CR.A/2197/2004 1/62 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2197 of 2004 With CRIMINAL APPEAL No. 2199 of 2004 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 ? ========================================= DALSUKHBHAI SAVJIBHAI PATEL POLICE SUB INSPECTOR - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR BM MANGUKIYA for Appellant(s) : 1,MS BELA A PRAJAPATI for Appellant(s) : 1, MR AJ DESAI, LD.APP for Respondent-State. ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 28/02/2007 COMMON CAV JUDGMENT 1. The appellant of Criminal Appeal No.2197 of 2001, who is the orig.accused no.1; and appellant of Criminal Appeal No.2199 of 2001, CR.A/2197/2004 2/62 JUDGMENT who is the orig.accused no.2 (hereinafter referred to as 'the accused') have filed these appeals respectively against the judgment and order of conviction and sentence dated 18th December, 2004, passed by the learned Special Judge (Prevention of Corruption Act) and Additional Sessions Judge, Fast Track Court No.5, Veraval, in Special (ACB) Case No.1 of 2001 (Old Case No.11 of 1999). The accused have assailed the legality and validity of the judgment and order of conviction and sentence under challenge whereby the accused persons have been held guilty for the charge of offence punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act') and they have been sentenced to undergo rigorous imprisonment for 3½ years on each count and also ordered to pay a fine of Rs.5000/- for each offence; and in default of making payment of fine, further imprisonment of nine months for each offence. 2. The accused no.1 was the Police Sub-Inspector of Talala Police Station and the accused no.2 CR.A/2197/2004 3/62 JUDGMENT was the Police Constable in the same Police Station. As both these appeals are arising out of the same judgment and order of conviction and sentence, the same are decided by present common CAV judgment. According to Shri Mangukiya, learned counsel appearing for the both the accused, there is no conflict of interest or even conflict of defence, and even both the accused were defended by the separate advocates before the trial Court. According to Shri Mangukiya, no prejudice is likely to be caused to any of the accused persons and, therefore, he may be heard on behalf of both the accused persons. Shri A.J. Desai, learned Additional Public Prosecutor, appearing on behalf of the respondent-State, after some deliberations, had agreed and he has also submitted that both the appeals can be disposed of by a common judgment. Therefore, the present appeals are being decided by the present common CAV judgment. 3. The brief facts placed by the prosecution before the trial Court reveal that the accused allegedly demanded an amount of Rs.200/- as CR.A/2197/2004 4/62 JUDGMENT regular instalment for plying a three wheeler motor vehicle which is normally used for carrying goods and popularly known as “Chhakdo Rickshaw” (hereinafter referred to as 'the rickshaw'). Though this rickshaw is basically a goods' carrier, it was being plied to transport the passengers. The accused being the Police personnel were recovering the amount of Rs.200/- per month as regular instalment from the orig.complainant-Devendra Naranbhai Parmar, resident of Chitrod, for permitting him to ply the rickshaw as passenger vehicle. That on 12th April, 1999, the accused no.1 had directed the orig.complainant to make payment of instalment for the month of April, 1999, which was not paid by him, to any Police Constable on duty standing on the road on the next day i.e. 13th April, 1999, if at the relevant point of time the accused no.1 is not available at Talala or otherwise. The FIR Ex.25 is the narration of the first part of the facts of the case placed by the prosecution; and it is alleged that on 12th April, 1999, the orig.complainant-Devendra Naranbhai Parmar, resident of village Chitrod CR.A/2197/2004 5/62 JUDGMENT (Gir), Taluka Talala, was proceeding towards Talala from his village Chitrod. The Police Jeep Car of the accused no.1 was also moving in the same direction and it was behind the rickshaw of the orig.complainant. When the complainant was about five kilometres away from the town Talala, the Police Jeep Car intercepted the rickshaw of the complainant and the complainant was given a signal to stop his rickshaw and therefore, the complainant stopped his rickshaw. The accused no.1 came out of the Jeep Car and started abusing the complainant and also pulled out the complainant from the driver seat and asked him whether he has paid the instalment of Rs.200/- of that very month. The complainant responded that as he had spent some amount in getting the engine of his rickshaw repaired, he could not pay the same. The accused no.1 in response to that told him that such an excuse would not do and the complainant will have to pay the instalment timely. The complainant thereafter requested to grant him two to four days time, so that he can make arrangement. At that time, the accused no.1 had turned wild and the CR.A/2197/2004 6/62 JUDGMENT complainant was beaten with kick and fist blows by the accused no.1; and he was asked to pay the instalment of that very month on the next day i.e. on 13th April, 1999, at the place near J.B. Guest House. The complainant was usually parking his rickshaw near J.B. Guest House of town Talala. So the complainant was asked to pay the said amount at that place, and it was also directed by the accused no.1 to the complainant that if any Police Constable of Talala Police Station may come there, then the complainant should pay the amount of Rs.200/- to that Police Constable, otherwise the complainant would not be able to ply his rickshaw. The complainant was also informed by the accused no.1 that on 13th April, 1999, at any time between 09-00 a.m. and 12-00 p.m., the Police Constable would come to collect the amount of instalment and he should pay the same. At that time, one Police Constable who was in the Jeep Car had come there and a signature of the complainant was obtained on one form. Thereafter, the accused no.1 had proceeded towards Talala. It is the say of the complainant that from that CR.A/2197/2004 7/62 JUDGMENT spot, he had returned to his village Chitrod and by putting his rickshaw at his residence, he had reached to Rajkot for filing a complaint. According to the complainant, though he is not willing to pay the said amount, he is being compelled to pay the same. This complaint was registered by Anti- Corruption Bureau (ACB), Rajkot at about 21-00 hrs. on 12th April, 1999. Thereafter, the ACB trap was arranged on 13th April, 1999 and according to the prosecution, on 13th April, 1999, the raiding party personnel along with the complainant and the panchas had reached to Talala from Rajkot. The complainant and the panch-witnesses were waiting, keeping rickshaw on stand, for arrival of Police Constable as asked by the accused no.1. They were on rickshaw stand since 10-00 a.m. in the morning but at about 10-20 a.m., one Police Constable (accused no.2), who was standing near the shop of Jalaram Cold Drink, had blown the whistle and by raising his hand called the complainant. The complainant thereafter in the company of Panch no.1 proceeded towards the accused no.2 in the rickshaw. He was addressed CR.A/2197/2004 8/62 JUDGMENT as 'Giribapu' by the complainant. There was some conversation between the accused no.2 and the complainant about the ill-treatment given by the accused no.1 to the complainant on previous day. At that time, the said person, meaning thereby, the accused no.2 asked him whether he has brought the instalment money and if he has brought then he should pay the same. At that time, the complainant took out the muddamal currency notes smeared with anthracene powder and handed over to the accused no.2. The accused no.2 accepted the same and put the said amount in his right side pant pocket. On acceptance of the bribe amount by the accused no.2, a signal was given and the accused no.2 was caught in presence of both the panchas at about 10-30 a.m. Thereafter, the Police Inspector Shri Mahida took the accused no.2-Police Constable after knowing his name and buckle number to the Guest House. According to the prosecution, as it was a public place and people had started gathering there at the spot, the accused no.2 was taken to District Panchayat Guest House in the Government vehicle namely the Jeep Car of CR.A/2197/2004 9/62 JUDGMENT ACB Police Inspector Shri Mahida. In the District Panchayat Guest House, the experiment under the ultraviolet lamp on the various articles and hands of the accused no.2 was made and a detailed panchnama was drawn. The muddamal currency notes were also recovered from the accused no.2. 4. After completing the formalities of the raid, the papers were handed over to the concerned ACB Police Station. On completion of the investigation and receipt of the sanction from the competent authority, the Police chargesheeted both the accused persons. 5. The charge is at Ex.21. Shri B.M. Mangukiya, learned counsel appearing for the accused persons, has taken me through the oral as well as documentary evidence led during the course of trial and also the judgment and order of conviction and sentence under challenge. He has also read the depositions of all the important witnesses namely the complainant; Panch No.1 and Police Inspector Shri Mahida. He has drawn the attention of the Court to the CR.A/2197/2004 10/62 JUDGMENT various infirmities in the investigation as well as commented on the approach of the Court even pending trial. One of the grievances of Shri Mangukiya before this Court is that the accused have neither received any fair treatment by the Investigating Agency nor by the learned Presiding Judge of the Court who conducted the trial. There are speaking circumstances to show that both the accused persons have been falsely implicated in a serious offence and the Investigating Officer has tried to save the accused no.2, who has actually accepted the amount from the complainant in the alleged incident as the said accused no.2 was of the same caste of the raiding officer Shri Mahida. 6. Shri A.J. Desai, learned Additional Public Prosecutor, has resisted the submissions made by Shri B.M.Mangukiya in detail and according to Shri Desai, the finding recorded by the learned trial Judge cannot be said to be either perverse or illegal and, therefore, the same should be upheld by dismissing the appeal. CR.A/2197/2004 11/62 JUDGMENT 7. I have considered the oral evidence of the following witnesses : (i) Complainant-Devendra Naranbhai Parmar, PW-1, Ex.24. (ii) Hasmukhbhai Kanjibhai Patel, Panch No.1, PW-2, Ex.26. (iii) Kanakrai Shamjibhai Shingala, Panch No.2, PW-3, Ex.30. (iv) Dr.Tejas Jethabhai Vegda, PW-4, Ex.47, who is examined to prove the injury on the body of the complainant. (v) Vijaykumar Tuljaram Navle, PW-5, Ex.50, ACB Police Inspector, Amreli, who was handed over the investigation of the crime registered with ACB Police Station vide C.R.No.5/1999 from the Police Inspector Shri F.S. Mahida, ACB Field, Rajkot, who had recorded the statement of Panch No.1-Hasmukhbhai Kanjibhai and Panch No.2-Kanakrai Shamjibhai Shingala, and so also further statement of the CR.A/2197/2004 12/62 JUDGMENT complainant along with the statement of the Members of the raiding party. (vi) Kishorsinh Jorubha Gohil, PW-6, Ex.51, who took over the investigation and papers of investigation from Police Inspector Shri Navle and chargesheeted the accused persons on receipt of the sanction from the competent authority to prosecute both the accused persons as Police Inspector ACB, Amreli. 8. The evidence of the above witnesses obviously has been read in context of the documents produced during the course of trial and the explanation given by the accused persons under Section 313 of the Code of Criminal Procedure, 1973, mainly the complaint Ex.25, panchnama of ACB Trap Ex.28 and the documents of Talala Police Station including the extract of Talala Police Station diary of 11th April, 1999, 12th April, 1999 and 13th April, 1999. The other important document i.e. extract from NC Register from Talala Police Station and Duty Distribution Register from 11th to 13th April, CR.A/2197/2004 13/62 JUDGMENT 1999 at Exhs.37 and 38 are also considered. 9. It is submitted by Shri Mangukiya that this is the case where the learned trial Judge has convicted the accused persons wherein neither a very important witness namely the trapping officer Shri Mahida nor any Police officials of Rajkot Police who had accompanied Shri Mahida along with both the panchas could be examined. This has resulted into serious prejudice and the learned trial Judge has not insisted for examination of these witnesses, at least one of the persons of the raiding party ought to have been examined. The learned trial Judge ought to have called Shri Mahida, Police Inspector ACB Police Station. Non- examination of Shri Mahida has resulted into serious prejudice to the accused because it is one of the defences that Shri Mahida had replaced the accused no.2 vice one another Police Constable, who was of Darbar Community and of the very community of the trapping officer Shri Mahida. According to Shri Mangukiya, learned counsel appearing for the accused persons, there is ample evidence on CR.A/2197/2004 14/62 JUDGMENT record to show that the complainant was inimical to accused no.1. The complainant was the President of Chhakdo Rickshaw Drivers' and Owners' Association and he was out to trap the accused no.1 because the accused no.1 was strict and he was against plying of goods carrier vehicles in transporting the passengers in the nearby area of town Talala. The complainant himself has accepted that he was hackled by the accused no.1 for carrying passengers in a goods carrier vehicle on 12th April, 1999 and a Criminal Case was also registered. So the complainant had took up the issue as the accused no.1 had ignored the status of the complainant as President of the said Association while prosecuting him on 12th April, 1999. Therefore, the complainant got arranged the trap even by approaching the ACB Office at Rajkot. Junagadh has ACB Police Station and if the officer competent to lay down a trap is not there in the Police Station, then he could have received the guidance from Junagadh ACB Police Station and a complaint could have been lodged with the officer in-charge of Junagadh Police Station. CR.A/2197/2004 15/62 JUDGMENT But for the reasons best known to the complainant, he had reached to Rajkot on 12th April, 1999 itself and with the help of Police Inspector Shri Mahida created a case and the accused no.1 has been implicated falsely in such a serious offence. 10. Shri B.M. Mangukiya, learned counsel appearing for the accused persons, has drawn the attention of the Court to certain infirmities emerging from the evidence of the complainant as well as both the panchas examined because these three witnesses were the only persons competent to lead evidence to link the accused persons with the crime, especially when Shri Mahida could not be examined. He has submitted that there is no convincing evidence to link the accused no.1 with the crime and there is a great shadow of doubt as to the involvement of the accused no.2 vice original acceptor of muddamal currency notes from the complainant. The complainant was not interested in prosecuting any Police Constable of Talala Police Station. His main goal was the accused no.1. Therefore, he has conveniently supported CR.A/2197/2004 16/62 JUDGMENT the wrong committed by Shri Mahida, Police Inspector ACB Police Station, in let-going the main person, who had allegedly accepted the muddamal currency notes and substituting the accused no.2. The learned trial Judge while recording the finding against the accused persons has ignored the material contradictions and omissions and certain improvements made by these three witnesses mainly the complainant, and it is submitted that thus, the judgment and order of conviction and sentence under challenge is based on illegal and irrational assumptions and conjectures. 11. It emerges from the evidence of the complainant-Devendra N. Parmar-PW-1, that he had some acquaintance with the Talala Police Station and also with the accused no.1 being Police Sub-Inspector of the Talala Police Station. It is not a matter of dispute that the complainant was plying the rickshaw for carrying passengers in violation of the Motor Vehicles Act at the risk and costs of the passengers travelling in such vehicles. This CR.A/2197/2004 17/62 JUDGMENT witness has even attempted to show ignorance in describing the Non-Cognizable (NC offence) Book which is being kept by the Traffic Police. The complainant was of 40 years of age and according to him, rickshaw driving is his profession. He has not even fairly admitted that the NC was registered against him on 12th April, 1999 at the instance of the accused no.1. It is not his say that the accused no.2 was also there in the said Jeep Car of the accused no.1. No harsh steps were taken at that point of time. It is likely that he may have been insulted or hackled by the accused no.1 or any other police personnel sitting in the Police Jeep Car. The complainant has not narrated the time as to at what point of time his rickshaw was actually intercepted. It is the say of the complainant that it was afternoon when he was proceeding towards Talala from his native village Chitrod and the conversation had taken place about the alleged non-payment of monthly instalment for plying goods carrier to carry passengers at the time when he was intercepted and stopped by accused no.1. When the NC was registered, neither the CR.A/2197/2004 18/62 JUDGMENT complainant nor the accused no.1 was aware that the said incident may take shape of a complaint under the provisions of the Act. In that background, the time of the NC registered for the offence punishable under Sections 66(1), 177 and 66(1) and 192 of the Motor Vehicles Act, is required to be taken into consideration. As per the document Ex.41, the NC complaint was registered at Serial No.52/99 in the Register of Talala Police Station MVA Register (NC offences). On 13th April, 1999, at 09-10 a.m., the accused no.1 had registered one such NC against one Harsukh Bogha Khant of village Bhalcchel for similar offence. He was also found with passengers in the goods carrier and was also not having licence for the same. The similar offence was registered against the complainant PW-Devendra Parmar at 09-15 a.m. on the same road i.e. Talala to Sasan Road. There is no controversy as to the number of motor vehicle driven by the complainant, even then the complainant has narrated that he was stopped and hackled by the accused no.1; and an NC case was also registered against him at that point of time. CR.A/2197/2004 19/62 JUDGMENT According to the complainant, his signature was obtained in a book and he had signed in the book without reading the same as he is illiterate. He has stated that it was something like book wherein he had signed. When the say of the complainant is that the demand of Rs.200/- towards unpaid monthly instalment was made at that time, meaning thereby, in the afternoon, then why the time reflected in the NC does not corroborate with the version of the complainant, is the question which was required to be answered by the prosecution satisfactorily. According to Shri Mangukiya, absence of such explanation makes the entire narration of the incident allegedly occurred in the afternoon on 12th April, 1999, doubtful. It is neither proved nor it is possible to infer that the accused no.1 could have registered the NC ante-time after the raid because the raid was carried out on the next day i.e. on 13th April, 1999. On the contrary, it is clear that the accused no.1 was present in the Police Station between 07-30 a.m. and 08-00 a.m. and after recording the presence of the persons, he had left the CR.A/2197/2004 20/62 JUDGMENT Police Station by handing over the charge of the Police Station to one Police Constable Shri B.S. Jalani at 08-15 a.m. When the complainant was proceeding towards Talala to park his rickshaw on the bus-stand carrying passengers, what happened to those passengers, is again a question. Who was found in the said rickshaw at 09-15 a.m., is also another question. It is neither the say of the prosecution nor the complainant that the complainant was prosecuted initially in the morning at 09-15 a.m. and thereafter, again he was stopped in the afternoon and at that time, again the signature was obtained in the book. When an NC registered against the complainant is admitted by the prosecution and impliedly by the complainant, then the time of registration of the offence should not be viewed with doubt and if the same is contrary to the story told by the complainant, then that part of the evidence of the complainant ought not to have been considered as reliable piece of evidence. So the evidence of the complainant as to the initial demand of Rs.200/- made on 12th April, 1999 by stopping CR.A/2197/2004 21/62 JUDGMENT the complainant on the road, is a doubtful piece of evidence. It was possible for the complainant to name at least one of the passengers to corroborate his say and such a passenger could have been examined by the prosecution to corroborate the incident allegedly occurred in the afternoon on 12th April, 1999 when the initial demand of Rs.200/- was made by the accused no.1 and thereafter, he was beaten up by the accused no.1 and then the accused no.1 registered the NC offence against the complainant. It appears that the complainant has not cared to disclose the names of the passengers when he was proceeding towards Talala from his native Chitrod. It was not impossible for him at least to name one of the passengers. It is difficult for this Court to even think that all the passengers were unknown to the complainant. He has admitted that he was carrying passengers in a goods' carrier rickshaw regularly and was paying an amount of Rs.200/- per month for plying the same illegally for transporting passengers. He was paying the said amount to the Police Constable CR.A/2197/2004 22/62 JUDGMENT of Talala Police Station. The town Talala is having 4 to 5 rickshaw stands. According to me, when the complainant was stopped, there was no passenger in the rickshaw and if the engine of the rickshaw was overhauled and totally repaired, then one cannot ply such rickshaw by loading the passengers but the NC registered by the Police speaks contrary. According to the complainant, he had started from his native Chitrod at about 11-00 a.m. and has denied the suggestion that he had started at about 09-00 a.m. and at that time, the accused no.1 had intercepted him and prosecuted him. He has also denied that he was not carrying the licence with him at that point of time and there were passengers in the rickshaw. On the contrary, he has accepted the suggestion in the cross-examination that an NC was registered against him, but it was registered in the afternoon. He has also denied that he was asked to appear in the Court on 21st April, 1999. He has accepted that earlier he has been prosecuted for violation of Traffic Rules and on all the occasions he was informed about the date of appearance in CR.A/2197/2004 23/62 JUDGMENT the Court. He has also admitted that he had not gone to the Court in the said case registered by the accused no.1.