CR.A/217/1990 1/50 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 217 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 ? ========================================= GATORBHAI BHIKHABHAI PATEL - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR KJ SHETHNA for Appellant(s) : 1, MR AJ DESAI, LD.APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 10/11/2006 ORAL JUDGMENT 1. The present appeal is preferred by the appellant-orig. accused (hereinafter referred to as 'the appellant') under Section 374 of the Code of Criminal Procedure, 1973, who has been held guilty by the learned Special Judge, Surendranagar, vide his judgment and order CR.A/217/1990 2/50 JUDGMENT dated 07th March, 1990 for the offences punishable under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act (hereinafter referred to as 'the Act'). At the conclusion of the trial of Sessions Case No.2 of 1987, the appellant is sentenced to undergo rigorous imprisonment for 5 (five) years and a fine of Rs.500/- (Rupees Five Hundred only); in default of payment of amount of fine to undergo rigorous imprisonment for three months. The appellant is also held guilty for the charge punishable under Section 161 of the Indian Penal Code and for the same, he is asked to undergo rigorous imprisonment for one year. As per the operative part of the order under challenge, the substantive sentence is ordered to run concurrently. 2. The judgment and order under challenge has been assailed on various grounds mentioned in paragraph no.7 of the memo of the appeal and Shri K.J. Shethna, learned senior counsel appearing for the appellant, has taken the Court through the main grounds of challenge CR.A/217/1990 3/50 JUDGMENT and the relevant part of the judgment and order assigning reasons for recording conviction. The appellant being aggrieved and dissatisfied with the legality and validity of the judgment and order of conviction and sentence, has assailed the finding recorded by the learned trial Court by way of this appeal on the grounds mentioned in the aforesaid paragraph no.7. I have heard Shri Shethna, learned senior counsel appearing for the appellant and Shri A.J. Desai, learned Additional Public Prosecutor, appearing on behalf of the respondent-State at length; and both of them have taken this Court through the oral as well as documentary evidence led during the course of trial. 3. To appreciate the rival contentions which have been placed before this Court, it would be necessary to state the facts of prosecution case in brief which were placed before the learned trial Court : 3.1 The complainant-Ramabhai Tapubhai is an owner of about 30 vighas of land situated in the sim of village Zinzuda, Tal. Chotila and he was CR.A/217/1990 4/50 JUDGMENT cultivating the said land. According to the complainant, about 25 years prior to the date of incident in question, his father had purchased the land in question from one Dana Deva. 3.2 The father of the complainant died before about 20 years ago from the date of incident in question and the complainant being the eldest amongst his brothers, he and his family members were cultivating the land purchased by the father of the complainant. The name of the father of the complainant was inserted in the Village Form Nos.7 and 12 being a person in possession of the land and after the death of father of the complainant, the name of complainant was introduced/mutated in the said Form Nos.7 and 12, and the complainant was paying the State revenue being cultivator of the land. 3.3 After sometime, the complainant learnt that the land being cultivated by him and his family stood in the name of Chhana Dana i.e. son of original owner Dana Deva. The dispute CR.A/217/1990 5/50 JUDGMENT between the said two families had seen the light of Court room and there was a litigation between the parties. When the complainant learnt about the development, he approached the appellant, who was at the relevant point of time, Talati-cum-Mantri of village Zinzuda and obtained copies of revenue records from him and he could see that the land stood in the name of Chhana Dana. 3.4 It is the say of the complainant that at the instance of the appellant, he gave an application in duplicate to effect the change of name and to see that his name is re-entered in the Panipatra i.e. Village Form Nos.7 and 12. One copy was sent to the Mamlatdar and one was given to the appellant. Both the copies were bearing thumb impression of the complainant and it is alleged that it was written by some lawyer and when the complainant inquired from the appellant as to when his name will be entered in the revenue records, the appellant demanded an amount of Rs.500/- from him and the day was fixed for payment and the complainant was asked to come CR.A/217/1990 6/50 JUDGMENT to the residence of the appellant; and the complainant was not inclined to make any such payment by way of illegal gratification. Hence, he had consulted one Arjun Bhima of his village and thereafter, he had gone to Rajkot for lodging the complaint and/or to ventilate his grievance against the demand of illegal gratification by the appellant. As the complainant was asked to pay the amount on Tuesday, he had gone to Rajkot on Tuesday. He had reached to the residence of one of his relatives and the said host at Rajkot had arranged for the complainant so that he can reach to the office of the Anti-Corruption Bureau (hereinafter referred to as 'the ACB'). 3.5 It emerges from record that Rajkot is having office of the Assistant Director of ACB and the complainant had reached that office. The said village Zinzuda falls within the jurisdiction of Taluka Chotila of District Surendranagar. It emerges that Surendranagar District is having its independent ACB Police Station and one Shri Gor at the relevant point of time was the Police Inspector, ACB Police CR.A/217/1990 7/50 JUDGMENT Station at Surendranagar. Undisputedly, Shri Gor was present at Rajkot. He has been there at Rajkot in the office of the Assistant Director of ACB for some other work on the call given to him. The said Shri Gor on instructions given by the Assistant Director of ACB took the complaint of the complainant- Ramabhai Tapubhai at 14-00 hrs. at Rajkot. 3.6 Thereafter, he arranged for two panchas from City of Rajkot for the trap in question. It is the say of the prosecution that on arrival of both the panchas, the complainant had explained the details of his grievance and the contents of his application. Thereafter, the said Shri Gor, Police Inspector of ACB, Surendranagar, completed the formalities of the first part panchnama in furtherance of the arrangement of the trap. This complaint is at Ex.24 and the same has been tendered in evidence by the complainant, who has been examined as PW-1 at Ex.23. Both the panchas were instructed to act as narrated in the panchnama and the complainant was given the muddamal currency notes of Rs.500/- of the CR.A/217/1990 8/50 JUDGMENT denomination of Rs.100/- each, stained with anthracene powder and he was instructed that unless the amount is specifically demanded by the appellant, he shall not touch the same and shall pass the same to the appellant when demanded by him. He was also instructed to signal after the same by taking up the towel which the complainant had put on his head. Thereafter, the complainant as well as both the panchas proceeded to town Chotila with the raiding party headed by Shri Gor. 3.7 It is the say of the prosecution that the complainant was asked to come to the residence of the appellant but it is alleged that when they were proceeding towards the residence of the appellant in the late evening between 07-00 p.m. and 07-30 p.m., the complainant saw the appellant sitting in a hotel/ tea stall running in the name and style of “Manhar Tea Stall” in a small room admeasuring 12' x 15' ft. Some conversation had taken place between the appellant and the complainant. By that time, as the panch no.1 was asked to be with the complainant, had entered with the CR.A/217/1990 9/50 JUDGMENT appellant and he had also heard the said conversation and when the appellant asked as to whether the complainant had brought the amount, the complainant gave the muddamal currency notes to the appellant as per the instructions. 3.8 According to the prosecution, the muddamal currency notes knowing it to be the amount of illegal gratification were accepted by the appellant and the same were counted by him and also pocketed by him in the pocket of his open shirt with buttons, popularly known as 'bu- shirt' (hereinafter referred to as 'shirt'). Meanwhile, the complainant and the appellant had enjoyed a cup of tea. But on acceptance of amount, the complainant and the panch no.1 had come out of the said 'Manhar Tea Stall' and a signal as instructed was given and the appellant was cornered. It is alleged that both the hands of the appellant including the finger tips were found stained with anthracene powder when they were brought under the light of ultraviolet lamp. On the direction of Shri Gor, Police Inspector, ACB, the panch no.1 had CR.A/217/1990 10/50 JUDGMENT taken out the muddamal currency notes from the pocket of the appellant. The numbers of the said currency notes were tallying with the numbers mentioned in the first part of the panchnama and the hands of panch no.1 were also found stained with anthracene powder as he had taken out the currency notes from the pocket of the appellant at the instance of the Police Inspector Shri Gor. 3.9 When the appellant, complainant and panch no.1 were inside the said tea stall, Shri Gor, Police Inspector, asked the panch no.2 to inquire and to peep into the said hotel/ tea stall, and Shri Gor was informed by the panch no.2 that the appellant, complainant and panch no.1 are there inside the hotel but the panch no.2 was not able to give further details as he was not able to overhear the conversation, etc. The appellant thereafter was taken to his residence on completion of second part of panchnama and it was alleged that the appellant tendered a copy of the application given by the complainant to him for rectification in the mutation entry, which was CR.A/217/1990 11/50 JUDGMENT there in Village Form Nos.7 and 12. The appellant was also passed a receipt for the muddamal currency notes recovered from him. Thereafter, the ACB Police Inspector Shri Gor recorded the statement of persons including the said Shri Arjun Bhima, and the person who was present in the Manhar Tea Stall at the relevant point of time and other witnesses including the person serving in the office of the Mamlatdar, Chotila. 4. After evaluating the evidence on record, the learned trial Judge has held that the prosecution has successfully proved its case beyond doubt. But according to Shri Shethna, this finding is not legal because the learned trial Judge has ignored certain improvements and contradictions and other important salient features which were otherwise required to be considered in a case under the Prevention of Corruption Act. In certain type of prosecution case, the police and the prosecuting agency is leading stereotype evidence and in such type of prosecution cases, the Courts are supposed to consider the backbone of the case as well as the CR.A/217/1990 12/50 JUDGMENT smallest deviation or improvement made by the prosecution witnesses. The infirmities emerging from record even from the conduct of any of the prosecution witnesses should not be ignored. The learned trial Judge on the totality of facts and circumstances of the case ought to have observed that the evidence of the complainant is not reliable or at least it was not safe to place full reliance on the version of the complainant. Shri Shethna has taken me through the deposition of the complainant at Ex.23. According to Shri Shethna, the appellant when had denied in respect of any scope to play with the entry which was there in the name of Chhana Dana, he has got the trap in question arranged with the help of Arjun Bhima, who belongs to village Zinzuda. The said Arjun Bhima had no inimical terms with the appellant, so there was no need for the complainant to go to Rajkot at the instance of Arjun Bhima when Surendranagar has permanent establishment of ACB Police Station. It is submitted that the learned trial Judge has also ignored one strange situation that the Police Inspector of ACB Police Station, Surendranagar, was present at Rajkot when the CR.A/217/1990 13/50 JUDGMENT complainant had reached to the office of the Assistant Director of ACB, Rajkot. When it emerges from record that the said Shri Gor was asked to remain present at Rajkot ACB office on telephonic instructions sent on previous evening, it was possible for the learned trial Judge to observe that the trap was pre-arranged on the previous evening and the complainant had gone to Rajkot as per the time given to him. The complainant has not even cared to give the name of the person who had arranged for a rickshaw for him so that the complainant could reach to the office of the ACB at Rajkot. There was no need for any officer from the ACB Rajkot to intimate Shri Gor to come to Rajkot with instructions to lay down a trap. Shri Gor was asked to come to Rajkot to discuss about 2 to 4 ACB pending cases, is not an acceptable version. When Shri Manjariya, Incharge of ACB Police Station, Rajkot, in whose office the complaint was written and taken by Shri Gor, has neither been examined nor the prosecution has led any evidence of the Assistant Director of ACB at Rajkot. The say of Shri Gor could not have been safely used as corroborative piece of evidence CR.A/217/1990 14/50 JUDGMENT and for believing the version of the complainant. The complainant has also not satisfactorily explained that though he was specifically asked to go to the residence of the appellant, why he had opted to go to the hotel/ tea stall with Panch no.1 where the appellant was allegedly sitting with Panch no.1. Reading the relevant paragraph nos.5, 6 and 7 of the deposition Ex.23, and the cross-examination made by the defence counsel, as to how and why the complainant took the panch no.1 to the hotel where the appellant was sitting, it is argued that the street leading to the residence of the appellant was falling earlier if one proceeds towards the eastern direction from the bus-stand of town Chotila. The complainant or the panch no.1 could have taken the left turn towards the residence of the appellant but leaving gaps of more two to three streets, which appears to be south-north side, both of them could have reached to the hotel/tea stall. There is nothing on record to show that the complainant was aware about the normal place of sitting of the appellant in the evening time. This act of complainant and the panch no.1 indicates that CR.A/217/1990 15/50 JUDGMENT the raiding team was hunting the appellant as probably he was not found at his residence. Of course, the complainant has denied the suggestion but it is the say of the appellant that the complainant had attempted to pass the muddamal currency notes forcibly, even then the appellant did not accept the same. The complainant has also denied that at the instance of the ACB Inspector Shri Gor, the currency notes were planted in the pocket of the appellant. When an important independent witness, who was present at the tea stall has not been examined by the prosecution, the learned trial Judge ought to have said that the explanation given by the appellant of planting of muddamal currency notes in his pocket is a probable explanation. Normally, a complainant would not know the exact location of the residence of the Talati-cum-Mantri and unless the complainant is informed about the normal place of sitting of the appellant in the evening time, he could not have reach to the said hotel/tea stall. As the complainant was disturbed by the civil litigation taken up by the said Chhana Dana, the complainant was keen CR.A/217/1990 16/50 JUDGMENT to pressurise the appellant to see that his name is replaced vice Chhana Dana, otherwise a person who has made an application on 17th September, 1986 would not arrange for an ACB trap within a couple of days. The date of trap is 23rd September, 1986. This indirectly indicates that the appellant must have informed him that he is unable to help him in introducing his name into Form Nos.7 and 12 and, therefore, by using the influence of one Arjun Bhima, the complainant decided to go to Rajkot for filing a false case. It is in evidence of the complainant that this Arjun Bhima is also a Talati-cum-Mantri i.e. a person in the same department and in the same cadre serving in some other village but he is the resident of village Zinzuda. 5. It is further submitted by Shri Shethna that there is no evidence which can be said to be of convincing nature that the marks of anthracene powder were found on both the hands or the shirt put on by the appellant or at any other place because the complainant had described the stains as greenish-yellowish-florescent type of marks on the finger tips and shirt of the appellant. CR.A/217/1990 17/50 JUDGMENT The description of the very marks is materially different when the evidence of panch no.1 is read. None of these witnesses has ever said that similar type of marks which were seen by them at the time of drawing first part of panchnama at Rajkot ACB Office, were found on the hands or shirt of the appellant. The Apex Court has observed that because of this type of situation and the scope of confusion in giving the description of anthracene powder marks by the appellant and when there is no scope to cross- check the trustworthiness of this part of evidence of a trap witness, the anthracene powder normally should not be used in arranging the ACB traps. The use of anthracene powder has been deprecated by this Court as well as the Apex Court. When such a confused situation was there, the learned trial Judge ought not to have raised any inference against the appellant by saying that acceptance of muddamal currency notes as illegal gratification and the finding of the learned trial Judge is bad on this count. There is no reference of the name of the Assistant Director of ACB at Rajkot by the complainant though he has been very much CR.A/217/1990 18/50 JUDGMENT referred to by the ACB Inspector Shri Gor. Even the statement of the Assistant Director of ACB has not been recorded in the present case. It is argued by Shri Shethna that as this trap was pre-arranged, not only Rajkot and Rajkot officials were selected by the complainant but panchas were also selected from Rajkot; otherwise it was not impossible for ACB Inspector Shri Gor to select the panchas either from Chotila or Surendranagar. One panch is from Road Transportation Office (RTO) and the another is from the Food and Drugs Control and Analysis Department, running laboratory at Rajkot. It is alleged that the offices of the ACB and Food and Drugs Control are in the same building. So the version of panch no.1 ought not to have been accepted as gospel truth or any reliable corroborative piece of evidence to the complainant. The important contents of the panchnama have not been proved specifically by panch no.1 and panch no.1 has also not specifically explained as to why he had agreed with the complainant to go to hotel though they were instructed to go to the residence of the appellant. On referring to the deposition of the CR.A/217/1990 19/50 JUDGMENT panch no.1 (Ex.28) closely and panchnama (Ex.29) tendered by this witness in evidence, Shri Shethna has submitted that the panch witness has shown attitude to help the prosecution from the very beginning. The Government servants have tendency to support the prosecution case as it is. A sarcastic remark has been made by Shri Shethna that ACB Inspector Shri Gor has selected panchas, especially panch no.1 from RTO Department. Of course, he has not expressly said that certain departments are known for rampant corruption, but the Court was able to get the hint given by Shri Shethna but it would not be either legal or proper to comment on this argument and the Courts are supposed to read and scrutinise the evidence led during the course of trial. No witness should be criticised or condemned merely because of his caste, creed, class or department. The witness was tendered by the prosecution and his version was subject to close scrutiny and cross-examination by the defence side. On close reading of the evidence of panch no.1 in the background of the details of the panchnamas (Exs.29, 30 and 31), the Court is of the view that this witness has stood the CR.A/217/1990 20/50 JUDGMENT test of truth in the cross-examination also. No material infirmity in the nature of contradictions or improvements is found. On the contrary, the said panch witness has acted practically as shadow of the complainant and he was supposed to behave like that as per the instructions given to him. The panch no.1 had not even seen the appellant earlier, so obviously he was to follow the complainant. Only question which was required to be seen closely by the panch no.1 independently as alleged in the complaint explained to him before drawing first part of panchnama was whether the present appellant makes any demand express or implied either oral or by gesture of illegal gratification, and if panch no.1 is able to listen then he should listen, if he is able to see, he should see and if possible to do both, he should do both and should also see the passing of currency notes from the complainant to the appellant, if such a stage comes. This is the crucial stage of panchnama. Practically there is no as such first part of panchnama. The first part of panchnama is assailed on the ground that it is drawn at CR.A/217/1990 21/50 JUDGMENT the place other than usual place where such panchnama could have been drawn by selecting favourable panchas. It is settled law that when the first part of panchnama is not found trustworthy or reliable, the strength of of second part of panchnama would automatically be weak comparatively. There is no material infirmity in the first part of panchnama, except the points which have been stated by Shri Shethna mentioned earlier and in that background, if the second part of panchnama is evaluated, it is not possible for him to say that the story unfolded by the panch no.1 as to the demand made by the appellant in a tea stall is untrustworthy. If the suggestion made to the complainant as well as panch no.1 during the course of cross-examination is considered in the background of the stand taken by the appellant in the statement under Section 313 of the Code of Criminal Procedure, 1973, the theory of forcible planting of currency notes is also not found probable. It has come during the course of cross-examination of ACB Inspector Shri Gor that panch no.2