CR.A/41/1989 1/34 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 41 of 1989 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= JASWANT DUDHABHAI GOHIL - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR KJ SHETHNA for Appellant(s) : 1, Mr.L.R.Poojari, A.P.P. for Opponent(s) : 1, MR YN RAVANI for Opponent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 12/09/2007 ORAL JUDGMENT 1. This appeal is directed against the judgment and order of conviction and sentence dated 15th December, 1988 passed by the learned Special Judge (C.B.I.) at Ahmedabad CR.A/41/1989 2/34 JUDGMENT in Special Case no.3 of 1987 whereby the appellant- accused Jashwant Dudhabhai Gohil was sentenced to undergo R.I. for a period of one year for the offence punishable under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 (“the Act” for short) and to pay a fine of Rs.2500/-, in default to undergo R.I. for three months. He was also sentenced to undergo R.I. for one year and to pay fine of Rs.2500/- for the offence punishable under Section 161 of the Indian Penal Code (“ the Code “ for short), in default, to undergo R.I. for three months. Both the substantive sentences were also ordered to run concurrently. 2. Briefly stated, the facts of the case giving rise to this appeal may be enumerated as under: 3. The complainant Prafulbhai Parshottambhai Patel, at the relevant time, was serving as a Foreman in a factory situated at G.I.D.C. Makarpura, Baroda, and was residing with his father Parshottambhai Desaibhai Patel at village Latipura, Taluka Padra in Baroda. According to the complainant, his father was holding two agricultural fields, in one of which there was a well. There was an underground pipe line connecting the other field with the said well which was passing from below/side of the CR.A/41/1989 3/34 JUDGMENT Railway line from Jambusar to Dabhoi. Since the roots of a tamarind tree that grew up above the said pipeline had expanded and caused damage to the pipeline, water was oozing out. Therefore, after obtaining permission from the Forester Mr. Rana the tamarind tree was got cut off and the pipeline was also got repaired. In this connection, the accused called the complainant's father Parshottambhai Desaibhai Patel at Latipura Railway Station and told him that as he had committed a serious offence of cutting off the tamarind tree, he would have to be arrested. Parshottambhai Desaibhai Patel then explained to the accused the circumstances under which the tamarind tree was got cut off, but the accused demanded illegal gratification of Rs.5000/-from Parshottambhai for avoiding a case in that regard. After some persuasion, Parshottambhai Desaibhai Patel paid Rs.2000/- to the accused in the presence of one Mahendrabhai Motibhai Patel on that very day on 18th September, 1986. 4. Thereafter, on 19th September, 1986 Shri Parshottambhai Desabhai Patel received a note addressed by the accused to Shri Kiritbhai Parshottambhai Patel s/o Shri Parshottambhai Desabhai Patel calling upon them to see the accused in the train arriving at Latipura CR.A/41/1989 4/34 JUDGMENT Railway Station on 20th September,1986 in the morning at 9-00 O'Clock from Jambusar. Accordingly, Parshottambhai Desaibhai Patel, his son Prafulbhai Parshottambhai Patel and one Mahendrabhai Motibhai Patel came to Latipura Railway Station at the said time and saw the accused on the said train. At that time, the accused demanded the remaining amount of Rs.3000/- by way of illegal gratification from Parshottambhai Desabhai Patel and told him to make arrangements within half an hour, otherwise, to face the case for removal of the tamarind tree. Later on, at 11-00 O Clock in the morning of 20th September, 1986 the accused saw Purshottamdas Desabhai Patel and again demanded Rs.3000/- to which Parshottambhai Desabhai Patel replied that he could not make arrangement immediately and under the pretext of making arrangement for the demanded amount, the complainant Prafulbhai Parshottambhai Patel accompanied with Mahendrabhai Motibhai Patel approached the Anti Corruption Bureau and lodged his complaint against the accused for having demanded bribe in respect of the removal of tamarind tree. Accordingly, a trap came to be laid by the A.C.B. Officer at about 4-00 to 4-45 p.m. on 20th September, 1986. The accused demanded the remaining amount of Rs.3000/-from the complainant Prafulbhai Parshottambhai Patel which he gave and the accused was caught having CR.A/41/1989 5/34 JUDGMENT accepted the said amount. On the same day i.e. on 20th September, 1986, search was also carried out at the residential place of the accused at Jambusar and Rs.2000/- came to be seized from there. The ACB Officer on completion of investigation,having found that the appellant-accused is a Central Government employee, transmitted the investigation papers to the C.B.I. who after further investigation obtained necessary sanction and filed charge-sheet before the learned Special Judge. The learned Special Judge framed charge Exh.19 against the accused on 20th January, 1986 for the offences punishable under Sec 161 of the Indian Penal Code and under Section 5(2) read with Section 5(1)(d) of the Act. The charge was read over and explained to the accused who pleaded not guilty to the charge and claimed to be tried. 5. To prove its case against the appellant-accused the prosecution has examined – (1) PW 1 Pushpa Vadan B.Dave at Exh.25, (2)PW 2 Prafulbhai Parshottamdas Patel at Exh.36, (3) PW 3 Mr.Pradip Kumar Tarachand Mittal, Additional Permanent Way Inspector, at Exh.39, (4) PW 4 Harishanker Munsilal Sharma, Inspector, R.P.F. at Exh.44, (5)Parshottambhai Desabhai Patel, at Exh.50, (6) PW 6 Mr.Amarsinh Mohanlal Yadav ACB Inspector, at Exh.53, and CR.A/41/1989 6/34 JUDGMENT (7) PW 7 Mr. M.K.Sharma, C.B.I. Inspector, at Exh.58. The prosecution has also produced documentary evidence such as complaint Exh. 37, sanction order Exh.21,written statements of the accused 46 and 49, written explanation of the appellant-accused Exh.61, statement of Kiritbhai Exh.39, Panchnama Exh.26, note Exh.30, seizure memos Exhs. 31 and 32 , daily dairy Exh.22, letters Exhs.27, 28,41 and 42 etc. After recording the evidence of prosecution witnesses was over, the accused was further examined. The accused had submitted his written explanation at Exh.61.The sum and substance of the written explanation of the accused is to the effect that he was falsely implicated in the case. 6. On appreciation, evaluation, analysis and scrutiny of the evidence adduced by the prosecution both oral as well as documentary, the learned Judge of the trial Court held that the prosecution has established beyond reasonable doubt that the appellant-accused did demand the bribe money of Rs.5000/-from Parshottamdas-father of the complainant on 18th September,1986 and thereafter reduced the amount to Rs.2000/- and that the complainant paid Rs.2000/- on that day to the appellant-accused. The appellant again demanded the remaining amount of Rs.3000/- on 20th September, 1986 from the complainant CR.A/41/1989 7/34 JUDGMENT which amount also the complainant paid to the appellant- accused. Thus, the appellant did accept the total amount of bribe money of Rs.5000/- from the complainant, and therefore, held the appellant-accused guilty of offence with which he was charged and passed the judgment and order of conviction and sentence, giving rise to the present appeal. 7. I have heard the learned Counsel Mr. K.J.Shethna for the appellant-accused, learned A.P.P. Mr. Poojari for the respondent no.1-State and learned Counsel Mr. Y.N.Ravani for the respondent no.2 at length and in great details and have also perused the record with due care and caution. 8. Learned Counsel Mr. K.J.Shethna after having taken me through the entire evidence on record as also the reasons assigned and conclusions reached by the learned Special Judge, submitted that the whole case of the prosecution is improbable and prayed that the appeal be allowed and the order of conviction passed by the learned Special Judge be set aside and the appellant-accused be acquitted of the offence in question. In support of his submission, he has raised several contentions. Before I could proceed to deal with the submissions, I may state CR.A/41/1989 8/34 JUDGMENT that since I am in complete agreement with the views expressed by the learned Special Judge, I do not deem it necessary to reiterate the evidence of all the witnesses in great details and burden the record, but would only discuss the evidence and documents as are necessary for disposal of this appeal on merits. 9. The learned Counsel has firstly submitted that the appellant-accused could not have demanded such a huge amount of Rs.5000/-, he being a poor Constable and that under the instigation or as per instructions received from his Superiors the appellant-accused might have obtained the amount on their behalf. It is also his submission that the appellant-accused could not have demanded the bribe amount in presence of Inspector or Sub-Inspector. Going through the deposition of Mr. Parshottambhai Desabhai Patel Exh.50 and Prafulbhai Parshottamdas Patel, Exh.36, it is found that prior to the removal of tamarind tree,Parshottamdas had a talk with Kadam who happened to be the Station Master at Latipura Railway Station at the relevant time but designated as Assistant Coaching Clerk; that he was advised to contact the Forest Officer Mr.Rana and accordingly after receiving permission from Mr. Rana, Mr. Kiritbhai and Mr.Parshottamdas got the tree cut on 16-9- 1986 as it was damaging the pipeline. The pipe line was CR.A/41/1989 9/34 JUDGMENT also got repaired on 17-9-1986. This action on the part of Kiritbhai and Parshottambhai appears to be quite natural and with bona fide intention to repair the pipelines for getting water in their field, especially when, in the statement of Kiritbhai which bears the endorsement of the Sarpanch, there is a mention with regard to removal of tamarind tree and obtaining of permission from the Forest Officer. In continuation of this event, as per the deposition of Parshottamdas Exh.50 on 18th September, 1986 when he was at the well in his agricultural field in the morning, Mr. Gohil, the accused asked him (Parhsottamdas) to meet him at Latipura Railway Station and accordingly, he had been there at 11.00 a.m. Mr. Gohil then questioned him as to who had cut the tamarind tree to which Parhsottamdas replied that his son Kiritbhai had cut the tree, and therefore, Kiritbhai was also called. Upon arrival of Kirtibhai, Mr. Gohil took both of them to the house of Sarpanch where statement of Kirtibhai was recorded by Mr. Gohil wherein Kiritbhai had put his signature. Mr. Gohil then told Parshottamdas that a serious offence has been committed by cutting off a green tree and suggested that if he pays Rs.5000/-no case would be filed, however, after some persuasion Mr. Gohil suggested that Rs.2000/- be paid. Out of coercion and with a view to avoid prosecution, CR.A/41/1989 10/34 JUDGMENT Parshototamdas went home and returned to the Railway Station accompanied by Mahendrabhai Motibhai Patel and paid the amount of Rs.2000/- to the appellant-accused which was accepted by the appellant-accused. According to this witness, all the currency notes were of the denomination of Rs.50/- Again, if we look at the documents Exh.29-statement of Kiritbhai recorded by Mr. Gohil,the appellant and note/chit Exh.30 written by the appellant-accused asking Parshottamdas/Kiritbhai to remain present at Latipura Railway Station on 20th September, 1986 and when Mr.Parshottamdas, his son Prafulbhai and Mahendrabhai Motibhai Patel met the appellant-accused in the first class compartment of the train at Latipura Railway Station, the appellant had demanded the remaining amount of Rs.3000/-as bribe money and gave half an hour's time for arranging the amount as otherwise, case would be filed. Accordingly, Mr. Gohil, the appellant-accused met the complainant-Prafulbhai, Parshototamdas and Mahendrabhai at 11.00 a.m. on that day, however, Parshottamdas expressed his difficulty to arrange for such huge amount. The appellant-accused insisted. Thereafter, it was decided by Parshottambhai, Mahendrabhai and Prafulbhaia to file a complaint with the Anti Corruption Bureau, and therefore, under the pretext of going to arrange the amount, Prafulbhai and CR.A/41/1989 11/34 JUDGMENT Mahendrabhai first went to the house of Mahendrabhai, took Rs.3000/- i.e. sixty currency notes of the denomination of Rs.50/-each and went to the ACB Office at 12.00 O'Clock while the father of the complainant Parshottamdas remained with the appellant-accused at Latipura Railway Station. At the ACB Office on 20-9-1986, Inspector Mr. Yadav recorded the complaint (Exh.37) narrated by Prafulbhai which was completed at 1.30 p.m. and obtained his signature. As directed by Inspector Mr. Yadav two Panchas, namely, Mr.Pushpavadan Dave and Mr. Narsinbhai Vankar were summoned by PSI Mr. Khant. The two Panchas were introduced and Inspector Mr. Yadav also gave his introduction to them. As the Panchas were ready to act as Panchas, the contents of the complaint were read over and explained to them. The complainant-Prafulbhai also narrated the facts of his complaint in presence of Panchas. Inspector Yadav then asked the complainant to produce the amount. Thereupon, the complainant gave the aforesaid amount of Rs.3000/- consisting of sixty currency notes of the denomination of Rs.50/-each. The numbers of these currency notes were mentioned in the Panchnama. PSI Khant then showed these currency notes in ordinary light, electric light as well as under ultraviolet lamp, but nothing significant was visible. The Panchas were then given to understand the use of CR.A/41/1989 12/34 JUDGMENT anthracene powder on the currency notes in a trap and he also held demonstration. The currency notes when smeared with anthracene powder and seen under ordinary light nothing significant appeared, but when these currency notes were viewed under ultraviolet lamp light blue shining colour appeared. Similar experiment was also conducted on the hands of PSI Khant who conducted the experiment of anthracene powder on the currency notes by applying anthracene powder and light blue shining colour appeared on the palms and fingers of both his hands. The person of Prafulbhai was then searched by Panch no.1 Pushpavadan Dave under the instructions of Mr. Yadav. PSI Khant then placed the Muddamal currency notes of Rs.50/- each sixty in number in a bundle aggregating Rs.3000/- in the right pocket of Prafulbhai which was found empty and instructed him not to touch the same until demand is made by Mr. Gohil while an amount of Rs.21/- in two notes of Rs.10/-each found from the left pant pocket of Prafulbhai were put back into that pocket. Thereafter, both the hands of PSI Khant were washed with soap and water. Then the hands of PSI Khant, Prafulbhai, both the Panchas and all the members of the raiding party were seen under ordinary light, electric light as well as ultraviolet lamp and no marks of anthracene powder were visible. The remaining anthracene powder was put back into the bottle CR.A/41/1989 13/34 JUDGMENT and the paper used for smearing the currency notes with anthracene powder was also destroyed by burning. The complainant Prafulbhai was then instructed not to touch the Muddamal currency notes until demand is made and willingness is expressed by Mr. Gohil–the accused to accept the amount and that when the money is accepted by Mr. Gohil, he should give signal by moving his left hand over his head. Panch no.1 Mr. Dave and Mahendrabhai were instructed to remain with Prafulbhai and to see and hear the conversation between Gohil-the accused and Prafulbhai. Panch no.2 Narsinbhai Vankar and all the members of the raiding party were instructed to hide themselves at the Latipura Railway Station and upon receiving the signal to reach the place of incident. Thus, the preliminary Panchnama was drawn at the ACB Office. Accordingly, all of them reached Latipura at 4.00 O’Clock on 20-9-1986 by Government Jeep. Prafulbhai, Mahendrabhai and Panch no.1 Mr. Dave proceeded to Latipura Railway Station and Inspector Mr. Yadav followed them while Panch no.2 and PSI Mr. Khant and other members of the raiding party positioned themselves behind the compound near Latipura Railway Station. At that time, Mr. Gohil was sitting on the bench facing the railway line and on the bench to the opposite side towards Latipura village Prafulbhai’s father Parshottamdas was sitting , CR.A/41/1989 14/34 JUDGMENT so also, the Station Master. On Seeing Prafulbhai, Mr. Gohil went towards him, told him that everything was over and enquired of him about the money. Prafulbhai sought some reduction in the amount, but Gohil-the accused insisted that the amount agreed upon be paid over to Narsinbhai Porter. Gohil tried to call Narsinbhai by giving signal but Narsinbhai was not attentive and did not come. Prafulbhai then suggested that Gohil may accept the amount and not file the case. Gohil-accused then took Prafulbhai-complainant to Station Master’s Office. At that time Panch no.1 Mr. Dave and Mahendrabhai were with Prafulbhai. The Station Master was sitting on the Bench in the waiting shed. Panch no.1 Mr. Dave stood near the door of the Station Master’s Office. After entering the Station Master’s Office, Mr. Gohil extended his right hand towards Prafulbhai who took out the tainted Muddammal currency notes and handed over the same to Mr. Gohil. Mr. Gohil accepted the said currency notes with his right hands, opened the drawer of the table lying there with his left hand and placed the Muddamal currency notes inside the drawer with his right hand. When Mr. Gohil closed the table drawer, Prafulbhai went outside and gave the signal. Soon Inspector Mr. Yadav reached the Station Master’s Office who then instructed Mahendrabhai to signal the persons of the raiding party and disclosed CR.A/41/1989 15/34 JUDGMENT his identity to the appellant-accused. Mr.Khant, other persons of the raiding party and Panch no.2 Mr. Narsinbhai Vankar came there. Thereafter when asked Mr. Gohil disclosed his identity as well as his position in the R.P.F. and Mr. Yadav also introduced the members of the raiding party and both the Panchas to Mr. Gohil. Thereafter the hands of both the Panchas and all other members of the raiding party except that of Prafulbhai and Gohil were viewed under ultraviolet lamp and nothing significant was noticed. Then, the hands of Mr. Gohil-the accused was shown in ordinary light and nothing significant appeared, but when his hands were viewed under ultraviolet lamp, light blue shining colour was seen on the tips of the fingers and thumb of the right hands of Gohil-the accused. Inspector Yadav asked Mr. Gohil about the bribe money. At that time, Panch no.1 Mr. Dave told that the Muddamal currency notes were in the left drawer of the table in the Station Master’s Office. Thereupon, the handle of the said drawer was viewed under ultra violet lamp but no trace or marks of anthracene powder were noticed. Panch no.1 Mr. Dave then under the instruction of Mr. Yadav opened the said drawer wherein Muddamal currency notes of Rs.50/-each in a bundle were visible. These currency notes were there and then viewed under ultraviolet lamp and shining blue colour was CR.A/41/1989 16/34 JUDGMENT noticed. Mr. Yadav then instructed Mr. Dave Panch no.1 to take the Muddamal notes from the drawer. The numbers of these currency notes when tallied with the numbers mentioned in the first part of the Panchnama were found to be the same. Thereafter, the place inside the drawer where the tainted currency notes were actually found was viewed under ultraviolet lamp and light blue shining colour was seen there. That portion of the brown paper was marked with ball-pen ink with a circular sign. Then slips bearing the signature of the Panchas were placed with the Muddamal currency notes and the brown paper. Panch no.1 then counted the currency notes and his hands when viewed under the light of ultraviolet lamp, light blue shining colour appeared on the fingers, thumbs and the palms of this Panch witness. Then the right pocket of Prafulbhai’s pants was viewed under ultraviolet lamp and light blue colour appeared on the corner of the pocket. On search by Panch no.2, the aforesaid Rs.21/-were found from the left pocket of the pants worn by Prafulbhai, which were put back into that pocket itself. Thereafter, on search of the person of Mr. Gohil, one lighter one identity card and three other papers and Rs.267/-were found from the purse with chain that lay in his shoulder bag. The particulars of all these items were noted down in the Panchnama, and the three papers (Exhs.27,28 and CR.A/41/1989 17/34 JUDGMENT 29) were seized with the signature of the Panchas while the amount of Rs.267/-was allowed to remain with Mr. Gohil. Parshottamdas was then asked to produce the note/chit Exh.30 that was written by Mr. Gohil which was also seized with the signatures of the Panchas. Receipts were issued to Mr. Gohil for the items seized and the carbon copy of the seizure memo is at Exh.31. Exh.32 is the seizure memo for the seizure of note/chit Exh.30 from Parshottamdas. Thus, the second part of the Panchnama (Exh.26) was completed. Thus, the meeting of the complainant and Mr.Gohil-the accused at Latipura Railway Station unto the stage of completion of the trap incident at the Station Master’s Office is as per the evidence of the two witnesses Prafulbhai-complainant and his father Parshottamdas and their evidence is consistent in material particulars and they have given almost similar version. Analyzing their evidence following facts emerge – (i) the fact of initial demand has been proved through the evidence of the complainant, PW 2 at Exh.36 which is supported by his complaint Exh.37 (ii) It is further supported by the conduct of the complainant and his father Parshottam in admitting that the tree was cut down by Kiritbhai and their having informed the police and filed complaint. The complainant also went to the appellant-accused with the bribe money and approached the CR.A/41/1989 18/34 JUDGMENT appellant-accused on the trap day (iii) the fact of initial demand gets further support from the evidence of the complainant that on the trap day when he in the company of the first Panch met the appellant, the appellant inquired of him, if he had brought the money. On this point even Panch no.1 has supported the evidence of the informant. (iv) As regards the evidence of demand of bribe money on the date of trap, there is evidence of the complainant, the first Panch, the complaint and Panchnama. (v) The evidence of consequent recovery of bribe money further supports the case and evidence of pre-trap demand and trap day demand. (vi) the evidence of acceptance can be gathered from the evidence of complainant, complaint and Panchnama (vii) the evidence of recovery of bribe money further supports the case and evidence of demand and acceptance. (viii) The fact of recovery of bribe money is proved in records through the evidence of complainant, Panch no.1, I.O Mr. Yadav, complaint, Panchnama, presence of anthracene powder on the right pocket of the pants worn by the complainant, on the tips of the fingers and thumb of the appellant- accused and on the portion of the paper in the drawer of the table in the Station Master’s room where the currency notes were placed by the appellant-accused. (ix) the evidence that the appellant-accused tried to put pressure CR.A/41/1989 19/34 JUDGMENT on the complainant’s side by recording statement of Kiritbhai to the effect that the tamarind tree was standing within the Railway limits and threatening given with regard to filing a case. (x) Demand of Rs.3000/-had been witnessed by Panch no.1 Mr. Pushpavadan Dave who was standing near the door of the Station Master’s Office at the relevant time, (xi) the amount of Rs.3000/- is accepted in privacy by taking Prafulbhai to the Station Master’s Office. (xii) the fact of initial demand of Rs.5000/- and acceptance of Rs.2000/- on 18-9-1986 was informed by the witness to his son Prafulbhai at night and the recovery of this amount from the residence of the