CR.A/1135/1991 1/89 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1135 of 1991 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ================================================= 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 ? ================================================= KACHRABHAI PUNJABHAI BAROT - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ================================================= Appearance : MR KB ANANDJIWALA for Appellant. MR PD BHATE Ld. APP for Opponent. ================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 10/04/2006 ORAL JUDGMENT CR.A/1135/1991 2/89 JUDGMENT 1. Heard learned Advocate, Mr.K.B.Anandjiwala, appearing on behalf of appellant and learned APP, Mr.P.D.Bhate, appearing on behalf of respondent – State of Gujarat. 2. In the present appeal, the appellant – Kachrabhai Punjabhai Barot (original accused No.1) in Special ACB Case No.9 of 1986 committed offence under Section 161 of IPC and under Section 5(2) of Prevention of Corruption Act. The trial Court at Mehsana delivered the judgment and order on 7th December,1991 imposing sentence of RI for 1 year for Section 161 of IPC and RI for 2 years and fine of Rs.500/-, in default, RI for 6 months under Section 5(2) of Prevention of Corruption Act. The appeal admitted by this Court on 15th January,1992 and bail was granted to the appellant with fresh bonds. 3. Brief facts giving rise to the present appeal are as under : CR.A/1135/1991 3/89 JUDGMENT 3.1 The case of the prosecution is that both the accused Shri Kachrabhai Punjabhai Barot and Shri Parshottambhai Mohanbhai Chamar were serving as unarmed Police Constable at Harij Police Station on the date of incident. They were on duty near Petrol Pump at Harij on the night of 3rd May,1985. The officers of Anti-Corruption Bureau had on information received on 3rd May,1985 that there was a cattle fair at Deodar and merchants who were purchasing the cattle while transporting them in the truck, the local police collects illegal gratification under the pretext of entry fee. Therefore, Police Inspector ACB, Mr.N.R.Patil and other ACB Officers along with the staff members had come to Mehsana. They had called the Panchas from Mehsana and went to Radhanpur. Thereafter, all of them went to Deodar and one Ummarbhai Mallubhai Rauma, who was driving the Truck No.GRO 4314 while he was transporting 10 bullocks (cattle) purchased by CR.A/1135/1991 4/89 JUDGMENT some merchants of Baroda when they were going in a truck, some police head constable and constables collected entry fee from them. The truck driver Ummarbhai paid the said amount to them which they had accepted and so papers were prepared against them. Thereafter, Ummarbhai Mallubhai Rauma told the ACB Officers that when they would take these bullocks (cattle) to Baroda on the highway, local police, highway police, traffic police and RTO persons would demand and collect illegally the bribe under the pretext of entry fee. So he was asked as to whether he would be helpful in catching them under trap or not. So Ummarbhai replied that he would positively help the police in this regard. The ACB officers and Panchas and Ummarbhai gathered at Rest House, Radhanpur. The Ummarbhai produced Rs.670/- of different denomination and anthracene powder was also sprinkled and ultra violate lamp was operated. There were marks of powder on all the currency notes. Then, Ummarbhai was instructed to CR.A/1135/1991 5/89 JUDGMENT keep all the currency notes in the left pocket of shirt. The Ummarbhai and PW-1 Madhubhai T. Jani were directed to sit in driver cabin and he was also asked to hand over the currency notes stained with anthracene powder to those who halt their truck and demand the amount under the pretext of entry fee and if the amount is accepted, the signal be made by making dim-full light. The PW-1 was directed to hear the talk between the persons, who demands the bribe and the truck driver and to see exchange of currency notes. PW-2 was asked to remain with raiding party members and to hear and see the talk and exchange of currency notes. At that time, the first part of the Panchnama was made and it was at about 11.00 p.m. that was completed. Thereafter, all of them started in Truck No.GRO 4314 from Radhanpur Rest House and some of the officers started in Government vehicle. At about 11.50 p.m. when the truck reached near Hindustan Petrol Pump, one constable shouted on the highway CR.A/1135/1991 6/89 JUDGMENT and signaled to stop the truck. Shri Ummarbhai, truck driver, halted the truck. The said constable told the driver as to why he was not halting the truck and that he was going straight way. The constable told him that it was his point and that he had forgotten that thing. The truck driver Ummarbhai replied that he had not forgotten him and that he had stopped the truck on hearing the shout. The constable demanded the entry fee and so the driver replied as to whether Rs.10/- would be sufficient. The constable told that they were two persons and Rs.10/- would not be sufficient. The driver told that as to whether he would be agreeable to accept Rs.15/-. The constable replied in the affirmative and so Ummarbhai gave two currency notes of the denomination of Rs.10/- each which were stained with anthracene powder and told the constable to give Rs.5/- back to him. The constable told that he was possessing Rs.4/- only. So the driver Ummarbhai told that he would not mind to accept CR.A/1135/1991 7/89 JUDGMENT Rs.4/-. At that point of time, constable gave two currency notes of the denomination of Rs.2/- each and took out to currency notes of Rs.2/- from the pocket of uniform shirt with his left hand and he has also counted currency notes of Rs.2/- with both the hands. In the meantime, driver Ummarbhai made the signal by making dim full light and the ACB Officers reached there. The identification of the officers were given. The ultra violate lamp was operated and the currency notes of Rs.10/- were found stained with powder and there were signs of anthracene powder on the currency notes. There were also marks of the anthracene powder on the notes, clothes of Ummarbhai as well as on the left pocket of the shirt. That two currency notes of Rs.10/- each and the currency notes of Rs.2/- each were seized and the Panchnama was completed. The PI, Mr.Patil, lodged the compliant at Exh.28. The offence was registered against both the accused by the Investigating Officer Mr.T.M.Parmar. He has recorded the statement of CR.A/1135/1991 8/89 JUDGMENT the witnesses on different dates. After obtaining the sanction for the prosecution from the DSP, both the accused were arrested and ultimately, they have been charge sheeted in the trial Court. 3.2 The charge at Exh.12 is framed against the accused and it is alleged that on 3rd May,1985, both the accused were serving as constable at Harij Police Station and as such, they were public servant. It is further alleged that when both the accused were on duty as public servant, they had stopped the truck No.GRO 4314 driven by Ummarbhai Mallubhai and demanded illegal gratification other than legal remuneration from him and thus, abused their position as public servant and accused No.1 had accepted Rs.20/- as a bribe from the said driver Ummarbhai without any right and the accused No.2, who was present at that time, had also aided and abated him and consequently, both the accused have committed offences punishable under Section CR.A/1135/1991 9/89 JUDGMENT 161, 165-A of IPC and Section 5(2) of the Prevention of Corruption Act. The accused have pleaded not guilty to the charge and they have claimed to be tried. 3.3 On behalf of the prosecution, PW-1 Madhubhai Trikamlal Jani is examined at Exh.17. PW-2 Nayankumar Vishnuprasad is examined at Exh.19. Unarmed Police Constable of ACB, Mehsana Punampuri Ganeshpuri is examined at Exh.20. Truck driver Ummarbhai Mallubhai is examined at Exh.23. The I.O. T.M.Parmar is examined at Exh.24. The complainant Mr.N.R.Patil is examined at Exh.27. The prosecution had also relied upon the documentary evidence to show that on 3rd and 4th May, 1985 both the accused were present on the duty and the duty list shows that both of them were required to keep a watch of petrol pump at Harij. The diaries were also produced at Exh.21 and Exh.22 of both the accused. Panchnama is at Exh.18. The sanction for the prosecution is at CR.A/1135/1991 10/89 JUDGMENT Exh.25 and the complaint is at Exh.28. The receipt given to the accused No.1 for attachment of Rs.24/- from him is at Exh.29. Then the closing purshish was filed by public prosecutor. 3.4 The trial Court has recorded the further statement of both the accused in detail. None of the accused had examined any defence witnesses nor they have chosen to examine themselves as a witness on oath. Their defence is that of total denial and they have denied all the allegations made by the prosecution witnesses. 3.5 The accused No.1 – present appellant has stated in his further statement that on 3rd May,1985, he was standing on Harij four road for purchasing beedi and machis and after purchasing the same, he was going to his duty and at that time, a truck stopped there and all of sudden, driver handed over Rs.20/- to him and told him to give the change. There were two currency notes of CR.A/1135/1991 11/89 JUDGMENT the denomination of Rs.2/- in his hands at that time and so he had told him that he had no change and he was having Rs.4/- only. At that time, ACB persons suddenly caught his hands and told him that he had accepted the bribe. He had told that he had not taken the bribe and these persons want change from him, so he has been wrongly involved in this incident. Similarly, accused No.2 has stated in his further statement that in reality, he was sleeping in the petrol pump and he was taken away there and arrested by the ACB Officers. Thereafter, the trial Court heard the learned Public Prosecutor Shri S.C.Shah and Advocate Shri B.G.Patel on behalf of the accused. In Para.11 of the judgment the following points emerged for the determination for the trial Court: i) Whether the prosecution proves that the accused Nos.1 and 2 were serving as unarmed police constable and as public CR.A/1135/1991 12/89 JUDGMENT servant had stopped truck No.GRO 4314 driven by Ummarbhai Mallubhai and demanded and accepted Rs.20/- as illegal gratification other than their legal remuneration for economic gain and thus, abused their position as public servant. Ultimately, finding given by the trial Court in the affirmative so far as accused No.1 is concerned – present appellant and acquitted the accused No.2.” 4. I have heard the learned Advocate, Mr.K.B.Anandjiwala, for the appellant and learned APP, Mr.P.D.Bhate, on behalf of respondent – State at length. I have perused the oral evidence of the witnesses from prosecution side and the judgment of the trial Court. I have also comprehensively appreciated the evidence which was led before the trial Court and considered the Panchnama drawn by ACB Officers. I have also CR.A/1135/1991 13/89 JUDGMENT considered in detail and appreciated the further statement given by accused No.1 – present appellant under Section 313 of the Code of Criminal Procedure. I have also considered the statement of the accused in respect to sentence. I have also considered the decision which has been relied by the trial Court. I have also considered the evidence appreciated by the trial Court in the manner and method which has been adopted by trial Court while appreciating the oral and documentary evidence produced before the trial Court. 5. This matter was notified on 31st March,2006. At that occasion, this Court relying upon the order dated 29th July,2002 issued notice to the appellant for engaging another Advocate. The said notice was made returnable on 26th April,2006. However, today, learned Advocate, Mr.Anandjiwala, submitted that initially learned Senior Advocate, Mr.P.M.Thakkar, was engaged by CR.A/1135/1991 14/89 JUDGMENT the appellant. Thereafter, learned Senior Advocate, Mr.Thakkar, had returned the papers back to the appellant and then, he was engaged as a lawyer by the appellant. Therefore, he submitted that there is no necessity to wait upto returnable date 26th April,2006, but this Court can take up the matter today as he is prepared to argue the matter on behalf of the appellant. Therefore, considering the submission made by learned Advocate, Mr.Anandjiwala, present appeal is taken up for final hearing today. 6. Learned Advocate, Mr.Anandjiwala, appearing on behalf of appellant submitted that trial Court has committed gross error in coming to conclusion. He submitted that the judgment of the trial Court is erroneous on facts as well as on law. The trial Court has committed serious error in convicting the appellant in spite of the fact that the Shri Ummarbhai Mallubhai has not at all supported the case of the prosecution. Not CR.A/1135/1991 15/89 JUDGMENT only that but he has not even identified the appellant before the trial Court. The driver Ummarbhai was not even declared hostile by the prosecution nor was cross-examined and this being a serious infirmity in the case of the prosecution and in absence of the evidence of complainant, the conviction is illegal. He further submitted that the evidence of complainant who is in the nature of an accomplice is required to be corroborated by the evidence of independent witnesses like Panchas. Though the Panchas lended some support to the story of prosecution when the complainant himself is absolutely unreliable, then, no amount of corroboration can cure this fundamental defect. He also submitted that the trial Court has failed to appreciate the material omissions and contradictions appearing in the evidence of Panch witnesses and investigating officer regarding where the Panchnama was prepared and where the initial Panchnama was made. The panchas have CR.A/1135/1991 16/89 JUDGMENT stated that the Panchnama was prepared at Mehsana, while the I.O. stated that Panchnamas were prepared at Radhanpur. This fundamental defect has been lightly brushed aside by the trial Court. The trial Court partly believed the case of prosecution and partly relied upon the statement of the accused under Section 313 of the Code of Criminal Procedure, wherein, the accused has stated that he was asked to give change of Rs.20/- by the driver Ummarbhai, but he had refused to give as he had no change. The trial Court has committed serious error in believing only the part of statement in favour of prosecution without considering the other part, wherein, appellant denied to have accepted the bribe. The panchas were selected Government witnesses, who were bound to support the say of the prosecution under fear of being declared hostile and in eventuality, he would loose the job. The evidence of Panchas also is contradictory on major aspect. He also submitted CR.A/1135/1991 17/89 JUDGMENT that the story of so many persons were travelling in the cabin of the truck and it is impossible to accommodate so many persons in the cabin of truck simultaneously. The trial Court has committed error and failed to appreciate that mere finding of the notes from the person of the appellant would not prove the offence of accepting bribe because to establish the bribe, the prosecution has to establish that there were initial demand, acceptance and recovery of money. The prosecution has to establish positively what talk transpired between the truck driver Ummarbhai and the appellant. There is no reliable evidence in any of the points and, therefore, case against the appellant was not duly established by legally reliable and unimpeachable evidence. The trial Court has given benefit to the prosecution by observing that the witnesses deposed after a period of 5 years and, therefore, the memory would be feeble. This approach of the trial Court is dangerous when public servant is likely to be CR.A/1135/1991 18/89 JUDGMENT convicted and loose his job. The co-accused falsely implicated and against that no evidence. Similarly, there was no evidence against the present appellant. Learned Advocate, Mr.Anandjiwala, also submitted that the charge framed against the appellant by the trial Court demanding bribe of Rs.20/- is not proved against the appellant. There was no evidence suggesting the demand of Rs.20/- by the appellant from the driver Ummarbhai. He also submitted that the sanction given by the competent authority under Section 6(1)(g) of the Prevention of Corruption Act, 1947 is for demanding Rs.15/- as an entry fee from the driver Ummarbhai. Therefore, he submitted that the order of sanction and framing of charge are itself contradictory and, therefore, the prosecution has not proved the charge against the appellant of demanding Rs.20/- from the driver Ummarbhai. He also submitted that Panchnama cannot be considered to be an independent evidence but it should have to be CR.A/1135/1991 19/89 JUDGMENT used to corroborate or to contradict the evidence of panchas. He also submitted that the evidence of driver Ummarbhai as a whole has not been considered by the trial Court. He also submitted that further statement under Section 313 of the Code of Criminal Procedure given by the appellant – original accused No.1 is also believable and probable because Shri Patil, a person of raiding party, was travelling in the truck at the time of incident and, therefore, the evidence of Ummarbhai is reliable to the extent that Shri Patil by force gave Rs.20/- of the denomination of Rs.10/- each in the hand of appellant and demanding the change from appellant. The presence of Rs.4/- of the denomination of Rs.2/- each suggests that change must have been asked by Mr.Patil. He also submitted that amount was in the hand of accused which was not put in the pocket of the accused. Therefore, his submission is that there is no reliable evidence which proves the prosecution case against the appellant CR.A/1135/1991 20/89 JUDGMENT beyond reasonable doubt. Therefore, he submitted that judgment and order of conviction may be set aside. 7. Learned APP, Mr.P.D.Bhate, appearing on behalf of respondent – State submitted that the present appellant – original accused No.1 admittedly had accepted Rs.20/- and so there is a presumption that it was an amount of bribe. The theory of the accused No.1 that the driver had given Rs.20/- for getting the change is not probable and believable and there is no rebutable evidence to rebut the presumption raised under Section 4 of the Statute. The accused No.1 had not examined any public witnesses nor the employees of the petrol pump to show and prove that the amount of Rs.20- was given to him for getting the change. He has also submitted that the preparing of the Panchnama at Mehsana or at Radhanpur which can be said to be a contradiction would not be of a glaring and major and it would CR.A/1135/1991 21/89 JUDGMENT discredit the evidence of both the witnesses particularly when the incident had happened before six years and so as a human nature every person's memory would be fallible. It was a running trap and so witnesses would not be said to be interested to say as to unnecessarily implicate the accused falsely. Thus, the driver Ummarbhai has stated that Rs.20/- was accepted as entry fee by the appellant. Shri Patil was also sitting in the truck and he had seen the incident. So according to learned APP, Mr.Bhate, the case is proved against the appellant and there is no reason to disbelieve the credence and testimonies of all the witnesses and, therefore, he submitted that the trial Court has rightly convicted the present appellant. 8. I have considered the submissions made by both the learned Advocates appearing for the parties. Before dealing with the same, it is necessary to consider the relevant Section 161, CR.A/1135/1991 22/89 JUDGMENT 165-A of the IPC; Section 5(2) of the Prevention of Corruption Act and Section 114 of the Indian Evidence Act, which are quoted as under : “161 – Indian Penal Code - Public servant taking gratification other than legal remuneration in respect of an official act.- Whoever, being or expecting to be a public servant, accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other legal remuneration as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavor to any person, or for rendering or attempting to render any service or disservice to any person, with the Central or any State Government or Parliament or the Legislature of any State or with any local authority corporation of Government company referred to in Section 21 or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. CR.A/1135/1991 23/89 JUDGMENT 165-A. Punishment for abetment of offences defined in Section 161 or Section 165.- Whoever abets any offence punishable under Section 161 of Section 165, whether or not that offence is committed in consequence of the abetment, shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both. Section 5(2) of Prevention of Corruption Act:-Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine. Provided that the Court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year. Section 114 of Indian Evidence Act : Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their CR.A/1135/1991 24/89 JUDGMENT relation to the facts of the particular case. The Court may presume--- (a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession; (b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars; (c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration; (d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence; (e) That judicial and official acts have been regularly performed; (f) That the common course of business has been followed in particular cases; (g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds CR.A/1135/1991 25/89 JUDGMENT it; (h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him; (i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged. But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:- As to illustration (a)- A shop-keeper has in his till a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business; As to illustration (b)- A, a person of the highest character, is tried for causing a man's death by an