CR.A/813/1991 1/44 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 813 of 1991 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA ================================================= 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 ? ================================================= DAHYABHAI M BARIYA Versus STATE OF GUJARAT ================================================= Appearance : MR JB PARDIWALA for Appellant MS MITA PANCHAL APP for Respondent ================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA CR.A/813/1991 2/44 JUDGMENT Date : 17/18.08.2006 ORAL JUDGMENT 1. This appeal is preferred against the judgment and order delivered by the Special Judge, Vadodara on 05.10.1991 in Special Case No.5/1987 convicting the present appellant – accused for the offences punishable under Section 5(1)(d) to read with Section 5(2) of the Prevention of Corruption Act and under Section 161 of the Indian Penal Code. The present appellant was sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.100/-, in default, to undergo rigorous imprisonment of 15 days for the offences punishable under Section 5(1)(d) to read with Section 5(2) of the Prevention of Corruption Act. The appellant was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.500/-, in default, to undergo rigorous imprisonment for 15 days for the offence punishable under Section 161 of the Indian Penal Code. It was directed that both the sentences to CR.A/813/1991 3/44 JUDGMENT run concurrently. 2. The facts giving rise to the prosecution against the present appellant can briefly be stated as under:- 2.1 On 11.06.1986, the present appellant – accused being Talati-Cum-Mantri of village Magiya Group Gram Panchayat along with Circle Inspector visited the house of the complainant and found that father of the complainant – Kalyanbhai Galabhai Rathva was manufacturing bricks excavating the earth from the Government waste land. This being in breach of prevalent law, a case in this respect came to be instituted against the father of the complainant and relevant statement of the father of the complainant i.e. informant was also recorded. At that juncture, the present accused called the complainant at one side and told him that if complainant wanted to get the case papers filed, he would have to pay Rs.350/- to him [accused]. After some haggling, the amount was reduced to CR.A/813/1991 4/44 JUDGMENT Rs.250/- by the accused and the complainant – informant was told by the accused that the amount of Rs.250/- must be paid to him [accused] by the complainant-informant on 14.06.1986 at his residence in the evening. The complainant- informant did not intend to pay the amount to the accused and hence, on 13.06.1986, lodged FIR before Police Inspector, Anti Corruption Bureau, Vadodara. The complainant-informant obtained Rs.250/- from one Jesingbhai Chhotabhai. P.I., A.C.B. Vadodara was instructed complainant- informant to come on next day i.e. on 14.06.1986 at 11.30 a.m. At that time, complainant- informant, Police Inspector, Sub-Inspector Mr.Khant, battery operator, along with ultra violet lamp and anthracene powder, went to Dabhoi Rest House. Two panchas were searched by PSI Khant and were brought to Dabhoi Rest House. Panchas were informed about the contents of the complaint filed by the complainant and, thereafter usual experiment of anthracene powder and ultra violet lamp was administrated and executed on currency notes of Rs.250/- CR.A/813/1991 5/44 JUDGMENT denomination of Rs.100/- two in numbers and one of Rs.50/-, presented by the complainant which were smeared by anthracene powder and after explaining the experiment of anthracene powder, the said muddamal notes were put in shirt pocket of the complainant with the instruction that the complainant was to take out those notes when demands were made by the accused. Panch No.1 – Ramdas Bhopabhai Solanki was instructed to remain with complainant and both of them were to go to the residence of the accused and further panch No.1 was instructed to observe and hear whatever transpired between the complainant and the accused. Panchnama was prepared upto this stage and at about 16.00 hours from Dabhoi, this raiding party started for village Magiya and reached there at about 18.00 hours. The residence of the accused was adjoining to Gram Panchayat office of village Magiya and, therefore, the raiding party got down from the jeep at a distance of half kilo metre from the village, the panch No.1 and the complainant started walking towards the Gram Panchayat office, while panch CR.A/813/1991 6/44 JUDGMENT No.2 and other persons of raiding party followed them. Thereafter, it was found by the complainant that the accused was out of station and was to reach at about after 6.00 p.m. in bus. Therefore, again panch No.1 and complainant at about 19.45 hours started going towards the Gram Panchayat Office, while others scattered around the office and concealed themselves. Panch No.1 was instructed to light cigarette, when the amount was accepted by the accused. The complainant and the panch No.1, thereafter, went to the residence of the accused where he was sitting in the office wearing lungi and had wrapped towel on upper part of body. According to the complainant, accused inquired about the case and the complainant said that the case was to be filed, on that accused said that give Rs.250/- and the case would be filed. The complainant, therefore, made the payment of Rs.250/- of muddamal notes to the accused. The accused accepted the said notes and, therefore, panch No.1 lighted a cigarette and gave signal to the raiding party members, who were concealed round about the residence, rushed CR.A/813/1991 7/44 JUDGMENT to the spot and on seeing them, accused dropped muddamal currency notes on the ground and rubbed his hands on lungi and towel which he was wearing. Police Inspector Mr.Mehta reached at the spot, caught the accused with his two hands and introduced himself. In the light of ultra violet lamp, anthracene powder marks were found on the hands of the accused as well as of the complainant. Anthracene powder marks were also discerned on the lungi and the towel worn by the accused. The amount of muddamal recovered from the ground, which was recovered by panch No.1 and in ultra violet lamp those notes were emitting anthracene powder mark and were the same notes, number of which were noted in the first part of the panchnama. Panchnama of second part was prepared and signed by the panchas and the concerned Police Inspector. The raiding party returned to Vadodara, thereafter, the case was registered against the accused for the above said charges. The investigation was carried out by Mr.Mehta, Police Inspector and, thereafter, was handed over to one Police Inspector Mr.Saiyed who CR.A/813/1991 8/44 JUDGMENT got the sanction to prosecute the accused and charge-sheet for the above said offences came to be filed against the present appellant -accused. 3. On 27.05.1991, charge for the offence punishable under Section 5(2) of the Prevention of Corruption Act, 1988 and under Section 161 of the Indian Penal Code was framed vide Ex.6 to which the accused – appellant denied, except that he was public servant at the relevant time. 4. The prosecution examined three witnesses to prove its case. P.W.1 Kalyanbhai Galabhai Rathva,Ex.9, P.W.2 Ramdas Bhopabhai Solanki, Ex.12 and P.W.3, Prabhashankar Parmanand Mehta, Ex.18,Investigating Officer as well as Police Inspector and leader of the raiding party. The complaint filed by P.W.1 is produced at Ex.9 and panchnama at Ex.13. 5. In the statement recorded of the accused under Section 313 of the Code of Criminal Procedure, the accused denied the case of the CR.A/813/1991 9/44 JUDGMENT prosecution in toto and submitted by way of answer to a question to that effect that he was falsely involved in a case as he did not co- operate with the complainant. No defence witnesses were examined on behalf of the defence. After hearing both the learned counsels for the parties, the learned trial Judge came to the above said conclusions to convict the present appellant – accused and to sentence him as aforesaid. 6. In this appeal, learned advocate Mr.J.B.Pardiwala and Mr.Amit P. Patel for the appellant and learned APP Ms.Mita Panchal for the respondent – State were heard. 7. Along with the learned counsels for the parties, the record of the case is gone thoroughly and carefully and each of the documents produced by the prosecution as well as evidence of witnesses examined on behalf of the prosecution was taken into consideration and the evidence was re-appreciated. CR.A/813/1991 10/44 JUDGMENT 8. It is not necessary herein to re-produce the evidence of the witnesses verbatim as the same is done by the learned trial Judge in his judgment. 9. P.W.1 – Kalyanbhai Galabhai Rathva corroborating his FIR stated in his deposition that he along with panch No.1 visited the house of the accused wherein accused demanded an amount of Rs.250/- for filing of the case and he paid that amount to the accused. On lighting cigarette by panch No.1, at that juncture, raiding party rushed to the spot and on seeing the raiding party, the accused dropped the amount on the ground which was recovered by the panch No.1, anthracene powder marks on the muddamal notes as well as on the hands of the accused and upon the lungi and towel worn by the accused, were found. In his cross-examination, an attempt is made by the defence that it was not in the power of the accused to get the case filed as the Mamlatdar only could have done that, which is admitted by the complainant. In cross- CR.A/813/1991 11/44 JUDGMENT examination, an allegation is also made that there was some enmity between the complainant and the accused about obtaining loan from the Bank and for which a certificate was necessary which the accused refused to issue. It was also alleged that one Maheshbhai Master was also refused such certificate and keeping grudge against the accused at the instance of Maheshbhai Master, the complaint came to be filed. The complainant is asked about the location of the Gram Panchayat office at village Magiya. In para-13, it has been asked that in fact the accused refused to accept the amount which was being thrusted by the complainant and accused stated that in fact, it was the duty of the Mamlatdar to file the case and it was not his duty. Though this suggestion is denied by the complainant. In para-14, a contradiction is proved to the extent that the complainant did not offer before the police that while, he first approached the residence of accused he (complainant) stated the accused that his case should be filed and the accused demanded Rs.250/- and stated that he [accused] would file CR.A/813/1991 12/44 JUDGMENT the case. 10. P.W.2 – Ramdas Bhopabhai Solanki, panch No.1, after stating the experiment carried on at Dabhoi about anthracene powder and ultra violet lamp, stated that he approached the accused along with the complainant, who had worn lungi and wrapped towel on upper part of his body. The complainant and the accused came out of the house and went near one neem tree. They both were exchanging conversion and complainant gave the amount, upon that, he lighted the cigarette, and the raiding party rushed to the spot. P.I. Mr.Mehta caught the hands of the accused and the amount was dropped on the ground. The said amount was recovered by him. In his cross-examination in para-6, he has stated that he and complainant had not gone to the house of the accused and they had the conversation standing out side the house. In para-7, he stated that he lighted the cigarette at 8.45 p.m. He was standing at a distance of 10 to 12 feet away from the accused, and complainant. The complainant looked towards him CR.A/813/1991 13/44 JUDGMENT and he lighted the cigarette and raiding party reached at the spot. On the question asked by the Court, as to whether he heard any conversation took place between the complainant and accused, he replied that he heard the conversation to the extent that the complainant told that he had brought the money for the circle and requested the accused to get the case filed. The accused stated that the papers were with circle and the matter would be over. He has been alleged in his cross-examination in para-8 that he did not hear any conversation between the complainant and the accused. He admitted that the papers were with the circle, that was stated by the accused. He stated that accused stated that work was to be done by the circle and not by him. He denied that during this conversation, accused did not accept the amount and the amount was dropped on the ground. He denied that the accused attempted to return the money to the complainant and while, the complainant did not accept it, the amount was dropped to the ground. P.W.3 – I.O. and leader of raiding party in all respect corroborated the CR.A/813/1991 14/44 JUDGMENT prosecution case and panchnama. He has been cross-examined in detail. 11. Learned advocate for the appellant vehemently stressed upon the fact that there was no dependable evidence in respect of demand made by the accused, which is essential ingredients for the offence under Section 5(1)(d) of the Prevention of Corruption Act. There is no evidence of acceptance of the amount as argued by the learned advocate for the appellant. The attention of this Court was drawn to the contradiction in the evidence of the complainant particularly in para-8 wherein the complainant admitted that the case was to be conducted by the Mamlatdar and could be filed only by him. It was submitted that, in fact, the whole story of the prosecution is improbable as the accused was not in a position to file the case, as has been stated by the prosecution. It was argued that on account of one Maheshbhai Master, the complaint came to be filed for which in cross-examination, allegations and suggestions are made. It was CR.A/813/1991 15/44 JUDGMENT submitted that there is contradiction in the evidence of the complainant as well as in panch No.1 in respect of the situation, when both of them reached at Gram Panchayat office. In para-1 of chief-examination, the complainant in uncertain terms submits that they approached the accused at his residence and he was sitting in the office, while in uncertain terms, panch No.1 stated that they never entered the house of the accused and all the conversation took place out of the house. While complainant in his deposition stated that they entered the house and were made to sit, while accused was standing. It was submitted that applying the yardstick of improbability on account of this contradiction, neither the complainant nor panch No.1 could be believed. Much stress is put up by learned advocate for the appellant upon a contradiction in para-14 of the deposition of the complainant. It was submitted that in his chief-examination, only available evidence for demand is in terms of para-14 of the deposition of the complainant which he admits that he did not state before the CR.A/813/1991 16/44 JUDGMENT police and, therefore, if this contradiction is believed, then there is no evidence of demand of amount by the accused even in the chief- examination of the complainant. The story as narrated by the complainant is not corroborated by the panch witness i.e. P.W.2. P.W.2 on the contrary submits in para-6 of his deposition that they never entered the house of the Talati i.e. accused and everything happened out side the house of the accused. The attention of this Court was drawn to para-7 of the deposition, wherein it has been stated by P.W.2 – panch No.1 that he was standing at a distance to 10 to 12 feet from the complainant and as soon as the complainant turned face towards him, he lighted the cigarette. It was submitted that nowhere, in his deposition, P.W.2 stated that the accused demanded the money and in pursuance of this, the complainant offered the amount which was accepted by P.W.2. Further, the attention of this Court was drawn to para-8 wherein P.W.2 admitted that the accused stated to the complainant that the papers of the case against the father of the complainant, were not CR.A/813/1991 17/44 JUDGMENT in possession of the accused but were with the Circle Inspector. P.W.2 also stated that accused told to the complainant that this could be done by Circle Inspector only, eventhough the complainant insisted that the accused should take the amount and do the work as requested by the complainant. Learned advocate for the appellant stressed that the whole story is destroyed by this version of panch No.1 – P.W.2. It was stated that Investigating Officer admitted that during the search of Panchayat office and the house of the accused, the case papers pertaining to the complainant, were not found. Therefore, it is vehemently urged that firstly, neither the complainant nor P.W.2 – panch No.1 stated in their deposition that the accused demanded the money to constitute “obtain” as envisaged by Section 5(1)(d) of the Act. Secondly, so far as acceptance is concerned, in clear terms P.W.2 admitted in his evidence that though the accused stated that it was not his duty to do the job, the complainant insisted that the accused should accept the money and get the case filed. It was, CR.A/813/1991 18/44 JUDGMENT therefore, argued that there is no cogent evidence for acceptance also. It was submitted that therefore, mere recovery of amount of tainted money would not constitute offence under Section 5(1)(d) of the Act and since there is no demand, no presumption can be raised under Section 4(1) of the said Act. The reliance is placed upon a decision in the matter of Suraj Mal Vs. The State (Delhi Administration) as reported in AIR 1979 S.C. 1408 wherein the Apex Court was pleased to observe that to constitute the offence under Section 5(1)(d), mere recovery of tainted amount is not sufficient and that demand or acceptance be proved by the prosecution beyond reasonable doubt. Learned advocate for the appellant has relied upon the decision of this Court in the matter of State of Gujarat Vs. Jujarsinh Bhavansinh Vihol & Ors., as reported in 1999 (1) G.L.H. 947 wherein this Court observed that no presumption can arise by mere fact of recovery of the tainted amount. The decision of this Court in the matter of Bharatkumar CR.A/813/1991 19/44 JUDGMENT Jaimanishanker Mehta Vs. State, as reported in 1992 (1) G.L.R. 605 is relied upon by the learned advocate for the appellant for the fact that while appreciating the evidence in Prevention of Corruption Act the totality of the evidence must be seen i.e. not the evidence of prosecution alone, but the examination-in-cross, suggestion made by the defence and the evidence laid by the defence and over all circumstances of the case must be appreciated to come to the conclusion. The decision of the Apex Court in the matter of Subash Parbat Sonvane Vs. State of Gujarat, as reported in 2002 Cri.L.J. 2787 is relied upon by the learned advocate for the appellant to contend that there must be evidence on record that the accused obtained any amount by corrupt or illegal means. In paras-6 and 7 of the decision, while dealing with Section 13(1)(d) of the 1988 Act, the Supreme Court observed that element of obtainment must be proved by the prosecution. It was argued that there is nothing on record that the accused put the complainant in a position that the complainant would have to CR.A/813/1991 20/44 JUDGMENT part with the money. It was submitted that element of compulsion which is included in obtainment is totally absent from the facts of the present case. Therefore, it is contended that neither demand is proved nor receipt of the amount is proved by the prosecution as to attract ingredients of Section 5(1)(d) of the Prevention of Corruption Act, 1947 nor ingredients of Section 161 of the Indian Penal Code. It is submitted that the recovery of muddamal notes is effected from the ground and not from the person of the accused and when totality of the evidence is considered, the prosecution has failed to prove its case beyond reasonable doubt as the evidence of the complainant is doubtful in respect of demand and acceptance, while he is not corroborated on material particulars by panch No.1 as above said. Therefore, it is submitted that the appellant – accused is required to be acquitted. By way of an alternative argument, learned advocate for the appellant contended the reduction of sentences in case the appeal is dismissed. Learned advocate for the appellant has CR.A/813/1991 21/44 JUDGMENT placed on record an affidavit of the accused sworn in by him on 08.08.2003 depicting his predicament and special circumstances, if he has to undergo imprisonment. Learned advocate for the appellant relied upon certain decisions on this aspect also and these decisions are; (1) in the matter of Tarsem Lal Vs. State of Haryana, as reported in AIR 1987 S.C. 806; (2) in the matter of T.M.Joseph Vs. State of Kerala, as reported in AIR 1992 S.C. 1922; and (3) in the matter of Vishnu Nagnath Deshmukh Vs. State of Maharashtra, as reported in 2001 Cri.L.J. 483. 12. As against that learned APP Ms.Mita Panchal for the respondent – State, supporting the decision impugned in the appeal, submitted that the case of the prosecution is proved beyond reasonable doubt. It was submitted that demand or obtainment has to be seen from the FIR filed by the complainant wherein the demand is made and there is consistent evidence through out in this respect. It is submitted that in the evidence of CR.A/813/1991 22/44 JUDGMENT the complainant and in the evidence of panch witnesses, there may be minor discrepancies but those discrepancies should be ignored in appreciating the evidence as a whole. It is submitted that a piece of sentence stated in the evidence must be read with reference to the whole evidence and not in isolation. The attention of this Court was drawn to the reasoning of the judgment impugned wherein it has been held that presumption under Section 4(1) from the evidence recorded could be raised and as against that the accused failed to dislodge the said presumption. It is submitted that through out in the evidence consistently it is proved that the hands of the accused were tainted with anthracene powder marks and lungi as well as towel worn by the accused were also tainted of such marks. The story is credible and there is no reason to disbelieve these witnesses as nothing could be brought on record as to why the witnesses and police officer would attempt to frame this particular accused in a false trap case. Learned APP has relied upon the decisions and submitted that while CR.A/813/1991 23/44 JUDGMENT appreciating the evidence, endeavour should be to bring about the truth, and in that process, the contradictions and inconsistencies in the evidence, not affecting the core of the prosecution case, should be ignored. A decision of the Apex Court, in the matter of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, as reported in AIR 1983 S.C. 753 is relied upon by the learned APP for principles of appreciating the evidence. A decision of this Court, in the matter of State of Gujarat Vs. Tajbhai Karimbhai, as reported in 1999 (1) GLR 831 is relied upon for proposition of law that for establishing the offence under Section 5(1)(d) demand is not necessary to be proved when acceptance of the bribe money is proved. A decision of this Court, in the matter of State of Gujarat Vs. Ghanshyamsinh Ranchhodsinh Vaghela, as reported in 1997 (1) GLR 751 is relied upon to contend that the deposition of Investigating Officer i.e. Police