CR.A/301/1994 1/33 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 301 of 1994 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 ? ===================================================== DHIRENDRAKUMAR HIRALAL SOLANKI - 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 : 29/10/2007 ORAL JUDGMENT CR.A/301/1994 2/33 JUDGMENT 1. This is an appeal under Section 374 of the Code of Criminal Procedure, 1973 ( for short, ‘Code’) challenging the judgment and order of conviction and sentence dated 16-3-1994 in Special Case no.6 of 1988 under which the learned Special Judge, Bharuch, convicted the present appellant-original accused for offence punishable under Section 161 of Indian Penal Code and sentenced to suffer R.I. for one year and to pay fine of Rs.2000/-, in default,to undergo further R.I. for six months. The appellant was also convicted for offence punishable under Section 5(2) of the Prevention of Corruption Act,1947 and sentenced to suffer R.I. for two years and fine of Rs.4000/-, in default of payment of fine, further R.I. for one year. The substantive sentences were ordered to run concurrently. 2. The facts of the prosecution case before the trial Court may be briefly stated as follows: 3. At the relevant time, the present appellant was working as a Veterinary Officer at Veterinary Dispensary, Ankleshwar, and as such he was a public servant. The complainant- Shri Ratanji Haribhai Ahir CR.A/301/1994 3/33 JUDGMENT had filed a complaint against the present appellant- accused before Shri B.S.Vasava at P.W.D. Rest House at Ankleshwar on 24-2-1987 at 17.00hrs. where he coincidentally met the said Police Inspector. That complaint ultimately came to be registered in Bharcuh ACB Police Station vide C.R.no.2/1987 at about 3.00 p.m. on 25-2-1987. The case of the complainant is that about one and half months before 24-2-1987, Naranbhai brother of the complainant was proceeding towards the Vegetable Market of Ankleshwar from his village Sakkarpur by driving his bullock cart, which was loaded with guava. At about 5.15 p.m. when he reached near Amalakhadi , an O.N.G.Jeep dashed against the bullock-cart driven by him as a result of which both the bullocks sustained bodily injuries. The driver of the said Jeep one Salim Adam of Ankleshwar lodged complaint in respect of the said accident, which came to be registered as CR no.II 440/1986. It is further the case of the complainant that the said bullocks which received bodily injuries were treated by the present appellant-accused at Veterninary Dispensary, Ankleshwar in his capacity as a Veterinary Officer. The Investigating Officer of the said criminal complaint Mr.Abhesinghbhai asked the complainant to approach the present-appellant CR.A/301/1994 4/33 JUDGMENT accused and collect the medical certificate in respect of the injuries sustained by the said bullocks. According to the complainant about two days before 24-2-1987, the complainant had gone to the present appellant-accused for obtaining the medical certificate but the present appellant-accused asked him to collect the certificate by paying Rs.100/-. Thereafter, the complainant accompanied by his father went to the present appellant-accused on that very day between 3.00 and 3.20 p.m. and requested that the said medical certificate be issued. The present appellant-accused then asked the complainant, if he had brought Rs.100/- to which the complainant replied in the negative. The present appellant –accused was adamant, told that the certificate will be issued only on payment of Rs.100/- and suggested that the complainant can come the next day with Rs.100/- at 11.00 a.m. The complainant and his father then returned from the Veterinary Dispensary and the said complaint came to be lodged before P.I. B.S.Vasava at P.W.D.Rest House at Ankleshwar who co-incidentally came there in connection with some inquiry. According to the complainant, Shri B.S.Vasava had asked the complainant to contact him on 25-2-1987 at 9.00 a.m. at P.W.D. Rest House at Ankleshwar as the raid was to CR.A/301/1994 5/33 JUDGMENT be carried out. He also arranged for two Panchwitness from the Office of the Mamlatdar, Ankleshwar. Accordingly, the Investigating Officer Mr. Vasava along with his staff members came to the P.W.D. Rest House, Ankleshwar, where the complainant and the Panchwitness also remained present at the said date and time whereupon Mr.Vasava introduced the complainant and Panchwitness among themselves. Upon instructions received from Mr.Vasava, I.O. the complainant had given brief details of the complaint and also read over the contents of the complaint to the Panchwitnesses who had put their signatures thereon in token thereof. Thereafter, on being asked, the complainant had produced one currency note of the denomination of Rs.100/-. The serial number of the said currency note was mentioned in the preliminary Panchnama, which was drawn at the office of the P.W.D. Rest House, Ankleshwar. Shri Ramdas a staff member of the A.C.B. then applied anthracene powder on the said currency note and all formalities as required under law were performed, a detailed note whereof is mentioned in the preliminary Panchnama. The tainted currency notes were then placed in the left pocket of the bush-shirt of the complainant. Necessary instructions were given to the complainant CR.A/301/1994 6/33 JUDGMENT as to how and when the tainted currency notes were to be given on demand by the present appellant-accused and the Panchas were also properly advised. Panch no.1 was told to accompany the complainant and to see and hear the conversation that takes place between the present appellant-accused and the complainant. At about 10.35 a.m. , the complainant, two Panchwitnesses, Investigating Officer Shri Vasava and his staff members left the P.W.D Rest House for Veterinary Dispensary, Ankleshwar, and halted the jeep near Jalaram Saw Mills on the way to the Veterinary Dispensary.. Thereafter, the complainant and Panch no.1 went towards Veterinary Dispensary while the Panch no.2 and other staff members of A.C.B positioned themselves surrounding the compound of the dispensary. It is further the case of the prosecution that Shri Vasava saw the complainant and Panch no.1 going inside the office of the present appellant- accused, but soon the complainant, Panch no.1 and the present appellant-accused came out of the office and were standing under a tree and talking. Then , the present appellant-accused went inside the office and so did the complainant and Panch no.1. Thereafter, the complainant came outside the office and gave a signal by making a gurgling sound and by spitting. . CR.A/301/1994 7/33 JUDGMENT Soon Shri Vasava and all the members of the raiding party including Panch no.2 rushed to the spot. Upon search of the body of the accused in presence of the Panchas one currency note of the denomination of Rs.100/- was found from the left pocket of the bush- shirt worn by the present appellant-accused. The serial number of this currency note when compared with the number of the currency note mentioned in the preliminary Panchnama, tallied. Ultraviolet lamp experiment was demonstrated in presence of the Panchas, anthracene powder was found on the currency notes, on the hands of the present appellant-accused and on the hands of the complainant.. The currency notes, bush-shirt worn by the present appellant- accused. The second part of the Panchnama was drawn and completed. Other relevant documents like Medico legal case register, other currency notes of Rs.434/-found from the right pocket of the pant worn by the appellant-accused, a receipt book of cash received by him were also seized under separate Panchnamas. The raid being successful, the complaint was registered. At the end of the investigation , necessary papers were sent to the competent officer by Mr.Vasava and sanction to prosecute the present appellant-accused was obtained. The accused was CR.A/301/1994 8/33 JUDGMENT arrested. Thereafter statements of witnesses were recorded and the, charge-sheet was filed against the present appellant for the aforesaid offence. Chare Exh.15 was framed, it was read over and explained to the present appellant-accused who pleaded not guilty to the said charge and claimed to be tried. 4. To prove its case against the appellant-accused the prosecution has examined – P.W.1 Shri Ratanji Haribhai Ahir-complainant at Exh.23, P.W.2 Gulam Mohmed Ismail-Panchwitness at Exh,25, P.W.3 Naranbhai Haribhai-brother of the complainant at Exh.29, PW 4 Haribhai Hirabhai-father of the complainant at Exh.30, PW 5 Deputy Supdt. Of Police Shri Bhimsinh Sursinh Vasava at Exh.34, PW 6 1st Grade Police Jamadar Abhesinh Rupabhai at Exh.41, PW 7 Shri Harihardas Vaidnath Shastri at Exh.45. The prosecution has also produced documentary evidence such as original complaint Exh.35, original sanction for prosecution Exh.46, trap Panchnama Exh.27, office copy of confidential letter written by P.I. A.C.B.Bharuch for requisitioning Panchwitnesses Exh.26, search Panchnama of house of appellant- accused Exh.28, Post mortem register (Muddamal article no.4) seized from the appellant-accused CR.A/301/1994 9/33 JUDGMENT Exh.38, the receipt book (Muddamal article no.5)seized from the accused, original police case diary of CR no.II 440/86 at Exh.44, closing purshis of prosecution Exh.50. The accused had not led any independent evidence in his defence, however, he has filed written statement Exh.51. The trial Court also recorded further statement of the appellant-accused under Section 313 of the Code. After hearing the arguments, the trial Court found the appellant guilty for the aforesaid offence, and therefore, the appellant and his Advocate was also heard of the question of quantum of punishment, and as a result thereof, the learned trial Judge passed the judgment and order of conviction and sentence as stated in para-1 of this judgment, giving rise to the present appeal. 5. I have heard the learned Counsel Mr. K.J.Shethna for the appellant-accused and learned A.P.P. Mr. Pujari for the respondent-State at length and in great detail. Both of them have taken me through the entire evidence and the relevant portion of the judgment of the trial Court. In fact, learned Advocate for the appellant-accused has read the CR.A/301/1994 10/33 JUDGMENT entire evidence of all the witnesses on record in order to substantiate his arguments. 6. It has been contended by the learned Counsel for the appellant-accused that there are major contradictions in the evidence of PW 1complainant, PW 2 Panchwitness, PW 3 Narayan-brother of the complainant and PW 4 Haribhai Hirabhai-father of the complainant regarding demand of bribe amount and acceptance of the amount by the appellant-accused as well as regarding place where the demand was made which affects the entire case of the prosecution. The learned Counsel while pointing out the contradictions in the evidence of these witnesses also drew my attention to the written submission of the appellant- accused so far as the contradiction in the evidence of witnesses are concerned. The learned Counsel next contended that the ACB Office is situated at Bharuch in spite of that complaint was lodged at P.W.D. Rest House, Ankleshwar. According to the learned Counsel, the complaint has not explained as to from which source the complainant derived the knowledge as to the availability of P.I.Vasava at the PW.D.Rest house on that day. The learned Counsel next submitted that the learned Special Judge has proceeded on an CR.A/301/1994 11/33 JUDGMENT erroneous footing that as it was a medico legal case,the appellant-accused was expected to administer free treatment as also issue medical certificate of injuries sustained by the bullocks of Naranbhai to the Investigating Officer of the accident case at the earliest in reply to Police Yadi with which the bullocks were sent to the Veterinary Dispensary Ankleshwar on 27-12-1986 and in doing so, has ignored the point that for the visit and for giving the medicine on his own, the appellant-accused is entitled to recover that is legitimately due to him. The learned Counsel next submitted that in view of the notification issued by the Agricultural and Co- operative Department, Sachivalay, Ahmedabad dated 17th January, 1969, the Veterinary Officer is permitted private practice and he is entitled to charge the fee as per the appendix attached to the Notification which is produced at Exh.40 and that it is the say of the present appellant-accused from day one of the trap that he had received the amount of Rs.100/- towards the charges of treatment and visit fee fixed by the Government as per said appendix and not towards the illegal gratification as the appellant- accused had given medicines to the bullocks on his own. According to the learned Counsel the appellant- CR.A/301/1994 12/33 JUDGMENT accused has also produced the bill in respect of the medicines showing from where it was purchased as also the explanation dated 12-3-1987 forwarded by the appellant-accused to the Secretary, Agricultural & Rural Department, Gandhinagar, (Exh.55) in which also the said fact is narrated at the earliest point of time after the trap was carried out. According to the learned Counsel, in spite of the fact that the appellant-accused was able to show that the amount received was not an illegal gratification and that the defence put forward by the appellant-accused is probable, believable and supported by corroborative evidence, the learned Judge has failed to appreciate the defence evidence produced by the appellant- accused and by wrongly interpreting and rejecting the same, held that the appellant-accused had received the amount of Rs.100/- towards illegal gratification. The learned Counsel next submitted that after lengthy chief-examination of the complainant PW 1, complainant was declared hostile with the permission of the Court and thereafter when leading questions were put by the learned A.P.P. then, the complainant answered all the leading questions by saying “Yes”, and hence the evidence of the complainant neither inspires confidence nor can reliance be placed on CR.A/301/1994 13/33 JUDGMENT such evidence as such kind of evidence should be totally rejected, how the learned Judge has accepted the same. The learned Counsel next submitted that PW 1 complainant at the first instance was not able to identify the appellant-accused and he specifically stated on oath before the Court that he could not identify because of lapse of time, however, at a later point of time when the accused was on the witness box and by going nearer to the box, this witness identified the appellant-accused and so the evidence of the complainant is not trustworthy and on such evidence no reliance can be placed. The learned Counsel next submitted that as per the evidence of PW 2 Panchwitness after receiving the amount of Rs.100/-, the appellant-accused was preparing the receipt which supports the defence of the appellant- accused and before the appellant could issue the receipt, he was cordoned by the ACB team and this fact is not considered by the learned Judge. The learned Counsel finally submitted that considering all these aspects, the learned Special Judge has committed grave error in convicting the appellant- accused. That on the whole, the judgment and order of conviction of the trial Court are erroneous, illegal and deserve to be set aside. It is, prayed that the CR.A/301/1994 14/33 JUDGMENT present appeal be allowed, the judgment and order of conviction and sentence be set aside and the appellant-accused be acquitted of the offence in question. 7. On the other hand, the learned A.P.P. Mr. Pujari for the respondent-State submitted that as per the defence put forward by the appellant-accused he has admitted in his further statement as well as by filing written reply Exh.51 before the trial Court that he accepted the amount of Rs.100/- not towards illegal gratification, but towards the charges of treatment and visit fee which is legitimately due to him but this defence is not believable considering the evidence on record since the learned trial Judge has minutely scrutinized the evidence in its proper perspective and has rightly come to the conclusion that the defence of the accused is not believable and that the burden is not refuted by the appellant- accused. According to the learned A.P.P. the learned trial Judge was right in holding that the amount in question was received by the appellant-accused towards illegal gratification and that the appellant is guilty of the charges levelled against him. It is the submission of the learned A.P.P. that the CR.A/301/1994 15/33 JUDGMENT findings arrived at and the judgment and order of conviction and sentence passed by the learned trial Judge is quite legal and proper which does not call for any interference at the hands of this Court, and therefore, the appeal deserves to be dismissed. 8. In light of this argument let us discuss the evidence. In the present case, the sanctioning authority has granted sanction under Section 6 of the Act which is produced and proved at Exh.46. Looking to the evidence of PW 7 Harihardas V.Shashtri it is clearly established that the santion accorded is not without application of mind and that is a legal and valid sanction which fact is also not in dispute. Now, let us go through the defence put forward by the appellant-accused in his further statement recorded under Section 313 of the Criminal Procedure Code as well as the written explanation submitted by the accused which is produced at Exh.51. As per the defence of the accused after receiving the amount of Rs.100/- from the complainant, while he was preparing the receipt, he was trapped and false case was filed. It is also stated by the appellant-accused that by letter dated 3rd March, 1987, he submitted explanation to the Director, Animal Husbandry, Gujarat State, CR.A/301/1994 16/33 JUDGMENT Paldi, and also submitted circular and receipt. In his written explanation, the appellant-accused also submitted explanation to P.I.Vasava and also handed over the circular to P.I.Vasava which was admitted by P.I.Vasava in his deposition Exh.33. As per the defence of the accused explanation submitted by him to the Director and receipt were produced by PW 7 Harihardas V.Shastri during his evidence before the Court at Exh.45. This witness also supported the defence of the accused. The present appellant-accused also admitted in his further statement that bullocks of the complainant sustained injury and it was a medico legal case and that he gave treatment to the bullocks, and hence certificate was also required to be issued. He also stated in his further statement that PW 1 complainant demanded for the issuance of injury certificate, but he (appellant-accused) denied that he demanded illegal gratification of Rs.100/- for issuing injury certificate for issuing injury certificate. According to the appellant-accused, he demanded the said amount from the complainant towards treatment charges. The appellant-accused also stated that complainant and his father came to him and demanded for the injury certificate and he demanded Rs.100/- towards charges of treatment and he received CR.A/301/1994 17/33 JUDGMENT said amount under the neem tree on 25th February, 1987. He also admitted that after receiving the amount of Rs.100/- he went into his office. At that time PW 1 complainant and his father Haribhai sat under the neem tree. As per the defence of the accused, in his office when he was preparing the receipt, P.I.Vasava and other members came to him and currency note was taken out from his pocket through P.I.Vasava and Panchnama was prepared. The appellant- accused also admitted that at the time of trap bush- shirt which was worn by him at the time of the trap was recovered by P.I.Vasava. 9. Taking into consideration, this defence it is only to be decided whether the amount of Rs.100/- which was received by the appellant-accused and which was recovered from him was towards the charges of treatment or towards the illegal gratification. 10. Before discussing the evidence of witnesses, it is required to be noted that the complainant, his brother and his father are residing in a small village, hailing from a poor strata of society. They being not acquainted with the Court atmosphere or Court procedure, contradictions, omissions and improvements are bound to occur in their evidence. Now, as far as demand and acceptance of Rs.100/- by CR.A/301/1994 18/33 JUDGMENT the appellant is concerned, when it is admitted by the appellant himself, the question whether the amount has been received under the neem tree or in the office does not assume any significance. Similar is the view on the question as to from which source the complainant derived the knowledge as to the availaility of P.I. Vasava at the P.W.D. Rest House on the day of lodging complaint and the complaint being lodged at P.W.D.Rest House, Ankleshwar, when the ACB Office is situated at Bharuch as it is a matter of coicidence and cannot be doubted as the accused himself has in his further statement admitted that on the day of trap complainant came to him at the Veterinary hospital and received Rs.100/- from him. 10.1 It is not in dispute that the bullock-car met with an accident on 25th February, 1987 as stated in the F.I.R. Which is produced at Exh.35 and on account of the accident two bullocks had sustained injuries and offence was registered as CR no.II 440 of 1986 at Ankleshwar Police Station for offence punishable under Section 279 of the Indian Penal Code and also under Sections 112 and 116 of the Motor Vehicles Act. It is also not in dispute that the said case was investigated by one Abhesinh Rupabhai PW 6 CR.A/301/1994 19/33 JUDGMENT at Exh.41. The two bullocks were sent to Veterinary Dispensary, Ankleshwar for treatment as well as for getting certificate of injury sustained by the two bullocks. This fact is supported by the evidence of Muddamal Article no.4 Medico Legal Register which was seized during the investigation of the said corruption case and which is also proved through the evidence of Investigating Officer Bhimsinh Sursinh Vasava at Exh.34 and the said Muddamal article is exhibited at Exh.38. As per the entry Exh.38 at serial no.12, the present appellant-accused who was at the relevant point of time, the Veterinary Officer, Ankleshwar, has examined the two bullocks belonging to Naranbhai Haribhai PW 3, the brother of the complaint- Ratanji of Sakkarpur, with a request to PSI, Ankleshwar as per his Police Yadi of CR no.II 440/1986 dated 27th December,1983. It is pertinent to note that this entry is signed by the accused. Now, if we minutely scrutinised this entry, it is found that both the bullocks sustained bodily injuries and treatment was given to both the bullocks by the present appellant-accused. It is also mentioned in entry Exh.38 at serial no.12 that examination of both the bullocks were performed on 27-12-1986 at 14.00 hrs. From this evidence it is crystal clear CR.A/301/1994 20/33 JUDGMENT that both the bullocks were brought to the Veterinary Dispensary at Ankleshwar on 27-12-1986 and they were treated by the present appellant at 2.00 p.m. i.e. during office hours. So, as per this Police Yadi, it is required by the present appellant-accused to issue medical certificate showing the injuries. Now, if we go through the evidence of PW 6 Abhesinh Rupabhai at Exh.41, it has come out from his evidence that he was investigating the accident case of Bullocks belong to Naranbhai and in connection with the said case, he instructed Shri Naranbhai Haribhai to collect the medical certificate from the Veterinary Office i.e. the present appellant-accused. As per the evidence of this witness, Naranbhai did not turn up to him with the medical certificate till 9-1-1987 and that the medical certificate was not even received at the Police Station by post till 9-1-1987. Then this witness tried to contact the accused at 10.00 a.m. On 9-1-1987 but the appellant-accused was not available on that day and time. As per the evidence of this witness, he made note regarding his visit to Veterinary Dispensary at Ankleshwar in support whereof he has produced the case diary of the accident case which at Exh.44. CR.A/301/1994 21/33 JUDGMENT 11. Learned Advocate Mr. Shethna submitted that it is settled legal position that