Gujarat High Court
Vishnubhai Budhiyabhai Patel vs State Of ... on 14 June, 2017
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.A/961/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 961 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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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 or any order made thereunder ?
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VISHNUBHAI BUDHIYABHAI PATEL....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR K B ANANDJIWALA, SENIOR COUNSEL ASSISTED BY MR RUSHABH R
SHAH, ADVOCATE for the Appellant(s) No. 1
MR LR PUJARI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 14/06/2017
ORAL JUDGMENT
1. The appellant has preferred the present appeal under Section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 28/05/2004 Page 1 of 21 HC-NIC Page 1 of 21 Created On Fri Aug 18 10:24:36 IST 2017 R/CR.A/961/2004 JUDGMENT rendered by the learned Additional Sessions Judge, Valsad in Special Corruption Case No.58 of 2002 whereby the appellant has been convicted for the offence punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. The appellant is sentenced to undergo simple imprisonment for a period of three years and fine of Rs.2,500/- and in default to pay fine, simple imprisonment for a period of three months for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988. The appellant- accused is also convicted for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced to undergo simple imprisonment for a period of three years and fine of Rs.2,500/- and in default to pay fine, simple imprisonment for a period of three months. It is also ordered to run both the sentence concurrently.
2. The short facts giving rise to the present appeal are that in the year 1990, the accused was serving as Talati-cum- Mantri at village Rohina, Taluka Pardi, District Valsad. The complainant is also resident of the same village and he had bought a piece of land and he wanted the same to be mutated in his name. Therefore, he met the accused and at that time, the accused demanded Rs.200/- from the complainant for mutating entry in the record of rights and the same was given by the complainant at the same time in presence of one Kishanbhai Harkhabhai Patel at the office of Gram Panchayat. Thereafter, time and again the complainant met the accused and asked to issue an abstract of record of right but the accused did not reply satisfactorily. Thereafter, a month prior to the incident, the complainant met the accused at the office Page 2 of 21 HC-NIC Page 2 of 21 Created On Fri Aug 18 10:24:36 IST 2017 R/CR.A/961/2004 JUDGMENT of Gram Panchayat and inquired regarding mutation entry and got reply that mutation entry is already done but for getting the entry certified, the complainant would have to pay Rs.1,000/-. As the complainant was not having the said amount with him at that time, he returned from the office of Gram Panchayat. On 03/11/1992, the complainant had gone out for some work. During that time, in the afternoon, the accused visited the house of the complainant and informed Niruben who is wife of the complainant as well as member of Gram Panchayat that she should inform her husband that to get the abstract of record of right, the complainant should come with Rs.1,000/- on 04/11/1992 as there was a meeting of Gram Panchayat on 04/11/1992. He also warned that if the complainant would not pay Rs.1,000/-, then his name would not be mutated in the record of rights. Wife of the complainant informed all such things to the complainant on his return to home. As the complainant did not want to give such bribe, he approached the ACB office, Valsad. Accordingly, a trap was arranged and requisition of panchas were made and procedure of trap was made understand to the complainant as well as other members of the raiding party. Preliminary panchnama was also drawn accordingly. During the course of trap, the appellant-accused was caught red handed with tainted currency notes and, thereby the appellant has committed the offence as alleged. Hence, a complaint came to be lodged against the appellant-accused.
3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the appellant-accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and Page 3 of 21 HC-NIC Page 3 of 21 Created On Fri Aug 18 10:24:36 IST 2017 R/CR.A/961/2004 JUDGMENT claimed to be tried.
3.1 In order to bring home the guilt, the prosecution has examined about four witnesses and also produced several documentary evidences.
3.2 At the end of the trial, after recording the statement of the accused under Section 313 of the Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above.
4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court.
5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed as such.
6. Mr. K. B. Anandjiwala, learned Senior Counsel assisted by Mr.Rushabh Shah, learned advocate has taken this Court through the material evidence and paper book. He has pointed out that there is material contradiction in the evidence of panchas and even the material conversation alleged to have been taken place at the time of trap as regards to raising of demand by Rs.1,500/- instead of Page 4 of 21 HC-NIC Page 4 of 21 Created On Fri Aug 18 10:24:36 IST 2017 R/CR.A/961/2004 JUDGMENT Rs.1,000/- is not testified by the complainant in his deposition and even the complainant has not at all deposed as regard to the incidence of scaling down of demand at the time of trap and the evidence of all the three witnesses are not natural. He has further argued that indisputably, when the trap was laid, at that time, there were eleven members of Rohina Gram Panchayat as well as other six persons were present to participate in an auction and in their presence and in their view, the alleged incident of demand and acceptance took place and the same is not believable in view of ratio laid down in the case of Selvaraj Vs State of Karnataka, reported in (2016) 1 SCC (Cri.) 19 - 2015 (10) SCC 230. Learned Senior Counsel Shri Anandjiwala has also pointed out that the material contradictions emerging out from evidence of all three witnesses is in the nature which goes into the root of the case whereas there is no uniformity between them and all the three witnesses are deposing different stories as regards to trap procedure and the conversation alleged to have been taken place between the complainant and the accused and therefore, taking into consideration the entire facts and circumstances in which the incident happened, their evidence become doubtful and relying upon such evidence, learned Special Judge has committed serious error in convicting the accused as such. He has also pointed out that as per prosecution case, the incident alleged to have been taken place in three different stages. First incident alleged to have been taken place two years prior to the incident. At that time, the accused alleged to have demanded and accepted Rs.200/- for which the prosecution has failed to lead any evidence or even has failed to bring on record such evidence as the incident alleged to have been taken place in presence of one Page 5 of 21 HC-NIC Page 5 of 21 Created On Fri Aug 18 10:24:36 IST 2017 R/CR.A/961/2004 JUDGMENT Kishan Harkhabhai Patel, a villager. Therefore, as per the prosecution version, for about a month prior to lodging of the complaint, the accused demanded Rs.1,000/- for certifying the entry and the same was also came to be renewed through the wife of the complainant on 03/11/1992, though the prosecution failed to examine the wife of the complainant Niruben who was also a member of the Gram Panchayat as such. Consequently, therefore, entire evidence of renewing the demand remains uncorroborated as such for want of examination of Niruben as a witness. He has further argued that the alleged entry was already came to be effected with effect from 12/03/1992 and the same was also came to be certified by the competent authority on 25/09/1992 and thereafter the complaint was filed on 04/11/1992 alleging that the accused demanded amount of illegal gratification for getting certification of the entry which becomes unbelievable in view of the documentary evidence came to be produced at Exh.27 to Exh.32 which are revenue records produced by the prosecution itself. Therefore, findings recorded by the learned Judge is not in accordance with law and the judgment and conviction is required to be set aside as such. He has, therefore, urged this Court to allow the present appeal and set aside the impugned judgment of conviction.
7. On the other hand, Mr. L. R. Pujari, learned APP has supported the impugned judgment of conviction and has argued that there appears some contradictions amongst the evidence of PW-1 to PW-3, as regards to the procedure of trap. However, according to his submission, trap was laid on 04/11/1992 whereas their evidence was recorded in the year 2003, i.e. for about 11 years later on. Consequently, Page 6 of 21 HC-NIC Page 6 of 21 Created On Fri Aug 18 10:24:36 IST 2017 R/CR.A/961/2004 JUDGMENT therefore, there are all chances of fading of their memory and therefore, some minor contradictions requires to be overlooked in view of the facts and circumstances of the case. Learned APP has also argued that evidence of PW-1, PW-2 and PW-3 is sufficient to establish the demand and acceptance as demand was raised by the accused in presence of them and they have clearly testified the same and there appears material similarity amongst their evidence and therefore, finding recorded by the learned Special Judge may not be disturbed as such. He has further argued that whenever recovery was successfully effected from the accused, consequently, therefore, even with the aid of Section-20 of the Prevention of Corruption Act, conviction is required to be sustained as such. He has therefore, argued that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant and ingredients as regards to demand, acceptance and recovery are proved in accordance with law and, therefore, this Court should not disturb the finding recorded by learned trial Court, as such. In support of his argument, he has also relied upon the decision of the Hon'ble Supreme Court in case of Bhagwan Jagannath Markad and others vs State of Maharashtra, reported in (2016) 10 SCC 537 more particularly para-18 and para-19 which reads as under:-
"18. It is accepted principle of criminal jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proved guilty. The prosecution has to prove its case beyond reasonable doubt and the accused is entitled to the benefit of the reasonable doubt. The reasonable doubt is one which occurs to a prudent and reasonable man. Section 3 of the Evidence Act refers to two Page 7 of 21 HC-NIC Page 7 of 21 Created On Fri Aug 18 10:24:36 IST 2017 R/CR.A/961/2004 JUDGMENT conditions - (i) when a person feels absolutely certain of a fact - "believe it to exist" and (ii) when he is not absolutely certain and thinks it so extremely probable that a prudent man would, under the circumstances, act on the assumption of its existence. The doubt which the law contemplates is not of a confused mind but of prudent man who is assumed to possess the capacity to "separate the chaff from the grain". The degree of proof need not reach certainty but must carry a high degree of probability.
19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behavior of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a 'partisan' or 'interested' witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in Page 8 of 21 HC-NIC Page 8 of 21 Created On Fri Aug 18 10:24:36 IST 2017 R/CR.A/961/2004 JUDGMENT omnibus" has no general acceptability19. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness."
8. This Court has heard Mr. K. B. Aanandjiwala, learned Senior Counsel assisted by Mr. Rushab R. Shah, learned advocate for the appellant and Mr. L. R. Pujari, learned Additional Public Prosecutor for the respondent-State.
9. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. As per the prosecution version, the accused was serving as Talati-cum- Mantri at village Rohina, Taluka Pardi, District Valsad. The complainant purchased 30 gunthas of land from one Homibhai for a value consideration of Rs.11,000/- and he wanted to mutate his name and therefore, he met the accused for about two years prior to lodging of complaint and at that time, the accused demanded and accepted Rs.200/- for mutating name of the complainant in presence of one Kishan Harkhabhai Patel. Thereafter, again a month prior to lodging of complaint, the complainant met the accused and at that time, the accused demanded Rs.1,000/- for getting certification of such entry and same demand was also renewed by the accused through wife of the complainant on 03/11/1992 and thereby the complainant was directed to hand over Rs.1,000/-
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on 04/11/1992 at the Gram Panchayat office as there was a meeting on the same day. As the complainant did not want to give such bribe, he approached the ACB office, Valsad. Accordingly, a trap was arranged and during the course of trap, the appellant-accused was caught red handed with tainted currency notes and, thereby committed offence punishable under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
10. In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court. If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt.
11. At this juncture, it would be fruitful to refer to some decisions of Hon'ble Apex Court. In the case of A. Subair vs. State of Kerala reported in (2009) 6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act, the Hon'ble Apex Court ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
12. In the case of State of Kerala and another vs. C.P. Rao reported in (2011) 6 SCC 450, the Hon'ble Apex Court, Page 10 of 21 HC-NIC Page 10 of 21 Created On Fri Aug 18 10:24:36 IST 2017 R/CR.A/961/2004 JUDGMENT reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
13. In a recent enunciation by the Hon'ble Supreme Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined by the Hon'ble Apex Court in the case of B. Jayaraj vs. State of A.P. Reported in AIR 2014 SC (Supp) 1837, in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Page 11 of 21 HC-NIC Page 11 of 21 Created On Fri Aug 18 10:24:36 IST 2017 R/CR.A/961/2004 JUDGMENT Section 20 of the Act would also not arise.
14. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, the Hon'ble Apex Court in the case of Sujit Biswas vs. State of Assam, reported in (2013) 12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.
15. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.
16. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)
(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.
17. PW-1 Chandubhai Kavjibhai, the complainant has Page 12 of 21 HC-NIC Page 12 of 21 Created On Fri Aug 18 10:24:36 IST 2017 R/CR.A/961/2004 JUDGMENT deposed that he was residing at village Rohina and was doing agriculture work. He has deposed that he purchased a land admeasuring 30 guntha from one Homibhai Pirosha and as he wanted to mutate the land in his name, he met the accused and at that time, the accused demanded Rs.200/- for mutating the land in his name. He has deposed that at that time, he handed over Rs.200/- to the accused in presence of one Kishanbhai Harkhabhai Patel, however, the accused did not issue receipt for the same. He has deposed that again when he met the accused for about a month prior to lodging of complaint, the accused demanded Rs.1,000/- as his name is mutated. He has deposed that thereafter, the accused demanded the amount through his wife, Niruben and the accused had also threated that if he would not hand over the said amount on 04/11/1994, then entry would be cancelled. He has deposed that therefore, he lodged the complaint. He has deposed that on the day of trap, he himself as well as two panchas went to the office of the accused and at that time, the accused was present and asked as to whether he had brought the money for which he replied in affirmative and thereafter he along with two panchas as well as accused came out from the office and thereafter the accused demanded and therefore he handed over the tainted currency notes and that the accused placed the same in his pocket and thereafter he raised pre-arranged signal due to which other members of raiding party arrived. In the cross examination, he has admitted that when he reached the Gram Panchayat office on the day of trap, a meeting of Gram Panchayat was going on. He has also admitted that eleven members of Gram Panchayat were present even till conclusion of trap. He has also admitted that at the time of trap, interrogation was made by Page 13 of 21 HC-NIC Page 13 of 21 Created On Fri Aug 18 10:24:36 IST 2017 R/CR.A/961/2004 JUDGMENT Shri Saiyed, Police Inspector in present of all the eleven members of the Gram Panchayat. He has also admitted that his name was already mutated and entry was also certified prior to lodging the complaint. He has also admitted that during the meeting of members of Gram Panchayat, they were also served with snacks and after taking snacks, he handed over the tainted currency notes to the accused. He has also admitted that an auction was going on at the same time for Hatvada Market and the bidders were also present and the complainant was also one of the bidder. The said auction was also carried out by the accused in presence of Police Inspector Shri Saiyed and the auction continued for about five to ten minutes and resolution was also passed.
18. PW-2 Rameshbhai Manubhai Khorak was requisitioned as shadow panch and was serving at the relevant time as Junior Clerk in the office of RTO. He has deposed that he was accompanied the complainant and when they reached the office of the accused, at that time, the accused came out from the room and demanded money and also asked about him and thereafter the accused demanded Rs.1,500/- due to which the complainant handed over Rs.1,000/- and assured that remaining Rs.500/- will be paid later on. He has deposed that thereafter he raised pre-arranged signal due to which other members of raiding party arrived and test of anthracene powder was carried out. However, initially he did not support the case of the prosecution. In his deposition, lot of contradictions were brought on record.
19. PW-3 Gulab Rambhai Patel, second panch is examined. He has deposed that at the time of trap, on receiving signal, Page 14 of 21 HC-NIC Page 14 of 21 Created On Fri Aug 18 10:24:36 IST 2017 R/CR.A/961/2004 JUDGMENT he visited the office of the accused, however, he did not accompany the complainant and panch no.1. In the cross examination, he has admitted that at the time of trap, a meeting of Gram Panchayat was going on and there were 10 to 12 persons present in the room when the trap was carried out and when the money was recovered from the pocket of the accused. At that time, all the members of Gram Panchayat were also present.
20. PW-4 Saiyed Hushenmiya Shafruddin has deposed that he was serving as Police Inspector, Valsad at the relevant time. He has deposed that he has recorded the complaint. He has deposed that he has arranged for the trap and he has carried out the investigation and ultimately he has filed the charge sheet after the investigation. In his cross examination, he has admitted that the complainant lodged the complaint alleging that the accused demanded the amount of illegal gratification for getting certification of revenue entry. He has admitted that during investigation, he has noticed that entry was already certified on 25/09/1992. He has admitted that the same was certified prior to lodging the complaint. He has admitted that at the time of trap, a meeting of Gram Panchayat was going on and there were 11 members present in the said Gram Panchayat and wife of the complainant was also present at that time. He has admitted that he has also recorded the statement of wife of the complainant. He has admitted that at the time of trap when they reached the office of the accused, he was busy with the meeting. He has admitted that at the time of trap, money came to be recovered from the accused in presence of all the members of the Gram Panchayat.
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21. On overall evaluation of aforesaid evidence on record, in light of rival submissions came to be advanced, indisputably the prosecution case could have divided in three parts. So far as pre-demand of Rs.200/- is concerned, for two years prior to lodging the complaint, though as per the prosecution case, the same was demanded and accepted by the accused in presence of one Kishan Harkhabhai Patel but the prosecution has failed to examine said Kishan Harkhabhai Patel in order to corroborate the aforesaid allegations as such. Consequently, therefore, so far as such incident is concerned, no corroborative piece of evidence is available on record. On the second part, as per the prosecution case, for about a month prior to lodging of complaint, when the complainant met the accused, the accused demanded Rs.1,000/- for getting certification of entry in his name and the same demand was also renewed by the accused through wife of the complainant Niruben and thereby he was directed to pay the amount on 04/11/1992 at the time of meeting in the office of Gram Panchayat. So far as second demand for getting certification of entry and renewal thereof, the prosecution has failed to examine Niruben, wife of the complainant who was also a member of said Gram Panchayat, though admittedly her police statement came to be recorded as admitted by PW-4. In absence of her examination, demand as well as renewal thereof totally remained uncorroborated as such. Not only that, the evidence of panch-PW-2 clearly indicates that at the time of trap, the accused demanded Rs.1,500/- instead of Rs.1,000/- and he handed over Rs.1,000/- and the complainant promised to pay Rs.500/- later on. Surprisingly, the said fact is also emerging out from the contemporaneous panchnama Page 16 of 21 HC-NIC Page 16 of 21 Created On Fri Aug 18 10:24:36 IST 2017 R/CR.A/961/2004 JUDGMENT though nonetheless neither PW-1, the complainant nor PW-3 testifies the same. As per the evidence of the complainant, the complainant is not testifying about raise of demand to Rs.1,500/- and he paid merely Rs.1,000/- and remaining Rs.500/- was assured to be paid later on. PW-2 furthermore added that at the time of trap, not only he accompanied the complainant but panch no.2 had also accompanied him. However, PW-1 and PW-3 have not testified the said fact. Material contradiction is emerging out from the testimony of PW-2. Even otherwise also on going through the entire deposition of PW-2, it appears that there are lot of contradictions and exaggerations in his depositions and he was taking long period of time for thinking and thereafter he was replying and such demeanor is also came to be noted by the trial court and in view thereof his entire testimony becomes doubtful as such.
22. Even if argument of Mr. L. R. Pujari, learned APP be accepted that the evidence came to be recorded after a long period of eleven years and therefore some minor contractions is required to be overlooked, then in that case also even if such variations may be taken into consideration to be minor, this Court is not inclined to accept the prosecution story for the simple reason that the story of the prosecution appears to be un-natural. As admitted by almost all the witnesses that on the day of trap, there was a meeting of entire Gram Panchayat and eleven elected members of Gram Panchayat were present and entire trap was carried out in their presence and even search and seizure was also carried out in their presence. Not only that even the interrogation of the accused was also made in their presence and that itself becomes Page 17 of 21 HC-NIC Page 17 of 21 Created On Fri Aug 18 10:24:36 IST 2017 R/CR.A/961/2004 JUDGMENT unacceptable in view of ratio laid down by the Hon'ble Supreme Court in the case between Selvaraj Vs State of Karnataka, reported in (2015) 10 SCC 230 more particularly para-15, wherein the Hon'ble Supreme Court has observed as under:
"15. Coming to the question whether the view taken by the trial court while acquitting the accused was probable, we find that in view of the fact that complainant Peter Philip, CW 1 died before the trial, as such he was not available for cross-examination with respect to the facts which were in his knowledge as to the demand of bribe and its payment. We have to carefully look into the other evidence available. In the absence of the complainant, the onus lay upon the prosecution to adduce credible evidence and to prove the guilt beyond the periphery of doubt. K. M. Eregowda, PW 2, had stated that 10 to 12 other officials were sitting in the same room in which bribe was paid. Taking of bribe in the presence of 10 to 12 other officials of the Treasury Office is quite improbable. It assumes significance in the circumstances from which place the money was recovered; whether it was from the possession of the accused. PW 1 has stated that he found currency notes on the table, and the accused was standing behind the table. Whereas K. N. Eregowda, PW 2, has stated that the currency notes were kept by the accused beneath the book on the table. Another witness L. Somashekara, accused beneath the book on the table. Another witness L. Somashekara, PW 8, IO, has stated that he recovered the money from the drawer of the table. The versions given by the three witnesses are different from each other. Even if we ignore the contradictions between the versions of PW 1 and PW 2, the contradiction with respect to place of recovery of money whether it was inside the drawer of table or was lying on the table beneath the book is material one and could not have been ignored."
23. Moreover, one disturbing feature is emerging out from the evidence available on record. The Police Inspector Shri Page 18 of 21 HC-NIC Page 18 of 21 Created On Fri Aug 18 10:24:36 IST 2017 R/CR.A/961/2004 JUDGMENT Saiyed has assumed all roles right from the stage of recording complaint, arranging trap as well as members of raiding party, carrying out investigation till filing of charge sheet. This course of action go against the basic tenets of criminal jurisprudence and fair investigation. The credibility of the case of prosecution becomes suspicious on this count only. In the present facts of the case, the status of investigating officer could not be placed on any pedestal higher than of a complainant and the complainant himself cannot be the sole agency of investigation. There should be no occasion to suspect fair and impartial investigation. The said view is fortified by the decision of the Hon'ble Apex Court in the case of "Bhagwan Singh vs. State of Rajasthan", reported in AIR 1976 SC 985, followed by this Court in the case of "Kanubhai Kantibhai Patel vs. State of Gujarat" reported in 1998 (1) GLH 924. Therefore, in this case, the prosecution case suffers from the aforesaid basic infirmity which itself is sufficient to vitiate the whole investigation and accordingly the whole proceedings based on such investigation deserves to be quashed and set aside on this count only.
24. For the reasons recorded as above, this Court finds that the prosecution case is highly improper. It would be impertinent to believe that the accused demanded, accepted and scaled down the instant demand in presence of eleven elected members of Gram Panchayat as well as the complainant and panch no.1 and thereby committed the offence of demanding and accepting the amount of illegal gratification. Not only that but due to time lag of recording evidence after about 11 years, the evidence of shadow panch Page 19 of 21 HC-NIC Page 19 of 21 Created On Fri Aug 18 10:24:36 IST 2017 R/CR.A/961/2004 JUDGMENT is not at all reliable as he had made lot of contradictions in his deposition and even the evidence of the complainant and shadow panch are contradictory to each other and the contradictions are material and the initial demand as well as instant demand remains to be uncorroborated for non examination of material witnesses who were available at that time with the complainant when such demand was raised and alleged acceptance came to be made by the accused. In view of aforesaid nature of evidence, the prosecution has failed to establish the vital ingredients as regards to demand, acceptance and recovery. Therefore, for want of due corroboration also, this Court is not inclined to believe the case.
25. This Court has also gone through the impugned judgment rendered by the learned Special Judge. On perusal of it, it appears that learned Special Judge has not recorded the findings based upon the evidence available on record and wrongly appreciated the evidence and wrongly recorded the conviction which is not sustainable in law.
26. In the present case, in view of the aforesaid nature of evidence, it is clear that there is no clinching cogent and reliable evidence beyond reasonable doubt to confirm the conviction and therefore as a result, the learned trial court has committed error in relying upon the version put forth by the prosecution. This Court has also gone through the decisions of the Apex Court in the cases of (i) P. Satyanarayan Murthy vs. District Inspector of Police, State of Andhra Pradesh reported in (2016) 1 SCC (Cri.) 11, (ii) Selvaraj Vs State of Karnataka, reported in (2016) Page 20 of 21 HC-NIC Page 20 of 21 Created On Fri Aug 18 10:24:36 IST 2017 R/CR.A/961/2004 JUDGMENT 1 SCC (Cri) 19 and (iii) Krishan Chander Vs State of Delhi, reported in AIR 2016 SC 299. In view of settled position as emerging from the aforesaid decisions, in absence of specific and clinching evidence to prove all such acts by the accused, conviction recorded by learned trial Judge is not sustainable.
27. The materials on record when judged on the touch stone of the legal principles adumbrated hereinabove, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, this Court is constrained to hold that it would be wholly un-safe to sustain the conviction of the appellant under Section 13(1)(d)(i), (ii) and (iii) read with Section 13(2) of the Act as well.
28. For the reasons recorded above, the appeal succeeds. The impugned judgment and order dated dated 28/05/2004 rendered by the learned Additional Sessions Judge, Valsad in Special Corruption Case No.58 of 2002 is quashed and set aside. The appellant-accused is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith. Fine, if any paid, be refunded forthwith.
(R.P.DHOLARIA,J.) ila Page 21 of 21 HC-NIC Page 21 of 21 Created On Fri Aug 18 10:24:36 IST 2017