Gujarat High Court
Pushpaben vs State on 25 November, 2010
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
Print
CR.A/1165/1993 19/ 19 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1165 of 1993
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
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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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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PUSHPABEN
PUNAMCHANDRA MUDHE- THYA - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
UNSERVED-EXPIRED
(N) for
Appellant(s) : 1,MR MIHIR H PATHAK for Appellant(s) : 1.2.1
MR RC
KODEKAR, APP for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 05/10/2010
C.A.V.
JUDGMENT
The appellant original accused has preferred this appeal under sec. 374 of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 30.9.1993 passed by the learned Special Judge, Court No. 2, City Civil & Sessions Court, Ahmedabad in Special Case No. 13 of 1991, whereby, the learned Special Judge, Ahmedabad has convicted the appellant accused for the offence under sec. 7 of the Prevention of Corruption Act and sentenced him to undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs. 500/-, in default, to undergo further R.I. for three months. The appellant is also convicted for the offence under section 13(1)(d)(i) punishable under sec. 13(2) of the P.C. Act and sentenced him to undergo R.I. for a period of two years and to pay a fine of Rs. 500/-, in default, to undergo further RI for three months, which is impugned in this appeal.
The brief facts of the prosecution case is as under:
That on 7.7.1990 one Chinnesar Babukhan Bemethi, the truck driver, lodged complaint with the Police Inspector of A.C.B. that traffic police and local police are harassing the heavy motor vehicle drivers passing by the high-way by demanding illegal gratification from them in the form of Entry Fees . The P.I. elicited from him as to whether there is any truth in the information that the local or the traffic policemen are demanding any illegal gratification by way of entry fees and thereafter he arranged the raid and he had asked the complainant as to whether he would co-operate with the A.C.B. personnel in arranging the raid of such corrupt officials and the complainant agreed to do so. Thereupon, in presence of panch witnesses the first part of trap panchnama was drawn near Sayaji Octroi Naka situated on Mehsana-Ahmedabad High-way. The truck driver was also made to understand the procedure to be followed for arranging the running trap. One panch witness remained with the raiding party and another panch witness sat in the driver's cabin along with the complainant. The complainant driver was informed that as soon as the demand is made by the Police official he should tender the amount and then give the pre-arranged signal and thereupon the raiding party would complete the raid. The serial number of notes were noted down in the first part of the trap panchnama. It is alleged that the complainant was asked to proceed ahead of the jeep and upon reaching near the first main gate of ONGC while coming on Mehsana-Ahmedabad Highway, the truck was stopped by the Police man (the appellant-accused) and upon demand of the entry fees of Rs.20/- the amount was paid by the complainant from the currency notes lying in his left side pocket of the shirt and thereafter on pre-arranged signal given by the driver, the raiding party reached the spot and two currency notes totalling Rs.20/- in the denomination of Rs.10/- each were recovered from the person of accused. The number of the said notes were tallied with those written in the first part of the panchnama and thereafter second part of the panchnama was completed. Thereafter, the complaint was registered in the name of the complainant truck driver. Investigation was set in motion and on completion of investigation, the investigation papers were forwarded to the competent Authority for sanction to prosecute the accused and on receipt of sanction the charge-sheet against the accused came to be submitted to the Court.
Thereafter, the charge was framed vide t Ex. 3 against the appellant. The appellant accused has pleaded not guilty and claimed to be tried.
In order to bring home the charge levelled against the appellant- accused, the prosecution has examined three witnesses and also produced documentary evidence on record before the trial Court.
Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of CrPC was recorded in which the appellant-accused has denied the case of the prosecution.
After considering the oral as well as documentary evidence and after hearing the parties, learned Special Judge, Court No. 2, Ahmedabad vide impugned judgment and order dated 30.09.1993 held the appellant accused guilty to the charge levelled against him and awarded the sentence as referred herein above.
Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Court, Court No. 2, Ahmedabad, the present appellant has preferred this appeal.
Heard Mr. Mihir H. Pathak, learned advocate for the appellant and Mr RC Kodekar learned APP for the respondent-State.
Mr Pathak for the appellant has read the complaint, contents of Panchnama Exh.13 and the oral evidence of Investigating Officer Mr. Yadav Exh.15 and vehemently contended that from the contents of the complaint it is the say of trapping officer that he has received some information regarding the misconduct and illegal demand by the policemen the prosecution has failed to establish its case beyond reasonable doubt that whether that information was received by the prosecution witness or not. He has contended that the trial Court has failed to appreciate that during the evidence the prosecution witnesses have failed to prove its case as per initial version and the case against the appellant has not been proved beyond reasonable doubt. He has contended that the panch witness in his evidence has stated that the accused has demanded Rs.20/- towards the entry fee for entering into the city, but, the said facts has not stated by the witness in his Police statement. He has also contended that the panchnama (Exh.14) also does not show that Rs.20/- was accepted by the accused towards entry fee and, therefore, the trial Court has not appreciated the fact that this improvement has been made for the first time during the course of evidence so as to give further corroboration to the prosecution case. He has also contended that the driver of the truck (the complainant) has not been examined by the prosecution and, therefore, there is no corroboration to the evidence of panch and, therefore, it is hazardous to base conviction on uncorroborated testimony of panch having such kind of material omission and contradiction. He has also contended that the evidence of PI Yadav that search of the accused was done by Panch No.1, however, the said evidence has not been corroborated by PI Yadav and the panchnama Exh.14 shows that the search of the accused was made by panch No.2, who is not examined and thus the prosecution itself is not sure and positive whether who made search of the accused person and that creates great doubt that whether in fact Rs.20/- was recovered from the appellant accused. He has contended that the learned Judge has failed to appreciate that looking to the first part of the panchnama the numbers of the notes of Rs.10/- were not tallied, the number of muddamal note is 6B L 444597 while in the panchnama the number is mentioned as 6 B L444596 . Therefore, the prosecution has failed to establish that whether the accused had in fact demanded and accepted the money as alleged and whether such amount is recovered from the accused. He has contended that in corruption cases before arranging the trap the concerned Officer used to call the panchas and also used to experiment of anthracene powder on the notes. In the present case it is alleged that on the previous day the Police Inspector has received information from his Department about collection of bribe money by way of entry fees and on the same day he managed to get the services of two panchas, but, he has not done the experiment of anthracene powder on the notes. He has contended that in absence of any such experiment it is very difficult to believe the prosecution case. In the present case when there is contradictory evidence regarding the recovery of currency notes from the accused as well as in absence of experiment of anthracene powder and also in view of material contradiction and the basic infirmities the entire prosecution case becomes doubtful and the trial Court ought to have acquitted the accused from the charges levelled against him.
Learned Advocate Mr. Pathak has also contended that the alleged incident has happened near Visat Petrol Pump which is out-side the limit of Ahmedabad Municipal Corporation and the jurisdiction of Special Court of Ahmedabad City is within the city of Municipal limits of Ahmedabad, while, as per the case of prosecution the incident has happened outside the city limit of Ahmedabad and it is in the limits of Gandhinagar and, therefore, the learned Special Judge of Ahmedabad City has no jurisdiction to try and entertain the said case.
Learned Advocate Mr. Pathak has contended that at the relevant time the services of the appellant was at Bhadra Traffic Police and his service hours was commencing from 11.00 p.m. and on the previous day his service was over at about 8.00 in the morning and, therefore, appellant had gone to meet his family and to give salary to his family at Pipli, Tal. Palanpur. He has contended that on the date of alleged incident when he was coming from his native in a private vehicle and as the said vehicle was to proceed towards Gandhinagar, he got down near Visat Petrol Pump and at the time when he was proceeding to catch the bus, the Police caught him. He has contended that the said version of the appellant was also supported by the evidence of Investigating Officer who has stated that the duty of the appellant accused was not on the point near which the alleged incident has happened.
To support his contention Mr. Pathak has relied upon the decision in the case of A. SUBAIR v/s STATE OF KERALA in CRIMINAL APPEAL No. 639 of 2004, decided on May 26, 2009, reported in 2009 (0) GLHEL SC 43782, more particularly Para 23 of the Judgement, which reads as under :
Mere recovery of currency notes (Rs.20/- and Rs.5/-) denomination, in the facts of the present case, by itself cannot be held to be proper and sufficient proof of the demand and acceptance of bribe. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. It is true that the judgments of the courts below are rendered concurrently but having considered the matter thoughtfully, we find that the High Court as well as the Special Judge committed manifest errors on account of unwarranted inferences. The evidence on record in this case is not sufficient to bring home the guilt of the appellant. The appellant is entitled to the benefit of doubt.
Relying upon the aforesaid observation of the Hon'ble Apex Court, learned Counsel for the appellant has contended in the present case also the amount of Rs.20/- has been recovered by the Trapping Officer which are without the experiment of anthracene powder and even the number of notes were not tallied as per the panchnama and, therefore, the trial Court has committed grave error in believing the case of the prosecution and holding the appellant accused guilty for the offence alleged against him and the Judgment and order of conviction rendered by the trial Court requires to be quashed and set aside.
On the other hand, learned APP Mr RC Kodekar has supported the Judgment and order of the Special Court and contended that the trial Court has fully appreciated the evidence produced on record by the prosecution and, therefore, no interference may be called for by this Court. He has read the charge (Exh.3) and contended that first of all the conduct of the appellant accused is required to be considered. He has contended that as per the evidence the presence of appellant accused at the place of incident is secured. He has also contended that the appellant accused has not produced any documentary evidence to support his version. He has read the panchnama Exh.13 and contended that even from the contents of the panchnama it is already established by the Panch witness as well as by trapping Officer that at the time of incident present appellant was present in a Police uniform and from the said conduct it is established that there was malice intention of the appellant accused to get the illegal gratification in the name of Entry Fee . He has also read Sections 7 & 13 of the Prevention of Corruption Act. Reading the said provision of Sections 7 & 13 of the P.C. Act Mr. Kodekar has contended that whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification whatever, other than, legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (e) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment. Mr. Kodekar has also contended that from the fact it is clearly established that the presence of the accused at the time of offence is not doubted. He, therefore, contended that looking to the facts and circumstances of the case the prosecution has proved its case beyond reasonable doubt.
Heard the learned counsel for the parties. I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellant and considered the submissions made by learned counsel for the parties. It appears that accused has filed an application Exh.10 before the trial Court by which he has questioned the jurisdiction of the learned Judge. The said application was not heard at that time, but, it was ordered to be heard along with main matter, at the time of arguments, after recording the evidence and after completion of evidence. Thereafter vide Exh.28 joint purshis was given by both the sides requesting the trial Court to visit the place of offence and pursuant thereto the learned Special Judge had visited the place of occurrence of alleged offence situated near ONGC Gate on the way of Visat Petrol Pump and then it was considered by the learned Special Judge that area of place of occurrence was in the jurisdiction of Special Court of Ahmedabad city. Therefore, from the perusal of documentary evidence produced on record and as per the visit of the learned Special jduge, the question of jurisdiction now cannot arise.
Learned Counsel for the appellant has contended that at the relevant time the duty of the accused was at Bhadra Traffic Branch and he had been to his native for giving salary to his family and when he was coming from the village he got down at Visat Petrol Pump and when he was proceeding to catch the bus, the police caught him. Therefore, the question of alibi is required to be considered that whether he has proved the alibi beyond reasonable doubt? It is pertinent to note that the defence has never bothered to produce any documentary evidence to show that the accused was coming from his village and when he entered Ahmedabad city at that time the he was wrongly dragged in the alleged offence. The said contention is negatived by the evidence of Panch witness (P.W.1) Rajuji Vasantji Makwana (Exh.13). He has clearly deposed that he was sitting in the truck behind the driver when the demand was made by the accused. I have also gone through the contents of panchnama. The contents of the panchnama and the evidence of P.W.1 is corroborated with each other. The said evidence is also supported by the evidence of P.W.2 Trapping Officer (Exh.15).
As per Section 8 of the Evidence Act the conduct of the accused is required to be considered. From the record it is clearly established that at the place of occurrence the accused was found in uniform and from his possession the trap amount was recovered in presence of panch witness then that conduct of the accused can be considered that there was motive of the accused to commit the offence and just to get some illegal gratification in the name of entry fee he remained present at the place of occurrence. Therefore, the contention of the appellant accused that the accused was wrongly involved in the commission of offence is not believable.
It is true that in the present case the Trapping Officer has not used the anthracene powder and has not applied the anthracene powder on the trap amount. This is debatable question which arise before this Court that whether non-application of anthracene powder on the trap amount can be fatal to the prosecution case ? I have perused the oral evidence of trapping officer Mr. Yadav. He has explained in which circumstances that trap was managed by him.
Section 7 of the Prevention of Corruption reads as under:
7.Public servant taking gratification other than legal remuneration in respect of an official act Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempt to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (e) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Explanations
(a) Expecting to be a public servant. If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) Gratification .
The word graitification is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c ) Legal remuneration . The words legal remuneration are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept;
(d) A motive or reward for doing . A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.
Section 13 of the P.C. Act reads as under :
Criminal misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct -
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or
(b)if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other eprson, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or
(c) If he dishonestly or fraudulantly misappropriates or otherwise converts for his own use any property entrusted to him or under the control as a public servant or allows any other person so to do, or
(d) if he -
(I) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii)while holding office as a public servant, obtains for any persons any valuable thing or pecuniary advantage without any public interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or properly disproportionate to his known sources of income.
As per Section 7 of the P.C. Act the demand of illegal gratification which may be made by a public servant and if it is proved beyond reasonable doubt from the oral evidence of independent witness as well as of the police witness and in that connection the panchnama was prepared, then there no question whether the experiment of anthracene powder was done or not. It is also pertinent to note that there is no case of the accused that he has any enmity with the trapping officer and the trapping officer has falsely involved the accused in the alleged offence. P.W. 2 I.K.Yadav (Exh.15) has clearly deposed in his cross-examination that they have only one bottle of anthracene powder available between three officers and out of three officers if one officer received information and trap is to be laid that officer keeps the said bottle of anthracene powder with him and during that period if some other officer received information at that time that officer cannot take advantage of that bottle of anthracene powder. He has categorically denied that on 6.7.1990 he could have used the anthracene powder by obtaining the help of person who is using the anthracene powder. As per the explanation of Trapping Officer it clearly appears that he has explained the non-use of anthracene powder. In my opinion, the explanation given by the Trapping Officer is genuine and proper and, therefore, no question arise for non-use of anthracene powder by the Trapping Officer. Once the demand and acceptance is proved and when the trapping officer has satisfactorily explained that in which circumstances experiment of anthracene powder was not done then in that circumstances non-use of anthracene powder cannot be said that it is fatal to the prosecution case. I am, therefore, of the opinion that non-use of anthracene powder is not fatal to the prosecution case. Section 8 of the Prevention of Corruption Act reads as under :
8. Taking gratification, in order, by corrupt or illegal means, to influence public servant Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any state or with any local authority, corporation, or Government company referred to in clause (c ) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.
From the perusal of evidence it is established that the appellant accused has demanded money and it was also accepted by him. Even from the appellant accused the said currency notes, as mentioned in the panchnama, were recovered. The panchas and Trapping Officer are the Government servants and they have no reason to falsely involve the appellant accused in the commission of offence. There is no evidence on record to show that the panchas and trapping officer have any enmity with the appellant accused. In the present case it is the duty of the appellant accused to prove the burden of proof regarding alibi. My view is also supported by the Hon'ble Apex Court in the case of STATE OF MAHARASHTRA v/s WASUDEV RAMCHANDRA KAIDALWAR, reported in AIR 1981 SC 1186. In Para 13 of the said decision the Hon'ble Apex Court has observed as under :
13.....The expression 'burden of proof has two distinct meaning (1) the legal burden, i.e. the burden of establishing the guilt, and (2) the evidential burden, i.e. the burden of leading evidence. In a criminal trial, the burden of proving charge against the accused lies upon the prosecution, and that burden never shifts. Notwithstanding the general rule that the burden of proof lies exclusively upon the prosecution, in the case of certain offences, the burden of proving a particular fact in issue may be laid by law upon the accused. The burden resting on the accused in such case is, however, not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities.
In the present case the prosecution has proved that the accused being a public servant in police uniform just to create an impression that he is police constable, at the place of offence, he has demanded the amount and also accepted the bribe amount from the complainant, though he was not on duty at the particular place, but, his posting was at Bhadra Traffic Branch. The accused has not explained by discharging his burden of rebutting the statutory presumption of guilt against him. From the facts and evidence on record it is clearly established beyond reasonable doubt that the trap amount of Rs.20/- was demanded by the accused and he accepted that amount voluntarily as an illegal gratification.
The contention of the learned Advocate for the appellant that the number of one of the notes was different is not true. I gone through the evidence of I.O. I.K. Yadav, (P.W.2), Exh.15. He has clearly narrated the incident. He has also produced the list (Exh.16) of muddamal notes seized from the accused, in which the numbers of notes are (I) 37 N 189661 and (ii) 68 L 444597. Therefore, the contention of the learned Advocate of the appellant that the number of one of the notes was different is not true.
In the present case, during the pendency of Appeal, the appellant accused has expired and to get the Government benefit like pension, etc., the legal heirs of the accused have continued this Appeal. But, when the prosecution has proved its case beyond reasonable doubt that the accused is held guilty of the offences charged against him then there is no question to interfere with the said issue.
In view of above, I am in complete agreement with the findings, ultimate conclusion and resultant order of conviction and sentence passed by the trial Court and I am of the view that no other conclusion except the one reached by the trial Court is possible in the instant case as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence.
In the result, this appeal is dismissed. The impugned judgment and order of conviction and sentence dated 30.09.1993 passed by the learned Special Judge, Court No. 2, Ahmedabad in Special Case No. 13 of 1991 is hereby confirmed. Bail bond stands cancelled. R & P to be sent back to the trial court forthwith.
As the appellant ori. Accused has expired, no order to surrender before the Jail Authority is passed.
(Z.K.SAIYED, J.) sas Top