Gujarat High Court
Jyotsnaben vs State Of Gujarat on 28 February, 2017
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.A/232/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 232 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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1 - HEIRS OF DECEASED GIRISHCHANDRA CHHAGANLAL RAVAT
1.3 - KAUSHIKKUMAR, S/O. GIRISHCHANDRA CHHAGANLAL RAVAT
1.2 - MUKESHKUMAR, S/O. GIRISHCHANDRA CHHAGANLAL RAVAT
1.6 - RAHULKUMAR, S/O. GIRISHCHANDRACHHAGANLAL RAVAT
1.4 - JIGNASHU, S/O. GIRISHCHANDRA CHHAGANLAL RAVAT
1.5 - JAYESHKUMAR, S/O. GIRISHCHANDRA CHHAGANLAL RAVAT
1.1 - JYOTSNABEN, WD/O. GIRISHCHANDRA CHHAGANLAL RAVAT
Appellant(s)
VERSUS
1 - STATE OF GUJARAT
Opponent(s)/Respondent(s)
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Appearance:
MR J M PANCHAL, SENIOR ADVOCATE assisted by MR KJ PANCHAL,
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ADVOCATE for the Appellant(s) No. 1 - 1.6
MR KP RAWAL, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 28/02/2017
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 19.1.2004 rendered by learned Special Judge, Amreli in Special Case No.97 of 2001.
2. Today, when the matter is called out, it is pointed out by Mr.Panchal, learned senior advocate that the appellant - original accused has died on 23.11.2005 and his heirs and legal representatives have been brought on record vide order dated 16.12.2005 passed by this Court in Criminal Misc. Application No.14738 of 2005 and hence, the present Criminal Appeal is continued and pending for final disposal.
3. The short facts giving rise to the present appeal are that accused No.1 demanded illegal gratification of Rs.1500/- for running two stage carriage buses of the complainant from Savarkundla to Ahmedabad. It is alleged that as the complainant was not willing to pay the bribe Page 2 of 19 HC-NIC Page 2 of 19 Created On Mon Aug 14 01:47:03 IST 2017 R/CR.A/232/2004 JUDGMENT amount, he lodged the complaint. It is the case of the prosecution that in pursuance of the complaint, on 23.8.1996 around at 19.30 hours, the trap was carried out and during the trap, tainted currency notes were found and thereby the accused has committed the offence, as alleged.
4. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the appellant accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried.
4.1 In order to bring home the guilt, the prosecution has examined three witnesses and also produced documentary evidences.
4.2 At the end of the trial, after recording the statement of the accused under section 313 of the Code of Criminal Procedure 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above.
5. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court.
6. By way of preferring the present appeal, the appellant has mainly contended that learned Page 3 of 19 HC-NIC Page 3 of 19 Created On Mon Aug 14 01:47:03 IST 2017 R/CR.A/232/2004 JUDGMENT 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.
7. Mr.J.M.Panchal, learned senior advocate assisted by Mr.K.J.Panchal, learned advocate for the appellant has taken this Court through the evidence of the witnesses as well as impugned order and argued that in the present case, there is no iota of evidence available on record to link the accused with the crime in question. He submitted that in such case of bribery, vital ingredients i.e. demand, acceptance and recovery are required to be proved beyond reasonable doubt by the prosecution. He submitted that so far as predemand is concerned, the prosecution has failed to prove the same as it is the case of the prosecution that predemand was raised on 19.8.1996 in the evening time, however, at the relevant time, the accused was present in the meeting called by the Deputy Superintendent of Police at Mahuva which is the distant place from Savarkundla i.e. 60 kms and the accused attended the conference from 4.00 pm to 7.30 pm and hence, predemand as alleged in the complaint at Exh.11 is not being established. He further submitted Page 4 of 19 HC-NIC Page 4 of 19 Created On Mon Aug 14 01:47:03 IST 2017 R/CR.A/232/2004 JUDGMENT that in view of the evidence of the complainant himself, the complainant firstly tried to hand over the money to the accused No.1 at the time of trap but accused No.1 directed the complainant to hand over it to accused No.2 and thereafter the complainant came out from the chamber of accused No.1 and proceeded on the open road and again the complainant entered into the chamber of accused No.1 and then came out and gave prearranged signal and hence members of the raiding party as well as both the panchas entered into the chamber of accused No.1 and they searched extensively for half an hour, but nothing was found. He submitted that the test of ultra violate lamp was found positive so far as fingers of both the hands of accused No.1 are concerned and the said test was found negative on the thumbs of accused No.1. He submitted that after search of about half an hour, tainted currency notes were found through panch No.2 from behind the water pot which was lying outside the police station. He submitted that panch No.1 who was required to remain present althroughout with the complainant did not accompany with the complainant and even that fact has also been accepted by panch No.1 as well as Investigating Officer. He submitted that the deposition of the complainant that as per the demand of accused No.1, he handed over tainted currency notes to accused No.1 which were accepted by accused No.1 through his right hand and thereafter counted and thereafter the Page 5 of 19 HC-NIC Page 5 of 19 Created On Mon Aug 14 01:47:03 IST 2017 R/CR.A/232/2004 JUDGMENT complainant gave signal after coming out from the chamber of accused No.1 is also not getting corroboration by any evidence. He submitted that if the accused No.1 has accepted the bribe amount in his chamber, then the tainted currency notes could have been found from his chamber, on the contrary the said tainted currency notes were found from behind the water pot lying outside the police station and the said fact is clearly emerging out from the sketch prepared by the investigating agency at the time of trap. He submitted that similarly, topography as well as situation of chamber of accused No.1 also indicates that there is no possibility of throwing tainted currency notes from the window of the chamber of accused No.1 to nearby water pot. In sum and substance, Mr.Panchal has argued that except test of ultra violate lamp on the fingers of both hands of accused No.1 found positive, nothing incriminating is emerging out from the evidence on record against the appellant
- accused No.1 and that panch No.1 has not viewed or heard anything and therefore, predemand is not established. Lastly, Mr.Panchal requested this Court to allow the present appeal.
8. On the other-hand, Mr.K.P.Rawal, learned APP has supported the judgment rendered by learned trial Court. He submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper Page 6 of 19 HC-NIC Page 6 of 19 Created On Mon Aug 14 01:47:03 IST 2017 R/CR.A/232/2004 JUDGMENT perspective and rightly convicted the accused which calls for no interference. He further submitted that finding recorded by learned trial Court is based upon the concrete and clinching evidence. He submitted that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant accused and ingredients as regards to demand, acceptance and recovery are proved in accordance with law and, therefore, this Court may dismiss the appeal filed by the appellant - original accused No.1. He, therefore, submitted that this Court may not interfere with the impugned judgment and order of conviction in view of the cogent and clinching evidence on record.
9. This Court has heard Mr.J.M.Panchal, learned senior advocate assisted by Mr.K.J.Panchal, learned advocate for the appellant and Mr.Rawal, learned APP for the respondent State.
10. 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, as stated above, accused No.1 demanded illegal gratification of Rs.1500/- for running two stage carriage buses of the complainant from Savarkundla to Ahmedabad. It is the case of the prosecution that as the complainant was not Page 7 of 19 HC-NIC Page 7 of 19 Created On Mon Aug 14 01:47:03 IST 2017 R/CR.A/232/2004 JUDGMENT willing to pay the bribe amount, he lodged the complaint. It is the case of the prosecution that in pursuance of the complaint, on 23.8.1996 around at 19.30 hours, the trap was carried out and during the trap, tainted currency notes were found and thereby the accused has committed the offence, as alleged.
11. PW 1 - Rustambhai Kasambhai has been examined at Exh.10. The witness has deposed that he was serving as Accountant in the office of Gadhiya Travels. The witness has deposed that accused No.2 asked him to meet accused No.1 and thereafter, he met accused No.1 along with one Ravatbhai Boradkawala, at that time, accused No.1 demanded Rs.1500/- for running two buses from Savarkundla to Ahmedabad. The witness has deposed that, therefore, he appraised the said fact to his owner Harshadrai and Harshadrai asked him to lodge the complaint as he is not willing to pay any bribe and hence, the witness visited the ACB office and lodged the complaint. The witness has deposed that the official of the ACB arranged for trap, requisitioned panchas and on the day of trap i.e. 23.8.1996, the complainant, panch No.1 as well as Mr.Ravatbhai Boradkawala visited Savarkundla Police Station, at that time, the complainant told original accused No.1 that he want to continue the buses from tomorrow, in turn, accused No.1 demanded Rs.1500/- and asked the complainant to hand over the same to accused Page 8 of 19 HC-NIC Page 8 of 19 Created On Mon Aug 14 01:47:03 IST 2017 R/CR.A/232/2004 JUDGMENT No.2. The witness has deposed that accused No.2 was not present in the police station and therefore they came out from the police station and when they were coming out, the constable shouted and he was called, at that time, panch No.1 and Ravatbhai were proceeding ahead of him and therefore, he alone went into the chamber of accused No.1. The witness has deposed that at that time, accused No.1 asked the complainant to hand over the money which he accepted the money by his right hand and counted the same and thereafter the complainant came out from the chamber of accused No.1 and gave prearranged signal and hence, the members of the raiding party as well as panch no.1 came there. The witness has deposed that the ACB official inquired as regards to tainted currency notes from the accused, at that time, accused No.1 told that he has not accepted any tainted currency notes and, therefore, extensive search was carried out in the chamber of accused No.1 for about half an hour, but tainted currency notes were not found from the chamber of accused No.1, but the said tainted currency notes were found behind the water pot which was placed outside the police station. In the cross examination, the witness has admitted that three water pots were lying outside the police station over the public road. The witness has admitted that the accused was not in a position to view the activities over the road from his chamber. The witness has denied Page 9 of 19 HC-NIC Page 9 of 19 Created On Mon Aug 14 01:47:03 IST 2017 R/CR.A/232/2004 JUDGMENT that he did not meet accused No.1 on 19.8.1996 as he was attending the conference at Bhavnagar. The witness has admitted that accused Nos.1 and 2 have never gathered and talked anything in his presence. The witness has admitted that when he raised prearranged alarm, the members of the raiding party arrived in the chamber of accused No.1 and that none else came out from the chamber of accused No.1 during that period. The witness has admitted that the accused has explained on being asked by the ACB official that he did not accept any amount from the complainant.
12. PW 2 - Karsanbhai Shardulbhai Khasiya has been examined at Exh.12. The witness has deposed that when he was serving in Dhandhuka Taluka Panchayat on 23.8.1996, he was requisitioned as official panch. The witness has deposed that he was, thereafter, taken to Savarkundla along with the raiding party and thereafter necessary formalities as regards to trap, test of ultra violate lamp and anthracene powder were explained to him and he was instructed to accompany the complainant in order to view the incident and hear the conversation between the complainant and the accused. The witness has deposed that at the time of trap, he accompanied with Ravatbhai Boradkawala and the complainant alone went into the chamber of accused No.1 and after the complainant gave the prearranged signal, he entered into the chamber Page 10 of 19 HC-NIC Page 10 of 19 Created On Mon Aug 14 01:47:03 IST 2017 R/CR.A/232/2004 JUDGMENT of accused No.1 along with other members of the raiding party. In the cross examination, the witness has admitted that he did not view the incident of handing over tainted currency notes to accused No.1 and hear the conversation between the complainant and accused No.1. The witness has admitted that he is not in a position to say as to who has placed the tainted currency notes behind the water pot lying outside the police station. The witness has admitted that accused No.1 was althroughout remained in his chamber and he has not come out from his chamber.
13. PW 3 - Prahladbhai Bhaishankarbhai Desai has been examined at Exh.14 who has prepared the sketch map of the place of incident which came to be proved in his evidence. The said document is admitted as Exh.15.
14. PW 4 - Purankishan Ramnarayan Bansal has been examined at Exh.18. The witness has deposed that he was serving as Director General of Police, Gujarat State and he has accorded sanction and the said sanction came to be proved and admitted vide Exh.19.
15. PW 5 - Dineshkumar Chhanabhai Patel has been examined at Exh.21. The witness has deposed that he was serving as Police Inspector at the relevant time in ACB office, Ahmedabad. The witness has deposed that he has arranged for raid Page 11 of 19 HC-NIC Page 11 of 19 Created On Mon Aug 14 01:47:03 IST 2017 R/CR.A/232/2004 JUDGMENT and also carried out the trap. The witness has detailed as to how he has carried out the raid. In his deposition, the witness has stated as to how tainted currency notes were found from behind water pot situated outside the police station and number of the said tainted currency notes were tallied with the number of currency notes mentioned in the preliminary panchnama. The witness has stated that though extensive search was carried out in the chamber of the accused, tainted currency notes were not found. In the cross examination, the witness has admitted that on 19.8.1996 accused No.1 attended conference held by the Dy.S.P., Bhavnagar from 15.15 hours to 20.30 hours. In his deposition also, station diary entry dated 19.8.1996 came to be proved wherein the presence of accused No.1 was found to be at Bhavnagar from 15.00 hours to 20.30 hours. The witness has admitted that water pots are placed on the road outside the police station gate which are at the distance of more than 20 feet from the gate. The witness has also admitted that the complainant, while coming out from the chamber of accused, passed nearby water pots lying outside the police station on the road. The witness has also admitted that it was not possible to throw currency notes from the window of the chamber of accused No.1. The witness has admitted that while making personal search of accused No.1, he explained that he has not accepted any amount of illegal gratification.
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The witness has admitted that as tainted currency notes were not found from the chamber of accused No.1, the raiding party searched the same outside the police station. The witness has admitted that he has not investigated as to how tainted currency notes were found from behind water pots. The witness has admitted that while carrying out the test of ultra violate lamp over the person of the accused No.1, it was found to be negative so far as the thumbs of both the hands are concerned and it was found positive over the fingers of hands of accused No.1. The witness has admitted that accused No.1 also accepted that he shook his hands with the complainant.
16. At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in A.Subair Vs State of Kerala, (2009) 6 SCC 587 : (2009 AIR SCW 3994), while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act 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.
17. In State of Kerala and another Vs C.P.Rao Page 13 of 19 HC-NIC Page 13 of 19 Created On Mon Aug 14 01:47:03 IST 2017 R/CR.A/232/2004 JUDGMENT (2011) 6 SCC 450 : (AIR 2012 SC (Supp) 393), the Honourable Apex Court reiterating its earlier dictum, vis-a-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.
18. In a recent enunciation by the Honourable Apex Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B.Jayraj (AIR 2014 SC (Supp) 1837) (supra) 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) and (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 Page 14 of 19 HC-NIC Page 14 of 19 Created On Mon Aug 14 01:47:03 IST 2017 R/CR.A/232/2004 JUDGMENT Section 13(1)(d)(i) and (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 Section 20 of the Act would also not arise.
19. 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, irrespective of the fact that the raid was carried out and recovery was made, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt.
20. In the backdrop of the aforesaid factual position and on overall analysis of the evidence on record, it appears that complaint is at Exh.11. So far as the evidence of the complainant is concerned, predemand came to be raised by accused No.1 on 19.8.1996 is not getting support in view of documentary evidence produced from the office of the police department wherein it is clearly emerging out that on 19.8.1996 from 15.15 Page 15 of 19 HC-NIC Page 15 of 19 Created On Mon Aug 14 01:47:03 IST 2017 R/CR.A/232/2004 JUDGMENT hours to 20.30 hours, accused No.1 attended conference at Bhavnagar and that fact is also emerging out from the entry in the station diary as well as log book and weekly diary produced at Exhs.35 to 39. So far as instant demand at the time of trap on 23.8.1996 is concerned, the evidence of the complainant has become unreliable for the variety of reasons as when he visited the accused No.1 along with panch No.1 as well as Ravatbhai Boradkawala, at that time, accused No.1 directed the complainant to hand over the amount of bribe to accused No.2. As accused No.2 was found to be absent and hence, the complainant alone again went into the chamber of accused No.1 and he handed over the tainted currency notes to accused No.1 which accused No.1 accepted the same by his right hand and counted Rs.1500/- and kept the same in his hand. On minutely going through the evidence on record, it appears that the said fact is also not getting corroboration from the independent evidence in the nature of test of ultra violate lamp which was carried out by the investigating agency wherein test of ultra violate lamp was found to be negative over the thumbs of both the hands of accused and as per the explanation narrated by the accused before the Investigating Officer that the complainant while visited him, he shook his hand and therefore ultra violate lamp was found to be positive so far as fingers of accused are concerned. Not only that though as per the say Page 16 of 19 HC-NIC Page 16 of 19 Created On Mon Aug 14 01:47:03 IST 2017 R/CR.A/232/2004 JUDGMENT of the complainant, he did hand over tainted currency notes to accused No.1 in his chamber which were kept in the hand by the accused and soonafter other members of raiding party as well as both the panchas arrived in the chamber of accused No.1, till then accused No.1 has not come out from his chamber, but the tainted currency notes were not found either from his person or from the entire police station including his chamber and as per the topography map prepared at Exh.15 which discloses that tainted currency notes were found from behind the water pots placed outside the police station over the public road situated thereby.
21. So far as instant demand is concerned, except the evidence of the complainant, nothing has come on record as to when the demand was raised by accused No.1 and as to when he accepted the bribe amount. As narrated above, deposition of the complainant has become unreliable for the variety of reasons as discussed above and therefore his evidence so far as instant demand is concerned is not at all reliable.
22. So far as recovery of tainted currency notes from behind water pots placed over the public road outside the police station is concerned, the prosecution has not at all led any evidence as to how tainted currency notes were found from the said place and even if the theory Page 17 of 19 HC-NIC Page 17 of 19 Created On Mon Aug 14 01:47:03 IST 2017 R/CR.A/232/2004 JUDGMENT of handing over tainted currency notes to accused No.1 into his chamber may be believed to be true, in that eventuality, as to how the said tainted currency notes were found out after extensive search of half an hour from outside the police station from the open public place. The prosecution case is silent as regards to searching out tainted currency notes from behind water pots placed outside the police station on the public road. Even, the Investigating Officer himself has admitted that he has not carried out the investigation as to how the tainted currency notes were found from behind the said water pots instead of chamber of accused No.1 and therefore entire theory of recovery of tainted currency notes has also become doubtful and meaningless.
23. In view of the aforesaid nature of evidence, when demand and acceptance is not proved which are vital ingredients so far as establishing the guilt of accepting illegal gratification is concerned and in consequence whereof, recovery of tainted currency notes from behind water pots which were lying outside the police station on the public road has become meaningless. In this view of the matter, finding recorded by learned trial Court is not in consonance with the evidence available on record. It is by now well settled that demand has to be proved by adducing clinching evidence. Under the circumstances, in absence of specific and Page 18 of 19 HC-NIC Page 18 of 19 Created On Mon Aug 14 01:47:03 IST 2017 R/CR.A/232/2004 JUDGMENT clinching evidence to prove all such acts by the appellant accused, conviction recorded by learned trial Judge is not sustainable.
24. For the reasons recorded above, the appeal succeeds. The impugned judgment and order of conviction dated 19.1.2004 rendered by learned Special Judge, Amreli in Special Case No.97 of 2001 is quashed and set aside. The appellant accused is acquitted from the charges levelled against him. Fine, if any, paid by the appellant accused be refunded to the wife of the appellant accused after due verification. R & P be sent back to the trial Court, forthwith.
(R.P.DHOLARIA,J.) pathan Page 19 of 19 HC-NIC Page 19 of 19 Created On Mon Aug 14 01:47:03 IST 2017