CR.A/770/1991 1/73 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 770 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 ? ========================================= = JAYANTILAL KUBERDAS SHARMA Versus STATE OF GUJARAT ========================================= = Appearance : MR ATUL H MEHTA for Appellant MR A.Y. KOGJE APP for Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE J.R.VORA Date : 23 & 24/08/2006 ORAL JUDGMENT 1 The instant Appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 and is directed against the CR.A/770/1991 2/73 JUDGMENT judgment and order delivered on 30th of September, 1991, in Special Case No. 5 of 1988 of the Court of learned Special Judge, District – Panchmahals at Godhra. The present appellant being accused of said Special Case No. 5 of 1988, came to be convicted for the offences punishable under Section 5(1)(d) to read with Section 5(2) of the Prevention of the Corruption Act, 1947 and also for the offence punishable under Section 161 of the Indian Penal Code. Vide impugned judgment and order, the learned Special Judge was pleased to sentence the present appellant to undergo RI for one year and fine of Rs. 2,000/-, in default, to undergo RI for six months for the offence punishable under Section 5(1)(d) to read with Section 5(2) of the Prevention of Corruption Act, 1947, while no separate sentence was awarded for the offence punishable under Section 161 of the Indian Penal Code. 2 The facts leading to the prosecution against the appellant can shortly be depicted as under : The present complainant Atmaram Solanki was working as Head Constable at Garadu Outpost of Zalod Police Station in 1980. A departmental proceedings came to be initiated against him by Police Sub-Inspector in pursuance of an application and in the said proceedings by disciplinary authority, he was exonerated on 21st of July 1983. This proceedings were in respect of allegations of demanding bribe by complainant. Before this departmental CR.A/770/1991 3/73 JUDGMENT proceedings, one more departmental proceedings came to be initiated against the complainant for insubordination in respect of evading the orders of superior officer and in respect of this departmental proceedings, disciplinary authority i.e. concerned D.S.P. Punished the complainant vide order dated 5th of April, 1984 and he was directed to undergo punishment of reduction in rank and was ordered to serve as Police Constable for six months. While he was serving as Police Constable as such, in earlier departmental proceedings in pursuance of one application of bribe though he was exonerated by disciplinary authority, the higher authority i.e. D.I.G., Baroda, punished the complainant and he was dismissed from service from 7th of April, 1984. The complainant resorted to hierarchical appeals and representations and remedies and ultimately the final authority i.e. the Government of Gujarat directed to reinstate the complainant in service vide Order dated 01st of October, 1985 and thus in departmental proceedings where he was dismissed, came to be reinstated. Though in other departmental proceedings wherein the complainant was reduced to a rank remained final. On coming to know that the State Government allowed the Appeal of the complainant and ordered him to reinstate, the complainant Atamaram Shankarbhai Solanki visited DSP office at Godhra on 7th of October, 1985. The present appellant at the relevant juncture was working as Sheet Branch Clerk and was dealing with the departmental proceedings and, therefore, the complainant met him on 7th of October, 1985, in DSP CR.A/770/1991 4/73 JUDGMENT Office. Appellant informed the complainant that since the State Government has directed to regulate the absence of the complainant from duty as against his leave at his credit, after calculating the said period and regulating it and counting the period of reversion, the complainant would be given an order of posting of Head Constable as early as possible and for doing so, the appellant demanded bribe of Rs. 500/- from the complainant. Complainant informed the appellant that after the orders were passed, he would see the appellant. Again complainant visited DSP office on 11th of October, 1985 and his order of reinstatement and posting as Constable was given to him by the appellant. The complainant obtained this order from registry Clerk signing in the Outward Register and those orders were handed over to the complainant. Appellant on that day reiterated his demand of bribe of Rs. 500/- and informed to the complainant that if complainant wanted order of posting of Head Constable, he would have to pay Rs. 500/- to the appellant as bribe. It was further stated by the appellant that the amount should be handed over to him till next Wednesday. Complainant agreed before the appellant that he would meet the appellant till next Wednesday. On further conversation, appellant stated that complainant should come during recess to make payment. Thereafter since the orders of posting of the complainant as Constable was passed by the concerned DSP and was given to the complainant by hand delivery, the complainant resumed his duty as Police Constable at Dhanpur Police Station on 12th of CR.A/770/1991 5/73 JUDGMENT October, 1985. It is the case of the complainant that for last considerable period, the complainant was not on duty and, therefore, he was not in position to manage wherewithal to give bribe amount to the appellant. The complainant, therefore, obtained leave for two days and came to Godhra and went to Anti Corruption Bureau Office on 16th of October, 1985. The complainant met with P.I. Ranganekar and declared the facts of the complainant. Ranganekar was requested by the complainant that for taking legal action against the appellant, the complainant had no wherewith. Thereupon, a complaint came to be recorded by P.I. Ranganekar as stated by the complainant, which is placed at Exh. 12. After recording the complaint, P.I. Ranganekar arranged to call PSI Patel and two panchas for setting a trap against the appellant. In 20 -25 minutes, PSI Patel brought two panchas from ART Office of Godhra. Both the panchas were appraised of the facts of the First Information Report and introduction of the complainant and the panchas were made. PI Ranganekar stated that the complainant had no money to pay bribe amount and, therefore, the amount of Rs. 500/- in denomination of 5 notes, each of Rs. 100/- were provided by P.I. Ranganekar. As usual, utility and property of anthracene powder was explained to panchas and complainant and all the five notes, each of Rs. 100/-, after noting the numbers in panchnama, were smeared by anthracene powder. PSI Patel thereafter destroyed the paper on which the said muddamal notes were kept and washed his hands by soap. The hands of all present CR.A/770/1991 6/73 JUDGMENT were clean in ultra violet lamp and the notes smeared with anthracene powder were placed in left side bush shirt pocket of the complainant. The left side bush shift pocket of the complainant was empty. The complainant thereafter was instructed by P.I. Ranganekar that along with panch No.1 Ramanbhai Nanabhai Raval complainant was to approach appellant in DSP Office and give muddamal notes on making demand by appellant. It was directed that till the demand is made, the complainant must not touch amount of muddamal notes put in his shirt pocket. Panch No.1 Ramanbhai Nanabhai Raval was also instructed to accompany complainant at DSP Office in Sheet Branch and to hear the conversation between the complainant and the appellant as well as to observe what might take place. Other staff members of the raiding party as well as panch No. 2 were instructed to conceal them around DSP Office scattered and on signal being made by panch No. 1 to rush to the concerned branch of the DSP Office. Panch No. 1 was instructed to give signal if the amount is accepted by the appellant. Thereafter, at about 2.45 panch No. 1 and complainant went to DSP Office in Sheet Branch at the table of the appellant. The complainant stood before the table and panch No.1 stood nearby. Some other two persons were also present at that time, but they immediately left and thereafter in the office there were only three persons, i.e. appellant sitting in the chair, complainant was standing and panch No.1 was also standing behind the complainant. Complainant inquired from the appellant that CR.A/770/1991 7/73 JUDGMENT when his order for Head Constable was to be issued. Appellant stated that whether complainant had brought the amount. The complainant replied that he had brought the amount and with this he took out muddamal notes from his shirt pocket and delivered to the appellant, which he took with his left hand. The appellant put the amount of muddamal notes in his left bush shirt pocket. At the time, panch No.1 went out of the office and gave signal. In the meanwhile, the complainant requested Peon to bring tea, but the appellant refused to take tea. On signal being received, the raiding party rushed to the spot and reached near the appellant. PI Ranganekar directed the accused to remain status quo. Thereafter, Ranganekar took out a wallet from the pocket of the appellant, which contained currency notes of 189 rupees. Thereafter, as per the direction of PI, panch No.1 searched pant pockets of the appellant and he found muddamal notes from right hand pant pocket of the appellant, which were the same notes, numbers of which were noted in the first part of panchnama. Thereupon, except complainant and appellant, the hands of all raiding parties were examined in ultra violet lamp. Thereafter, the hands of panch No.1 were found with the marks of anthracene powder in ultra violet lamp. Right hand of the appellant also contained anthracene powder in ultra violet lamp. In right hands of the complaint, anthracene powder marks were also found. Anthracene powder marks were also found on the pocket of the bush shirt as well as on right hand side pant pocket of the appellant. The said notes CR.A/770/1991 8/73 JUDGMENT and pant of appellant were seized by PI, after arranging other clothes for the appellant and detailed panchnama of this procedure was prepared and signed by panchas as well as PI. Thereafter, the investigation was carried out by P.I. Ranganekar and a crime came to be registered against the appellant on 16th of October, 1985 at about 18.00 hours. A charge sheet in pursuance of the above investigation came to be filed against the appellant in the court of Special Judge at Godhra. 3 At Exhibit-1, on 29th of May 1990, a charge came to be framed by the Special Judge, Godhra, against the appellant for the offences punishable under Section 5(1)(d) to read with Section 5 (2) of the Prevention of Corruption Act, 1947 as well as under Section 161 of the Indian Penal Code. The appellant pleaded not guilty to the charge. 4 The prosecution examined as many as nine witnesses to prove the case against the appellant. PW-1 Complainant Atamaram Shankarbhai Solanki is examined at Exhibit-11; PW-7 Ramanbhai Nanabhai Raval, panch No.1 is examined at Exhibit-33; PSI Naranbhai Narottambhai Patel, who participated in the raid, is examined as PW-8 at Exhibit-37 while leader of the raid PI Dinkar Mangesh Ranganekar is examined as PW-9 at Exhibit-38. Other witnesses are PW-2 CR.A/770/1991 9/73 JUDGMENT Ramanbhai Mayaji Parmar is examined at Exhibit-19 to produce the order of sanction to prosecute being a Clerk of concerned office; PW-3 Vijaysinh Amarsinh Solanki, is examined at Exhibit-23, who was a Clerk in DSP Office at the relevant juncture and stated that he handed over the orders of posting of the complainant as Constable, Dhanpur Police Station, after obtaining signature of complainant on 11th of October, 1985. He produced concerned register as Exhibit - 24. PW-4 Ramsinh Bhurabhai Solanki is examined at Exhibit – 26, who was also a Clerk of the DSP Office and he stated that on 7 th , 11th and 16th of October, 1985, the appellant was present in the office. This witness being Muster Clerk, he produced muster register vide Exhibit – 7. PW-5 Vinodkumar Pratapsinh Bariya is examined at Exhibit – 28, who was peon, served at the Wing of the DSP Office, where the appellant was sitting and he stated that on the day of raid i.e. on 16th of October, 1985, he was requested by the complainant to bring tea . In his examination in cross, wherein he has stated that he did not see complainant visiting Sheet Branch before 16th. PW-6 Narendra Parsottam Patel, Exhibit 29, is also a Clerk of DSP Office and he stated that in DSP Office he was looking after leave accounts of employees of the Department while the appellant was Sheet Clerk and looking after the departmental proceedings. 5 General tenor of the evidence of PW-1 Atamaram Shankarbhai Solanki – complainant; PW-7, Panch No. 1 - Ramanbhai CR.A/770/1991 10/73 JUDGMENT Nanabhai Raval; PW-8 PSI Naranbhai Narottam Patel and PW-9 P.I. Dinkar Mangesh Ranganekar, is required to be noted though learned Trial Judge in his judgment has taken due notes of these evidence. 6 Complainant - PW-1 having corroborating his complaint , stated about visiting DSP Office on 7th of October, 1985 and on 11th of October, 1985 and as to the demand made by the appellant of Rs. 500/- for issuing early order of posting for the Head Constable. He stated that, therefore, he visited ACB Office on 16th of October, 1985 and offered his complaint which was recorded and trap was laid. As instructed, he and panch No. 1 visited the appellant at about 2.45, wherein the appellant demanded the amount for issuance of orders for posting him as Head Constable, which he delivered muddamal notes with anthracene powder and the appellant put such notes in his left side bush shirt pocket. Panch No.1 was accompanying him and after accepting of the amount, panch No.1 went outside and gave signal to the raiding party. He further stated that on giving signal, the raiding party reached and P.I. Ranganekar took out one wallet from the shirt pocket of the appellant, but muddamal notes were not either in the pocket or in the wallet. Panch No.1 thereafter was directed to search the person of the appellant and ultimately from right hand front pant pocket of the appellant, muddamal notes were recovered. In his cross-examination, he has been asked about his past, in which it was alleged that as many as 48 departmental CR.A/770/1991 11/73 JUDGMENT proceedings were taken against him including allegation of corruption. Not only that, it was alleged that the complainant was an accused in the past for the offence under Section 376 for gang rape. He was asked about the location and surrounding situation of DSP Office and the office of Sheet Branch of the said office. He was confronted that on 11th of October, 1985, his posting order was not delivered to him by hand. He also admitted in his cross examination that at the time of raid, PI Ranganekar, started searching the person of the appellant and the muddamal notes were not found from his shirt pocket. The relevant para is para-20 of his evidence. He admitted that he did not introduce Panch No.1 with the appellant. It was alleged that he was not entitled to the posting of Head Constable, even then, the complainant was insisting before the appellant to issue such orders, and on refusal, this false complaint came to be field by him. It was also suggested to the complainant that the complainant took out the muddamal notes and requested the appellant that since he had obtained the orders of his posting, he is entitled to celebrate and offer tea to all while appellant seeing the notes, stated that, for tea, this much amount was not necessary. The complainant attempted to thrust the said amount in the bush shirt pocket of the appellant and when appellant stood up, the amount was thrusted in his pant pocket, though the complainant denied all these allegations . 7 Panch No. 1 PW-7 stated that he was called by PSI Patel CR.A/770/1991 12/73 JUDGMENT from his Office i.e. ARTO and requested him to participate in the trap as panch. Second panch was also from his office. He stated that he was introduced with the complainant and was appraised of the facts of the First Information Report. He stated about the experiments of anthracene powder and ultra violet lamp carried out by PSI Patel. He stated that the notes of muddamal had been given by PI Ranganekar. He in his examination-in-chief, corroborates first part of panchnama. He states that by walking they reached at DSP Office and as per instructions, along with the complainant, he went to the office of the appellant. There were two other persons who left immediately. The complainant asked about his posting order. The appellant replied that the complainant would get his order, but whether complainant had brought the amount of bribe. Immediately thereafter the complainant took out muddamal notes from his pocket and delivered the same to the appellant. The appellant received such notes with right hand and placed that notes in left pocket of his shirt. Thereafter, the complainant requested peon to bring tea, but the appellant refused to take tea and thereafter complainant as well as panch No. 1 both came out of the office and in the lobby. He further stated in his chief examination that thereafter he gave signal by putting his hands on his head and, therefore, the persons from the raiding party reached in the office of the appellant. PI Ranganekar introduced himself to the appellant and asked him to remain status quo. PI Ranganekar asked the name of the appellant, which he stated to be Jayantilal CR.A/770/1991 13/73 JUDGMENT Kuberdas Sharma. According to this witness, he stated that PSI Patel examined the hands of the panchas in ultra violet lamp, but the hands were clean. Ranganekar thereafter stated the appellant to stand up and, therefore, the appellant stood up. PI Ranganekar took out one wallet from the pocket of the accused which was in his bush shirt pocket. The wallet contains currency notes of Rs. 189. His shirt pocket was examined in ultra violet lamp and it was found that the pocket contained anthracene powder marks. Thereafter, PI Ranganekar requested this witness to search the appellant. The witness further states that he searched the pockets of the pant of the appellant and he found muddamal notes from front right pant pocket of the appellant. The numbers of these notes were confirmed by first part of the panchnama. The witness further states that the muddamal notes contained anthracene powder marks. Those notes were seized by PI Ranganekar. The witness further states that thereafter his hands were also examined in ultra violet lamp and his hands were found marked with anthracene powder. The pant pocket of the appellant was also examined in ultra violet lamp which contained anthracene powder marks. In his cross-examination, this PW-7 stated that at the relevant juncture, his office was situated in Haidri society and just opposite their office, Scarcity Branch of Anti Corruption Bureau was located. There was only distance of about 15 steps between these two offices. The witness further states in cross examination that at that time PSI Mr. Patel was serving as such in the office situated just CR.A/770/1991 14/73 JUDGMENT opposite his office, but he did not know him. He stated that in that area, there were only those offices and remaining houses were residential premises. He further stated that between his office and office of Anti Corruption Bureau, other offices were situated within the distance of 1 KM. He admitted that in one earlier trap case, two employees of his office were summoned to take part as panchas by Anti Corruption Bureau Office. He denied that he knew Ranganekar. He stated that panchnama was written by some other staff member of ACB and was dictated by Mr. Ranganekar. The second part of panchnama was started to be written at about 2.30 p.m. He stated that the time of starting of the panchnama and completion of the same was rightly mentioned in the panchnama. He stated that he read the panchnama and panchnama was written contemporary to the incidents which were taking place. He denied that the panchnama was prepared after the incident was over. He further stated that he reached in DSP Office at 2.30 p.m. He admitted that at the entrance of DSP Office, there were two roads and the room in which the appellant was sitting was in the back. He admitted that entering to the DSP Office, the first room was of DSP and thereafter the rooms and office of PSI and Readers were situated, and thereafter the office of the appellant was situated. He admitted that all these four rooms were in one line. There is one otla of 7 feet in front of each room. He admitted that to and fro in the office was through that otla. He admitted that at least six employees were sitting in the room where the appellant was sitting. CR.A/770/1991 15/73 JUDGMENT He denied that when he reached at the DSP Office, recess was not commenced. He denied that he did not reach at the DSP Office at 2.30 p.m. He denied that they all reached in the DSP Office at 2.10 p.m. and recess was not commenced. He admitted that in the room in which the appellant sitting was near the entrance road. On one stool, one peon was sitting. He stated that after obtaining bribe money, the appellant did not give any order of posting to the complainant and complainant did not ask for such orders after the bribe amount was given. He stated that at the time when the amount was passing from complainant to appellant, he was sitting at the distance of five to six feet. He admitted that in panchnama or in his statement before the police, there was no reference that the complainant asked the appellant to give his order. He deposed that before passing of the money between complainant and appellant, five minutes conversation took place. He stated that he gave signal and raiding party reached within two minutes. During this two minutes, he was in the lobby and he came back along with other raiding party members. As soon as PI Ranganekar came in office, he started searching the pockets of the appellant. After obtaining wallet from his shirt pocket, hands of the PI Ranganekar were examined in ultra violet lamp, and anthracene powder marks were found. Though he stated that this fact had not been stated by him in the panchnama. He stated that when he and complainant came out of the office and given signal and all of them entered in the office of the appellant. During that period what appellant was CR.A/770/1991 16/73 JUDGMENT doing was not known to him. Before PI Rangnekar started checking the pockets of the appellant, PI Rangnekar asked him that where had the appellant put the money. The witness further stated that, to this he replied that the appellant had put the amount in the upper pocket of the bush shirt. The witness stated that when the appellant accepted the amount of Rs. 500/- and placed the same in his bush shirt pocket, he was not knowing that there was a wallet in the same pocket. He admitted that from the place where the appellant was sitting and his activities could be seen by anybody standing outside in the lobby. He denied that when PI Ranganekar made the appellant stand up, he thrusted