Mahuva to Selana. According to the complainant-Ghelabhai Jasabhai, the Mehtaji of Bharat Travels who was present in the bus, at around 6.00 or 6.15 a.m. of that day when the bus reached Aasarana Chokadi, the appellant-accused stopped the luxury bus and demanded the documents relating to the luxury bus whereupon the complainant had shown the permit and CR.A/1289/1993 3/42 JUDGMENT other papers, however, the police staff kept these papers with them. The appellant-accused, then demanded Rs.250/- in the name of entry fee. The complainant, then requested the appellant-accused who was P.S.I. at the relevant time to let them go as the bus was carrying a marriage party, however, the appellant-accused demanded Rs.250/-to which the complainant refused as instructed by the owner of the bus. It is further the case of the prosecution that the appellant-accused then told the complainant that Rs.225/- be paid and the papers be collected from that spot where the bus was intercepted by 10.00 O’clock, and in case the complainant is late, the amount be paid at Khuntvada Police Station So saying, the appellant-accused issued a receipt in token of having taken away the permit and other papers which was received by Bhagwanbhai Ranchhodbhai, the driver of the luxury bus. The driver was then allowed to run the bus towards village Selana. The complainant thereafter, returned to Mahuva and narrated the incident to the owner/proprietor of the luxury bus. On hearing this, the owner of the luxury bus was against giving any illegal gratification as all the documents relating to the luxury bus was genuine. Therefore, the owner decided to approach the CR.A/1289/1993 4/42 JUDGMENT Anti Corruption Bureau, Bhavnagar, Accordingly, the complainant, the owner of the luxury bus and one Ramjibhai who happens to be the elder brother of the owner of the luxury bus went to the Office of the Anti Corruption Bureau, Bhavnagar, met Mr. Bhatt, P.I of Anti Corruption Bureau, Bhavnagar, apprised him of the matter and lodged the complaint. It is further the case of the prosecution that two Panchas were called and they were told the purpose for which they have been called, the complaint was read over to them and they agreed to be Panch Witnesses. They were also explained the purpose and use of anthracene powder. Thereafter, the complainant gave two currency notes in the denomination of Rs.100/-each and one currency note in the denomination of Rs.50/- aggregating Rs.250/-. These currency notes as also the hands of the complainant, Panchas and other staff were observed in ordinary light and nothing significant appeared. Thereafter, a bottle containing anthracene powder was taken from the cupboard, some anthracene powder was put in a blank paper, these currency notes were smeared with anthracene powder and when they were again observed in ordinary light no visible marks were seen. These currency notes were again tested CR.A/1289/1993 5/42 JUDGMENT under ultra-violet lamp and glowing marks of bluish powder were seen. These currency notes were then put into the shirt pocket of the complainant after ensuring that the shirt pocket was empty. It was explained to the complainant that in ordinary light the marks of anthracene powder will not appear but only under ultra violet lamp the bluish powder marks of anthracene powder can be seen. The anthracene powder that remained in the blank paper was then put back into the bottle, the bottle was placed in the cupboard and locked. The blank paper was burnt and destroyed. The complainant was instructed not to touch the currency notes put in his pocket except for the purpose of giving them to the appellant-accused and that these currency notes should be given to none other than the appellant-accused. With these instructions the constable washed his hands and made sure that there were no marks of anthracene powder by viewing under ultra violet lamp. The preliminary Panchnama Exh.14 was drawn. The raiding party then left for Khuntvada - some persons went by Ambassador car while the others went by Jeep. The complainant was instructed to give signal as soon as the amount is demanded and accepted by putting his hands on his head and Panch CR.A/1289/1993 6/42 JUDGMENT no.1-Hemantkumar Jayantilal Bharu was instructed to remain in the company of the complainant. In this manner, with a view to apprehend the appellant-accused red handed while demanding and accepting the illegal gratification from the complainant, the trap was arranged. It is further the case of the prosecution that they reached Khuntvada at 5.30 p.m. and on instructions by P.I. Mr.Bhatt, Ramjibhai Ukabhai, the elder brother of the owner of the luxury bus went to Khuntvada Police Station to inquire whether the P.S.I. was present or not, however, since the P.S.I. was not available at the Police Station, they decided to wait for an hour. It is alleged that within an hour the Police Jeep went towards the Police Station, and therefore, Panch no.1 along with the complainant was sent to the Police Station. They went to the Police Station on foot and so did the others who followed. The complainant went up the first floor where he met the appellant-accused (P.S.I.) who was sitting in the Chamber while Panch no.1 who accompanied the complainant waited at the door of the P.S.I’s Chamber. The complainant requested to handover the papers of the luxury bus, but the appellant-accused asked whether he (complainant) had brought the money i.e. the illegal CR.A/1289/1993 7/42 JUDGMENT gratification. The complainant suggested that some lesser amount than Rs.250/- be accepted to which the appellant- accused replied that Rs.200/- be given. Accordingly, the complainant handed over the tainted currency notes of Rs.200/- to the appellant-accused who accepted the same by his left hand, put it in his right hand and then into his right hand trouser pocket. The appellant-accused then gave the portfolio that was in the cupboard. In the meanwhile, the complainant had kept the remaining currency note of Rs.50/- in his pocket. The appellant-accused then demanded the receipt which was given at the time of interception at the spot, but the complainant told that the receipt was with the driver. It is alleged that, at that time, Panch no.1 was at a distance of five feet from the Chamber of the appellant- accused and heard the conversation between the complainant and the appellant-accused. It is also alleged that the complainant, thereafter , came out near the staircase and gave the preplanned signal to the ACB personnel who rushed to the Chamber of the appellant- accused in the company of Panch no.2 Ishwarlal Girdharlal Chauhan. The ACB Inspector revealed his identity by showing his card, took away the revolver from the CR.A/1289/1993 8/42 JUDGMENT appellant-accused (P.S.I.). At that time, the appellant- accused got frightened and took out the said tainted currency notes from his trouser pocket and kept them in his fist. The P.I. ACB, Bhavnagar then apprehended the appellant of having demanded and accepted a sum of Rs.200/- from the complainant for showing him favour by allowing the luxury bus to go to the destination and the appellant-accused was asked to place his hands on the table and the tainted currency notes were recovered from the appellant-accused. Thereafter, the test of anthracene powder was carried out of the hands of the raiding party by viewing their hands under ultra violet lamp and no marks of anthracene power was found. Similar test was carried out of the hands of the complainant, the appellant-accused and trousers of appellant-accused and presence of anthracene powder was noticed. It is further alleged that the recovered currency notes of Rs.200/- were compared with the numbers and denominations of the currency notes mentioned in the pre-trap Panchnama and the same having tallied in toto were seized. The appellant-accused was taken into custody. The tainted currency note of Rs.50/-that remained in the pocket of the complainant was also compared with the CR.A/1289/1993 9/42 JUDGMENT number and denomination mentioned in the pre-trap Panchnama and the same also tallied. Thereafter, a detailed second part of the Panchnama was drawn in presence of the Panchas, muddammal currency notes, trouser worn by the appellant-accused etc. were attached. It is further the case of the prosecution that on the next day, further statement of complainant was recorded and at that time he produced the receipt issued by the appellant-accused. The statements of witnesses were recorded and the sanction for prosecution in respect of the appellant-accused was obtained from Mr. Brar, Junagadh. 3. The case was investigated by the Investigating Officer Mr. Bhatt who at the conclusion of the investigation, charge-sheeted the appellant-accused for the offence punishable under Sections 7, 12, 13(1)(d) of the Prevention of Corruption Act. The learned Special Judge framed charge Exh.5 against the appellant-accused for the offence punishable under Sections 7, 12 and 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act. The charge was read over and explained to the appellant- accused, who pleaded not guilty to the same and claimed to CR.A/1289/1993 10/42 JUDGMENT be tried. Therefore, the prosecution examined : (1) PW 1 Ghelabhai Jasabhai at Exh.11 (complainant), (2) PW 2 Hemantkumar Jayantibhai Bharu at Exh.14 (Panch no.1), (3) PW 3 Bhagwanbhai Ranchhodbhai, driver of the luxury bus at Exh.18 and (4)PW 4 Suryakant Ambalal Bhatt at Exh.20 and also produced documentary evidence, such as complaint lodged by PW 1 Ghelabhai Jasabhai, sanction to prosoecute the appellant-accused, panchnama, receipt, a chit exh.13 etc. to prove its case against the appellant- accused. After recording of the evidence of prosecution witnesses was over, the learned Special Judge on the next day recorded the further statement of the appellant-accused under Section 313 of the Code of Criminal Procedure. In his further statement the appellant-accused denied the charges levelled against him and he claimed that he has been falsely implicated in the case in order to pressurize the police, since one Natubhai Dabhi, M.L.A. of Talaja is a partner of and has his share in Bharat Travels Co. from where the luxury bus was hired. 4. On appreciation, evaluation, analysis and scrutiny of the evidence adduced by the prosecution both oral as well CR.A/1289/1993 11/42 JUDGMENT as documentary, the learned Judge of the trial Court held that the prosecution has established beyond reasonable doubt that the appellant-accused did demand illegal gratification of Rs.200/- from the complainant on 12-12- 1990, that the complainant did pay the same to the appellant-accused, that the appellant did accept the said bribe money from the complainant in the Chamber of the appellant-accused, and therefore, held the appellant- accused guilty of offence with which he was charged and passed the judgment and order of conviction and sentence as stated in para-1 of this judgment, which is the subject matter of challenge in the present appeal. 5. I have heard the learned Counsel Mr. K.J.Shethna for the appellant-original accused no.1 as well as the learned A.P.P. Mr. L.R.Pujari ,for the respondent-State at length and in great details and have also perused the record with due care and caution. 6. Learned Counsel for the appellant-accused has while taking me through the whole judgment of the trial Court has raised several contentions. He firstly contended that there are major contradictions in the evidence of the CR.A/1289/1993 12/42 JUDGMENT complainant-Jasabhai. According to the learned Counsel, the complainant in his evidence had not made a positive statement that the appellant-accused has demanded Rs.250/-. According to him,even PW 3 Bhagwanbhai has not stated that the appellant-accused has initially demanded Rs.250/-but he had merely deposed that the P.S.I. told him to show the papers of the luxury bus. The learned Counsel further stated that the stand taken by the prosecution that the licence having been handed over to the police is not believable as the licence was with the driver and not in the portfolio. The learned Counsel also contended that Exh.13 which is a chit for contract is a fabricated document as normally the same would find place with the other documents in the luxury bus. The date of contract being 12- 12-1990 is also disputed by the learned Counsel as, according to him, it was 11-12-1990. The learned Counsel next contended that the prosecution has conveniently avoided examining Ramjibhai, the elder brother of the owner of the bus though Ramjibhai went with the complainant to the ACB Office and also accompanied the raiding party to Khuntvada Police Station. The learned Counsel for the appellant-accused next contended that there CR.A/1289/1993 13/42 JUDGMENT was no reason for the complainant to come to the staircase after the acceptance of the amount by the appellant- accused. It was next contended by the learned Counsel that the Panch no.1 could not see anything or hear the conversation between the complainant and the appellant- accused from the place where he was standing. According to the learned Counsel, Panch no.1 is an interested witness and his evidence does not inspire confidence. The learned Counsel next contended that there is inconsistency in the evidence of Investigating Officer and the Panch Witness as to whether currency notes were recovered from the appellant-accused in the first outer room or in the Chamber of the appellant-accused. According to the learned Counsel no powder marks were visible on the cupboard and also on table torch etc. It is the submission of the learned Counsel that if Panch no.1 recovered the currency notes from the appellant-accused in the outer room then there would be marks of anthracene powder on his hands. According to the learned Counsel when there are such major contradictions the whole prosecution story is not believable. The learned Counsel next contended that there is no evidence to the effect as to when the raiding party reached Khuntvada CR.A/1289/1993 14/42 JUDGMENT Police Station and how they reached Mahuva or Bhavnagar. It was also contended by the learned Counsel that the Muddammal currency notes as also the trouser of the appellant-accused were not sealed. The learned Counsel next contended that the evidence of complainant and the case of the prosecution is contradictory inasmuch as to whom the currency notes were to be given. According to the learned Counsel, the currency notes were to be given to P.S.I. and non else, whereas according to the case of prosecution to P.S.I and some other person. The learned Counsel next submitted that according to the complainant, he gave the signal from the staircase while according to Panch no.1, the complainant gave signal from the Chamber itself. It is also the submission of the learned Counsel that there was no light in the Police Station at the relevant time but the complainant has made a statement that he signed the Panchnama. According to the learned Counsel, the Panchwitness had signed the documents and his statement on the next day. The learned Counsel next contended that the prosecution has not examined witnesses who were the 41 passengers in the luxury bus, the police staff, the P.S.O. Of Khuntvada Police Station. Finally, it was contended by CR.A/1289/1993 15/42 JUDGMENT the learned Counsel that there is no demand, payment and acceptance, and therefore, the whole case of prosecution is improbable. It is, therefore, prayed that the appeal be allowed, the judgment and order of conviction passed by the learned Special Judge be set aside and the appellant- accused be acquitted of the offence in question. 7. On the other hand, learned A.P.P. for the respondent- State has submitted that the prosecution has successfully established the case of demand and acceptance of the illegal gratification by the appellant-accused from the complainant through the trustworthy and reliable evidence of the complainant which is fully corrorborated by the testimony of independent Panch witness, the seizure list Exh.21 as well as the complaint It is also the submission of the learned A.P.P. that the sanction to prosecute the appellant-accused which is at Exh.16 is also quite legal and valid. According to the learned A.P.P. The learned Special Judge is perfectly justified in passing the judgment and order of conviction and sentence against the appellant- accused, and therefore, the appeal deserves to be dismissed. CR.A/1289/1993 16/42 JUDGMENT 8. It is not in dispute that the appellant-accused is a PSI at Khuntvada Police Station, and as such a Government servant. The sanction to prosecution the present appellant is at Exh.16, however, the validity and legality of the sanction to prosecute has not been challenged, and therefore, it can be said that there is a valid sanction. 9. Now, if we look at the evidence on record, the trial Court has examined certain witnesses. The complainant in his evidence at exh.11 has stated that on the day of the incident i.e. on 12-12-1990 at 5.30 a.m.,he along with a marriage party consisting of 41 passengers boarded the luxury bus bearing no.GTS 9919 from Mahuva to Selana. Bhagwanbhai Ranchhodbhai PW 3 Exh.18 was the driver and one Rustumbhai was the cleaner. When the bus reached Asarana Chokadi, they were intercepted by two to three police constables who were present there with a Police Jeep and asked to stop the bus. On the bus being stopped, the papers relating to the luxury bus were demanded. At that time, the complainant requested to let them go, but the P.S.I. demanded Rs.250/-. The complainant then gave the papers to the P.S.I. who took away the papers and issued a CR.A/1289/1993 17/42 JUDGMENT receipt to the complainant which is on record at Exh.19. The complainant has categorically stated that this receipt bears the signature of the P.S.I. as also the thumb mark of the driver-PW 3. According to the complainant, the licence of the luxury bus was also attached. The complainant was asked to pay Rs.250/- and collect the papers etc.. So saying the bus was permitted to proceed towards Selana. In his testimony, the complainant has further stated that he then contacted the owner at Mahuva and it was decided to approach the Anti Corruption Bureau. Accordingly, the owner of the luxury bus, his elder brother Ramjibhai went to the Office of the ACB, Bhavnagar, and lodged complaint (Exh.12) whereupon two Panchas were called, the complaint was read over to them, they were told the purpose for which they have been called and were also explained the purpose and use of anthracene powder. Thereafter, the complainant gave two currency notes in the denomination of Rs.100/- each and one currency note in the denomination of Rs.50/- aggregating Rs.250/-. These currency notes as also the hands of the complainant, Panchas and other staff were observed in ordinary light and no visible marks of anthracene powder were seen. Thereafter, one Constable CR.A/1289/1993 18/42 JUDGMENT was asked to take out the bottle of anthracene powder from the cupboard. These currency notes were then smeared with anthracene powder and demonstration of anthracene powder was carried out by viewing these notes under ultra violet lamp and visible marks of shining bluish powder was noticed, however, when these currency notes were observed in ordinary light nothing significant appeared. The shirt pocket of the complainant was then emptied and these currency notes were put into it. According to the complainant, it was explained to him that in ordinary light the marks of anthracene powder will not appear but only under ultra violet lamp the bluish shining powder marks of anthracene powder would be visible. It is the say of the complainant that he was then instructed not to touch these notes till it was to be given to the appellant-accused and that it should not be given to any one else. It has also come out in his evidence that the Police Constable then put the remaining anthracene powder in the bottle, burnt the paper on which the anthracene powder was taken, kept back the bottle in the cupboard and washed his hands. The complainant in his testimony has also stated that he was then instructed to give a signal by putting his hands on his CR.A/1289/1993 19/42 JUDGMENT head when the appellant-accused(P.S.I.) accepts the amount. The complainant has also stated that Panch no.1 was instructed to be in the company of the complainant while Panch no.2 was instructed to accompany the raiding party and to be in touch with one another. The complainant has further stated in his evidence that they had left Bhavnagar at 3.00 p.m. i.e. the complainant, Ramjibhai, Mr. Bhatt of ACB, Panch no.1 and two other persons from ACB by an Ambassador car while Panch no.2 and police staff followed the car by Jeep and reached near Khuntvada village at 5.30 p.m. On instructions received from P.I. Mr. Bhatt, Ramjibhai Ukabhai had gone to Khuntvada Police to ascertain whether P.S.I. was present and returned with the news that the P.S.I. was not present. It was then decided by Mr. Bhatt, P.I. to wait for an hour and accordingly all of them waited in the village Khuntvada. Within half an hour they spotted the Police Jeep proceeding towards Khuntvada Police Station. In his testimony the complainant has further stated that, at that time, PI. Mr. Bhatt asked the complainant and Panch no.1 to go to Khuntvada Police Station and accordingly they went there on foot and the others also followed on foot. The complainant and Panch CR.A/1289/1993 20/42 JUDGMENT no.1 went up the first floor and met the P.S.I. in his Chamber while Panch no.1 stood waiting at the door of P.S.I.'s Chamber. The complainant requested to handover the papers of the luxury bus, while the appellant- accused(P.S.I.) enquired whether he (complainant) had brought the money(illegal gratification). The complainant suggested that some lesser amount than Rs.250/- be accepted to which the appellant-accused replied that Rs.200/- be given. Accordingly, the complainant handed over the tainted currency notes of Rs.200/- i.e. two currency notes of the denomination of Rs.100/-each to the appellant who accepted the same by his left hand, got up from his seat and put it in his right hand and then into his right hand trouser pocket. The appellant-accused then took out the papers relating to luxury vehicle from the cupboard and gave the papers to the complainant which was received by him. In the meanwhile, the complainant had kept the remaining tainted currency note of Rs.50/-in his pocket. The appellant-accused then asked for the receipt issued by him and the complainant told him that the receipt is in the vehicle. In his testimony the complainant