CR.A/719/1995 1/44 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 719 of 1995 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 ? ========================================================= ISMAILKHAN RASULKHAN PATHAN - Appellant(s) Versus SATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR KB ANANDJIWALA for Appellant., Mr.L.R.Pujari, A.P.P. for Opponent. ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 30/11/2007 ORAL JUDGMENT 1. This appeal arises out of the judgment and order dated 3- 7-1995 passed by the learned Special Judge, Bharuch, in Special Case no.6 of 1989 whereby the appellant-original CR.A/719/1995 2/44 JUDGMENT accused-Ismailkhan Rasulkhan Pathan was sentenced to suffer R.I. for one year and to pay fine of Rs.100/-, in default, to suffer further R.I. for one month for the offence punishable under Section 161 of the Indian Penal Code ( “the Code” for short), He was also sentenced to undergo R.I. for one year and to pay fine of Rs.100/- , in default further R.I. for one month for the offence punishable under Section 5(1)(d) r.w.s. 5(2) of the Prevention of Corruption Act, 1947 (“the Act” for short). Both the sentences were ordered to run consecutively. 2. Briefly stated, the facts of the case giving rise to this appeal may be enumerated as under: 3. The complainant along with his family members at the relevant time was residing at Harijan Vas, Valanda Koti, Bharuch and serving as a Security Supervisor with Oriental Steel Corporation located at G.I.D.C., Bharuch. It is the case of the prosecution that the wife of the complainant was working as an additional labourer for cleansing toilets with Bharuch Nagarpallika , Ward no.4 , since about 10 years prior to the date of the complaint on 13-7-1987. According to the prosecution, the present appellant-accused was the Sanitary Inspector of Ward no.4 in Bharuch Nagarpallika, at that time, but was transferred to Ward no.9 on 15-6-1987. As per the case of the prosecution, according to the report of the present CR.A/719/1995 3/44 JUDGMENT appellant who was the Sanitary Inspector any of the labourers could be removed from service as based on such report the Chief Officer used to accord sanction for continuing as additional labourer. It is alleged that the present appellant had given threats to Lalitaben the wife of the complainant in June, 1987 to the effect that she would have to pay Rs.100/- for obtaining sanction to continue her as an additional worker. Accordingly, Lalitaben had agreed to pay the said amount of Rs.100/- as illegal gratification upon receipt of her salary for the month of June, 1987, however, the present appellant- accused having been transferred to Ward no.9, Lalitaben, the wife of the complainant had not paid the amount, and therefore, on 12-7-1987 the appellant-accused sent one labourer named Kishorebhai to the house of Lalitaben asking her to meet him. Lalitaben then told the complainant to meet the present appellant-accused. Thereupon, the complainant went and met the present appellant-accused at Ward no.4 of Bharuch Nagarpallika at Lal Bazaar. At that time, the present appellant-accused enquired of his wife Lalitaben and told the complainant that he had got the sanction for continuing the services of his wife and that she had agreed to pay Rs.100/- from the salary for the month of June, 1987 but she did not pay the same to which the present appellant replied that there is CR.A/719/1995 4/44 JUDGMENT difficulty at present and that he shall make arrangement of the money within two days. It is further the case of the prosecution that the present appellant had again met the complainant on 13-7-1987 at 11-30 a.m. near Bharti Talkies, and enquired of him as to what happened with regard to the amount and demanded the same. The complainant promised to pay the amount on the next day. The present appellant then told the complainant to meet him in front of Tashkant Beauty Tailor's shop at Valanda Koti to which the complainant agreed. Thereafter, realizing that the present appellant was bent upon receiving illegal gratification on the pretext of obtaining sanction for continuing the services of his wife, went to the ACB Police Station, Bharuch, at 5.30 p.m. of 13-7-1987 and lodged the complaint. On the basis of the said complaint a trap came to be laid between 10.15 a.m. and 12.15 noon of 14-7- 1987 near Tashkant Beauty Tailor's Shop at Valanda Koti, Bharuch, after following the necessary formalities of carrying out the experiment on the two currency notes produced by the complainant, giving necessary instructions to Panch no.1 after placing the tainted currency notes on the left pocket of the bush-shirt worn by the complainant and drawing of preliminary Panchnama etc. as required under law, the present appellant- accused was caught red handed accepting the amount of CR.A/719/1995 5/44 JUDGMENT Rs.100/- from the complainant. Two currency notes of Rs.50/- each aggregating Rs.100/- was recovered from the left pocket of cuffni worn by the present appellant-accused by Govindbhai on instructions from PI. The numbers of the currency notes tallied with the number of the currency notes mentioned in the preliminary Panchnama. Thereafter, these currency notes were viewed under ultraviolet lamp and light blue coloured flourescent marks were visible. On such experiment being carried out presence of anthracene powder was also found on the right hand fingers and palm of the present appellant accused as also the cuffni worn by the present appellant- accused which was seized. The person of the present appellant when searched certain articles were found and seized. The second part of the Panchnama was prepared at the spot, and thereafter the statements of witnesses came to be recorded. Upon completion of the investigation, sanction was obtained by the police from the President of the Nagarpallika, after which, chargesheet was submitted and the case was numbered as Special Case no.4 of 1988. During the course of recording of evidence of witnesses, the accused filed an application Exh.15 stating that the sanction accorded by the President of the Nagarpallika is illegal and prayed for dropping of the proceedings. The learned Special Judge by his order CR.A/719/1995 6/44 JUDGMENT dated 6-9-1989 discharged the accused by holding that the sanction is not legal and valid. Thereafter, a second sanction order was obtained on 5-12-1989 whereupon a revised charge- sheet came to be submitted along with the fresh sanction order and the case was numbered as Special Case no.6 of 1989. However, when the trial commenced an application under Section 300 of the Criminal Procedure Code was filed on behalf of the accused stating that a second trial is not permissible as the accused was earlier discharged and the evidence was also recorded earlier. This application came to be dismissed on 2-8- 1993. The learned Special Judge framed charge Ex.5 against the accused on 26-4-1993 for the offences punishable under Section 161 of the Code and under Section 5(1)(d) r.w.s.5(2) of Act. The charge was read over and explained to the accused who pleaded not guilty to the charge and claimed to be tried. 4. To prove its case against the appellant-accused the prosecution has examined - (1) PW 1Mansukhbhai Dahyabhai Solanki (complainant) at Exh.16, (2) PW2 Lalitaben Mansukhbhai Solanki (wife of the complainant) at Exh.19, (3)PW 4 Prabodbhai Mansukhbhai Solanki(son of the complainant) at Exh.25, (4) PW 3 Nasirbhai Mahmadbhai Sheth (Panchwitness) at Exh.20, (5) PW 8 Govindbhai Parshottamdas Patel (Panchwitness) at Exh.41, (6) PW 6 Rasiklal Ranchhoddas CR.A/719/1995 7/44 JUDGMENT Varsani at Exh.27, (7) PW 7 Jashwantlal Champaklal Dhorawala (Chief Officer, Bharuch Nagarpallika) at Exh.30, (8) PW 5 Gaffurbhai Ibrahimbhai (the owner of Takshant Beauty Tailors shop) at Exh.26 and (9) PW 9 Bhimsing Sursing Vasava at Exh.44. The prosecution has also produced documentary evidence such as complaint Exh.45, sanction order Exh.28, trap Panchnamas Exhs.22 and 23, Yadi in respect of articles recovered from the appellant-accused at Exh.46, report of Sanitary Inspector(appellant-accused) for appointment of extra workers at Exh.31, salary register Exh.32 etc.. After recording of the evidence of prosecution witnesses was over, the accused was further examined under Section 313 of the Criminal Procedure Code The accused has also submitted written explanation vide Exh.49 wherein the defence of the appellant-accused was that PW 2 Lalitaben who was working as a toilet cleaner had borrowed Rs.100/- from him for meeting the expenses for the Srimant Ceremony of her daughter-in-law which was held on 10th July, 1987 and it was that amount of Rs.100/- which he lent to Lalitaben that he received from the complainant i.e.husband of Lalitaben on 14-7-1987 and not the amount of illegal gratification. It was also the case of the appellant-accused that he belonged to village Kishnad the parental home of PW 2 Lalitaben the wife of the complainant CR.A/719/1995 8/44 JUDGMENT and as such there existed brother-sister relations between him (appellant-accused) and PW 2-Lalitaben wife of the complainant. According to the appellant-accused, the complainant is in the habit of filing false cases against government servants and harassing them and that he had filed such false complaint against Rameshbhai Munshi and N.S.Mehta under the protection of Civil Rights Act and both of them came to be acquitted in those cases; that on account of such conduct of the appellant-accused, he was removed from the services of Homeguard, O.N.G.C. and also by contractor Gumansing for whom he had worked. The appellant -accused has also stated that the complainant in his capacity as a member of the union of Bharuch Nagarpallika used to give threats and abuses to the employees of Nagarpallika. Thus, the sum and substance of the written explanation of the appellant-accused is that he was falsely roped in the case and that he is innocent. On the defence side appellant-accused has examined two witnesses in support of his say. As far as DW 1 Ramesh Dayaram Munshi who has been examined at Exh.54 only stated on oath that in 1982 Mansukhbhai Solanki-the complainant has lodged complaint agaianst him but nothing has come out from the evidence of this witness which falsifies the say of the complainant or the prosecution case. The CR.A/719/1995 9/44 JUDGMENT appellant-accused has also examined Jayantilal Ambalal Dalal at Exh.55 who stated on oath that he is working in Nagarpallika since 24 years and he is working as Clerk in Administrative Department of Municipality. From the evidence of this witness it is found that by resolution dated 5th April,1995 of Municipality Maheshbhai Mansukhbhai Solanki-the son of complainant and one Pravin M.Solanki were relieved from their duties as they were adhock workers. From the evidence of this witness, nothing has come out which falsifies the case of proseuction. On the contrary from the evidence of this witness, it is proved beyond reasonable doubt that the administrator was appointed in the Nagarpallika who accorded the sanction for prosecution against the present appellant-accused. 5. On appreciation, evaluation, analysis and scrutiny of the evidence adduced by the prosecution, both oral as well as documentary, the learned Judge of the trial Court held that the prosecution has established beyond reasonable doubt that the appellant-accused did initially demand the bribe money of Rs.100/- from Lalitaben the wife of the complainant and thereafter received the amount of Rs.100/- from the complainant on 14-7-1987, and therefore, held the appellant- accused guilty of offence with which he was charged and passed the judgment and order of conviction and sentence, CR.A/719/1995 10/44 JUDGMENT giving rise to the present appeal. 6. I have heard the learned Counsel Mr. K.B.Anandjiwala for the appellant-accused and learned A.P.P. Mr. Pujari for the respondent-State at length and in great details and have also perused the entire record with due care and caution. 7. Learned Counsel Mr. K.B.Anandjiwala after having taken me through the entire evidence on record as also the reasons assigned and conclusions reached by the learned Special Judge submitted that the whole case of the prosecution is improbable and prayed that the appeal be allowed and the order of conviction passed by the learned Special Judge be set aside and the appellant-accused be acquitted of the offence in question. In support of his submissions, he has raised several contentions. Before I proceed to deal with the submissions, I may state that since I am in complete agreement with the views expressed by the learned Special Judge, I do not deem it necessary to reiterate the evidence of all the witnesses in great details and burden the record, but would only discuss the evidence and documents as are necessary for disposal of this appeal on merits. 8. Learned Counsel Mr. K.B.Anandjiwala for the appellant- accused firstly submitted that the appellant-accused had on 14-7-1987 received from the complainant the amount of CR.A/719/1995 11/44 JUDGMENT Rs.100/- which he had lent to Lalitaben, the wife of the complainant for meeting the expenses of Srimant ceremony of her daughter-in-law and not by way of bribe. To answer this issue, I propse to deal with the evidence of witnesses relevant for the purpose. 9. PW 2 Lalitaben in her evidence (Exh.19) has stated that the complainant-PW 1 Mansukhbhai Dahyabhai Solanki is her husband; that in the year 1987 she was working as an extra toilet cleaner (sweeper) on temporary basis with Bharuch Nagarpallika in Ward no.4 and that her services were extended from time to time; that she was working as such for the last 10 years. This witness has further stated that she used to get work for 15 to 20 days in a month and that she used to receive the salary on the 7th of every English calendar month; that the appellant-accused was the Ward Inspector at that time. According to her, in the year 1987 the appellant-accused was transferred to Ward no.4. She has also stated that the appointment of toliet cleaners was made by Dhorawalla Saheb on the recommendation made by the appellant-accused; that in the year 1987, the appellant-accused told her that she would have to pay Rs.100/- to him for obtaining sanction to continue her services or otherwise she would be removed from service, and therefore, she agreed to make the payment. According to CR.A/719/1995 12/44 JUDGMENT her, fifteen days thereafter, the appellant-accused was transferred to Ward no.9; that she received her salary on the 7th June, 1987 but did not see the appellant-accused on that day, however, on 12th June, 1987 the appellant accused sent word through one Mr. Kishore calling her to meet the appellant-accused at office of ward no.4, but due to fear of removal from service she did not go there, instead she went to her house, told her husband (the complainant) about the demand of Rs.100/- made by the appellant-accused and also added that he (the complainant) should meet the appellant- accused. It is her say that accordingly her husband PW1- the complainant went at 9.00 a.m., met the appellant-accused, returned immediately and told her that he (the complainant) will give the amount within two days. This witness has further stated that the appellant-accused had met her husband the complainant on the next day i.e. 13th June, 1987. near Bharti Talkies and upon returning he told her that he had given assurance to give the amount on the next day. She has specifically stated on oath before the Court that as appellant- accused was demanding Rs.100/- from her towards illegal gratification her husband had agreed to give the amount of Rs.100/- to the appellant-accused. In her cross-examination she has specifically stated that her parental village is Valan but CR.A/719/1995 13/44 JUDGMENT since her childhood she was staying at Surat with her father and mother. She has also stated that she has no knowledge whether the appellant-accused belongs to Kishnad or that the appellant -accused kept brotherly relations with her. She denied that her husband- PW 1 had doubts with regard to her chastity and that she was beaten by him. She also denied that the appellant-accused had lent Rs.100/- to her for meeting the expenses of the Srimant ceremony of her daughter-in-law or that there was any such relationship between them. 9.1 PW 1 Mansukhbhai Dahyabhai Solanki (complainant) in his evidence at Exh.16 has stated that in the year 1987 he was working as a Security Officer with a Contractor in G.I.D.C., Bharuch Nagarpallika. According to him, his wife PW 2 Lalitaben was at that time working as an Extra toilet cleaner in Ward no.4 of Bharuch Nagarpallika for the last 10 years. In June, 1987, the present appellant-accused Ismailkhan Rasulkhan Pathan was working as a Sanitary Inspector with Bharuch Nagarpallika and as a part of his duty, the appellant- accused had to obtain sanction from the Health Officer/Chief Officer for continuing the services of extra toilet cleaners. This witness has further stated that in the month of June, 1987, his wife told him that the appellant-accused was demanding Rs.100/-for obtaining sanction to continue her services as extra CR.A/719/1995 14/44 JUDGMENT toilet cleaner and that if she fails to pay Rs.100/- she would be removed from service. According to this witness, his wife also told him that out of fear of removal from service she had agreed to pay the amount when she receives her salary on 6th/7th July, 1987. Accordingly, the appellant-accused had obtained sanction for continuing services of toilet cleaners including PW 2 Lalitaben the wife of the complainant. This witness has in clear terms stated that he came to know about these facts after transfer of the appellant-accused on 15-6- 1987 from Ward no.4 to Ward no.9 as the appellant-accused had sent a message through one worker named Kishore to call PW 2 to the office of Ward no.4 immediately but his wife PW 2 had not gone to the office of Ward no.4 but came home and narrated the entire story regarding demand of Rs.100/-. According to this witness, his wife also requested him to go and meet the appellant-accused as she was not willing to go and upon such request having been made by his wife he went to the office of Ward no.4 at 8.15 a.m on 12th July, 1987. At that time, the appellant-accused was standing outside the office and when this witness met him, the appellant accused enquired of him about the whereabouts of his wife and told him that the permission has been obtained for continuing the services of his wife for which she had agreed to pay Rs.100/-. CR.A/719/1995 15/44 JUDGMENT According to this witness, the appellant-accused also added that till then the amount of Rs.100/-had not been given by Lalitaben and if that amount is not given, she would be removed from service whereupon this witness agreed to give the amount within two days and returned to his house. This witness has stated that again on 13th July, 1987 at about 11.00 to 11.30 a.m. when the appellant-accused met him near Bharti Talkies, the appellant-accused demanded the said amount of illegal gratification and again this witness told the appellant- accused that the amount would be paid the next day. This witness then asked the appellant-accused as to where they shall meet and the appellant accused suggested that they may meet between 12.00 and 12.30 p.m. of 14-7-1987 at Valanda Koti, Tashkant Beauty Tailor’s shop. According to this witness, he then returned home and after having given his serious thought realized that if he does not pay the amount of Rs.100/- to the appellant-accused, his wife would be removed from services. So he went to the office of the ACB at about 4.45 to 5.00 p.m. where he met Police Inspector Vasava who after hearing him(the complainant) recorded the complaint and asked him to approach him(ACB Officer) on 14-7-1987 at 8.00 a.m. with an amount of Rs.100/-. This witness has further deposed that Inspector Vasava then read over the contents of CR.A/719/1995 16/44 JUDGMENT the complaint to him and he (this witness),had signed the same in token that the contents were true Thereafter, Police Inspector Vasava also signed the complaint. According to this witness, on 14-7-1987 he went to the office of the ACB, Bharuch at 8.00 a.m. where one Panch was present and after some time another Panch also came. Inspector Vasava then introduced the Panchas to each other. Panch no.1 was Govindbhai Patel and Panch no.2 was Nasir Mahmad Sheth. The witness has further stated that these Panchas had told him that they came from the Collector’s office whereupon this witness narrated his complaint to them. Thereafter, Police Inspector Mr.Vasava had read over and explained the contents of the complaint of this witness(complainant) to the Panchas and the Panchas had put their signatures on the complaint in the presence of this witness. Then this witness hand handed over two currency notes of the denomination of Rs.50/- each to Police Inspector Vasava and the numbers of these currency notes came to be noted down in the Panchnama. Thereafter, P.I. Vasava instructed Police Constable Ramdas and the use and characteristics of anthracene powder on the currency notes were explained to these Panchas. These currency notes were then smeared with anthracene powder and exposed to normal light, but nothing significant appeared, however, when CR.A/719/1995 17/44 JUDGMENT these currency notes were viewed under ultraviolet lamp light blue fluorescent marks were visible. Thereafter, the person of this witness (the complainant) was searched whereupon nothing was found from the left side pocket of the bush-shirt worn by the complainant, however from the right side pocket of the pant of this witness, one handkerchief, one currency note of Rs.5/- and two currency notes of Rs.2/- denomination aggregating Rs.9/- were found. These articles were put back into the respective pocket of this witness and Rs.9/- was there and then handed over to this witness. Thereafter, Constable Ramdas put the two tainted currency notes of Rs.50/- each into the left pocket of the bush-shirt worn by this witness with an instruction not to touch the currency notes or the said pocket until the demand is made and the amount of Rs.100/- is accepted by the appellant-accused. Panch no.1 was instructed to remain in the company of this witness(complainant) and to see and hear the conversation that takes place between the complainant and the appellant-accused and that as soon as the amount is accepted by the appellant-accused to give the signal by combing the hair. Thereafter, Panchnama to this effect was drawn and completed between 9.15 to 10.15 a.m. According to this witness, thereafter all of us, namely, myself (complainant), PI Vasava, Panchas, Police Constable Ramdas and all the CR.A/719/1995 18/44 JUDGMENT members of the raiding party left for the ACB Office by Jeep. Police Constable Ramdas holding an ultraviolet lamp sat near this witness in the jeep. When they reached Andrew’s Road via Ayarvad the jeep was halted and this witness and Panch no.1 Govindas alighted from the jeep and went ahead while others followed them. This witness has further stated that when they reached near Valanda Koti, they found that the appellant- accused was sitting in Tashkant Beauty Tailor’s shop.This witness has categorically stated that on seeing this witness(complainant), the appellant-accused waved his hands at him and shouted. So, this witness and Panch no.1 went to the appellant-accused and at that time, the appellant-accused stepped down from the shop and asked him to give the amount of Rs.100/- if he had brought the same. This witness then told the appellant-accused that he had brought the amount of Rs.100/- but requested the appellant-accused not to harass his wife (PW 2 Lalitaben) and that he should also not remove her from the service. The appellant-accused complimented and asked the complainant to give him the amount of Rs.100/- whereupon this witness handed over Rs.100/- to the present appellant. According to this witness,