Salimkhan Sardarkhan vs State Of Gujarat on 18 September, 1985 Equivalent citations: 1986 AIR 307, 1985 SCR SUPL. (2) 854, AIR 1986 SUPREME COURT 307, 1986 ALL. L. J. 651, 1985 CRI APP R (SC) 330, 1985 SCC(CRI) 511, 1986 ALLAPPCAS (CRI) 14, 1986 UP CRIR 1, 1985 (4) SCC 234, (1985) 2 CRIMES 729, (1986) MAD LJ(CRI) 4, (1986) 1 RECCRIR 40, (1986) EASTCRIC 67, (1986) MADLW(CRI) 170, (1986) 1 CRILC 60, (1986) 1 SUPREME 74, (1986) ALLCRIC 360, (1986) 1 ALLCRILR 601 Author: Amarendra Nath Sen Bench: Amarendra Nath Sen, Misra Rangnath PETITIONER: SALIMKHAN SARDARKHAN Vs. RESPONDENT: STATE OF GUJARAT DATE OF JUDGMENT18/09/1985 BENCH: SEN, AMARENDRA NATH (J) BENCH: SEN, AMARENDRA NATH (J) MISRA RANGNATH CITATION: 1986 AIR 307 1985 SCR Supl. (2) 854 1985 SCC (4) 234 1985 SCALE (2)786 ACT: Indian Penal Code 1860, Section 161 & Prevention of Corruption Act 1947, section 5(1)(d) and 5(2). Police constable - Acceptance of bribe - Charge of - Demand and acceptance of bribe - Denial of - Claim of bribe amount being inserted in pocket - Defence plea accepted by Trial Court and acquitted - Conviction by High Court - Whether valid. HEADNOTE: The appellant who was a Police Constable was charged Salimkhan Sardarkhan vs State Of Gujarat on 18 September, 1985  1 under section 161 IPC and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947. The prosecution case was that the appellant demanded a sum of Rs. 50 from PW 1 who was a taxi driver and in the habit of parking the taxi where parking was prohibited. PW 1 informed the Anti-Corruption staff, a trap was laid and five Rs. 10 currency notes were treated with phenolphthalien 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 from him. The currency notes were dipped into the mixture of sodium Carbonate and the same turned rosy in colour. Similarly the pocket of one shirt of the appellant and his fingers were put to test and these too turned rosy. The defence of the appellant was a total denial of the bribe having been demanded and taken and he stated in the statement under sec. 313 Cr. P.C. that the amount was inserted into his left hand side pocket by PW 1. In the Trial Court it was contended on behalf of the appellant that PWs. 3 and 8 the Panch witnesses were interested 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. 855 In appeal by the State, the High Court held that the appellant was a policeman who was about to retire in a short time, that he 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 his left hand side pocket, and reversed the order of acquittal passed by the Trial Court and convicted the appellant. Allowing the appeal, ^ HELD: 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 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 his agility and that the currency notes could have been inserted without the appellant knowing about it. [857 G-858 A] 2. 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 noticed by them. The process in the instant case, is the reverse one. Instead of the pocket being picked, currency notes have been inserted into it. [858 B] Salimkhan Sardarkhan vs State Of Gujarat on 18 September, 1985  2 3. The allegation that PWs. 3 and 8 were interested in PW 1 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 probabilities 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 has been accepted by the trial court, and reversal by the High Court was therefore not warranted. [858 D-E] JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 117 of 1977. From the Judgment and Order dated 8.7.1976 of the Gujarat High Court in Criminal Appeal No. 11 of 1975. 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(1)(d) read with s. 5(2) of Act. No. 2 of 1947, on the allegation of having received Rs. 50 as bribe. The appellant was a police constable and at the relevant time, on 29.11.73, he was posted at S.T. Bus Stand at Bhaber. 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. It is the prosecution case that PW 1 used by pay Rs. 5 per month to the appellant as a consideration for not prosecuting him for such illegal parking. It is the further case 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 informant would get a rebate of Rs. 10 and he would have to pay Rs. 50 only. On the 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 at a distance of about 150 feet. PWs. 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 Salimkhan Sardarkhan vs State Of Gujarat on 18 September, 1985  3 previously arranged, PW. 3 placed orders in loud voice for pondas. At this state PW. 9 and others came up to the appellant and recovered the money. It is said that the currency notes were dipped into the mixture of Sodium Carbonate and same turned rosy in colour. Similarly the pocket of the shirt and the fingers of the appellant were put to test and these too turned rosy. The defence was a total denial of the bribe having been demanded and taken. The appellant stated under s. 313, Crl.P.C. that "at about 9.30 A.M. when I was writing my diary in the 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 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 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 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 whether the currency notes 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. Even if one is extremely credulous, it is not possible 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. 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 for more than 30 years in service. The High 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 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 noticed by them. The process Salimkhan Sardarkhan vs State Of Gujarat on 18 September, 1985  4 here is the reverse one. Instead of the pocket being picked, currency notes have been 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 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, probabilities 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 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. The appellant 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 service benefits, would be extended to him without any delay. N.V.K. Appeal allowed. Salimkhan Sardarkhan vs State Of Gujarat on 18 September, 1985  5