Gujarat High Court
Vinodbhai Khemabhai Chauhan vs State Of Gujarat on 13 March, 2018
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.A/1723/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1723 of 2013
With
R/CRIMINAL APPEAL NO. 34 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI SD/-
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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VINODBHAI KHEMABHAI CHAUHAN
Versus
STATE OF GUJARAT
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Appearance:
MR YM THAKKAR(902) for the APPELLANT.
MS. MAITHILI MEHTA APP for the RESPONDENT.
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 13/03/2018
COMMON ORAL JUDGMENT
Criminal Appeal No.1723 of 2013 challenges the judgment and order of conviction and sentence passed in Special (ACB) Case No.7 of 2009 by the learned Special Judge & Additional Sessions Judge, Dahod on 21/11/2013 whereby the appellantaccused was Page 1 of 10 R/CR.A/1723/2013 JUDGMENT convicted for the offences punishable under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and sentenced to undergo one year RI with fine of Rs.5,000/ with the added sentence of six months SI in default of fine, for both the offences. All the sentences were ordered to run concurrently.
Criminal Appeal No.34 of 2014 is preferred by the State for enhancement of the sentence.
2. It was the prosecution case that accused was then serving as Deputy Mamlatdar (Criminal Department) Chitnish Branch situated at Jilla Seva Sadan, Dahod when the application was made by the complainant for arms licence with the Collector, Dahod.
2.1 The complainant received a cover dated 24/01/2009 from Collector's office presumably containing licence in it; which in fact was not there and therefore met accused in the Collector's office who demanded Rs.10,000/ and since the complainant did not have the money at that point of time, he promised the payment and again went to the Collector's office on 26/02/2009, but the accused was not found. The complainant contacted the accused telephonically and complainant was informed that the accused was at Ahmedabad and would come on Tuesday and further told the complainant to collect the arm licence after payment of Rs.10,000/.
Page 2 of 10R/CR.A/1723/2013 JUDGMENT 2.2 Thereafter, the complaint was lodged on
27/02/2009 and on 03/03/2009 a trap was arranged. The complainant went to the room No.113 occupied by the accused and upon arrival of the accused, he was greeted and Panch No.1 (PW 2 Exh.26) was introduced as the complainant's uncle's son, when asked by the accused. Thereafter, the accused told complainant that his licence has outlived its utility and that is why he was frequently reminding him to come immediately and the complainant told him that he took sometime for arranging the money. Thereafter, the accused invited the complainant for a cup of tea. They thus went to the tea vendor (accused, complainant and Panch No.1); had a cup of tea; returned; and accused helped complainant write an application and advised him to submit the same to the Registry and was further advised to go to the urinal; place the money in the cover and bring it to him (accused) on return from registry. The complainant complied with the instructions. When the complainant and Panch No.1 were returning from urinal, accused met them on the way and took them to room No.117 and accused inquired about the money and the complainant affirmed that they were in the cover and thereupon on accused gesture demanding the money, the complainant took out the cover from his left pocket of shirt by using his right hand and handed it over to accused who accepted it by his right hand and he opened the cover by using left hand; pulled the currency notes out of the pocket; looked at the complainant and Page 3 of 10 R/CR.A/1723/2013 JUDGMENT confirmed with him whether the count is correct; whereupon the complainant told him that it is Rs.10000/ and thereafter the accused placed the cover in the left pocket of his pants and thus the accused was trapped.
2.3 Before the actual trap, the complainant visited the office of the ACB, Baroda where according to the investigator, the first part of the Panchnama was drawn recording the necessary procedures. During the said procedure, 20 currency notes in the denomination of Rs.500/ were smeared with anthracene powder and placed in the pocket of the shirt of the complainant.
2.4 The second part of the Panchnama (Exh.28) is claimed to have been drawn partly in room No.117 and rest in room No.21 which room was known as Disaster Management Room.
3. The revelation inter alia in the said Panchnama are thus:
3.1 The complainant, Panch No.1, Panch No.2 and other members of the raiding party disembarked the vehicle after reaching at the scene of the offence and the complainant and Panch No.1 proceeded to room No.113 of the Collector's Office around 11:50 hours on 03/03/2009. While the complainant and Panch No.1 were going to the Registry for giving the above mentioned application, the accused gave to the Page 4 of 10 R/CR.A/1723/2013 JUDGMENT complainant a white printed cover with the instructions that while returning, the complainant may visit the urinal to place the money fixed in the deal in the cover and bring it to the accused and therefore Panch No.1 and complainant went to ground floor; submitted the application and complied with the instructions as given by the accused. When they were returning, the accused met them on the way and took them to room No.117 where one person was working on the computer and the accused occupied the chair besides him and asked the complainant whether the money were placed in the cover as instructed which was replied by the complainant in affirmative. The accused made a gesture demanding money and the complainant took out the money from his left pocket of the shirt by use of "right hand" and extended his hand to the accused who accepted the same by his "right hand" and opened the cover by his "left hand"
and entered his left hand in the cover; pulled the currency notes out and confirmed with the complainant whether count was correct or not; to which the complainant told him that the count was Rs.10,000./. The accused, thereafter, folded the cover containing the currency notes and placed the cover in left pocket of his pants. Thereafter, the trap party arrived on the signal being given by the complainant.
3.2 It is further borne out from the Panchnama that both the hands of the accused were washed in two different beakers and left hand wash indicated the pink colour and right hand did not indicate any Page 5 of 10 R/CR.A/1723/2013 JUDGMENT colour. Similarly, it is further stated that both the hands of the complainant were washed in two different beakers and the right hand wash indicated the pink colour and the left hand did not. Thereafter, it is claimed in the Panchnama that by use of "filter paper" in the left pocket of the pants of the accused, marks of anthracene power was found.
3.3 It is also noticed from the Panchnama that room No.117 admeasured 20' x 50'. The Panchnama further refers to the fact that some part of the Panchnama was drawn in room No.117 and since the trap party found it congested, on request they were allotted room No.21. The Panchnama also refers to the fact that when the accused was asked about the licence of the complainant, he pulled it out of the drawer of room No.21.
3.4 The record reveals that the complainant is the resident of Village Ved, Tal. Dhanpur and Dahod Anti Corruption Bureau is the authority of the competent jurisdiction qua the offence taking place inter alia in the said village. It is also found that instead of going to Dahod ACB, the complainant went to 160 Kilometers all the way to Baroda ACB and Baroda ACB unhesitatingly and unofficially i.e. without recording anything in the Police Station, not only claims to have drawn the first part of the Panchnama at Baroda, but also ventured to carry out the raid in the Collector's Office aforestated at a distance of 160 Kilometers and that too beyond its Page 6 of 10 R/CR.A/1723/2013 JUDGMENT jurisdiction.
4. Coupled with the above facts, it is also noticed that the Panch No.2 who was one of the crucial independent witness came to be dropped by the prosecution for no reasons. Normally, in the cases under Prevention of Corruption Act, the Panch Witness is cited as one of the crucial witness who impartially witnesses the happenings during the first part of the Panchnama; happenings during his accompaniment with members of the raiding party; complainant and Panch NO.1 and the happenings post the acceptance of the illegal gratification by accused. When the State or public body is a prosecutor, it owns a duty to explain the cause for dropping such a crucial witness; else the Court would be justified in drawing adverse inference against the prosecution. If dropping of the crucial witness viewed in the light of the flaws pointed out elaborately in its judgment; there is a reason to believe that had the Panch No.2 been examined, he would not have supported the prosecution case or would have revealed something unfavourable to the prosecution.5. In his testimony, the Panch No.1 (PW 2
Exh.26) only refers to the hand wash of left hand of the accused and omits the reference to his right hand which however is mentioned in the Panchnama. While the Panchnama finds the accused having used both the hands while receiving and putting the illegal Page 7 of 10 R/CR.A/1723/2013 JUDGMENT gratification in his pocket; nowhere in the testimony, Panch No.1 refers to the said fact. Similarly, PW 2 initially refers to the right hand dip of the complainant and thereafter corrects himself by stating that on dipping the left hand of the complainant in the bowl of water, no change in the bowl was noticed. Thus, it can be noticed that the version of Panch No.1 (PW 2 Exh.26) does not get corroborated by Panchnama on material particulars. The Panchnama contains selfcontradictory statements, more particularly, the statement that complainant and the accused used both the hands in handling the smeared currency notes but anthracene powder was found only one of their hands. If both the hands were used, the anthracene powder would be found on both hands and not one.
6. It is also noticed from the record that concededly the accused was occupant of room No.113. Initially, the complainant and PW 2 met him in that room and he is stated to have invited them to room No.117 when they were returning from the Registry. Therefrom, the raiding party, under the guise that room No.117 was congested; which fact in absence of any other suitable explanation, does not appear to be true, having regard to the noting of the measurement of the said room being 20' x 50' in the Panchnama itself; took the accused and others to room No.21 on the ground floor. It is the prosecution case that when raiding party officials inquired whereabouts of the licence of the complainant; with the accused, he Page 8 of 10 R/CR.A/1723/2013 JUDGMENT took it out from the drawer in room No.21. In absence of the explanation as to how the said document landed in drawer in room No.21 when the accused was not using the said room as his office or chamber, a serious doubt revolves around the prosecution story. A doubt is raised whether it was planted raid. The fact that the complainant exhibited undue interest in the raiding officer by pretending to register a case against the accused with him at a distance of 160 kilometers of the scene of offence, though ACB Police Station was available near the scene of incident, and the fact that the raiding officer, without even taking the complaint on record as also the first part of the Panchnama, unhesitatingly obliged the complainant by accompanying him to the scene of offence at a distance of 160 kilometers, with other members of the raiding party, raises a serious doubt against their credibility in absence of the plausible explanation in that regard.
7. The trial Court was swayed away predominantly by the deposition of the complainant and Panch No.1 (PW 2 Exh.26) ignoring the above startling flaws in the evidence. It thus landed in serious error by recording the conviction of the accused.
8. In the result, Criminal Appeal No.1723 of 2013 preferred by the appellantaccused is allowed and Criminal Appeal No.34 of 2014 preferred by the State for enhancement of sentence is dismissed. The Page 9 of 10 R/CR.A/1723/2013 JUDGMENT judgment and order of conviction and sentence for the offences punishable under Sections 7 and 13(1) read with Section 13(2) of the Prevention of Corruption Act rendered in Special (ACB) Case No.7 of 2009 by the learned Special Judge & Additional Sessions Judge, Dahod on 21/11/2013 is quashed and set aside. The appellant is acquitted of all the charges levelled against him. Bail bond and surety shall stand discharged. Fine, if any, paid by the appellant shall be refunded to him on proper identification by the trial Court.
(G.R.UDHWANI, J) SOMPURA Page 10 of 10