CR.A/679/1988 1/38 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 679 of 1988 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= GULABSING PRATAPSINH PARMAR & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR KJ SHETHNA for Appellant(s) : 1 - 2. Mr L.R. Pujari, Addl.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 06/02/2008 ORAL JUDGMENT 1. By way of this appeal, the appellants have challenged the judgment and order of conviction and sentence dated 26.7.1988 passed in Special Case No.3 of CR.A/679/1988 2/38 JUDGMENT 1988 by the learned Special Judge, Kheda at Nadiad whereby the accused No.1 was convicted under section 161 and 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act and was sentenced to suffer Rigorous Imprisonment for 1 year and pay a fine of Rs. 1,000/-, in default, to undergo further R.I. for three months. Accused No.2 was convicted under section 161 [c] of Indian Penal Code and was sentenced to suffer Rigorous Imprisonment for 1 year and to pay a fine of Rs. 1,000/-, in default, to undergo R.I. for three months. The accused have paid up the fine. 2. During the pendency of this appeal, both the appellants died and in pursuance of the order passed by this court, legal heirs of the appellants No.1 & 2 were allowed to continue with the proceedings of this Appeal. The facts necessary for disposal of the present appeal, in brief, are as under: 3. A complaint, Exh.10 was given by one Chandaben against the present complainant and other three persons namely Desaibhai Nanjibhai, Bai Dhuliben and Kantibhai Mangalbhai in Umreth Police Station. Kantibhai CR.A/679/1988 3/38 JUDGMENT Mangalbhai is the real brother of the present complainant whereas Desaibhai Nanjibhai is the uncle of the present complainant. The complaint was given under section 324 read with section 114 of IPC. The investigation of the complaint was given to the present accused No.1 who was, at the relevant time, serving as police head constable in Umreth police station. The complaint was filed on 13.6.1986. On 14.6.86, the accused no.1 went to the village Thamna where the complainant and other three persons were residing. Accused no.1 went to the village in auto rickshaw and took the Manubhai Mangalbhai (complainant & PW 1 in the present appeal) to the police station in the same rickshaw. It is alleged that he had beaten the complainant and locked him up in the police lock up. As a result of this, father of the complainant went there with Kantibhai and other persons of the village where Desaibhai Nanjibhai was also kept in police lock up. Thereafter, the three accused were released on bail at 6 p.m. After the release of the present complainant on bail, it is alleged that accused no.1 called on the present complainant and his brother Kantibhai and asked them to pay Rs.400/-. Though at that time they did not have any money with them, the accused no.1 insisted the present complainant to manage it anyhow. Thereupon, from CR.A/679/1988 4/38 JUDGMENT the father of the present complainant Rs.110/- was taken and it was given to accused no.1. Accused No.1 asked the complainant to pay the remaining amount of Rs.290/- on the next day but the next day being a Sunday, the complainant told accused no.1 that he will not be able to manage the fund on Sunday and on Monday, he will pay the remaining amount to accused no.1. On saying so, accused no.1 told the complainant to come at 5 p.m. on Monday, i.e. on 16.6.1986. As the complainant did not want to pay any bribe amount to accused no.1, on 16.6.86, he went to the Anti Corruption Office, Nadiad (for short, 'ACB' office) and lodged a complaint. After the complaint was recorded, Mr Maurya, P.I. wrote yadi to the RTO office which is also situated in the same compound and asked to send two employees to act as panchas. One Ashwin Jayantilal Bhavsar and Maganbhai Nathalal Prajapti both were sent by the RTO office. Mr Maurya introduced the complainant to the panchas and read over the complaint to them. Upon tendering the currency notes of Rs. 290/-, (denomination of 100 x 2, 50 x 1, 20 x 2) which was to be given as bribe to accused no.1, the P.I. carried out the usual experiment i.e. anthracene powder was smeared on the currency notes and instruction for experiment of ultra violet light was given. When the said currency notes were exposed to normal light, nothing appeared but CR.A/679/1988 5/38 JUDGMENT when the same was observed under ultra violet lamp, shining colours appeared. The tainted currency notes were placed in the pocket of the bush shirt worn by the complainant. Necessary instructions were given to panch no.1 to observe and hear the conversation that might take place between the accused no.1 and the complainant. On acceptance of the money, the complainant was instructed to signal by rubbing his hand on his head. Thereafter, the members of the raiding party including the father of the complainant, proceeded in a jeep to Umreth and stopped near the court building. Complainant and panch no.1 went to the Umreth police station where the accused no.1 was sitting in one room. Accused no.2 was also present. Then the complainant informed accused no.1 that he has brought Rs. 290/- as agreed by him on 14.6.86. Thereupon, accused No.1 told him that he does not accept money with his hand but he can hand it over to accused no.2. Thereupon, accused no.2 left the room and stood outside the office. The complainant went outside the office to the accused no.2 who asked for the money and the complainant took out the money with his left hand from the left pocket of his bush shirt and handed over it to accused no.2. It is alleged that accused no.2 accepted the same with his left hand and counted all the money and remarked that there is a CR.A/679/1988 6/38 JUDGMENT shortage of Rs. 10/-. The complainant replied that only that much amount had remained to be paid. Thereafter, according to the complainant, accused no.2 kept the amount with his left hand in the left pocket of his pant. Thereafter, as instructed, he signalled the ACB raiding team. So P.I., Mr Maurya and the members of the raiding party rushed there. He asked accused no.1 his name and introduced himself to him. Then the accused no.2 was taken to the room of accused no.1 and they carried out the usual experiment of anthracene powder with the help of ultra violet lamp and shining colour was found in the hands, on the border of the bush shirt, inside the trouser pocket of the accused as also in the hands of the complainant and on the currency notes recovered from the left pocket of the pant worn by the accused no.2. On search, some papers concerning Umreth police station were found from the pocket of the bush shirt of accused no.2. No marks of anthracene powder was detected from the clothes of accused no.1. Thereafter, second part of panchnama was prepared. The P.I. registered the offence on the next day and both the accused were arrested and sent to the concerned court. The investigation was completed and after taking the statements of the concerned witnesses the records were sent to the sanctioning authority and on receipt of the CR.A/679/1988 7/38 JUDGMENT sanction order, the accused persons were charge sheeted in the court of Special Judge, Kheda at Nadiad. Pursuant to that, the learned Special Judge framed charge-Exh.7 against the accused persons. Both the accused persons have not pleaded guilty to the charge and claimed to be tried. The trial, thereafter proceeded and the prosecution, in order to prove its case, had examined 10 witnesses namely; 1. PW 1 Manubhai Mangalbhai Bhoi, the complainant Exh.13 2. PW 2 Maganbhai Nathabhai Prajapati Exh.15 3. PW 3 Mangalbhai Ranchhodbhai Dharam Exh.20 4. PW 4 Kantibhai Mangalbhai Bhoi Exh.21 5. PW 5 Shamantsinh Lalsinh Dharam Exh.22 6. PW 6 Navinchandra Hiralal Joshi Exh.23 7. PW 7 Natversinh M Chavda Exh.26 8. PW 8 Manguben Govindbhai Dharam Exh.27 9. PW 9 Sitaram Viswanath Maurya , P.I. Exh.29 10.PW10 Ashwin Jayantilal Bhavsar Exh.38 4. To prove its case, the prosecution has also produced documentary evidence such as panchnama Exh.16, complaint, Exh.14 and the complaint lodged by Chandaben, Exh.10 and sanction Exh.12 etc. CR.A/679/1988 8/38 JUDGMENT 5. After filing the closing pursis of evidence of the learned Government Pleader, further statement of the accused no.1 and 2, were recorded by the trial court. Both the accused refused to examine their defence witnesses but they have submitted their written submissions. 6. On appreciation, evaluation, analysis and scrutiny of the evidence adduced by the prosecution both oral as well as documentary, the learned Judge held that the prosecution has established beyond reasonable doubt that the appellants-accused demanded illegal gratification and accepted the bribe money and convicted both the accused as referred to above. Hence the present appeal. 7. I have heard the learned Sr. Counsel, Mr K.J. Shethna on behalf of the legal heirs of the appellants and the learned APP, Mr L.R. Pujari for the respondent- State. 8. Learned counsel for the legal heirs of the appellants (hereinafter referred to as “appellants”) took this court through the entire evidence of the prosecution CR.A/679/1988 9/38 JUDGMENT witnesses, the complaint, oral as well as documentary evidence as well as to the judgment of the court below. He argued that the learned Special Judge has not appreciated the facts on record in its proper perspective and has completely erred in recording the conviction against the appellants-accused. He argued that the accused no.1 had never demanded any money from the complainant, that the prosecution has not been able to prove by reliable evidence that the demand was ever made by him. The prosecution has thus failed to prove demand or acceptance of the alleged bribe. 9. Learned Sr. counsel Mr Shethna vehemently argued that the accused has never demanded any bribe money for releasing the complainant and other co-accused in connection with the complaint lodged by Chandaben and, therefore, the question of demanding bribe money from the complainant after the complainant and the other co- accused were released on bail by accused no.1 does not arise and the learned trial Judge has not appreciated this aspect and thus committed error in convicting the accused persons. It is also argued by the learned counsel that it has come on record that both the panchas were “selected panchas” as they were called from RTO office which is also situated in the compound of Umreth CR.A/679/1988 10/38 JUDGMENT police station in which accused no.1 was serving as constable. It is argued by Mr Shethna that from this very fact, it can very well infer that reliance cannot be placed on the evidence of both the panchas. However, the learned trial Judge has committed error in not considering this aspect of the case. It is further argued by Mr Shethna that the complainant, PW 1 himself stated on oath in his evidence before the court that 2 to 3 Chapter cases were also instituted against him which clearly shows that PW 1, complainant is of doubtful character and hence, much weightage should not be given to his evidence. It is his argument that even if it is assumed that when part amount of Rs. 110/- was accepted on 14.6.86 by accused No.1 from the complainant for releasing the complainant and other co-accused on bail in the police station, then the question of refusing the remaining amount of Rs.290/- from the complainant on the day of the trap does not arise. He submitted that the trial court has not considered the same and by that committed error in convicting the accused persons on such evidence. 10. It is further argued by Mr Shethna that there were major contradictions in reference to the conversation part which took place between the accused CR.A/679/1988 11/38 JUDGMENT no.1 and the complainant in the evidence of PW 1, the complainant and also in the evidence of Panch witnesses, PW 2, the evidence of the Investigating Officer, PW 9 and P.W. 10 etc. which are fatal to the case of prosecution but the learned Judge has ignored the same by holding that they are minor contradictions and are not affecting the case of the prosecution and by that the learned trial Judge has committed error in convicting the accused. 11. It is also argued by Mr Shethna that as per the evidence of PW 2, Maganbhai Prajapati, (Panch No.2) had seen the complainant as well as accused no.2 at the time of handing over the money by the complainant to accused no.2 and he also stated that he had also seen accused no.2 accepting the said currency notes and putting it into his trouser pocket. He argued that this fact is not narrated in the second part of the panchnama and hence taking into consideration the overall evidence on record, it was not possible for this witness to see the complainant as well as accused no.2 together at the time of handing over the bribe amount by the complainant to the accused no.2. Even in his statement recorded under section 161 of the Criminal Procedure Code, before the I.O., this fact is not narrated. In spite of that only to help and oblige the prosecution, PW 2 gave false CR.A/679/1988 12/38 JUDGMENT evidence. Also this is not stated in the police statement which is supported by the deposition of the Investigating Officer which clearly shows that to oblige the prosecution agency, PW 2 has given false evidence and so the evidence of this witness cannot be looked into from any angle and could not be relied upon and thus, the learned Judge has committed error in convicting the accused persons. 12. Mr Shethna further argued that the conduct of the complainant and the Investigating Officer during the trap creates doubt about their evidence, credibility and trustworthiness. He argued that PW 10, Ashwin Jayantilal Bhavsar was examined after a long lapse of time in pursuance of the order passed by this court as he was not available at the time of recording the evidence of the case which creates doubt that he had given evidence only with an intention to oblige the prosecution agency and as he did not want to be a party to the false case lodged by the prosecution against the accused person, he chose not to remain present before the court for giving evidence. He also submitted that the panch witnesses were the chosen panchas as the office of the ACB and the RTO are situated in the same compound and it was the usual practice of the ACB office to call for panchas from CR.A/679/1988 13/38 JUDGMENT that office. 13. It is his argument that the trial court ought to have appreciated the fact that Rambhai Umedbhai and Vittalbhai Mangalbhai were also present on 14.6.1986 in Umreth police station as they stood as surety of the complainant and his brother Kantibhai. Those persons who are totally independent witnesses, have not been examined by the prosecution which is also fatal to the case of the prosecution. So there is no independent witnesses and reliance cannot be placed on the evidence of panchas and the lower court has ignored the same and thus committed error in convicting the appellants. 14. On the other hand, Learned APP, Mr L.R. Pujari submitted that after minutely scrutinising the evidence of the complainant and other witnesses including the panch witnesses and the I.O., the learned trial court has rightly convicted the accused persons and the judgment and order passed by the learned trial Judge is legal and proper and it is not required to be interfered with by this court and the appeal deserves to be dismissed. 15. Before dealing with the arguments of Mr CR.A/679/1988 14/38 JUDGMENT Shethna, it is required to refer to the defence of accused No.1 and 2. The accused no.1, has stated in his further statement recorded under section 313 of the Cr.P.C., as well as in the written submissions Exh.33 that he neither demanded nor received any amount from the complainant and absolutely false case is made out against him. It is also his defence that PSI, Prajapati had a grudge against him and he worked with Mr Prajapati and they were in inimical terms and to take revenge he made out false case of corruption against him (accused no.1). It is admitted by accused no.1 that he was in charge of the investigation of Criminal Case No.86/86 in pursuance of the complaint filed by one Chandaben against the present complainant and other co- accused persons. He also admitted that on 14.6.1986, he went to Thamna village for arresting the accused persons but the accused were not available and thus he had given instructions to the family members of the accused persons to send them to the police station. He also admitted that on the very same day, in the afternoon, accused (in the police case) Manubhai Mangalhai, original complainant, PW 1 in the present appeal, Kantibhai Mangalbhai and Desaibhai Nanjibhai came to the police station and after making preliminary investigation, they were arrested and kept in police lock up. He also CR.A/679/1988 15/38 JUDGMENT admitted that on the same day all the accused were released on bail. As nobody was there to stand as surety, Desaibhai Nanjibhai was kept in police custody. It is also stated by him that he had never demanded Rs. 400/- from the complainant or from any person. It is his say that on previous occasion also such attempts were made but failed. It is also his defence that one Bhikhabhai who was the cousin of the complainant was working in the ACB office and he also helped in filing this false case. 16. The defence of accused no.2 was that he was innocent and he was not aware of any talk which took place between accused no.1 and the complainant. The complainant forcibly tried to thrust some amount in his pocket and he resisted to it and during that time members of the raiding party came and he was arrested. It is his further defence that he was never involved in the alleged offence and he in his further statement stated that the seven papers concerning Umreth police station were never found from the pocket of his bush shirt but they were subsequently taken from the table of accused no.1 and in the evidence of PW 1 it was falsely stated that recovery of the said papers were from him. CR.A/679/1988 16/38 JUDGMENT 17. As per the written submission, accused no.2 was present in the police station when the complainant and panch no.1 approached the accused no.1 with money. Hence presence of accused No.2 is also proved by the evidence of the complainant, PW 1 and Panch No.1 and also he himself stated in his further statement that the papers which were alleged to have recovered from him, were collected from the table of accused no.1 by the Investigating Officer in Umreth police station. This also shows that accused no.2 was very much present at the time of the trap. 18. Now, let us discuss the evidence in reference to the defence put forward by the accused No.1 and 2. Deposition of PW 1 , Manubhai recorded is at Exh. 13. The complaint is at Exh.14. Whether the evidence of the complainant is trustworthy or reliable and inspire confidence is required to be seen. As per the evidence of PW 1, the complainant, Chandaben lodged a complaint against him as well as against his brother and one Desaibhai Nanjibhai and Dhuliben. In connection with the said case, accused no.1 arrested the present complainant in the morning from village Thamna and he was brought by accused no.1 to Umreth police station and put up in lockup. It is admitted by accused no.1 in his further CR.A/679/1988 17/38 JUDGMENT statement that he was investigating the complaint against those persons filed by Chandaben and that he had arrested Maganbhai, PW 1 on 14.6.1986 and brought to the police station. It is also admitted in his evidence that on knowing that the complainant was arrested, his father and brother Kantibhai came to the Umreth police station. It is also admitted by accused no.1 in his further statement that when specific question was asked whether father and brother of PW 1 came to Umreth Police station at 4 p.m. for releasing the complainant on bail, the accused No.1 replied that this fact is correct. So from the evidence of the complainant and as per the further statement of the accused no.1, it is proved beyond reasonable doubt that PW 1 was arrested on 14th early morning from the village and was brought to Umreth police station and was put up in lockup and for releasing him on bail, his father and brother Kantibhai came to the police station. After coming to the police station, his father came to know that Kantibhai, brother of the present complainant and Dhuliben were also accused in the complaint lodged by Chandaben. As per the evidence of the complainant, he was released on bail and thereafter, his brother and Dhuliben also were released on bail. After releasing them on bail, accused no.1 called the complainant, PW 1 and demanded Rs. 400/-. In reply, the complainant and his CR.A/679/1988 18/38 JUDGMENT brother told the accused no.1 that they did not have that much money. As per the evidence of the complainant, in spite of that accused no.1 insisted them to give the money on that day itself. As per the evidence, the complainant handed over Rs. 110/- to accused no.1 and accused no.1 asked him to give the remaining amount of Rs. 290/- as promised. On saying so, PW 1, the complainant told the accused that the next day being Sunday, it is not possible for him to make arrangement of the money. So accused no.1 asked him to come at 5.00 p.m. on Monday, i.e. on 16th, with the remaining amount. As he was not willing to give bribe money as demanded by accused no.1, he went to the ACB Office on 16th at 1.00 p.m. and lodged the complaint. In the complaint also the said fact is narrated by the complainant. 19. As per the evidence of the complainant, on 13.6.1986, a quarrel had taken place between Desaibhai Nanjibhai and his Bhabhi Chandaben and Chandaben had lodged a complaint, Exh.10 in Umreth Police Station against the Manubhai Mangalbhai Bhoi, the complainant and other three persons namely Desaibhai Nanjibhai, Bai Dhuliben and Kantibhai Mangalbhai. Kantibhai Mangalbhai is the real brother of the present complainant whereas Desaibhai Nanjibhai is the uncle of the present CR.A/679/1988 19/38 JUDGMENT complainant. The complaint was given under section 324 read with section 114 of IPC. The investigation of the complaint was with the present accused No.1 who was, at the relevant time, serving as police head constable in Umreth police station. This fact is also corroborated by the evidence of PW 5 Shamantsinh Lalsinh Dharam – Exh.22. According to the evidence of PW 5, Shamantsinh, he was In-charge of Umreth police station and on that day at 10.30 p.m., Chandaben lodged the complaint and in pursuance of the said complaint, crime was registered and investigation was handed over to accused no.1. Deposition