CR.A/5/1992 1/49 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 5 of 1992 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= KESARISINH PRATAPSINH CHAUHAN & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR PR ABICHANDANI for Appellant(s) : 1 - 2. MS.PANDIT, ADDL.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 16/04/2007 CAV JUDGMENT Present appeal is preferred under Section 374 read with Section 386 of the Code of Criminal Procedure, assailing the legality and validity of the CR.A/5/1992 2/49 JUDGMENT order of conviction and sentence passed by the learned Special Judge, City Civil Court, Ahmedabad in Special Case No.24 of 1989, on 25th October, 1991, whereby both the appellants-accused were convicted for the offence punishable under Sections 13 (1) (d) (i), (ii) and (iii) of the Prevention of Corruption Act and were sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.1,000/-, in default thereof, to undergo simple imprisonment for three months. 2. Mr.P.R.Abichandani, learned Counsel appearing for both the appellants has taken me through the relevant part of the impugned judgment and order of conviction and sentence, so also, the main grounds of challenge mentioned in the paragraph 11 of the memo of appeal. On the other hand, Ms.Pandit, learned A.P.P., has also taken me through the oral as well as documentary evidence led during the course of trial. Before referring the gist of the submissions, it would be convenient to state the case of the prosecution in brief. Of course, the integrated case of prosecution is reflected in charge at Exh.4. CR.A/5/1992 3/49 JUDGMENT 3. According to the prosecution, both the appellants were serving as unarmed Police Constable on 29th September, 1988 at Shahpur Police Station and were posted at Rangila Police Chowky of City of Ahmedabad. The complainant, Balchand Aatmaram filed a complaint against the appellant-original accused No.1, who was serving with D-Staff squad of Karanj Police Station. The appellant-original accused No.1 had booked a case against the complainant under Section 55 of the Bombay Prohibition Act, for possessing prohibited liquor. The Karanj Police Station was separated and on creation of Shahpur Police Station, service of accused No.1 was placed at Shahpur Police Station. The original accused No.1 impeached the complainant that he is selling prohibited liquor and therefore he should pay Rs.50/- as installment per month to him. Accordingly, the original accused No.1 demanded Rs.50/- on 29th September, 1988 and had agreed to accept the same. It is further the case of prosecution that complainant was not in a position to pay the said installment of Rs.50/- per month and he, therefore, was avoiding to pay but accused No.1 was in turn harassing the complainant since last three to four days prior to lodging of the complaint. The accused CR.A/5/1992 4/49 JUDGMENT No.1 told the complainant that, if he fails to pay the amount of Rs.50/- per month, he will file a false complaint against him under the N.D.P.S. Act. The appellant-original accused No.1 was making demand in the area situated opp. Reserve Bank of India Building, near the bank of Sabarmati River where the complainant was working. According to the prosecution, the complainant was otherwise running a paddle rickshaw and was doing labour work of delivering of cane furniture. The complainant was under pressure of demand of bribe and last meeting between the complainant and original accused No.1 was taken place on 27th September, 1988. However, the amount of bribe was not given by the complainant. The original accused No.1 told the complainant that he will collect Rs.50/- from him on the next date at about 7:00 p.m. and original accused No.1 had also given a threat to the complainant that, if he would not make the payment, a case was filed under N.D.P.S. Act against the complainant. The complainant under this pressure had decided to lodge the complaint against the original accused No.1 and in turn the Trapping Officer arranged the trap, calling two Panchas. As the amount of bribe was to be paid to the original accused No.1 on 29th September, 1988 at CR.A/5/1992 5/49 JUDGMENT about 13:35 hours on the west side of Gandhi Bridge, near Reserve Bank of India, both the appellants- accused went there at the place which was near one Hari Krishna Pan Center. Initially, the original accused No.1 was to come for accepting the bribe amount at 7:00 p.m., on 28th September, 1988 but the accused had not come, and so the trap was closed / suspended and the complainant was instructed to approach the A.C.B. Officials, if the demand of bribe was to be repeated. On 29th September, 1988 at about 8:30 a.m., when the complainant had reached at his work place near Pan Galla of one Naranbhai who was selling cold water had informed the complainant that yesterday the original accused No.1 met him at about 3:00 p.m., and was inquiring about him i.e. complainant. The said Naranbhai had also informed the complainant that he was asked by the original accused No.1-Kesharisinh to collect Rs.50/- from him and in turn he would collect the said amount from him in the evening on the next day. Therefore, the complainant had approached the A.C.B. Officials on 29th September, 1988. So, on 29th September, 1988 in the afternoon a trap was arranged and the raiding party was waiting for arrival of accused No.1. The accused No.1 came on two wheeler. The accused No.2 riding the rear sit CR.A/5/1992 6/49 JUDGMENT and on demand being made by the original accused No.1, the complainant gave bribe amount to the person sitting on the rear sit. That prior to handing over the muddamal currency notes to accused No.2 at the instance of accused No.1, some exchange of words took place between the complainant and complainant was asked to bring the packet of cigarette and in turn the complainant obeyed to the wish of accused No.1. As the accused No.2 had accepted the amount both the accused have been treated as accused though there is no reference to the name of accused No.2 in the first case which was placed before the A.C.B. Trapping Officer at the time of lodging complaint. 3.1 After the investigation, the Police found both the appellants-accused persons responsible for commission of offence punishable under the Prevention of Corruption Act and upon receipt of the sanction from the competent authority, the accused persons have been charge-sheeted and at the conclusion of the trial both the appellants-accused persons have been found guilty for the aforesaid offence. 4. According to Mr.Abichandani, the learned trial Judge has grossly erred in holding both the CR.A/5/1992 7/49 JUDGMENT accused guilty of the charge because there were no legal convincing and cogent evidence against any of these two accused persons. The learned trial Judge has ignored the settled legal position on appreciation of evidence and has recorded an incorrect finding of guilt. The Prosecution Witness No.1, complainant, Balchand Aatmaram, who has been examined at Exh.12 was declared hostile and has not supported the case of prosecution. Basically, the complainant, Balchand Aatmaram had checkered history and as he was regularly dealing in liquor business was aiming a transfer of accused No.1 from Shahpur Police Station. It is submitted that false trap has been arranged, as such there was no demand of installment of Rs.50/- by the accused No.1. The learned Judge has ignored the material conflict in the integrated story placed by the prosecution including the time factor which is very material and relevant in the present case. The complainant is a paddle rickshaw driver and was doing this activity in the day hours, and otherwise he was found involved in selling prohibited liquor and was knowing practically each Police Personnel working in the area of the complainant, including the accused No.1 and no reliance can be placed on the evidence of CR.A/5/1992 8/49 JUDGMENT complainant-Balchand Aatmaram who has turned hostile. It is further argued that the learned trial Judge has drawn inference on conjunctures. Some moral conviction of the Judge has weighed more than the facts available on record and details of legal evidence adduced by the prosecution. Only three material witnesses have been examined. One of them is the complainant, who is hostile witness and some material conflicts have been found in the depositions of Prosecution Witness No.2-Rajeshkumar Solanki who has been examined at Exh.13. The trial Judge ought not to have held that there is sufficient evidence as to the recovery of the muddamal currency notes from accused No.2 or any of the accused or accused No.2 had accepted the amount knowing it to be a bribe amount at the instance of accused No.1. The evidence of Prosecution Witness No.3-Shri V.J.Vyas, Police Inspector, who has been examined at Exh.17 was not sufficient to link the accused with the crime because after-all he is a Trapping Officer, interested in the result of the case. For the sake of argument if it is accepted that some part of evidence of Prosecution Witness No.3 can be read and considered as reliable piece of evidence, then also, the case would remain of mere recovery of the amount from accused No.2 CR.A/5/1992 9/49 JUDGMENT which was not a party in demanding the bribe amount. It is not the case of the prosecution that accused No.2 had ever met the complainant in the company of accused No.1. The accused No.2 may be the innocent and he may not have accepted any amount under any agreement or any understanding or even implied knowledge that he is accepting the currency notes which is nothing but an illegal gratification. 4.1 It is further argued by Mr.Abichandani that there were more than one reasons for the complainant to implicate the accused No.1 in serious crime. The accused No.1 had never demanded the amount nor had asked the complainant to pay the bribe amount on a particular date and time. The prosecution has failed in answering various questions and those questions have been placed by Mr.Abichandani before the Court. The questions posed by Mr.Abichandani if are pointed out and can be taken care of while dealing with the submissions made and evidence read over to me to avoid repetition. The sum and substance of submissions of Mr.Abichandani is that there are number of infirmities and conflict and learned trial Judge has failed in addressing these infirmities and conflicts which has resulted into a grave error. CR.A/5/1992 10/49 JUDGMENT When on first day a raid was failed, the Trapping Officer ought to have acted in a transparent way because in the present case the anthracene powder has been used. At least at the time of arranging the trap i.e. on the next day, 29th September, 1988, the Trapping Officer ought to have selected the Panchas from different offices. Non-examination of Naranbhai and Panch Witness No.2 adversely affects to the finding recorded by the learned trial Judge. The Panch Witness No.1 (Prosecution Witness No.2) himself had accepted that he was “hard of hearing” and the learned trial Judge has attempted to get herself satisfied by asking the question during the examination of this Panch Witness. Normally the complainant and accused would not talk with a comparative loud tone and a person standing in a witness box in a Court Room, where everybody is supposed to keep maximum silence and everybody is supposed to be very attentive on each minor aspect, whether act of answering the question put-forward by the Presiding Officer to the witness would make him unreliable qua the facts stated by him that he is hard of hearing, is also a question. According to Mr.Abichandani because of that infirmity that has emerged from deposition of Panch Witness No.1 CR.A/5/1992 11/49 JUDGMENT (Prosecution Witness No.2), there was no scope to link the accused with the crime. There is nothing on record to show that both the accused persons were in uniform. There is nothing in the impugned judgment about the duty hours of both the accused. Merely, because the accused No.1 had asked the complainant to bring the cigarette packet, any adverse inference could have been drawn against the accused or impliedly the accused No.1 would have been branded as corrupt or dishonest officer is the question. Because, there is nothing on record to show directly or indirectly that accused No.1 had not paid any consideration for the cigarette packet nor it was the intention of accused to pay any consideration for the said cigarette packet. It is true that doubtful integrity of public servants has an effect of poison in the society and therefore each corrupt Officer / Public Servant should be dealt with harshly and the presumption of innocent should not be stretched too much and that to beyond all reasonable probabilities. But the prosecution should attempt to prove the conduct of the accused by leading some convincing evidence and therefore the finding recorded against the accused on account of asking for bringing cigarette packet adversely affects to the objectivity CR.A/5/1992 12/49 JUDGMENT of the court. As the complainant was treated hostile, learned A.P.P., could have asked the complainant whether he was paid any consideration of the Bristol packet or whether the complainant had perceived the intention of the accused that he wants to enjoy cigarette at the cost of the complainant. 4.2 The learned trial Judge has considered inadmissible evidence while observing that Panchnama is a reliable piece of evidence because some crucial part of the Panchnama is nothing but the statement of accused which is inadmissible evidence in eye of law. On the date and time of trap, what was the location of Naranbhai or whether he was present or not, has not come on record. It was the month of September, in a hot city like Ahmedabad it was the correct business time for a person selling water occupying the small place on the public foot path as it was after 1:00 p.m. and before 2:00 p.m. What was the distance between the place where the bribe amount was accepted and shop of Pan Galla has also not come on record. Before linking the accused No.2 with the crime what was the distance between the accused No.1 and 2 was required to be established and the prosecution was required to prove that accused No.1 CR.A/5/1992 13/49 JUDGMENT was able to listen the conversation between the complainant and the accused No.2, so also, whether any conversation had taken place between the complainant and the accused No.1. In absence of such evidence, accused No.2 ought not to have been linked with the crime. 4.3 In the present case the objectivity and fairness in investigation is lacking. When initial demand is not found to be proved, the second part of the Panchnama should be viewed with doubt. The Court should quash and set aside the conviction and sentence of both the accused and at least both of them deserves to be given the benefit of doubt. 4.4 While submitting that the accused deserves to be given the benefit of doubt, Mr.Abichandani has pointed out one aspect which makes the case of the prosecution more improbable. Both the accused were in the Police Department and it has come on record that one of the accused was knowing the member of the raiding party and accused had conversation with that member of raiding party personally, the question posed by Mr.Abichandani is that when a person from A.C.B. Department is present in the near vicinity and CR.A/5/1992 14/49 JUDGMENT that too with a view to keep watch, whether any of the accused would accept the bribe amount is the question, and the learned trial Judge has ignored this aspect. In such a situation, it was required to be observed that this is a mere recovery of muddamal currency notes and not a recovery of the bribe amount. 5. Ms.Pandit, learned A.P.P., has submitted that the learned trial Judge has discussed the lame defence placed by the accused. Accused No.1 was making repeated demand of Rs.50/- as “Hapta”. Accused No.1 being outright corrupted person had no hesitation in accepting amount of bribe in a public view as that too at most busy road of Ahmedabad popularly known as Ashram Road. When it is not a matter of dispute that the area where the accused were trapped falls under the jurisdiction of Shahpur Police Station or adjacent to the area of Shahpur Police Station then, there is no reason for the learned trial Judge to discard the evidence of Police Inspector-Mr.Vyas and Prosecution Witness No.2 (Panch Witness No.1). It is satisfactorily proved that marks of anthracene powder were seen on the hands of the accused No.2. The prosecution was not supposed to CR.A/5/1992 15/49 JUDGMENT establish the fact of demand of bribe by accused No.2, because it is not the case of prosecution. The prosecution is consistent on the point that accused No.2 has accepted the amount on behalf of accused No.1 and under the instructions of accused No.1. There is sufficient evidence to prove the fact of demand of bribe amount made by the accused No.1. Of course, there is weak piece of evidence qua demand initially made, as the complainant has not supported the case of prosecution, but the conversation that had taken place immediately prior to passing of the currency notes clearly establishes that the bribe amount was demanded. In such a case, the initial demand can be presumed and therefore the learned trial Judge has held both the accused responsible. Panch Witness No.1(Prosecution Witness No.2) was present at the spot all through-out and there is no reason for the trial Court to discard his evidence. Why accused No.1 asked accused No.2 to accept the amount is a question. Accused No.2 ought to have refused to accept such amount but as as both were found guilty, a trap succeeded. The conversation between the accused No.1 and complainant has been proved. The behaviour of accused No.1 with complainant was friendly or unusual; why a Police CR.A/5/1992 16/49 JUDGMENT Personnel should act in such a casual manner and asked complainant to bring a cigarette packet. The learned trial Judge has correctly appreciated the conduct of the accused. Panch Witness No.1 has admitted to hold that accused No.1 was hard of hearing but ultimately he was caught by the Presiding Judge. The Presiding Judge is supposed to know domain and conduct of the accused for discarding the evidence whereby he has admitted that he is hard of hearing. The learned trial Judge has recorded her satisfaction on this point. There is no material error or illegality in the finding of the learned Special Judge and therefore the finding of conviction and sentence may be upheld. 6. There is no dispute as to the status of both the accused that they are public servant nor there is any controversy as to the legality and validity of the sanction to prosecute granted in the present case. The crucial question posed before the Court is whether the prosecution has satisfactorily proved that both the accused had demanded illegal gratification of Rs.50/- on 27th September, 1988 form the complainant-Balchand and that too by way of monthly installment. As per evidence on record, the CR.A/5/1992 17/49 JUDGMENT accused No.2 was not at all in picture so far as the demand of illegal gratification of Rs.50/- per month from the complainant is concerned. Accused No.2 had even prayed vide application at Exh.6 that he should be discharged but the said application was rejected and he has faced the prosecution. But, if the charge at Exh.4 is read alongwith the complaint recorded by Police Inspector, A.C.B. on 28th September, 1988, there is no case against the accused No.2 that he had demanded any illegal gratification. On the contrary, the basic story of the prosecution is that accused No.1 was demanding monthly installment since last three to four months alleging that complainant is selling liquor and therefore complainant would require to pay monthly installment of Rs.50/- and prior to about three days from the date of complaint, accused No.1 was repeatedly going at the place where complainant was sitting near one 'Pan Galla' on a public foot path and demanding the bribe and complainant was also given threat by accused No.1 that if complainant fails to give the amount, he would implicate the complainant in a false case under the N.D.P.S. referring the prohibited substance “Charas”. Thus, it is not even the case of prosecution that accused No.2 had either demanded the CR.A/5/1992 18/49 JUDGMENT bribe amount prior to 28th September, 1988 i.e. the date of complaint. As accused No.2 was not a party even in harassing the complainant then whether there was any scope for him to raise demand or to accept any illegal gratification from the complainant, is also a question. When the raid was arranged on the first day i.e. on 28th September, 1988, the same had failed / suspended. Even, when the raid was again arranged on 29th September, 1988, the accused No.2 was not in picture. Now, case placed by the prosecution and the evidence led is that muddamal currency notes were recovered from accused No.2, meaning thereby from a person who had never demanded the bribe amount. It appears that arrival of accused No.2 at the spot on two wheeler riding the rear sit was a matter of surprise, must be a matter of surprise or development so far as the members of raiding party and complainant are concerned. The learned trial Judge was under legal obligation to consider the written explanation given by accused No.2 in its legal perspective of a probability especially when he was not a party in demanding the bribe amount. According to accused No.2 he was asked to accompany accused No.1 by S.H.O. i.e. Police Sub Inspector and he was asked to be there on duty and the task given CR.A/5/1992 19/49 JUDGMENT to them was about tracing criminals and suspects. Of course, the prosecution is not supposed to lead the connective evidence in all cases unless such a negative evidence is badly required or with a view to expose false defence version. Here, there is no evidence of Sub Inspector of concerned Police Station or there was no reason for the learned trial Judge in discarding the say of accused No.2 that he was accompanying the accused No.1 as he was asked to be with accused No.1 by his Superior. When it is the case of the prosecution that when both the accused are serving under one Police Station, the say of accused No.2 is emerging as a probability. The case of the prosecution is that accused No.1 had demanded the amount. He was repeatedly demanding the amount of illegal gratification and accused No.1 had instructed Naranbhai to inform the complainant that he would come either in the evening or during afternoon hours and would collect Rs.50/- and Naranbhai was also asked to collect the amount of Rs.50/- from the complainant. It is the say of the prosecution that accused No.1 was to collect Rs.50/- from Naranbhai, so there was no certainty about arrival of accused No.1 at the place where Naranbhai was sitting to sell water on foot path which is the area near the Pan CR.A/5/1992 20/49 JUDGMENT Galla. Therefore, no fixed time was given either to Naranbhai or to the complainant. In the background of this fact the presence of accused No.2 is not emerging as incriminating circumstance against accused No.2 and if it is inferred that accused No.2 had accompanied accused No.1 on