IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 803 of 1995 For Approval and Signature: Hon'ble MR.JUSTICE K.J.VAIDYA and Hon'ble MR.JUSTICE D.G.KARIA STATE OF GUJARAT Versus MANSURBHAI MOTIBHAI DAMOR ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements ? YES 2. To be referred to the Reporter or not ? YES J 3. Whether Their Lordships wish to see the fair copy of the judgement ? NO 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder ? NO 5. Whether it is to be circulated to the Civil Judges ? YES TO ALL CRIMINAL COURTS ======================================================= Appearance: MR. M.A. BUKHARI, ADDL. PUBLIC PROSECUTOR for Appellant-State. MR MJ BUDDHBHATTI for the Respondent-accused CORAM : MR.JUSTICE K.J.VAIDYA and MR JUSTICE D.G.KARIA JJ. 05-07-1996 ORAL JUDGEMENT {Per : Vaidya, J.} The three most important questions in focus arising for our consideration in this Acquittal Appeal are : (i) Whether in a Corruption Case, warranting proof of three principal ingredients of offence of bribe viz., Demand, Offer and Acceptance, and in that case even if the direct evidence consisting of the complainant and first panch witness (directed to hear and see the bribe transaction) turn hostile to the prosecution then even merely relying upon the circumstantial evidence on the point comprizing of the second panch and the Investigating Officer, Court can still record order of conviction and sentence ? (ii) Whether by merely mechanically affixing the label of the 'Selected panch' to panch witnesses when in fact there is indeed no material brought on the record to indicate that they were so selected by the Investigating Officer in conspiracy with the complainant or for some oblique motive by himself alone with a view to falsely implicate and secure conviction of the accused at any cost, his evidence can be discarded as malacious and interested witness ? and further ? (iii) Whether the Investigating Officer in a trap case also merely because he is police officer can he be straighway mechnically branded as a witness ultimately interested in success of the investigation and therefore on that ground alone without there being anything brought on the record to show that his evidence was otherwise tainted, personally maliciously interested in falsely implicating the accused, his evidence must be discarded and that no order of conviction and sentence can ever be passed on the basis of the sole testimony of such Investigating Officer ? 1.1 The above three questions, and for that purpose, how indeed the evidence in the Corruption cases under the prevention of Corruption Act, 1988, an Act specially enacted to meet with the challenging evil of corruption, is required to be tested, appreciated and decided, is the main core of discussion in this judgment before us. The reason is that these days in some of the cases, on some trivial grounds or excuses, accused are acquitted without any serious, sincere efforts made firstly by the learned PP in charge of the case and thereafter by the trial Courts. 2. Before the Parliament specially enacted the prevention of corruption Act, 1955 and thereafter the later Prevention of Corruption Act, 1988, Section 161 was already there in IP Code dealing with the bribery cases. But then taking into consideration the rampant rising and unabated tide of corruption, Parliament in its anxiety realizing that Section 161 of IP Code was little too inadequte to meet with the problem, enacted special Corruption Act - incorporating a special deeming fiction by virtue of which the statutory presumption was raised against the accused which of course was made rebuttable on preponderance of probability shown by the accused. Now despite this special deeming fiction virtually new Corruption Act appears to have failed to bring about the desired result rather the deterrent effect because of little, liberal and some times even quite unjust, indiscreet appreciation of evidence. We not for a moment suggest and even entitled to take away judicial discretion in matter of appreciation of eidence directing the trial Courts to convict accused in all Corruption cases irrespective of its judicial satisfaction to record conviction. No. To such arbitrariness and arrogance we cannot dream even to be a party to impose the same on trial Courts. But at the same time, we would be just failing in our duty if we do not guide the concerned courts how to mind their ways of appreciating evidence in corruption cases, more particularly in the light of the observations made on the pages of this judgment. In substance, what we say, we intend to say is that we are quite opposed to casual, slip-shod, scratching the surface way of the appreciation of evidence and record rough and ready cheap acquittal. This is improper, illegal and quite unjust. In our opinion, the matter of fact and real appreciation of evidence is the test of judicial wisdom and sound common sense of the trial Court ! This indeed requires basic judicial awareness, vision and wisdom which comes from the experience only, that great teacher of life and or by learning from such experienced persons when the one is just on way gathering the same ! For this, one has to grow in experience and till the time that experience does not grow and/or blossom into its fullness one has to draw and share light of the experience from such experienced one ! But while drawing and sharing experience from the reported judgments, the basic requirement is to closely marshal and scrutinize the facts and circumstances of the each case at hand and one in the reported judgments and then to find out whether the decision of High Court and/or for that purpose of Supreme Court fits in or not to be applied. This requires total application of mind which comes out only from the composed intelligence and total awareness of the concerned judicial officers. In substance, the appreciation of evidence is always a matter of honest and sincere toil and sweating as a result thereof and not an easy arm-chair exercise to reach just first hand handy conclusion and stop there and then only scratching merely a surface of the prosecution evidence and deliver the judgement acquitting accused !! We do believe that as far as possible the appellate judgment should be commendably precise and not unduly prolix, however, at the sametime the observations made herein and such other type of observations once a while made, which are emminently and inevitably necessary to make as we are of the view that the objective of giving a judgment is not merely to appreciate the evidence and thereby to settle the rival contentions and give fair and substantive justice to the parties before it, but it is also equally imperative to enlighten, educate and tone-up the subordinate courts and statutory functionaries to live-up to their expectations and to give the better account of their efficiency and accountability to the people the real customers of justice. The High Court judgment thus has many fold purposes. The paramount one of them being the transparent, efficient, accountable and substantive justice oriented Administration of Justice. For this purpose, the length of judgment when occasion so warrants should never worry the duty conscious Court for that purpose. 3. To briefly narrate the prosecution case, according to PW-5, Kalsinh Vijabhai Baria,on 17-9-1990 when he was on duty as PI ACB, Godhra, PW-1 Nathabhai Lembabhai came to him and gave a complaint (EX-11) alleging therein that Mansurbhai Motibhai Damor, Head Constable at Ranakpur Outpost had demanded Rs.1000/- to settle the complaint filed against him regarding offences registered against him under the Forest Act and for that purpose, he had already paid Rs.200/- to him and the balance amount of Rs. 800/- was to be paid to him, next day ie., to say on 18th September, 1990. On the basis of this complaint, PW-5 PI ACB requisitioned the services of two panch witnesses viz. PW-2 Kamlesh Mohanlal Shah and PW-3 Revsinh Ramsing Talar who were later on introduced to the PW-1 complainant and were posted with the facts regarding the bribe demanded by the accused from him. Thereafter PW-1 produced currency notes of Rs.800/= regarding which the usual pre-raid anthracene powder test was carried out in presence of the PW-1, PW-2 and PW-3 i.e., complainant and two panchas respectively. The number of muddamal currency notes were noted down in the Panchnama Exh. 13. Thereafter, the PW-2 (First Panch) was instructed to accompany PW-1 and witness whatever transpired in between PW-1 and the accused. PW-1 was further instructed to give the bribe amount only as and when so demanded by the accused. After this preliminary part of the Panchnama Exh. 13 was over, PW-5 PI ACB alongwith PW-1, PW-2 and PW-3 proceeded towards Ranakpur Outpost in a jeep which was stopped at some distance near Chokdi of village Amthani from where PW-1 and PW-2 (first panch) went walking to Ranakpur Outpost, and rest of the members of the raiding party lied around secretly in wait. At 8-45 AM, on PW-1 giving the pre-arranged signal, PW-5 PI ACB with PW-2 (second-Panch) entered the outpost where accused was found sitting in the chair. He was asked not to move. Thereafter, PW-5 introduced himself as PI ACB and on making inquiry, PW-1 (first panch) in presence of PW-2 (second Panch) and others narrated the whole incident which was transcribed in the Panchnama Exh. 13. Thereafter, usual post anthracene powder test was carried out and in turn when the hands of the accused were examined in the light of the ultra-violate lamp, the fingers, thumbs and some portion of the palm of both the hands were found smeared with the anthracene powder. Thereafter, when the accused who had put on lungi and banyan having no pockets was searched, nothing incriminating was found. Thereafter, however, just on the right side near his chair on which accused was sitting, a leather vallate was found and on opening of the same, a bunch of currency notes was recovered by the PW-2 (first panch). The numbers of these notes when compared, tallied with numbers noted down in earlier part of the Panchnama Exh. 13. Not only that but the said notes were also found bearing the anthracene powder marks. This was seized, in presence of PW-1, 2, 3 & 5 present at the scene of the incident regarding which the second part of Panchnama (EX-13) was made, which was over at about 12-15 hours, and ultimately came to be duly signed by both the Panchas and PW-5 PI ABC. On the basis of this trap-proceedings, after the investigation was over, obtaining sanction, the respondent-accused came to be chargesheeted to stand trial for the alleged offences punishable under sections 7, 13 (1) (d) and Section 13 (2) of the Prevention of Corruption Act, 1988, which came to be registered as a Special Case No. 8 of 1991, before the Special Court, Panchmahals at Godhra. 4. At trial, the respondent pleaded not guilty and claimed to be tried. His case was that of total denial. 6. The trial court ultimately by its judgment and order dated 26-4-1995, acquitted the accused mainly on the ground that the PW-1 complainant and PW-2 (first Panch) did not support the prosecution on the point of demanding and accepting the amount of Rs.800/= and thereby giving rise to the present appeal. 5. Now having heard Mr. M.A.Bukhari, the learned APP appearing for the appellant-State and Mr. M.J. Budhbhatti, learned advocate for the respondent-accused, it must be stated at the very outset that the impugned judgment and order of acquittal is ex-facie perverse as the trial Court has failed to give due weightage and take into consideration unimpeachable evidence of PW-5 PI-ACB as duly corroborated by PW-3 (second panch) supporting the prosecution and to some extent even the evidence of hostile witness PW-2 (First Panch) !! This is not a case wherein remotely even two views are possible. From the evidence of these prosecution witnesses quite clear and clinching circumstance has been brought home proving beyond any manner of doubt three principal ingredients of offence of bribe under section 13(1)(d) of the Corruption Act, viz., the demand, offer and acceptance of the bribe amount. We want to make it clear that merely because PW-1 complainant and PW-2 (first panch) did not support the prosecution (unless of course the complainant is the type of the person as we found in case of Ajit kumar Somnath Pandya versus State of Gujarat, reported in XXXIV (1993) 1 GLR 753) that fact standing by itself is indeed not sufficient to discard the entire prosecution case, if indeed there is another, quite dependable circumstantial evidence regarding demand, offer and acceptance of the bribe amount. This we say so because these days to defeat the prosecution case witnesses are won-over by devices of threats, promises and inducements. Further, after the date of offence, by the time the evidence is recorded before the trial Court, three to five years easily and unfortunately pass by, making the witnesses committing some honest mistakes because of memory lapse. Under such circumstances, if cases are casually disposed off, real justice can never be brought home !! What we say, in the facts and circumstances of this case, stands duly supported by three decisions relied upon by the learned APP, out of which three are of the Supreme Court and one of this court. They are - (1) AIR 1980, SC, 873 Hazarilal Vs. Delhi Administration; (2) AIR 1984, SC 1453 - State of UP Vs. G.K.Ghosh; and (3) (4) XXXIV (1993) 1, GLR, 853 Nasirmiya H. Malik Vs. State of Gujarat. 7. It appears that the trial court while appreciating the evidence has totally misconceived the settled legal position to the effect viz., firstly that when the complainant and the panch witness give go-bye to the prosecution case, the prosecution case comes to a dead-end and is required to be buried and nothing further is required to be considered or done, secondly, to prove the principal ingredients of offence of bribe, viz., demand, offer and acceptance, there should be only and only direct evidence and that the same could not be held to be proved by the circumstantial evidence, thirdly, if panchas are taken from the Government office, they being 'selected panch' loses all credibility as an independent witness, and fourthly, the investigating officer being interested in success of the Investigation, his evidence can never be straighway accepted and relied upon for basing the order of conviction and sentence. It is this patent, factually and legally perverse approach, which has constrained us to reverse the order of acquittal on the grounds exhaustively set out hereafter at appropriate place. 8. Having heard the learned advocates appearing for the respective sides, further bearing in mind that this is an acquittal appeal, we have been called upon to determine as to whether the demand, offer and acceptance of the bribe money have been brought home !! Now in order to bring home this specific charge and succeed, like any other criminal cases, the prosecution can lead and depend upon either the direct and/or the circumstantial evidence, as the case may be. In this case also the prosecution in all has examined four witnesses, out of which PW-1 complainant and PW-2 (first panch) are the witnesses examined for the purpose of establishing the case of demand, offer and acceptance by leading the direct evidence and PW-3 (second panch) and PW-5 PI ACB who have been examined partly as a direct and partly as evidence supporting the circumstantial evidence. Now the crucial question that arises for our consideration is 'whether in a given case, like the present one, where the direct evidence for whatever reason turned vault face and did not support the prosecution and thereby ultimately the entire burden shifted partly on the direct and circumstantial evidence viz. that of PW-3 and PW-5 PI ACB, and further when if on the basis of proved facts, the trial court is able to draw just and reasonable inference that PW-1 and PW-2 were liars having no regard for the truth and further as having been won-over to help favour accused and further still, if the quality of the circumstantial evidence brought on the record by PW-3 (second panch) and PW-5 PI ACB is of sterling quality and dependable and accordingly sufficient to record thereupon the order of conviction and sentence or not ? On going through the impugned judgment, which with respect to the learned trial Judge undoubtedly appears to be a lopsided having appreciated the prosecution evidence only with one and wandering eye ignoring altogether the impact of otherwise quite dependable evidence of PW-3 and PW-5 viz., that is to say whether the same was cogent and convincing enough to act upon and record the order of conviction and sentence or not it must be stated without any hesitation that the same is required to be reversed. In otherwords, the question before us is that so far as the overall credibility of the prosecution case is concerned, does this credibility is to be thrown to the winds and negatived merely because the direct evidence on that point does not support the prosecution more particularly when there is ample, clinching circumstantial evidence of PW-3 (second panch) and PW-5 PI ACB fully satisfying the conscience of the court to the hilt warranting order of conviction of the accused ? The answer is such circumstantial evidence can certainly still be utilized and relied upon to sustain the overall credibility of the prosecution case as it is. For the reasons we will be stating hereafter, it appears to us that it will not be a judicial approach if the prosecution case is examined in separate compartments namely that of the direct evidence and circumstantial evidence and because one compartment, viz., that of the direct evidence does not support the prosecution and therefore the second compartment that of the circumstantial evidence should also be disconnected and ignored !! The reason is that out of four prosecution witnesses, if two witnesses for whatever reason have no regard for the truth and do not support the prosecution, how indeed the court because of the hostility of the said two witnesses become hostile to the prosecution in fairly appreciating otherwise sterling dependable quality of the other two truthful witnesses !! In our opinion, when a Judge is called upon to decide a case, he has to first of all steer clear of the prejudices as well as fixed mind approach. He has to further steer clear of the straight-jacket formulas. He has also to steer clear of being unnecessarily mechanically obsessed and influenced by judgments of some High Courts or for that purpose even the Supreme Court which are indeed good in their respective ways in the facts and circumstances of that particular case, unless the points at issue are directly covered by the facts. In substance, when a Judge is called upon to decide case, he has to decide the same without being in any way swayed by the rhetoric arguments of the learned advocates or some mechancial reference to judgments, rather the court has to apply its mind afresh to the facts situation emerging from the record before it ! It has to first of all ask its conscience whether the evidence of the particular witness is dependable ? It has to further vouch-safe its conclusion by asking yet another important question whether the overall prosecution case is probable ? And further still, whether it would be risky and hazardous to rely upon the evidence of particular witness to base the order of conviction and sentence !! If after satisfying the conscience on these three counts, if the court feels that the case on hand is one that of acquittal, the accused must be declared acquitted forthwith and as against this, if the case was found to be one that of the conviction, the accused must be convicted. A Judge would be giving reasons for whatever conclusion he is reaching thereby the transparency of the Judge and the judgment would be ex-facie clear on the record. A Judge has an accountability to his own conscience and also to society for the social justice. Accordingly, at the cost of repetition it may be once again stated that whenever any matter comes up before it, the court should not lose its objectivity and dispassionate approach and must address itself directly to the evidence on the record whether it satisfies its conscience or not !! Once this test of accountability and self-satisfaction is satisfied, then giving the reasons without resorting to any straight-jacket formulae, the pure and simple justice can be delivered. This we are high-lighting because many a times in some cases judgments on both sides are available and accordingly the trial Judge feels himself on cross-roads rather embarassed and on the horns of dilemma, as to which judgment should be followed and which one not, what is to be done and what is not to be done ! Infact, this is not to say that the judgment of the High Courts and /or for that purpose of the Apex Court are of no help to any court. They do render valuable assistance. They are the light-houses which guide us like the polestar to go in the right direction. Polstar only points out that a particular direction from where it is shining is North and on the basis of that, navigator ultimately adjusts his sailing direction to reach his destination. To this extent, on facts the judgments are useful, must be made use of, but it is thus far and no further. What has been prefaced here is prefaced only with a view to see that while appreciating the evidence in the light of the various decisions, we also do not wander away on the cross-roads, cross-authorities available on both the sides. Having made this preliminary discussion as to how the facts-situation and law is required to be appreciated in criminal trial, we now proceed to examine various submissions made by the learned advocates appearing for the respective parties. Since at the very outset we have already expressed that though PW-1 and PW-2 (first panch) did not support the prosecution, still however since the evidence of PW-3 and PW-5 PI ACB are found to be beyond doubt and of dependable quality , that is to say since we are accepting the submissions made by the learned APP, we straightway proceed to deal with the submissions made by Mr. Budhbhatti, the learned advocate for the respondent-accused. 9. While making some valiant efforts to support and sustain the impugned order of acquittal, Mr. M.J. Budhbhatti, raising the preliminary objection, submitted that PW-5, PI ACB, Godhra who investigated the offence was only PI, he accordingly, in view of the specific provision in section 17 (c) of the Corruption Act, since it is mandatory that investigation should be carried out only by the officer of the rank of Dy. SP or a police officer of equivalent rank, and he was not so authorized by the Government by general or special powers and further since that in the instant case, the prosecution has led no evidence to show that PW-5 PI ACB was so authorized to investigate, the investigation being ex-facie illegal, the trial was ab-initio-void. Now ordinarily, it is quite true that if PI was to investigate the case under the Corruption Act, then as required under the provisio to Section 17(c) of the Corruption Act, he must have been so authorised by the State Government in this behalf by general or special order. It is also true that in the instant case the prosecution has not brought on record the said authorization by the State Government by Special or General Order. However, it appears to us that but for such an authorisation, PW-5 PI, ACB ordinarily would not have arranged trap and investigated the case, and accordingly,