SALI!llOIAN SARDAHKBe\N

Vo STArE OF GUJARAT

SEPTEMBER 18, 1985

[AMARENDRA NATH SEN AND RANGANATH MISRA, JJ.]

Indian Penal Code 1860, Section 161 & Ptevention of Corruption Act 1947, section 5(l)(d) and 5(2).

Police constable - Acceptance of bribe - Charge of - Demand and acceptance of bribe - Denial of - Claim of bribe aununt being C inserted in pocket - Defence plea accepted by Trial Court and acquitted - Conviction by High Court - Whether valid

The appellant who was a Police Constable was charged under section 161 lPC and section 5(1)(d) read with section 5(2) of the Fteveution of Corruption Act, 194 7. The prosecution case was that the appellant demanded a sum of Rs 50 from PW 1 who was a taxi D driver and' in the habit of parking the taxi where parking was prohibited. Plf 1 informed the Anti-COrruption staff, a trap was

laid and five Rs. 10 currency notes were treated with pbenolphthalien powder, made over to PW 1 to be paid as bribe. PW 9 the

Inspector supervised the trap. After the currency notes were received by the appellant PW 9 and others recovered the money E from him. The currency notes were dipped into the mixture of sodiU11 Carbonate and the a11111e turned rosy in colour. Similarly the pocket of one shirt of the appellant and bis fingers were put to test and these too turned rosy.

The defence of the appellant was. a total denial of the p bribe having been demanded and taken and he stated in the statement under sec. 313 Cr. p; c. that the amount was inserted into bis left hand side pocket 1JY PW 1.

In the Trial Court it was contended on behalf of the appellant that PWs. 3 and 8 the Panch witnesses were interested G in PW 1 and that PW 1 was previously working in the Police and had been removed from service. The Trial Judge disbelieved the prosecution evidence regarding acceptance of Rs. 50/-. by the appellant, and' accepted the defence stand that the currency notes had been inserted by PW 1 into the pocket of the appellant, and acquitted the appellant.

SALIM KHAN SARDA!OOIAN v. STATE 855

In appeal by the State, the High Court held that the A appellant was a policeman who was about to retire in a short time, that be had been in service for more than 30 years and that it is not possible to believe that a policeman would not come to know if someone inserts currency notes in bis left hand side

pocket, and reversed the order of aequittal passed by the Trial Court and convicted the appellant.

Allowing the appeal,

BEU>: 1. The Trial Court had accepted the defence plea of possibility of insertion of the currency notes without the appellant knowing about it. The High Court reversed the trial C court in this regard by merely drawing a presumption on the basis of the appellant having been a policeman. The appellant was already nearing the age of superannuation and had been more than 30 years in service. The High Court lost sight of the fact that the appellant may have lost bis agility and that the currency notes could have been inserted without the appellant knowing D about it. [857 G-858 A]

2. Very clever people who are young snd agile are often victimised by piclt-pockets and only when _their valuables have been lost the fact is noticed by them. The process in the instant case, is the rever&e one. Instead of the pocket being piclted, currency notes have been inserted into it. [858 B] E

3. The allegation that !'We. 3 and 8 were interested in Pl1J 1 has not been carefully examined by the High Court yet the conclusion of the trial court has been disturbed. Pl1J 7 was admittedly present at the spot and he has categorically spoken that when the appellant's fingers were put into the mixture they did not tum F rosy. The trial court had referred to this fact and relied upon it• That evidence which had been accepted probabilises the defence plea that the currency notes had not been received by the appellant in his left hand and, therefore, the insertion of the notes into the-pocltet of the appellant by some other person was more probable. This is the defence ples which has been accepted G by the trial court, and reversal by the High Court was therefore not warranted. (858 I>-E]

CRIMINAL APPELLATE JURISDICTION of 1977.

Criminal Appeal No. 117

From the Judgment and Order dated 8.7.1976 of the Gujarat High Court in Criminal Appeal No. 11 of 1975.

A Mrs. Sheil Sethi for the Appellant.

S.K. Dholakia and R.N. Poddar for the Respondent.

The order of the Court was delivered by

A.N. SEN, J, This appeal by special leave is directed against the judgment of the Gujarat High Court reversing the acquittal of the appellant. The appellant was tried for offences punishable under section 161 of the Indian Penal Code and section 5(l)(d) read with s. 5(2) of Act. No. 2 of 1947, on the allegation of having received Rs. 50 as bribe.

c The appellant was a police constable and at the relvant time, on 29.11.73, he was posted at S.T. Bus Stand at Hhaber.

PW 1, the informant was plying a taxi and was in the habit of parking the taxi by the side of the bus stand where such parking was prohibited. lt is the prosecution case that PW 1 used by pay Rs. 5 per month to . the appellant as a consideration for not prosecuUng him for such illegal parking. It is the further case D of the prosecution that a few days before 29.11.73, the appellant told the informant that he should pay him (appellant) a sum of Rs. 60 representing the payment for a whole year Rs. 5 per month, as he was in need of money, and it was finally settled that if the amount was paid in lump the infonuant would get a rebate of Rs, 10 and he would have to pay Rs, 50 only. On the E information given by PW. 1 to the Anti-Corruption staff, a trap was laid. Five 10 currency notes were treated with phinolphthalein powder and made over to PW 1 to be paid as bribe. PW. 9, the Inspector supervised the trap. PWs. 3 and 8 were called as Panches. At about 8 in the morning on 29.11. 73, PW. 1 met the appellant near Jalaram hotel. PW. 9 and his companions remained F at a distance of about 150 feet. !'vis. 1 and 3 went into the hotel along with the appellant. According to PW. 1 he took out the five 10 rupees currency notes and paid them to the appellant who received the notes in his left hand and put them into the side pocket of his khaki shirt. Thereupon as previously arranged, PW'. 3 placed orders in loud voice for pondas. At this state PW. 9 and G others came up to the appellant and recovered the money. It is said that the currency notes were dipped into the mixture of Soditml Carbonate and same turned rosy incolour. Similarly the pocket of the shirt and the fingers of the appellant were put to test and these too turned rosy.

H The defence was a total denial of the bt'ibe having been demanded and taken. The appellant stated under s. 313, Crl.P.C.

SALIM KHAN SARDARKHAN v. STATE [A.N. SEN, J.] 857

that "at about 9.30 A.M. when I was writing my diary in the A hotel, Ramji (PW. 1) came in the hotel and sat by my side. Ramji then asked whether I knew the death of one woman. I told him that I do not know any thing about it though I had gone to the hospital to bring the medicine. Then he took tea and got up. The Mankadia Saheb, Patel Saheb and Morarji came there, when I was

standing up .to go to the bus stand then on Ramjibhai. making some B sign, . Mankadia Saheb asked me to take out those notes but I refused to do so and, therefore, Mr. Patel took out those notes and counted ......

On behalf of the appellant, it had been contended before the trial Court that PWs. 3 and 8 the Panch witnesses were c interested in PW. 1 and PW. 1 was previously working in the police and had been removed from service. It is on account of this interestedness that these Panches were not reliable• The learned trial Judge did not believe the prosecution evidence regarding acceptance of Rs. 50 by the appellant and accepted the defence stand that the currency notes had been inserted by PW. 1 D into the pocket of the appellant. The entire evidence had been taken into account by the learned trial Judge in reaching his conclusion and he acquitted the appellant of both the charges levelled against him.

This judgment of acquittal was assailed by the State in appeal before the High Court. Dealing with the question as to E whether the currency mtes could have been inserted into the appellant's pocket, the High Court observed:

"On our part we find it extremely difficult to accept this version. The respondent was a policeman. who was about to retire in a short time. He had been in service for more than 30 years.

F Even if one is extremely credulous, it is not possibie to believe that a policeman would not come to know if some one sitting at a distance of 6" inserts currency notes in his left hand side pocket. To us it appears that such a feat cannot be achieved.

Even if attempted, the respondent would have .come to know about it G The trial Court had accepted the defence plea of possibility of insertion of the currency notes without the appellant knowing about it. The High Court reversed the trial Court in this regard by merely drawing a presumption on the basis of the appellant having been a policeman. The appellant was already nearing the age of superannuation as found by the High Court and had been H for more than 30 years in service. The Hi~ Court obviously lost sight of the fact that the appellant may have lost his agility

and in the peculiar circumstances indicated above the notes could A have been inserted without the appellant knowing it. Very clever people who are young and agile are often victimised by pick-pockets and only when their valuables have been lost the fact is notice<! by them. The process here is the reverse one.

Instead of the pocket being picked, currency notes have been B inserted into it. The view of the trial Court should not have been discarded merely on the basis of what has been extracted by us above from the judgment of the High Court.

The allegation that PWs. 3 and 8 were interested in PW. 1 c has not' been carefully examined by the High Court yet the conclusion of the trial Court has been disturbed. PW. 7 was admittedly present at the spot and he has categorically spoken that when the appellant's fingers were put into the mixture they did not turn rosy. The trial Court had referred to this fact and relied upon it.

That evidence which had been accepted, D probabilises the defence plea that the currency notes had not been received by the appellant in his left hand and, therefore, the insertion of the notes into the pocket of the appellant by some other person was more probable. This is the defence plea which had been accepted by the trial Court. We are inclined to E think that reversal by the High Court was not warranted.

We accordingly allow this appeal, set aside the judgment of the High Court and restore the judgment of acquittal passed by the Trial Court. The bail bonds of the appellant are discharged.

F The appelllant was serving as a constable and was due to superannuate on 10.9.1979. There is nothing on record to show as to what happened to him when the judgment of acquittal was set aside. We, however, hope and believe that the reversal of the judgment of the High Court by us will be taken due note of and such relief as the appellant is entitled to in regard to his G service benefits, would be extended to him without any delay.

Appeal allowed.