CR.A/620/1990 1/108 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 620 of 1990 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ========================================= 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 ? ========================================= DR. NARENDRA RAMJIBHAI THANKI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR ADIL MEHTA for Appellant(s) : 1, MR KJ SHETHNA for Appellant(s):1, MR AJ DESAI, LD.APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 28/06/2007 CAV JUDGMENT 1. The appellant-orig.convict (hereinafter referred to as 'the appellant') has preferred present appeal under Section 374 of the Code of Criminal Procedure, 1973, assailing the legality and validity of the judgment and CR.A/620/1990 2/108 JUDGMENT order of conviction and sentence dated 20th July 1990 passed by the learned Sessions Judge, Rajkot in Special Criminal Case No.45/86. The appellant has been found guilty of the charge of the offence punishable under Section 161 of the Indian Penal Code and also under Section 5(2) of the Prevention of Corruption Act (hereinafter referred to as 'the Act') and he has been asked to undergo one year imprisonment and a fine of Rs.1000/- for the offence punishable under Section 5(2) of the Act and in default to undergo further three months' imprisonment. So far as the offence punishable under Section 161 of the Indian Penal Code is concerned, the appellant is asked to undergo imprisonment for a period of six months and a fine of Rs.500/- and in default to undergo further three months' punishment. 2. The judgment and order of conviction and sentence is assailed on various grounds as mentioned in paragraph no.6 of the memo of the appeal and Shri K.J. Shethna, learned counsel appearing for the appellant, has taken this CR.A/620/1990 3/108 JUDGMENT Court through the prosecution case and all these grounds along with the oral as well as documentary evidence led during the course of trial. He has also taken me through the relevant part of the judgment and order of conviction and sentence under challenge and has argued that the judgment and order of conviction and sentence is not sustainable in the eye of law. It is submitted that certain grave errors have been committed by the learned trial Judge while appreciating the evidence vis-a-vis the probabilities of false implications shown by the appellant by pointing out speaking circumstances. The absence of transparency in the investigation as well as the entire exercise of carrying out trap to implicate the appellant, is also one of the main arguments. 3. On the other hand, Shri A.J. Desai, learned Additional Public Prosecutor, appearing for the respondent-State, has strongly supported the judgment and order of conviction and sentence, and has argued that the reasons assigned by the learned trial Judge while CR.A/620/1990 4/108 JUDGMENT linking the appellant with the offence in question are sound in nature. The learned trial Judge has appreciated the evidence keeping in mind the basic principle and there is no illegality or perversity in the finding recorded by the learned trial Judge. The hammering by Shri A.J. Desai is on the point of conduct of the appellant and on the fact that he was not otherwise entitled to touch the currency notes. The learned trial Judge has rightly raised the presumption against the appellant and it is submitted that the finding of the learned trial Judge is absolutely logical for not accepting the theory of false implication. Detailed submissions have been made by both the sides, which shall have to be considered while evaluating the judgment and order of conviction and sentence under challenge. 4. It would be appropriate at this stage to state the case of the prosecution in brief. The complainant-Bavanji Bhurabhai Ahir, resident of village Vadodar of Taluka Dhoraji, District Rajkot, was feeling pain in his abdomen and, CR.A/620/1990 5/108 JUDGMENT therefore, he had gone to the Government Hospital at Dhoraji on 07th January 1986. The appellant was the Medical Officer and Gynaecologist in the said hospital and, therefore, the complainant approached the appellant for treatment. The appellant examined the complainant and told that he is suffering from Appendicitis and he should undergo a surgery. The complainant asked the appellant as to on which day the surgery can be performed so that he can come for the said purpose. In turn, the appellant told him that the surgery shall be performed on 09th January 1986 and the complainant should bring the amount of Rs.200/- for expenses. The appellant told the complainant that if he (the complainant) will give an amount of Rs.200/-, he (the appellant) will perform surgery and will take proper care. The complainant then was asked to come on 09th January 1986 between 10-00 a.m. and 12-00 p.m. with the said amount of Rs.200/-. It is further the case of the prosecution that the complainant then approached the Anti-Corruption Bureau (hereinafter referred to as 'the ACB') Police CR.A/620/1990 6/108 JUDGMENT Inspector Shri D.N. Manjariya in the ACB Police Station at Rajkot on 08th January 1986 at about 08-30 p.m. He narrated the details and the then Police Inspector Shri D.N. Manjariya recorded the details in the form of a complaint i.e. FIR which is at Ex.13 in the present case. One Babulal Laljibhai Patel and one another person namely Kishorbhai Bhanubhai Patel, both resident of Rajkot were called and requested to act as panchas. Both the panchas were informed to come down to the office of the ACB on 09th January 1986 in the early morning. These instructions were given on 08th January 1986 and thereafter, the first part of panchnama was drawn at Rajkot between 06-30 a.m. and 08-30 a.m. on 08th January 1986. It is the say of prosecution that thereafter the raiding party proceeded towards Dhoraji and as per the details mentioned in the first part of panchnama, the complainant and panch no.1 went inside the hospital. The complainant was addressed with name and was asked about the amount by the appellant. On demand made by the appellant, the complainant handed over the muddamal currency notes i.e. bribe amount of CR.A/620/1990 7/108 JUDGMENT Rs.200/- to the appellant. The appellant had accepted the said amount. Thereafter, as per the instructions, the signal was given by the complainant and raid was carried out by Police Inspector Shri Manjariya. In Dhoraji Hospital itself, the second part of panchnama was drawn and it was completed at about 01-30 p.m. After investigation and obtaining sanction from the competent authority, the appellant was chargesheeted. The gist of the case of the prosecution is reflected in the charge framed by the learned trial Judge at Ex.8. After evaluating the evidence of PW-1- complainant Ex.12, PW-2 Dresser-Chanabhai Ugabhai Ex.8, PW-3 Panch Witness- Babulal Laljibhai Patel Ex.25 and PW-4 ACB Police Inspector Shri Manjariya Ex.31, the learned trial Judge has recorded the finding that the prosecution has successfully established the charge beyond reasonable doubt. 5. After examination of PW-4 Police Inspector Shri Manjariya, a point as to the legality and validity of sanction accorded by the competent authority had cropped up and, therefore, on CR.A/620/1990 8/108 JUDGMENT account of one order Ex.43, after hearing the argument on merits, the Court examined one more witness i.e. PW-5, who proved the order of sanction Ex.45. Here is a case where ACB Police Inspector Shri Manjariya had selected two panchas from public (private individuals) who were not Government servants. 6. According to Shri Shethna, learned counsel appearing for the appellant, the learned trial Judge ought not to have believed the complainant as genuine witness and victim of a corrupt administration of the hospital. On the contrary, the conduct of the complainant makes him a doubtful patient of abdominal pain who had agreed to undergo surgery even without perfect diagnose. The goal of the complainant was to implicate the appellant by arranging a trap for extraneous reasons and the learned trial Judge ought to have appreciated the detailed evidence in the background of the defence placed by the appellant. The cold war between Dr.Raithaththa who was Incharge of the hospital as head and the appellant who was posted vice the said Dr.Raithaththa, has not CR.A/620/1990 9/108 JUDGMENT been correctly looked into by the learned trial Judge, is the second grievance. The documentary evidence was produced which satisfactorily indicates that the appellant had forcibly taken the charge vice the said Dr.Raithaththa and in couple of weeks the appellant has been implicated in this trap with the help of the complainant. While reading the evidence (page no.61 of the paperbook), Shri Shethna has submitted that one Maganbhai Dahyabhai is the brother-in-law of Dr.Raithaththa. He is the resident of one of the villages of Dhoraji Taluka and one Shri Rupareliya who is the caste-fellow of Dr.Raithaththa was Sarpanch of village Pinpali of the same Taluka. So these local people have helped including the complainant in arranging a false trap with the help of Police Inspector Shri Manjariya. But according to Shri Shethna, the falsity in the case of the prosecution is found exposed during the course of examination of this witness and mainly the complainant and Police Inspector Shri Manjariya. Non- examination of important independent witness who was present in the vicinity including a CR.A/620/1990 10/108 JUDGMENT lady peon who was just sitting outside the cabin-cum-examination room of the appellant and who has not been examined. The presence of panch no.1 in the cabin of the appellant appears to be doubtful. When the selection of panch is found fishy and transparency has not been maintained by Police Inspector Shri Manjariya in selecting the panchas, the evidence of panch no.1 ought not to have been believed as gospel truth, is also one of the arguments of Shri Shethna. Shri Shethna has further argued that the learned trial Judge has ignored the discrepancy in the evidence of the complainant as well as panch no.1 as to the demand made prior to the acceptance and the alleged version that had taken place at that very point of time. One question is also posed by Shri Shethna that if the complainant was knowing that as the hospital is a Government Hospital, he is not to pay for any treatment and the treatment is free of costs, why he asked the doctor/appellant for any expenses. It is clear that the complainant was well-informed and an experienced person, and was undergoing treatment for the alleged CR.A/620/1990 11/108 JUDGMENT abdominal pain since long, is the say of the complainant; which indicates that he would not have agreed for surgery with the gap of one day in between on clinical examination done by the appellant. According to the complainant, when he reached the office of the appellant at Rajkot, it was about 21-00 hrs. and at that time his complaint was registered. The learned trial Judge has not even applied mind on the point as to how the ACB Police Inspector Shri Manjariya was present in his office personally at that time. It is not the say of the prosecution that on arrival of the complainant in his office, Shri Manjariya immediately came down to the ACB Office and recorded the complaint. The entire story is created by the prosecution about the demand of bribe amount of Rs.200/- made by the appellant, and thereafter, the decision of the complainant to go to Rajkot with a view to file a complaint with the ACB Police Station on 08th January 1986 and, therefore, he reached at Rajkot at 21-00 hrs. taking an amount of Rs.250/- with him and after reaching the office of the ACB, he gave the complaint i.e. CR.A/620/1990 12/108 JUDGMENT FIR in question, which according to Shri Shethna, is an unbelievable story. The learned counsel who cross-examined the complainant has taken out various facts which suggest that the complainant is suppressing the inner story. On the contrary, the evidence speaks that Shri Manjariya was aware about the arrival of the complainant and, therefore, even before recording the complaint, the private personnel were contacted and they were asked to accompany Police Inspector Shri Manjariya as members of the raiding party. It emerges from record that wth the help of Dr.Raithaththa and his family members, the complainant had reached Rajkot as he had agreed to help Dr.Raithaththa at the instance of Sarpanch of village Pinpali. According to Shri Shethna, learned counsel appearing for the appellant, PW-2 Chanabhai Ugabhai-Dresser in the said Hospital, has produced the case papers. This witness has stated that on 07th January 1986, when the complainant had visited the hospital with the complaint of abdominal pain, there were about 95 visitors because 95 new case papers of new patients were prepared on that CR.A/620/1990 13/108 JUDGMENT day and on 09th January 1986 about 66 new cases were registered in the said Government Hospital. Of course, there is no evidence as to how many of these patients were examined by the appellant on 07th and 09th January 1986. Before the complainant entered on 09th January 1986 i.e. on the day of the trap in the cabin of the appellant, who was the last patient and on that day how many surgeries were to be performed ? By drawing the attention of this Court to paragraph no.6 page no.78 of the paper-book, a crucial question has been posed before this Court as to whether the complainant was really a patient or had simply visited the Hospital to create a background for the appellant because it is in evidence that certain articles are required to be produced and brought into Hospital at the expenses of the patients and as the hospital has no Anaesthetist, the patients were required to arrange for Anaesthetist by paying fees to the Anaesthetist and other outside agencies, if the service of such outside agencies is taken. It is in evidence that the said Government Hospital had some laboratory CR.A/620/1990 14/108 JUDGMENT facilities. Another backbone of argument of Shri Shethna is that in the present case, the panchas have been selected by Shri Manjariya as he was aware about the falsity hidden in the trap exercise. Surprisingly the panch no.1 was knowing Shri Manjariya. Shri Shethna has drawn the attention of the Court to his evidence which is at Ex.85 of the paper-book, from where it emerges that there was presence of Shri Manjariya at the spot when the panch no.1 was stopped, called and selected as well as on the date of deposition of panch no.1 in the Court premises. The evidence at page no.86 should be read along with the evidence which is at page no.41 of the paper-book because it is on record that the complainant had reached Rajkot at 08-30 p.m. in the office of the ACB and the panchas were selected in couple of minutes from the place which is at a reasonable good distance. It is not the case of the prosecution that panchas were called in the office immediately and with the help of staff members, presence of panchas was procured on 08th January 1986. Neither Shri Manjariya nor the panch no.1 has explained as CR.A/620/1990 15/108 JUDGMENT to how panch no.1 was knowing Shri Manjariya sa such when there is no evidence even by panch no.1 suggestive of an unqualified demand of bribe, the learned trial Judge ought not to have drawn any inference in favour of prosecution nor any presumption could have been drawn against the appellant. There is no corroborative piece of evidence to the version of the complainant qua the initial demand of bribe amount of Rs.200/- made by the appellant on 07th January 1986. After reading the evidence at paragraph no.12 page no.92 of the paper-book, it is argued that the panch has emerged as a person interested and therefore, his evidence ought not to have been considered as an evidence of an independent third person. How there could be any presence of panch witnesses with the complainant before ACB Police Inspector Shri Manjariya prior to formal recording of complaint, is a crucial question and this question has not been properly answered by the prosecution and, therefore, the evidence of panch should not be given any weightage. CR.A/620/1990 16/108 JUDGMENT 7. It is argued that the approach of the learned trial Judge was absurd while dealing with the evidence as to the presence of anthracene powder marks. It appears that the presence of anthracene powder has been considered as clear proof of acceptance of bribe amount ignoring number of infirmities and other relevant aspects. The complainant was not the first patient on the day of trap in the hospital. On the contrary, it is in evidence that number of other patients were there and on getting permission from the lady peon, the complainant had entered the cabin of the appellant and at the time of drawing second part of panchnama, an amount of Rs.160/- only was found from the appellant (page no.121 of the paper-book). If the doctor/appellant was habitual bribe taker, then some more amount could have been realised during the course of trap from the appellant. The absence of recovery of cash amount from the drawer of the appellant is a circumstance relevant if the actual recovery only of Rs.160/- is considered. The entry of contradictions brought on record and proof makes the evidence of the complainant as well CR.A/620/1990 17/108 JUDGMENT as panch no.1 more infirm. There is nothing in evidence to show that panch no.2 was present in the hospital itself when panch no.1 had entered into the cabin of the appellant. In the same way, it is also not clear from the evidence that when the panch no.1 was called initially to assist the ACB party in arranging the trap, whether the panch no.2 was present there or he was called subsequently. Shri Shethna has drawn attention of the Court to the age of the panch witnesses and has argued that it is possible that both these panch witnesses may be knowing each other much prior to 08th January, 1986 i.e. the day on which they were called by Police Inspector Shri Manjariya. 8. It is further argued by Shri Shethna, learned counsel appearing for the appellant, that as per the accepted principles of our criminal jurisprudence, the accused is entitled to take and develop the alternative defences and some pleas may be in conflict with the other one and therefore, the appellant in the present case has placed two types of defence theories CR.A/620/1990 18/108 JUDGMENT and the learned trial Judge has failed in appreciating both individually or alternatively. According to the appellant, the amount was planted forcibly because the complainant as well as the panch no.1 was interested in success of the trap and panch no.1 being a partisan witness and interested in the result, has supported the case of the prosecution and, therefore, no weightage should be given to the presence of anthracene powder marks on the hands of the appellant and at other places or to the evidence of recovery of muddamal currency notes from the appellant. The other probability is that as the complainant was to be operated, he was supposed to pay to the Anaesthetist and other people independently if called from the other outside agencies, and therefore, he might have induced to accept the amount of Rs.200/-. So after surgery, the payment can be made immediately to the Anaesthetist, etc. There is no evidence as to the system which was adopted in Dhoraji Government Hospital for making payment to the visiting Anaesthetist or Pathologist in the event of blood transfusion. CR.A/620/1990 19/108 JUDGMENT As such in the present case no parallel test was carried out, no X-ray was taken and before surgery certain formalities were required to be performed; it is difficult to accept the allegation as proved that the complainant was to be operated on 09th January 1986 and he was called for surgery on that day. 9. According to Shri Shethna, learned counsel appearing for the appellant, the appellant has been prosecuted without legal and valid sanction for prosecution. Of course, PW-5 Madhusudan Purshottam Parekh, has been examined vide Ex.45, but this witness has failed in establishing the validity of the order of sanction. This witness was serving as a Secretary, Health and Family Planning Department of the State of Gujarat and he had recommended to the Chief Secretary to accord sanction. Ultimately, the Health Minister takes decision and how either Health Minister or Chief Secretary took decision to accord sanction, has not come on record. On the contrary, when it has come on record that the draft sanction was sent by the ACB itself, the CR.A/620/1990 20/108 JUDGMENT learned trial Judge ought to have held that the sanction is accorded mechanically. At least the learned trial Judge ought to have considered the earlier order passed which is at Ex.43. So in the present case, this Court should observe that the appellant is required to be acquitted as he has been prosecuted without legal and valid sanction. For short, according to Shri Shethna, the judgment and order of conviction and sentence is required to be set aside and the appellant is required to be acquitted from the charges levelled against him in respect of the offence in question. 10. Shri A.J. Desai, learned Additional Public Prosecutor, appearing for the respondent- State, while supporting the judgment and order of conviction and sentence under challenge has replied all the points placed by Shri Shethna on behalf of the appellant. According to Shri Desai, the litigation between Dr.Raithaththa and the appellant would not help the appellant because there is nothing on record to show that one Shri Rupareliya was the Sarpanch of CR.A/620/1990 21/108 JUDGMENT village Pinpali. Even the appellant had not led any evidence to establish any relation between Dr.Raithaththa and the said Shri Rupareliya who was alleged to be the Sarpanch of village Pinpali. There is no evidence as to the geographical distance between village Pinpali and village Vadodar of the complainant, though they are of the same taluka and when there is no evidence as to the relation of appellant with Shri Rupareliya-so called Sarpanch of village Pinpali, the appellant may not be permitted to take disadvantage of an independent litigation which had taken place between him and Dr.Raithaththa. There is no suggestion made to the complainant that he was treated earlier by Dr.Raithaththa and, therefore, he was in contact with Dr.Raithaththa and he, therefore, had decided to act as a tool of Dr.Raithaththa. The defence side has also not answered as to how the implication of the appellant would help Dr.Raithaththa to get him reposted at Dhoraji Hospital. So no weightage is required to be given to the documentary evidence produced in relation to the CR.A/620/1990 22/108 JUDGMENT litigation between the appellant and Dr.Raithaththa and/or Government. This document merely suggests that Dr.Raithaththa was transferred and he was reluctant in taking over the charge and ultimately, the appellant had taken over the charge with the help of pressure put on by the Health Department and the complainant had no animosity with the appellant. On the contrary, the complainant was interested in getting advice from the appellant and the appellant was approached for proper diagnosis. It is true that after the trap the appellant has neither taken treatment of Appendicitis nor he has gone for any surgery for Appendicitis or any treatment for abdominal pain. But this by itself should not be viewed with any doubt and it would not be proper for this Court to observe that he was not a patient of abdominal pain at all and he had pretended to be a patient of abdominal pain for the last six months prior to the date of