CR.A/94/1989 1/84 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 94 of 1989 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA ========================================= = 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 ? ========================================= = SHIVPRASAD JAGDISHPRASAD SHARMA & ANR Versus STATE OF GUJARAT ========================================= = Appearance : MR KJ SHETHNA for Appellants MR SS PATEL APP for Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE J.R.VORA Date : 19/09/2006, 20/09/2006 21/09/2006 & 22/09/2006 ORAL JUDGMENT 1 The instant Appeal is preferred under Section 374 (2) of the CR.A/94/1989 2/84 JUDGMENT Code of Criminal Procedure, 1973, and is directed against the judgment and order dated 26th of December, 1988, delivered by Special Judge, Rajkot, in Special Case No. 21 of 1986, whereby present appellant No.1 Shivprasad Jagadishprasad Sharma being accused No.1 came to be convicted for the charges levelled against him under Section 161 of the Indian Penal Code as well as under Section 5(1)(d) to read with Section 5(2) of the Prevention of Corruption Act, while appellant No.2 – Dharamvirsinh Balvantsinh Jadeja, being accused No.2 came to be convicted under Section 165(a) of the Indian Penal Code. Appellant No.1 Shivprasad Jagadishprasad Sharma was sentenced to undergo imprisonment of one year and to pay fine of Rs. 1,000/- in default to undergo imprisonment for three months for the charges levelled against him under Section 161 of the Indian Penal Code as well as he was sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 1,000/- in default to undergo rigorous imprisonment of three months for the charges proved against him under Section 5(2) of the Prevention of Corruption Act, 1947. It was directed that substantive sentences were to run concurrently. While appellant No.2 was sentenced to undergo rigorous imprisonment for a period of six months and to pay fine of Rs. 500/- in default to undergo rigorous imprisonment for a period of one months for the offence proved against him under section 165(a) of the Indian Penal Code. CR.A/94/1989 3/84 JUDGMENT 2 The facts leading to the prosecution case against both the appellants are as under : One Vallabhbhai Savdasbhai Ramani, resident of village Jashvantpur, Taluka Lodhika, District – Rajkot and his brothers Kalubhai and Muljibhai as well as of one person, named as, Keshu Alarakha Sandhi of the same village wanted to grow eucalyptus in their respective land. They all wanted to cultivate and implant eucalyptus in their fields situated at village Jashvantpur. Vallabhbhai Savdasbhai Ramani for that purpose approached office of the Forest Department situated at Junction plot, Rajkot. All the four persons in written had preferred separate applications for distribution of eucalyptus saplings to them. Complainant – Vallabhbhai Savdasbhai Ramani himself approached with four applications at Junction Plot office of the Forest Department. He tendered those applications and inquired from the office that when such saplings were to be allotted to them. He came to know that the applications preferred by them would be forwarded by Junction Plot office to their Divisional Office situated at Multistoreyed Building, 5th Floor and complainant was required to inquire from that office in respect of saplings of eucalyptus. On 17th of July, 1985, complainant Vallabhbhai Savdasbhai Ramani had been to Divisional Office of the Forest Department situated in Multistoreyed Building. On enquiry, he came to know that the allotment of such saplings was done by appellant No.1 an employee of the Forest Department. The complainant thereafter CR.A/94/1989 4/84 JUDGMENT approached appellant No.1 and inquired about his applications as well as other applications. During conversation it was found that the applications preferred by the complainant and other persons had been received by the office of the appellant No.1. The complainant inquired that when such saplings were likely to be allotted to them. Appellant No.1 in reply stated that the saplings, as per the demand of the applicant and other persons, could not be allotted to them because there was scarcity of said saplings. Appellant No.1 stated that, at the most, one person could get 500 to 700 saplings where the complainant had demanded about 3000 saplings. The complainant, therefore, said to appellant No.1 that by merely 500 to 700 saplings, even one bigha of land could not be cultivated. Complainant requested appellant No.1 to arrange some more saplings. The appellant No.1 thereupon replied that on behalf of the applicant, he would request his superior and shall try to get as many more saplings as possible, but for that, the complainant would have to pay something to appellant No.1. Therefore, complainant said that he would obey the wish of the appellant No.1 and he would be pleased. The appellant No.1 thereupon stated that he would get allotment of 3000 saplings per application, out of which, 1,000 saplings would be free of charge as per the Government Resolutions and for remaining 2,000, each applicant would be required to pay amount of 0005 ps per saplings and that amount would have to be paid to the government by challan in State Bank. The appellant No.1 explained to the CR.A/94/1989 5/84 JUDGMENT complainant that over and above this amount, the complainant was required to pay some more amount to appellant No.1. After some time, appellant No.1 filled-in challans for each of the four applications in four copies and directed the complainant to pay the amount of saplings in State Bank of Saurashtra, situated at Shastri Maidan at Rajkot. The copies of those challans were delivered by appellant No.1 to the complainant and he asked that what amount would be paid to him. The complainant replied that he would pay the amount which might be demanded by appellant No.1. Thereafter the complainant left the office of the Forest Department and since it was 5.00 p.m., the bank was closed he went straight to his village. At his village, he discussed the matter with his two brothers and Keshu Alarakha Sandhi and stated that some amount would have to be given to the appellant. All the three persons authorised the complainant to make payment to appellant No.1. Thereafter two days, according to complainant, there was rain and he could not go to Rajkot for paying amount by challans in Bank and on 20th of July, 1985, complainant visited Rajkot and paid Rs. 400/- by challans in State Bank of Saurashtra for the saplings of eucalyptus for four applicants. After depositing the amount by challans in the Bank, with the copies thereafter he visited appellant No.1 and handed over those copies to appellant No.1. The appellant No.1 stated that the orders would be passed after his superior resumed the office. Thereafter, the complainant was called out of the office by appellant No.1 and stated to the CR.A/94/1989 6/84 JUDGMENT complainant that what happened about the amount to be paid to him. The complainant replied that the appellant No.1 would be paid. Thereupon, appellant No.1 demanded Rs. 200/- from complainant and stated that the saplings of eucalyptus were less in quantity and were in scarcity even though he arranged 12,000 saplings for four applications. The complainant thereupon stated to the appellant No.1 that he had not brought that amount with him and he was having only Rs. 20 to 25 and that he would pay appellant No.1 thereafter, but the appellant No.1 stated that after the work was done, none cared to make payment and, therefore, he directed complainant to visit the office on next Monday i.e. 22nd of July, 1985 and to make payment of Rs. 200/- to him and obtain orders for the allotment of saplings. Complainant agreed to this arrangement. However, complainant thought that it was not proper to surrender to illegal demand of the appellant No.1 and, therefore, he reached at the office of Anti Corruption Bureau at Rajkot. At about 16.00 hours he declared his complaint and the fact that the appellant had demanded Rs. 200/- for the orders of allotment of eucalyptus saplings and that he was called by appellant No.1 on 22nd of July, 1985, during office hours. Police Inspector Mr. Bharatsinh Prabhatsinh Sarvaiya recorded the complaint of the complainant and the complainant was directed to reach at ACB Office on 22nd of July, 1985 at about 9.30 a.m. with Rs. 200/-. The applicant was warned not to say anything about this to anyone. On 22nd of July, 1985, as per direction, the CR.A/94/1989 7/84 JUDGMENT complainant reached ACB Office. PI Mr. Bharatsinh Prabhatsinh Sarvaiya arranged two panchas, one Mr. Dipak Harshadbhai Trivedi and second Sureshkumar Karsandas Mardia for arranging trap. Both the panchas expressed their willingness to cooperate as panchas. Both the panchas were searched by PI Mr. Sarvaiya and were brought to the office of the ACB. Both the panchas and the complainant were introduced to each other. All of them thereafter introduced to other members of the raiding party. The complainant thereafter reported the facts of his complaint to panchas and others and both the panchas signed on the written complaint given by the complainant on 20th of July, 1985. Thereafter, complainant presented Rs. 200/-, two currency notes denomination of each of Rs.100/-. Numbers of both the notes were recorded in the panchnama. On searching of the person of the complainant, he was found wearing chorni (a small trouser ordinarily worn by peasant) and paheran (a kind of shirt ordinarily worn by peasant). This is a farmer dress in that area. The complainant was wearing undershirt known as `bandi'. On his shirt, there were two pockets, and out of this, the left pocket was empty while in right hand side pocket, there were currency notes of Rs. 40. One diary and handkerchief were found in the pocket of undershirt `bandi', which were kept as it where, and the amount of Rs. 40 found from `bandi' were placed in the pocket of `bandi'. Thereafter panchas took search of persons of all raiding parties and also offered the search of their person. The property of anthracene power and CR.A/94/1989 8/84 JUDGMENT ultra violet lamp were explained by Head Constable Indulal Trivedi and he thereafter took out one bottle of anthracene power and ultra violet lamp. Head Constable Indulal extracted powder by cotton pod from the bottle and placed the same on one blank paper. Thereafter, both the currency notes were smeared by anthracene powder through cotton pod by Head Constable Indulal Trivedi. The hands were seen in natural light, but no marks were visible, but while those notes were seen in the light of ultra violent lamp, on both sides of the notes, anthracene powder marks were visible, and on both hands of Head Constable Indulal also marks of anthracene powder were found. Indulal thereafter pull out both the notes and placed the same on left hand side pocket of the complainant Vallabhbhai. Thereafter Head Constable Indulal destroyed the blank paper and torn the same. The anthracene powder bottle was secured in a cup board and he washed his hands by soap. Thereafter hands of all of them were seen in the light of ultra violet lamp but nothing was found. PI Sarvaiya thereafter explained them to go to the Divisional Office of the Forest Department, situated at Multistoreyed Building and they were to alight from the jeep at some distance from the said building. Complainant was directed that with the company of panch No.1 he was to go to the said office and discuss with the appellant about quota of saplings and if appellant again demands for bribe in pursuance of his earlier demand, then the complainant was to give appellant No.1 the muddamal notes kept on his left CR.A/94/1989 9/84 JUDGMENT side pocket of paheran. He was also directed that if appellant No.1 accepted the said amount, then the complainant was to come out of office and give signal by moving his hands in a manner which might be seen by panch No.2 and other persons of raiding party who were to be stationed nearby the office of appellant No.1. The complainant was further directed not to touch the amount of muddamal unless the same is demanded by the appellant No.1. Panch No.1 was explained that he was to remain present with the complainant and attempt to hear the conversation which might take place between the complainant and appellant No.1 and to notice the passing of the amount, if any, between them in the secrecy of trap. It was pointed out that panch No.1 would also wear paheran and chorni. Those clothes were called for by Mr. Sarvaiya and panch No.1 changed his clothes into paheran and chorni, which is the traditional dress of the framers of that area. It was explained to panch No.1 if appellant No.1 asked about him, he should explain that he was a farmer of the village of the complainant. The raiding party members and panch No.1 were also instructed accordingly. At about 11.15 a.m. all of them reached near Multistoreyed building and jeep was parked near Jubli Chowk near Mohit Hotel, and all of them alighted from the jeep. From there, complainant and panch No.1 started walking towards the said office of the appellant No.1. Complainant and panch No.1 approached appellant No.1 in his office and appellant No.1 was sitting at his table. Two other employees sitting in the CR.A/94/1989 10/84 JUDGMENT office were watching the rally which was passing on road in agitation of reservation policy. At the time one more person, who turned out to be appellant No.2 thereafter, was standing near the table of appellant No.1. Complainant inquired about the saplings of eucalyptus from appellant No.1. Appellant No.1 directed the complainant to wait for sometime and, therefore, they sat on a wooden bench kept in the said office. In the meanwhile, appellant No.1 and appellant No.2 who was standing near the table of appellant No.1, talked amongst themselves in low tone. Thereafter, appellant No.1 stood up from this chair and gathered some papers and asked complainant to come out for a talk. He asked appellant No. 2 also saying that Jadeja come out. Therefore, both the appellants as well as complainant and panch No.1, all the four, came out of the office of the appellant No.1 to the lobby of the office. They were walking in the lobby and at that time appellant No.1 stated to the complainant that he had been to obtain orders of eucalyptus saplings, but had he brought the amount as decided earlier. Complainant replied that he had brought Rs. 200/- with him. Thereupon, appellant No.1 stated that his papers were ready and offered the papers to the complainant, which complainant took in his left hand and appellant No.1 further stated to the complainant that to give the amount of Rs. 200/- to appellant No.2. Therefore, complainant took out the amount of Rs. 200/- i.e. muddamal notes from his bandi by his right hand and gave the same to appellant No.2, who accepted that amount by his right CR.A/94/1989 11/84 JUDGMENT hand. At that time, in the said lobby, the raiding party members and panch No.2 were standing and they saw this and rushed near those four persons. P.I. Sarvaiya introduced himself to both the appellants and asked their names and addresses. Both the appellants were directed to remain as they were. The PI Sarvaiya asked the appellants that for what purpose had they accepted the amount. Both the appellants upon this question, were frightened and could not reply. PI Sarvaiya directed appellant No.2 to keep the amount as it was in the hand of appellant No.2. Thereafter, both the appellants and all the raiding party members went in the office of appellant No.1, where Head Constable Indulal was directed to execute ultra violet lamp experiment. Except the hands of the complainant and appellant No.2, the hands of all were seen in the light of ultra violet lamp, but no marks were seen in the hands of any of the members. Thereafter, panch No.1 was directed to take the currency notes of muddamal from the hands of appellant No. 2 and thereafter hands of appellant No.2 were examined in ultra violet lamp and it was found that right hand of the appellant No.2 was tainted with anthracene powder marks. Body of appellant No.2 was examined in light of ultra violet lamp, but nowhere any marks of anthracene powder were found. Thereafter, hands of the complainant were examined in ultra violet lamp. It was found that in the tips of the fingers and on the tips of the thumb of the complainant anthracene powder marks were visible. On examining the clothes of the complainant, anthracene CR.A/94/1989 12/84 JUDGMENT powder marks were visible on left side pocket of paheran. The currency notes which were recovered from appellant No.2 were also examined in the light of ultra violet lamp and it was found that on the hands of panch No.1 and on the currency notes, anthracene powder marks were visible. Thereafter, the number of both the currency notes were compared with the first part of panchnama and they were tallied. Those notes were seized and the papers given by appellant No.1 to the complainant, which were orders for the allotment of saplings of eucalyptus, were also seized. Both the appellants were searched in the presence of panchas. The receipt of seizure of currency notes from appellant No.2 was given to him and in the office copy, a signature was obtained. A panchnama was drawn for the said procedure which was over at about 14.30 hours. Appellant No.2 was arrested on the spot and was brought to the office of Anti Corruption Bureau. A crime came to be registered and investigation was started. Steps were initiated to obtain sanction to prosecute appellant No.1 and on receiving necessary sanction, appellant No.1 was arrested and both the appellants were charge sheeted for the offences, as aforesaid. 3 A charge against both the accused came to be framed by learned Special Judge on 31st of December, 1987 vide Exhibit-13 in respect of above said charges, to which both the appellants pleaded not guilty. CR.A/94/1989 13/84 JUDGMENT 4 The prosecution, therefore, was asked to prove the charge against the accused and the prosecution in all examined eight witnesses in oral evidence as under : 1) Vallabhbhai Savdasbhai, complainant, PW-1 (Exh.15) 2) Sureshkumar Karshandas Maradia, panch No.1, PW-2 (Exh.30) 3) Sugno Pohumal Chawla, PW-3 (Exh.32) 4) Dineshkumar Gopalbhai Kuril, PW-4 (Exh. 39) 5) Bipinkumar Natvarlal Gotech, PW-5 (Exh. 40) 6) Natvarlal Chunilal Thakar, PW-6 (Exh.43) 7) Ramniklal Sundarji Detroja, PW-7 (Exh. 46) 8) Bharatsinh Prabhatsinh Sarvaiya, PI, PW-8 (Exh. 50) 5 The prosecution also submitted documentary evidence as under : 1 Complaint dated 20.7.1985 – Exh.16 2 Order of allotment of Keshubhai Alarakha – Exh.17 3 Order of allotment of Vallabh Savdas – Complainant Exh. 18 4 Order of allotment of Kalu Savdas - Exh. 19 5 Order of allotment of Mulji Savdas – Exh. 20 6 Application of Kalu Savdas for allotment of saplings Exh. 22. 7 Pahnipatrak of Kalu Savdas – Exh. 23 8 Application of Mulji Savdas dated 8.7.1985 – Exh. 24 9 Pahnipatrak of the land of Mulji Savdas – Exh. 25 CR.A/94/1989 14/84 JUDGMENT 10 Application of Keshu Alarakha dt. 8.7.1985 – Exh.26 11 Pahni Patrak of the land of Keshu Alarakha – Exh. 27 12 Application of Vallabh Savdas – complainant dated 8.7.1985 – Exh. 28 13 Pahnipatrak of the land of Vallabh Savdas – Exh. 29 14 Panchnama - Exh. 31 15 Forwarding Letter dated 11.7.1985 for forwarding the applications by the Junction Plot Office to the Multistoreyed Building – Exh. 33 16 Extract of Challan Register - Exh. 34 17 Challan Number - Exh. 35, 36, 36 and 38 18 Compared extract of Nana Khedut Register of 36th Van Mahotsav of the Office of Rajkot – Exh. 42 19 Mota Khedut Register – Exh. 44 20 Appointment Order dated 16.6.1981 – Exh. 47 21 Copy of the order of transfer of accused No.1 Exh. 48 22 Sanction to prosecute accused No.1 – Exh. 49 23 Copy of seizure memo of currency notes – Exh. 51 6 After the evidence was declared over by the prosecution, both the appellants were asked about their explanation in respect of the circumstances appearing against each of the appellant. Denying the evidence in toto, appellant No.1 further explained in his further statement that the applications of the complainant and others were received in his Office on 17th of July, 1985, his Superior Officer Mr. Kuril directed him to allot 1,000 saplings free and 2,000 saplings on payment and to allot saplings after payment is made through challans. The complainant CR.A/94/1989 15/84 JUDGMENT had demanded 7,000, 4000 and 3,000 saplings and he expressed his inability to allot saplings in that quantity. It is the case of the appellant No.1 that on refusal by him, the complainant got angry and attempted to pressurize appellant No.1 saying that he was Upsarpanch of village Jashvantpur and he would see as to how he would not get the quantity of saplings as desired by him and thus complainant had given threats to him. It was also admitted by him that on 20th of July, 1985, the complainant had visited his office and delivered copies of the challans in token of having paid the amount to the government and he demanded allotment orders. Appellant No.1 further stated that he said to the complainant that no officer to issue order was available in the office and the complainant was asked by him to wait for some time and after concerned officer come to the office, he would take the signature of the said officer and deliver the orders. Appellant No.1 further stated that the complainant replied that he wanted to go out and he was in hurry and demanded orders then and then with angry mood. The appellant No.1 further stated that thereafter when the complainant left the office was not known to him. The appellant No.1 further explained that on 22.7.1985, complainant had been to his office and asked for the orders for allotment of saplings and replied that those orders were ready and handed over the orders to the complainant in his office. The appellant No.1 further explained that thereafter the complainant went out and came again with P.I. Sarvaiya and one person wearing dress of peasant CR.A/94/1989 16/84 JUDGMENT and he was apprehended from ground floor and was brought to the 5th Floor. The appellant No.1 further explained that panch No.1 was serving in government college and being public servant he was deposing falsely against him to help the prosecution. He also further stated that panch No. 1 was the neighbour of P.I. Sarvaiya and was under the pressure deposed against him. He further stated that under the scheme of Van Mahotsav, wherein the saplings were to be allotted was entirely looked after by Mr. Kuril, who was his superior. He further stated that Mr. Kuril was out of the office and the signature on the challans were taken of one Mr. Budhwani on that day. He further stated that the complainant, being Upsarpanch and politician, had demanded first 7,000 saplings, then 4,000 and then 3,000 saplings for each applicant. He further explained that the complainant had given threats, but it was not within his power to allot that much saplings to the complainant and other persons, the complainant lodged false complaint against him and false raid was carried out. 7 Appellant No.2 in his further statement explained that he had gone to the office of the appellant No.1 on 22nd of July, 1985, for the first time for obtaining saplings of eucalyptus. He stated that he did not know appellant