L.......T.......T.......T.......T.......T.......T.......T....TM 2 CRIMINAL APPEAL No. 879 of 1994 DATE OF DECISION : 18-12-1996 For Approval and Signature : THE HON'BLE MR. JUSTICE K.J VAIDYA AND THE HON'BLE MR. JUSTICE M.H KADRI THE STATE OF GUJARAT versus GHANSHYAMSINH RANCHHODSINH VAGHELA 1. Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2. To be referred to the Reporter or not ? YES 3. Whether their Lordships wish to see the fair copy of the judgment ? NO 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any other order made thereunder ? NO 5. Whether it is to be circulated to the Civil Judge ? YES to all Special Courts. Mr. J.A Shelat, learned APP for the Petitioner. Mr. K.B Anandjiwala, learned advocate for the Respondent. CORAM : K.J VAIDYA & M.H KADRI, JJ. 18-12-1996 C.A.V JUDGMENT (Per: Vaidya,J.) This appeal by the State of Gujarat is directed against the impugned judgment and order dated 6-5-1994, rendered in Special Case No. 4/93 Passed by the learned Special Judge, Ahmedabad (Rural), wherein the respondent-Ghanshyamsinh Ranchhodsinh Vaghela, on his coming to be tried for the alleged offences punishable under sections 13 (1) (d), (i), (ii), (iii) and 13 (2) of the Prevention of Corruption Act, 1988, was at the end of the trial ordered to be acquitted. 2. According to the prosecution, PW-4 Virsinh Ambaliyar, PI, ACB, Ahmedabad, on 9-11-1989 received an information that near Narol Highway road, local police, traffic police, police attached to the Mobile Court and Forest Officers were demanding and accepting the bribes on one pretext or the other from the Drivers of the vehicles passing to and fro. On the basis of this information, PW-4 requisitioned services of two Panch witnesses viz. PW-2 Mahendra Naranbhai, and Sunil Manubhai (not examined) employees serving in RTO, and on their appearing before him on 10-1-1989 at 8-15 AM in ACB office, they were posted with the aforesaid information and were instructed to accompany him to Narol highway to lie in wait for passing vehicles. The first part of this proceeding were taken down in the panchnama Exh. 14 drawn at the Shahibaug office of the ACB which was completed at 9-15 AM. This in turn was duly signed by the said two panchas and PW-4 PI-ACB. Thereafter the raiding party consisting of two panchas, PW-3 Bhalchandra Patil, H.C., A.C.B, lead by PW-4 in a Government vehicle proceeded towards the Narol National highway No. 8. At about 10-00 AM one Tempo bearing No. GRX-5314 came from Naroda side which was stopped and on inquiring the name of its driver, he gave-out the same as Vasant Mangilal Patel, who is PW-1 in the instant case. PW-4 thereafter introduced himself and other members of the raiding party to PW-1 and posted him with the aforesaid information regarding the demand and acceptance of the bribe money from drivers of the vehicle also further inquiring from him as to whether he would like to act and co-operate as a decoy witness in the proposed raid ! On PW-1 showing his willingness to act as such a witness, five currency notes one out of which was of Rs. 20/= and other four notes of Rs. 10/= totalling Rs. 60/- were produced the number of which were noted down in panchnama Exh-14. Thereafter, the person of PW-1 was searched. Usual anthracene powder test, prior to the smearing it with currency notes and thereafter after applying the same, was carried out which was ultimately placed in the left hand side pocket of bush-shirt put on by PW-1. Thereafter, PW-4 instructed firstly, PW-1 that till the time the bribe amount was demanded, he should not touch the currency notes kept in his pocket for the said purpose, and secondly, P-2 Panch and P-3 to sit in the driver cabin of the Tempo alongwith PW-1 and to proceed ahead, from Narol towards Vishala circle. PW-1 in particular was further specifically instructed that if any Government employee stopped his vehicle, then to stop it atonce and pass on the information whatever he solicited, and on demand of bribe being made, the currency note of Rs. 20/= smeared with Anthracene powder kept in pocket of his bush-shirt be given to him. Moment this bribe amount was accepted, he was further instructed to give signal by waving out his hand from the cabin window three times. PW-2 and PW-3 were also instructed to be by the side of the PW-1 and see and hear whatever transpired in between PW-1 and the accused demanding and accepting the bribe. This part of the proceedings was also taken down in the second part of Panchnama Exh-14 which was completed at 11-15 AM duly signed by the PW-2 Panch, another Panch Sunil (not examined) and PW-4. Thereafter, PW-1 alongwith PW-2 and PW-3 sitting in cabin with him drove his vehicle towards Narol Highway which was followed by PW-4 and second Panch in another vehicle. At 11-35 AM when this raiding party reached Vishala Circle, the Tempo was stopped by one person clad in Khaki Vardhi who after some inquiry demanded the money from PW-1 who took out the currency note of Rs. 20/= from his pocket which was accepted by him by his right hand and placed in the right side pocket of Vardhi pent. Immediately thereafter, as instructed on getting the pre-arranged signals, the raiding party swung into action and caught hold of the person accepting the bribe amount. PW-4 introduced himself to the person who accepted the bribe amount and on inquiring about his name he gave it as Ghanshyamsinh Ranchhodsinh Vaghela. Thereafter, PW-4 on inquiring from PW-2 Panch as to what had happened, he narrated the entire incident. Thereafter, the post raid examination in the light of the ultra-violate lamp was carried out, wherein on seeing both the hands of Ghanshyamsinh, his fingers and thumb tips were found smeared with Anthracene powder. Not only that but the Pant and the Bush-shirt put on by the accused when seen in the light of ultra-violate lamp, the right hand side as well as inside of the pocket were found smeared with the Anthracene Powder. Thereafter Panch-1 was directed to search Ghanshyamsinh and take-out whatever was found from the pocket of the pant put on by him. During this search of accused, the currency notes of Rs. 562/- were taken-out from the left-hand side pocket, while from the rear side pocket, some coins of Rs.7-30 PS, and from the right side pocket Rs.20/= were recovered. The number on the said currency note of Rs. 20/- was tallied with the number given in the Panchnama Exh-14 which was found to be the same !! Thereafter, on examining this currency note also in light of the Ultra-violate lamp, marks of Anthracene powder were noticed on both its side. Thereafter these currency notes in question, coins and the Memo Book were seized under the panchnama (Exh-14). Thereafter when both the hands of PW-1 were seen in the light of ultra-violate lamp, on the tip of the right thumb, marks of Anthracene powder was noticed. After this was over, the accused was given a receipt of whatever things were seized from him. All these things were noted down in the third stage Panchnama (Exh-14) at 15-00 PM drawn near Vishala Hotel, Chamunda Tea Stall. On the basis of these facts, PW-4 lodged a complaint mark 11/1 (ought to have been given due exhibit) for the aforesaid alleged offences under the Corruption Act, against the respondent accused on the very day. Thereafter, after the investigation was over on receipt of the sanction to prosecute, chargesheet was filed against the accused for the alleged offence to stand trial before the Sessions Court, Ahmedabad (Rural) at Ahmedabad. 3. At trial accused pleaded not guilty and claimed to be tried. He also submitted his written defence at Exh.23 wherein in substance it is his case that at the relevant time, he was serving as a police constable in traffic branch and was attached to the mobile court. He has also admitted that on the date of the alleged raid, he had stopped Tempo bearing No. GRX 5314 coming from the Narol side, and demanded papers from its driver, which since the same were not given, he had started noting down the name of the driver for issuance of the memo. It is his further case that on the said driver not complying with the direction and when he once again demanded papers and since the same were not given, he asked driver of the tempo (PW-1) "what do you want to do ?? Why don't you give name ? To this - instead of giving his same the driver while sitting in the vehicle, tried to place something on memo book in the hand whereupon he moved away. Immediately thereafter person coming from behind caught hold of him. In substance, it is his case that he has been falsely implicated !! 4. The trial court after duly appreciating on the one hand the prosecution evidence brought on the record and on the other hand defence version, acquitted the accused in substance on the following grounds, giving rise to the present appeal by the State. 4.1 That PW-1 the decoy witness has backed out from the prosecution case on the crucial part of the evidence regarding illegal demand and acceptance of the bribe money by the accused from him, and accordingly, he having been declared hostile to the prosecution was not dependable. 4.2 That likewise the evidence of PW-1, due to several infirmities enlisted in detail in the judgment, the evidence of PW-2 (Panch) is rendered doubtful and therefore not dependable. 4.3 That so far as PW-3 is concerned, his evidence pales into insignificance in view of the doubtful nature of the evidence of PW-1 and PW-2. 4.4 That so far as PW-4 is concerned, his evidence is found to be not acceptable on the ground that there are certain omissions in the complaint which assumes quite great importance more particularly in view of the infirmities in the evidence of PW-1 and PW-2 highlighted above. According to the learned trial Judge firstly what is stated before the court does not find place and reflected in the complaint. According to the learned trial Judge, PW-4 has admitted that he has not stated that the currency note of Rs.20/= smeared with Anthracene powder was recovered from the right hand side pocket of the pent. It is also admitted by him that he has not stated that Anthracene powder marks were noticed when the pant of the accused was examined in ultra-violate lamp, and on the right hand side finger tips Anthracene powder marks were noticed. 5. Heard learned APP Mr. Shelat and Mr. Anandjiwala learned advocate appearing for the respondent-accused. According to the learned APP, impugned order of acquittal is ex-facie illegal and deserves to be quashed and set-aside on the ground that the appreciation of evidence made by the learned trial Judge is quite perfunctory and illegal, ignoring some of the Supreme Court decisions wherein despite the complainant and Panch not at all supporting the prosecution case, solely accepting the evidence of the raiding officer accused have been convicted on charge of accepting bribe. The learned APP further submitted that PW-4 PI-ACB had indeed no reason to falsely frame-up accused if indeed he was innocent who was also a police constable. In fact, nothing is either alleged against PW-4 in his cross-examination nor anything is probablized from the attending circumstances from which it could be spelled out that he was a liar, interested party to a false trap and therefore disbelieve him !! On the previous tip-off arranging raid, selecting PW-1 as a decoy witness, requisitioning the services of two panchas, going to the alleged spot, the immediate recovery of currency note of Rs. 20/= from the pocket of accused smeared with Anthracene powder, its numbers tallying with the numbers and other contents given in panchnama Exh-14 and the complaint of PW-4 and the overall contents of contemporaneous record viz., Panchnama Exh. 14 supporting the original prosecution case - all these in quick succession are indeed quite strong circumstances to held accused guilty for the alleged offence. As against this, Mr. K.B Anandjiwala has vehemently supported the impugned judgment and order of acquittal by vigorously defending each and every reasons for the acquittal given by the trial Court. Mr. Anandjiwala has also raised an additional point that once it is found that panchnama Exh-14 was not made at the time and place as asserted by PW-4 PI, ACB - whatever is stated therein thereafter is hit by Section 162 of the Code and hence not admissible. According to Mr. Anandjiwala since no case is made out on the basis of which the reasons given by the trial court can be said to be unreasonable, the order of acquittal cannot be lightly interfered with. Mr. Anandjiwala has also relied upon two decisions of the Supreme Court rendered in case of : (i) Gulam Mohmood A. Malek versus State of Gujarat, AIR 1980 Supreme Court 1558, and (2) G.V Najundiah versus State (Delhi Administration), AIR 1987 SC p-2402. 6. Now in order to properly appreciate the aforesaid submissions in their just and proper perspective, it is indeed necessary to once again minutely screen and scrutinize the prosecution evidence to judge it afresh. 6.1 PW-1 : Decoy-Witness : Driver Vasantbhai Mangibhai Accordingly, to start with his evidence, it indeed can not be gainsaid that so far as the alleged demand and acceptance of bribe-money is concerned, he has not supported the prosecution case so far as the actual wordings of 'demand and acceptance' are concerned. Thus, on casual reading and perfunctory appreciation of evidence of this witness, one may quite feel that he has knocked down the bottom of the prosecution case !! We are quite conscious of the fact that PW-1 is a decoy witness who has been declared hostile, but at the same time mere label of 'hostility' should not and can not be permitted to prevent and prejudice any court from examining the overall content of his evidence in its total perspective. A prosecution witness can be hostile in part or wholly. That is to say there can be a degree of hostility to the prosecution. In otherwords to the extent prosecution witness does not support prosecution case that much part of his evidence can rather must be be kept out of the consideration, but at the same time to the extent it supports the prosecution case, which in turn is not rendered improbable or false in cross-examination by defence advocate, the same can to that extent certainly and must be accepted and relied upon !! This is the only reasonable and prudent way of appreciating the evidence of hostile witness in a criminal trial - to ultimately reach at the just decision. Now it appears that merely because this witness for whatever reasons on demand and acceptance did not say anything in his evidence before the Court, on that ground alone he has been dubbed and declared hostile, as if he has taken out the entire wind out of the sail of prosecution, but if we otherwise with little more composure carefully see, the entire evidence of PW-1 right from the time PW-4 requested him to act as a decoy witness till the time raid was over, more or less, he has supported the prosecution case. This is clear when he admitted that at the relevant time when he was requested to act as a decoy witness, he was driver of Tempo bearing No.GRX-5314. He has also admitted that on the date of the incident, he was returning with empty vehicle and was passing through Naroda National Highway going to Ahmedabad where at about 11-00 AM the officers of Anti Corruption stopped him and requested him to act as a decoy-witness. He has also further admitted that he was posted with information regarding bribe amount demanded and accepted from vehicle drivers by some police personnels, etc. etc.. He has also admitted about Rs. 60/= (including Rs. 20/= currency notes) and instructed that if anybody demanded money, then only that was to be given. He has also admitted that the amount of Rs. 60/= comprised of the currency notes, out of which one note was of Rs.20/= denomination. He has also admitted that in his cabin, PW-2 Panch, PW-3 were sitting alongwith him by his side !! He has also admitted that while driving the vehicle, when he reached near Vishala, he was stopped by one Constable (accused) demanding the papers and licence. At this stage, this witness, for the reasons best known to him, or perhaps the reason too well known to all of us that he became little lukewarm in giving exact evidence before the court on demand and acceptance of the bribe money !!! When he said that on the accused Constable demanding from him licence and papers along with licence and papers he gave Rs. 20/-. He has also stated before the court that the person who demanded licence and papers was present in the court i.e. the accused and that he was in an Uniform. It is because of this infirmity that the learned PP was constrained to declare him as hostile. Ordinarily, when a witness is declared hostile and in turn is confronted with his previous police statement, (for that purpose in the instant case his complaint) by the learned PP in charge of the matter, he always starts denying the prosecution case by saying to quote "It is not true that it was like this or it was like that etc. or he has not stated so in his complaint or the previous police statement as the case may be.". Now, instead of doing this if we closely peruse the admissions after admissions of this witness in his cross-examination by the learned APP, he has gone on admitting most of the prosecution case, save and except actual words of demand uttered by accused. To reproduce some of the admissions made by PW-1 in his cross-examination, it may be stated that (i) in para-13, PW-1 has admitted to quote - "it is true that thereafter I was instructed that I should take Panch No. 1 (PW-2) and PW-3 ACB Police Inspector in my vehicle and to proceed towards Narol circle towards Vishala Hotel and in case if the local traffic personnel or the police personnel of the mobile van ask to stop the vehicle, to stop it. In para 14, PW-1 admits to quote - "I was also instructed that for one reason or the other if the bribe amount was demanded then the muddamal currency notes smeared with Anthracene powder should be given to the person stopping the vehicle and moment said currency note was accepted, to take out his right hand from the cabin and give signal by three times waiving the hand. (iii) I was also instructed that on way, if local police, traffic police or personnel of mobile van or officer of the forest department stops the vehicle, whatever take that may take place between me and the said officer be heard and what the transaction took place". This instruction was given to Panch no. 1 (PW-2). (iv) In para-16, it is admitted that Panch No. 2 and other persons of the raiding party were instructed to follow in a government vehicle and on pre-arranged signals being made to run, caught hold the officer stopping the vehicle and demand and accepting the bribe. (v) It is also admitted to quote "panchnama regarding the aforesaid was drawn near Narol Circle and thereafter at 11.20, I and Panch No. 1 (PW-2) and other personnels of ACB was coming behind. At about 11.45, near Vishala Hotel Circle, Chamunda Tea Stall, a Police Constable gave signal to stop the vehicle and accordingly I stopped vehicle on the side of the road and thereafter G.R Vaghela ie., to say the accused demanded papers of the vehicle. (iv) In para-19 it is stated, to quote - "It is therefore that ACB personnel stopped Ghanshyamsinh and introduced himself. Saheb of the ACB directed Ghanshyamsinh to stand there in the same position (and not to move). Thereafter, ACB inquired from Panch No. 1 (PW-2) as to where was the muddamal currency note, to which Panch gave reply. Thereafter, ACB personnel inquired about the name and Buckel number from Ghanshyamsinh, it was given by him. (vii) It is also admitted by PW-1, to quote "that thereafter examine both the hands of Ghanshyamsinh in the light of ultra violet lamp and at that time his right hand finger and thumb as well as mountain of the palm was found shining white with the anthracene powder. It is also true that the memo book and the left hand of Ghanshyamsinh was not found with the marks of Anthracene powder. On throwing light of the ultra violet lamp on the right hand side of the pant, its border and inside portion, anthracene marks were noticed. (viii) In para 20, it is further stated, to quote - "that the right hand side of Ghanshyamsinh on search being taken by PI a currency note of Rs. 20/= was recovered, which was found tallying with the number earlier noted in the panchnama Exh. 14. (ix) In para-23, PW-1 also admits, to quote - "that over and above the muddamal currency note of Rs. 20/=, other currency notes valuing Rs. 562/= and coins of Rs. 7-30 were recovered. He also admits that pant put on by Ghanshyamsinh was seized on the spot and that Ghanshyambhai was given receipt of the articles seized. (x) In para-24, PW-1 admits that thereafter Prathvisinh has carried out an experiment of my hands in the light of the ultra violate lamp and while examining my right hand, fingers and top of the thumb as well as mounted portion of palm were found to be shining with white smeared anthracene powder. All these aspects were noted down in the panchnama Exh. 14. Thus, it could be easily seen that PW-1 has quite conveniently winked and turn deaf ear to his seeing and hearing of actual transaction of demand and acceptance of the bribe money given to accused, on the rest of the important peripheral part of the prosecution case, PW-1 has supported the prosecution case, rather to put it more affirmatively he has not at all disputed the same ! This is the type of PW-1 complainant, who for the reasons unexplained, rather best known to all of us to reasonably infer that when he came to be examined before the Court, he has chosen to sit on the fence deliberately creating some doubt in favour of the accused thereby leaning in favour of the accused. In fact, in the background of this case it will not be unreasonable to infer why the complainant and/or for that purpose even the Panch witness became luke-warm and turn-coats !! These days, ordinarily to give an honest and truthful evidence against any accused person, much more so against the dreaded criminal/s and the accused police officer requires lot and lot of guts and courage for quite apparent, obvious and simple reason viz., that to do so would be to open the box of pandora. The lurking apprehension which grips and terrorizes and thereby sub-dues and demoralize the spirit and strength of the witness in giving truthful account to the court is that in case on the basis of his evidence, the accused is convicted and sentenced, he would not spare any efforts retaliating against him endangering his person and/or his family members' limb, life and liberty. May be these threats ultimately prove to be quite hollow !! But then a person suspecting any article to be poisonous one naturally will dare not taste it, save at the risk and cost of life !! Why should he do