Gujarat High Court
Rameshchandra vs State on 23 March, 2010
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
Print
CR.A/1172/1994 34/ 34 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1172 of 1994
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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RAMESHCHANDRA
HARILAL VYAS & 1 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
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Appearance
:
MR
KB ANANDJIWALA for
Appellant(s) : 1 - 2.
MR RC KODEKAR, APP for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 23/03/2010
ORAL
JUDGMENT
The appellants original accused have filed this Appeal under Section 374 of Cr.P.C. challenging the Judgment and order of conviction dated 03.10.1994 passed by the learned Special Judge, Court No.2, Ahmedabad, in Special Case No. 6 of 1990, whereby the learned Special Judge has held the appellants accused guilty for the offences punishable under Sections 7 of the Prevention of Corruption Act (for short P.C. Act) and awarded sentence to under-go S.I. for three years and to pay fine of Rs.1,500/- each in default, to undergo S.I. for three months and for the offence under Section 13(1)(d)(i) & (ii) punishable under Section 13(2) of P.C. Act and awarded sentence to under-go S.I. for three years and to pay fine of Rs.1,500/- each in default, to undergo SI for three months. The learned Judge has ordered that the substantive sentences shall run concurrently.
Brief facts of the prosecution case is that on 20.3.1989 Police Inspector G.K. Desai of A.C.B. lodged the complaint that he had received information that the traffic police, city police, R.T.O. Officials and the Municipal employees manning octroi check-post in the different parts of Ahmedabad city are demanding and accepting illegal gratification from the truck-operators and other heavy vehicle operators and to find out the truth in the matter a trap should be laid and as such on 18.3.1989 the complainant requisitioned the services of two panch witnesses. Both the witnesses were informed about the function which they have to function. Thereafter the raiding party, along with two panchas, started for Shamlaji on 18.3.1989 and on 19.3.1989 in the early morning they stopped two trucks bearing No. DIL 3817 and DIL 4667 and the drivers of both the trucks were appraised of the fact of the mission by A.C.B. raiding party and both the drivers showed their willingness and co-operation for trapping the corrupt officials. Therefore, the complainant produced currency notes worth Rs.150/- smeared with anthracene powder and after following the due procedure preliminary panchnama was prepared. Thereafter the currency notes worth Rs.70/-, i.e. one of Rs.50/- and another of Rs.20/- were put in the pocket of truck driver Azad and remaining amount of Rs.80/- in the denomination of Rs.50/- note and three notes of Rs.10/- were put in the pocket of driver Satbir Sharma and both the truck drivers were made to understand that they should not touch these notes unless and until the demand for gratification is made by the traffic police, city police or the employees of octroi check-post and as and when the demand is made they should take out the currency notes and pay the demanded amount from the said currency notes. Panch witness Laxmansinh Jadav was asked to accompany driver Azad as pseudo witness and to hear the events taking place. The first part of the trap panchnama was duly completed in which the serial numbers of smeared currency notes were written in presence of two panchas. Thereafter at about 8.00 a.m. the raiding party along with one panch and the truck drivers in the truck, along with 1st Panch, started towards Ahmedabad and at about 1.00 in the noon and they reached near Nana Chiloda Octroi check-post. As there was compulsory security posted there, the trucks were stopped there and the drivers of both the trucks with the requisite papers proceeded to the Octroi Naka where both the accused were there. On seeing the papers the accused No.1 told them that they should pay Rs.3,000/- and at that time the accused No.2 informed the truck drivers that if they are not having that much money, they would have to pay Rs.40/- for both the trucks towards which each would, however, be issued receipt of Rs.5/- only. Both the drivers requested them that at that time they do not have that much amount. Thereupon, the accused No.1 informed the company on phone where the goods were to be transported and informed them to send Rs.2,688/- and thereafter he demanded Rs.20/- from each truck-drivers. Thereupon both the truck drivers, out of the said smeared notes, took out Rs.20/- from their pockets, and tendered the same to the accused No.1. The amount was accepted by the accused No.1 and counted the same and put it on the table. The accused No.1 prepared the receipt of Rs.2,688/- and gave it to the driver of truck No.DIL 3817 and accused No.2 prepared the receipt of Rs.5/- in respect of truck bearing No. DIL 4667 and gave it to the driver of that truck. Thereafter, both the truck drivers came out and gave the pre-arranged signal to the raiding party. The raiding party reached the spot immediately and carried out the raid and the panch witness recovered the smeared currency notes which were lying on the table of accused No.1. The numbers of currency notes were tallied which were noted in the first part of panchnama. The notes were seized in presence of panchas and thereafter remaining part of panchnama was completed. The raid was successfully carried out. Thereafter, the investigation was carried out by PI Vinod Jashvantray Vyas, of A.C.B. On completion of investigation the requisite sanction of the competent Authority was obtained to prosecute the accused and thereafter the charge-sheet against the accused came to be filed. The prosecution has examined 5 witnesses and produced and also relied upon the documents and at the end recorded the statement of accused under Section 313 of Cr.P.C. At the conclusion of the trial, after considering the oral as well as documentary evidence led by the parties and the arguments advanced, the learned Special Judge, vide impugned Judgment and order dated 3rd October, 1994, held the accused appellants guilty for the offences charged against them. The learned Special judge convicted the appellant accused for the offence under Section 7 of the Prevention of Corruption Act, 1988 (for short P.C. Act ) both the accused were awarded sentence to undergo simple imprisonment of three years and to pay fine of Rs.1,500/- each in default to undergo SI for a period three months. The learned Judge also held both the appellants accused guilty of the offence under Section 13(1(d)(i) and (ii) punishable under Section 13(2) of P.C. Act and both the accused were awarded sentence to undergo SI for three years and to pay fine of Rs.1,500/- each i/d to undergo SI for a period of three months. The learned Judge ordered that the substantive sentences shall run concurrently.
Being aggrieved by and dissatisfied with the Judgment and order dated 3rd October, 1994 passed by the learned Special Judge, Court No.2, City Civil & Sessions Court, Ahmedabad, in Special Case No. 6 of 1990, the appellants (original accused) has preferred this Appeal.
Heard learned Advocate Shri K.B. Anandjiwala, appearing for the appellants original accused and learned A.P.P. Shri R.C. Kodekar for the respondent State. I have gone through the Judgment and order passed by the learned Special Judge and also gone through the oral as well as documentary evidence produced before me. I have also gone through the papers produced before me.
Learned Advocate Mr. Anandjiwala has contended that the Judgment and order passed by the learned Judge is is illegal and against the provisions of law. He has read the charge Exh.4 and has also gone through the contents of Exh.33 Sanction and contended that the charge is defective. He contended that the Sanctioning Authority the Deputy Municipal Commissioner, to whom the papers of investigation were sent for according sanction to prosecute against the accused, as per his deposition, is not knowing Gujarati and, therefore, he preferred to depose in English, which clearly means that the Sanctioning Officer does not know Gujarati. Therefore, the Sanctioning Authority has not applied his mind to the papers which were sent to him by the Investigating Agency and the sanction order would not be as per his dictation. He has contended that when the sanction (Exh.33) was not given with an application of mind and when the sanction is not proved beyond reasonable doubt and when the prosecution has not proved that it was given with application of mind, then it would fatal the case of prosecution. Learned A.P.P. Mr. Kodekar has contended that no doubt the learned Judge has made a note that P.W. 4 T.S. Randhava (Exh.32) was not knowing Gujarati, but the defence in cross examination has not put the said question whether he (witness) is knowing Gujarati and whether he was able to read Gujarati or not. I have perused the said contention from the evidence produced on record and from the perusal of evidence of Sanctioning Authority, it is true that the defence has not put any question to this witness that whether he was able to read Gujarati or not. Mr. Kodekar has also drawn my attention that so far as State of Gujarat is concerned, the State Government has issued the circular that the I.A.S. & I.P.S. Officers and also other officers/employees of State of Gujarat, who belong to the State other than the State of Gujarat, should clear the examination in Gujarati Language as well as in Hindi Language and without obtaining the certificate of language they cannot serve in State of Gujarat. Mr. Kodekar has read the charge (Exh.4) and also read the contents of Sanction (Exh.33) and contended that the required allegations forming offences alleged against the accused have already been described in the sanction as well as in the charge (Exh.4) and, therefore, the defence has no right to say that the charge (Exh.4) is defective.
I have gone through the sanction accorded by the Sanctioning Authority and also compared the sanction with the Panchnama, deposition of the panch witness, trapping officer and the Investigating Officer and I have also gone through the contents of charge (Exh.4). I have not found any substance in the submission of Mr. Anandjiwala that Sanction (exh.33) was given by the Authority is without any application of mind. No doubt the learned Judge has made a note that witness is not knowing Gujarati, but the learned Judge has not observed that the witness is unable to read Gujarati and, therefore, there is no force in the contention of Mr. Anandjiwala that sanction given by the Sanctioning Authority is without application of mind. I have also not found any substance that the charge (Exh.4) is defective.
Mr. Anandjiwala has taken me through Exh.49 & 50 explanation of the appellants accused before the learned Special Judge in connection with the statement recorded under Section 313 Cr.P.C. and contended that the appellants accused have properly explained their case before the learned Special Judge and looking to the alleged petty bribe amount the provision of Section 20 of the P.C. Act cannot come into force and the presumption cannot be drawn against the present appellants accused. Learned Counsel Mr. Anandjiwala has read the trap panchnama (Exh.15) and from the internal page No.6 of the said panchnama he has read the contents that during search of the accused No.1 appellant No.1, from the table, currency notes of Rs.40/- i.e. one note of Rs.20/- and two notes of Rs.10/- each, were found and during application of ultra-violet lamp, anthracene powder was found from both the sides of the notes. Even both the fingers of hands of accused No.1, and on tip and palm anthracene powder was found. He has, therefore, vehemently contended that the amount which is mentioned in the panchnama is doubtful. He has also again read the charge (Exh.4) and contended that the learned Judge has committed an error in not properly appreciating the fact that the panchnama has also created the doubt and, therefore, the benefit of doubt may be given to the accused appelalnts. He has also contended that from the oral evidence of the Panch witness as well as the trapping officer and also looking to the contents of panchnama, the trap amount which was found on the table of appellant No.1 accused No.1, the trap amount was found with other currency notes and the prosecution has never bothered to mention that from other currency notes whether the anthracene powder was found or not. He has also contended that the trap amount which is explained in the oral version of panch witness (P.W.1) Laxmansinh Dahyabhai Jadav, is also creating doubt and, therefore, the prosecution has failed to prove its case beyond reasonable doubt.
Learned Counsel Mr. Anandjiwala has read the oral evidence of P.W. 5 M.V. Joshi, Officer on Special Duty, who was Deputy Superintendent in Octroi Department of the Corporation, and contended that this witness has explained regarding F form, which is essential for the transporter, and the facilities which can be given to the transporter. He has contended that when the transport company of the decoy witnesses were enjoying the facilities of F form, no question would arise for the present appellant to demand bribe money from the driver. Mr. Anandjiwal has, after reading Exh.37, vehemently contended that the name of Vijay Laxmi Transport is shown as the transport company at Exh.37 and the said transport company was enjoying the facilities as per the Rule and, therefore, no question would arise for the appellants accused to demand illegal gratification from the driver and acceptance of the illegal gratification.
Mr. Anandjiwala has also read over the evidence of Vinod Jashwantrai Vyas, IO (P.W.3) and contended that from the cross examination of this witness the case of the defence was already established before the learned Special Judge and from the oral evidence of Trapping Officer (P.W.2) as well as the Investigating Officer (P.W.3) the prosecution has failed to prove its case beyond reasonable doubt. He has also read the Judgment of the learned Special judge and the observation made by the learned Judge and contended that the learned Judge has not considered the evidence of the witnesses in a legal manner and has committed serious error. Mr. Anandjiwala has contended that the fact that the Trapping Officer has received the information regarding the demand of illegal gratification and regarding the cognizable offence has not been mentioned in station diary and, therefore, the said act of the Trapping Officer would be fatal to the prosecution case. He has further contended that from the oral evidence of Panch witness as well as of Trapping Officer the demand is not proved by the prosecution beyond reasonable doubt and, therefore, the appellants accused cannot be held guilty for the alleged offences.
Mr. Anandjiwala has relied upon the decision of the Hon'ble Apex Court in the case of HARI DEV SHARMA versus STATE (DELHI ADMINISTRATION), reported in AIR 1976 SC 1489. Para 3 of the said decision is relevant, which reads as under :
The High Court on appeal preferred by the appellant before us did not accept the prosecution case on the first two charges on the ground that it would be unsafe to hold on the bare testimony of the complainant that Rs.20/- had been paid to the appellant as alleged. Apparently, the High Court looked upon the complainant as a witness not to be believed unless his evidence was corroborated by other evidence. The High Court, however, accepted the other part of the prosecution case that the appellant had been caught while accepting Rs.70/- as bribe from the complainant. One circumstance which appears to have impressed the learned Judge was that the complainant was being harassed by various objections raised on his application ever since 1964 when the property was purchased. It appears however that the appellant started dealing with the file only from July, 1966, and the earliest of the notes made by him on the file was dated 20.7.1968. Admittedly, the complainant met the appellant for the first time on January 29, 1969 and, that being so, it is difficult to hold that the objections raised prior to this date were calculated to put pressure on the complainant. It is hardly reasonable to think that the appellant could anticipate what in fact followed. Besides, the appellant could not have been reponsible for any objection raised between 1964 and July 1966. But the main difficulty we feel in accepting the prosecution case arises out of the fact that the High Court disbelieved the part of it which, according to the prosecution, was the genesis of the case. Having disbelieved the story that the appellant had asked for a bribe of Rs.100/- of which Rupees 20/- was paid in advance, we do not think the High Court could reasonably proceed on what was left of the prosecution case to affirm the order of conviction passed by the trial Court. The prosecution case was one integrated story which the trial Court had accepted. If the High Court did not find it possible to accept a vital part of the story, it is difficult to see how the other part which did not stand by itself, could be accepted. It was not the prosecution case that Rs.70/- which was recovered from the appellant was the amount that the appellant had asked for from the complainant. This was a new case made by the High Court. Undoubtedly there are circumstances in this case which are highly suspicious against the appellant, but the High Court having disbelieved an essential part of the prosecution case on which the other part was dependent, we do not consider it safe to sustain the conviction of the appellant.
On going through the above observation of the Hon'ble Apex Court Mr. Anandjiwala has contended that the facts before the Hon'ble Supreme Court are similar to that of facts of the present case and, therefore, ratio laid down in this decision would also be applicable in the instant case. He has not contended that the prosecution has not examined the decoy witnesses who are the star witnesses of this case and the amount which is involved it is not proved through oral evidence of Panch witness as well as the Trapping Officer.
Mr. Anandjiwala has read over the oral evidence of Trapping Officer, Investigating Officer, Panch witness and also taken this Court through the panchnama and contended that Rs.5/- which was accepted by the appellants accused from the driver was in a legal manner and a receipt of Rs.5/- was also issued to the drivers. So the contents of the sanction issued by the sanctioning Authority creates doubt and the case of the prosecution which is under a cloud of doubt cannot be considered. Mr. Anandjiwala has also contended that the learned Judge has not considered the cross examination of the defence and contended that the reasons assigned by the learned Judge in the judgment are not convincing and believable and, therefore, the Judgment is required to be quashed and set aside.
Mr. Anandjiwala has also contended that the decoy witnesses truck drivers of both the trucks are the star witnesses of the prosecution. However, the prosecution has never bothered to examine any of the truck drivers, who are the star witnesses of the prosecution case, to support its case. He has contended that non examination of star winess would be fatal to the prosecution case and without any corroborative piece of evidence of decoy witness, the evidence of panch witness cannot be considered. He has also contended that the contents of Panchnama (Exh.15) is not dictated by the panch witness, and when it was dictated by the Trapping officer then it has no meaning and, therefore, it cannot be considered as corroborative piece of evidence.
He has contended that Vijay Laxmi Transport Company is a registered company and enjoying certain facilities provided to that company. He has contended that the question of common intention cannot arise in this case because the demand is not proved and the same was not made by accused from the truck drivers.
Mr. Anandjiwala has further contended that P.W.2 Police Inspector G.K. Desai (Exh.22) has deposed in his oral version before the learned Special Judge that on 18.3.1989 he has received some information regarding the corrupt activities by public servants. He has received the information that the officials of R.T.O., local police, city traffic police, and the staff of octroi department of the Corporation are collecting the bribe money in the name of entry fee from the truck operators which are entering the State from other States. He has contended that this is the information of a cognizable offence and it is required to be registered in a station diary, but, the Trapping Officer has never bothered to enter the said information in a station diary and, therefore, the said act of the trapping Officer is fatal to the case of prosecution. He has contended that without FIR the Police cannot start investigation. The ACB, Ahmedabad is a police station and without proper procedure the trapping Officer can not enter into arena of investigation regarding the information which was received by him. Therefore, looking to the above inaction on the part of the trapping officer the prosecution has not proved its case beyond reasonable doubt and the case of defence is required to be considered. Mr. Anandjiwala has relied upon the following decisions to support his case :
In the case of MANILAL NAGARDAS PARMAR v/s. STATE OF GUJARAT, reported in 1998 (1) GLH 44; this Court has observed as under :
In absence of said driver Firoz, the direct evidence that could have been led in this matter both from the point of view of the prosecution as well as from the point of view of the defence is not before the Court. He was the only person, who could have explained and given statement as to what really transpired. It may have led to conviction of the accused without in any manner of doubt, or it may have exonerated them honourably. In his absence what remains on record is the deposition of the panch witness, who, on the material particulars is not able to recollect anything. ...
Incidentally, before concluding, it may be mentioned that in the New Act in sub-section 20, the Legislature in its wisdom has provided that the Court may decline to draw a presumption referred to in S.20(2)(1) if the gratification or thing stated in those 2 sub-Ss. in the opinion of the Court is so trivial that no inference of corruption may fairly be drawn.
(ii) In the case of STATE OF GUJARAT v/s. JUJARSINH BHAVANSINH VIHOL & ORS., reported in 1999 (1) GLH 947, the Division Bench of this Court has observed as under :
Now, another infirmity which we could notice in this case is that the complainant Mr. Patil had received certain information earlier about the alleged illegal demand of bribe by the traffic police personnel on Ahmedabad Bhilad Highway. But unfortunately he has not recorded that information in his station diary. When a specific question was asked, he refused to reply from whom he received the information. He has further testified that he has received the information from owners of trucks that traffic police personnel are demanding illegal gratification under the pretext of entry fee. If this was the information received by him, then he ought to have selected some person as a complainant who could have been acted as a punter or decoy witness. Therefore, the basic substratum of the prosecution case is not established and without recording entry in this regard in the station diary he had started the investigation.
This was not a regular trap but it was a decoy trap. Mr. Patil, the complainant has not entered the information which he had received earlier in the station diary with regard to illegal demand for gratification by the traffic police personnel working on Ahmedabad-Bhilad Highway.
Mr. R.C. Kodekar, learned APP has gone through the charge as well as the oral evidence of Panch witnesses, trapping Officer and the investigating Officer and vehemently contended that the Trapping Officer (P.W.2), who was the Police Inspector in A.C.B, had received the information that the public servants like traffic Police, R.T.O. Officials, City Police personnel and the employees/officers working on the Octroi Check-post are demanding the illegal gratification from the truck operators in the name of entry fees. He has contended that the said information is not an information of cognizable offence and this information can be treated as cryptic information. There was no name of accused available, but the information was simply as per the description given by the informant. He has contended that the contention of the learned Appellant accused that the Trapping Officer has no right to investigate into the matter without F.I.R. is not true and would not be fatal to the case of prosecution. He has contended that the panch witness is an independent witness and the Trapping Officer and the Investigating Officer have no grudge or enmity against the accused and, therefore, there is no question to falsely involve them in the offences charged against them. He has contended that from the finger and palm of the accused anthracene powder was found. Yet, his conduct as abettor is established beyond reasonable doubt. Looking to the oral evidence of Panch witness, it is established on record that the demand was made by the accused.
Mr. Kodekar has contended that from the oral evidence of Trapping Officer and from the contents of Panchnama, it is clearly established that the currency notes of same serial numbers which were mentioned in the Panchnama were found from the table of accused. He has also contended that the Sanctioning Authority has also given valid sanction with application of mind. He has contended that the sanction is legal and valid sanction and is accorded after due application of mind after considering the material placed before the Authority and on scrutinizing the sanction from every corner, there is nothing to say that it was issued and given without application of mind. He also contended that the appellant accused have also informed the owner of the transport company and, therefore, Section 8 of the Evidence Act came into force. Mr. Kodekar has contended that the goods which were lying in the truck were for Ahmedabad and, therefore, there is no question of issue of F Form. So far as issuance of F form is concerned, the same is being issued to those vehicles which are coming or going out of State, through the State of Gujarat. Here, in this case the goods in the trucks were for Ahmedabad only and, therefore, there is no question of issuing F form. He has contended that the prosecution has also examined Deputy Superintendent of Octroi Department, but the defence has not bothered to put any question to this witness about the procedure of issuing M form. He has also contended that from Exh.37 and 38 it is clearly established that the said goods which were loaded in the truck was for Ahmedabad only. He has also contended that the learned Judge has rightly considered the evidence of the complainant, Panch witnesses and the Investigating Officer and from the evidence of prosecution witnesses, the prosecution has proved its case beyond reasonable doubt. He has contended that from the oral as well as documentary evidence, it is established that the presence of anthrecene powder was found from the finger, tips as well as on the table. He has also contended that Section 8 of the Evidence Act applies qua the conduct of the present appellant accused. He has contended that no doubt the decoy witnesses have not examined by the prosecution, but the Panch witness, who as an independent witness examined by the prosecution, has fully supported the case of prosecution and his evidence is fully corroborated by the evidence of other witnesses. He has contended that looking to the provision of Sections 107, 108 and 34 of I.P. Code, the question of abettor and abatement and the common intention are required to be considered. He has lastly contended that looking to the facts and evidence of the case the learned Judge has not committed any error in holding the appellants accused guilty for the offences charged against them and the Judgment of the trial Court is just and proper and, therefore, no interference of this Court is required to be called for.
Heard both the learned Counsel. I have gone through the Judgment and order of the trial Court. I have also perused the oral as well as documentary evidence on record. I have also gone through the further statement of the accused recorded under Section 313 Cr.P.C. I have also gone through the decisions cited by both the sides.
The first question arise from the submission of learned Advocate Mr. Anandjiwala is that information which was received by the trapping Officer was not entered into the station diary and without any reason the Trapping Officer has no right to investigate into the matter. In the case of STATE OF UTTAR PRADESH v/s BHAGWANT KISHORE JOSHI, reported in AIR 1964 SC 221, the Hon'ble Apex Court has held that though ordinarily investigation is undertaken on information received by a Police Officer, the receipt of information is not a condition precedent for investigation. Section 157 prescribes the procedure in the matter of such an investigation which can be initiated either on information or otherwise. It is clear from the said provision that an officer in charge of a police station can start investigation either on information or otherwise. Now the case of decoy trap is concerned, in such type of offences always the Police Officer of ACB receives some information without mentioning the name of alleged persons who are demanding or getting illegal gratification from the member of society and just to verify the said fact, the concerned officer always is arranging the decoy trap with the help of two independent panchas and decoy witness. Thereafter the preliminary panchnama is drawn and necessary procedure like using anthracene powder, ultraviolet lamp is being followed by the Trapping Officer and then after successful trap remaining part of the panchnama is completed and the offence is to be registered by the Trapping officer at the Police Station. In the present case the trapping Officer has received information about the demand of illegal gratification by the Traffic police, city police, R.T.O. Officials and the employees/officers of the Octroi check post of the Municipal Corporation. On receipt of information he had called the panchas and the raid was carried out. Therefore, in my opinion, the decision of the Hon'ble Apex Court reported in AIR 1964 SC 221 (supra) is fully applicable to the facts of the present case and the Trapping Officer has not committed any wrong in not mentioning the information in station diary.
The next contention of Mr. Anandjiwala is that in the present case the decoy witness (driver) of the truck is not examined and non-examination of decoy witness would be fatal to the case of prosecution. The prosecution has examined the Panch witness, who is independent witness Government servant. The necessity for independent witness in cases involving police raid or police search is incorporated in the statute not for the purpose of helping the indicted person to by-pass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other. Acquaintance with the police by itself would not destroy a man's independent identity. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that they are not independent persons. If the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by extending help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that he was a dependent of the police or other officials for any purpose whatsoever. In this case, so far as role of appellant accused No.2 is concerned, he is cited as abettor and as per the submission made by learned Counsel Mr. Anandjiwala that the prosecution has not proved the role of appellant No.2 beyond reasonable doubt to connect him in the said alleged offence. I have gone through the oral evidence of P.W.1 Panch witness Laxmansinh Jadav and from the oral evidence of this witness it is clearly established that he has clearly explained the role of accused No.2. He has clearly deposed that accused No.2 has come to driver and informed him that if he (driver) is not ready to pay Rs.3000/- then he can prepare receipt of Rs.5/- and the above role of accused No.2 requires to be considered in light of the ingredients of Sections 107 and 108 of I.P. Code.
In the case of CENTRAL BUREAU OF INVESTIGATION v/s. V.C. SHUKLA, reported in 1998 (1) Crimes 219 (SC) : AIR 1998 SC 1406, the Hon'ble Supreme Court has observed as under :
Undoubtedly for a person to be guilty thereunder it is not necessary that the offences mentioned therein should have been committed pursuant to the abetment. Since 'abetment' has not been defined under the P.C. Act we may profitably refer to its exhaustive definition in Sec. 107 of the Indian Penal Code. As per the section a person abets the doing of a thing when he does any of the acts mentioned in the following three clauses :
(i) Instigate any person to do that thing, or
(ii) engages with one or more other person or persons in any conspiracy for the doing of that thing.....or
(iii) intentionally aids, by any act or illegal omission, the doing of that thing;
So far as the first two clauses are concerned, it is not necessary that the offence instigated should have been committed. For understanding the scope of the word aid in the third clause it would be advantageous to see Explanation 2 in Sec. 107 I.P.C. which reads thus :
Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.
It is thus clear that under the third clause when a person abets by aiding, the act so aided should have been committed in order to make such aiding an offence. In other words, unlike the first two clauses the third clause applies to a case where the offence is committed.
In view of above observation and the ingredients of Section 107 of I.P. Code the appellant accused No.2 is a public servant serving with appellant accused No.1 and he was on duty with accused No.1 and it was within his knowledge that decoyer company has no other right to enjoy special facilities regarding F form. Even during the exchange of dialogue by appellant No.1 to the decoy witness the same dialogue was also made by the appellant No.2 accused No.2 with the decoy witness. So in light of ingredients of section 107 I.P. Code the meaning and defence of abetment, as the word abettor is not defined in P.C. Act and on perusal of the ingredients of Section 107 of I.P. Code and on the perusal of documentary as well as oral evidence, I have not found any substance in the argument that the defence has proved that there is no role of appellant accused No.2 which can cite him as guilty.
For attracting the provisions of Section 7 and to establish offence under this section, it must be proved that -
(i) The accused was a public servant or expected to be a public servant at the time when the offence was committed;
(ii) The accused accepted or obtained or agreed to accept or attempted to obtain illegal gratification from some person;
(iii) For himself or for any other person;
(iv) Such gratification was not a remuneration to which the accused was legally entitled.
(v) The accused accepted such gratification as a motive or reward for,
(a) doing or forbearing to do an official act, or
(b) doing or forbearing to show favour or disfavour to someone in the exercise;
(c) rendering or attempting to render any service or disservice to some one with the Central or any State Government or Parliament or the Legislature of any State, or with any local authority, Corporation or Government company referred to in Sec.2 (c) or with any public servnt, whether named or otherwise.
From the evidence it clearly appears that at the time of trap first demand was made by the appellant No.1 accused No.1 and the same word of demand was also used by the appellant No.2 accused No.2 and the accused No.2 also told the decoy witness that if he is not ready to pay Rs.3000/- then he will prepare the receipt. Therefore, the conduct of accused No.2 in demanding the illegal gratification is proved and, therefore, both the appellants accused are liable to be held guilty for the offences charged against them.
I have also gone through the contents of panchnama as well as the oral evidence of Trapping Officer. From the oral evidence of Trapping Officer it is on record that the trap amount was recovered from the table of appellant accused and the scientific test is also proved positive and the evidence of Panch witness as well as the Trapping Officer were found acceptable. So, in light of said circumstances the case of the defence cannot be considered that the prosecution has not proved its case beyond reasonable doubt.
The contention of learned Counsel Mr. Anandjiwala that the prosecution has failed to examine the decoy witness (driver), who is a star witness and without examining the star witness the trial Court has committed an error in holding that the prosecution has proved its case beyond reasonable doubt. It is true that the prosecution has not examined the decoy witness, but, by non-examination of decoy witness it cannot be said that the prosecution has failed to prove its case beyond reasonable doubt. In this case the prosecution has examined the Panch witness, who is an independent witness a public servant and he has no grudge or enmity against the appellants accused and he has no reason to falsely involve the appellants accused in the case. The panchnama is an essential documents in which occurrence of incident, number of notes smeared with anthracene powder, etc. have clearly mentioned and from the deposition of panch witness the panchnama is proved by the prosecution and the evidence of Panch witness is also relied upon in support of testimony of Trapping Officer and the Investigating Officer. In a decision reported in 1961 (2) GLR 664, it has been held by the Division Bench of this Court that ...A panchnama is essentially a document recording certain things which occur in the presence of panchas and which are seen and heard by them. Panchas are taken to the scene of offence to see and hear certain things and subsequently they are examined at the trial to depose to those things and their evidence is relied upon in support of the testimony of an investigating officer. A panchnama recorded on such an occasion is, in its turn, relied upon in support of the evidence of the panchas as a statement previously made by them under Section 157 of the Evidence Act.
If it was a case of defence that panchas and the Trapping officer have any enmity with the accused persons and they are falsely involved in a case then the matter would have been different. However, in the present case there is no allegation against the panch witness or the trapping officer about the enmity with the accused and therefore they are falsely involved.
Learned Counsel Mr. Anandjiwala has contended that the Trapping Officer and the Investigating officer, both are interested witnesses as they are always keen to see that their trap be always successful and they may receive some appreciation from their department about their good work. This contention of Mr. Anandjiwala is not acceptable in the facts of the present case. When from the circumstantial evidence it is clearly established that oral evidence of independent witness is produced on record which corroborates with the contents of panchnama and other evidence of witnesses, then the evidence of Police Officers is required to be accepted as trustworthy without any reasonable doubt. The evidence of Police Officers, who are the members of raiding party, cannot be thrown away merely on the ground that they are the Police Officers or are interested because their work will be appreciated.
In a corruption case two aspects are important. Firstly, there must be a demand and secondly there must be acceptance. I have perused the oral evidence of panch witness and looking to the conduct of appellant No.2 accused No.2, provisions of Section 8 of the Evidence Act are required to be applied. Section 8 of the Evidence Act reads as under :
Motive, preparation and previous or subsequent conduct Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
From the oral evidence it is on record that the present appellant No.1 has talked with the owner of the transport company on telephone. This conduct creates doubt. Here in this case the conduct of both the appellants is considered to be that they have abetted each other. The defence has never tried to establish from the negative evidence just to prove that the conduct of the accused cannot be considered under Section 8 of the Evidence Act. If the conduct of the accused in relation to the crime come into question the previous and subsequent conduct are also relevant facts. Therefore, absence of ordinary course of conduct of accused and human probability of the case also would be relevant and when the present appellants have talked with the person of transport company on telephone it is established that provision of Section 8 of the Evidence Act is fully applicable in the present case. From the facts and evidence on record, in my opinion, the oral evidence of Panch witness, Trapping Officer as well as the Investigating Officer is trustworthy and acceptable. There is no rule of law that even if the witness is otherwise reliable, and is an independent, because of the fact that his associate in a pre-arranged trap about which he had become wanted, makes him accomplice or partition witness. In absence of anything warranting contrary conclusion, the conviction is not untenable merely because it is based on the testimony of such witnesses.
Learned Counsel for the appellants Mr. Anandjiwala has contended that the Trapping Officer has never bothered to check other currency notes, which were lying on the table, in the light of anthracene powder. This contention of Mr. Anandjiwala is not acceptable, because, from the perusal of evidence of Panch witness, it is clearly established that the trap amount which was recovered from the possession of appellants No.1 & 2, the said number of currency notes were compared from the numbers which were mentioned in the preliminary panchnama before the trap and, therefore, non- examination of other currency notes would not be fatal to the case of prosecution.
From the letter Exh. 38 the letter written by the Octroi Superintendent to the Police Inspector, ACB, Ahmedabad, it is clearly mentioned that the institution or the transport company which has been given facility to make the payment by cheque, instead of cash, the receipt is issued, after accepting the cheque, to those institution or the transport company. In the said letter it is clearly mentioned that Amruta Mills Company has not been provided the said facility. However, from reading Exh.37 it clearly appears that Vijay Laxmi Transport Company has been provided the said Memo facility. Mr. Anandjiwala has contended that perusing the document produced at Exh.27 it clearly appeared that acceptance of Rs.20/- was regarding the commission. The said contention will not be helpful to the defence in the facts of the present case. No doubt the accused have right to examine the witness as defence witness as the defence witness was available with the appellants accused, but the defence has never bothered to examine such witness who can be the star witness for the defence.
It is the contention of Mr. Anandjiwala that the panchnama was not dictated as per the say of the panch witness, but, it was dictated as per the wishes of trapping officer. From the admission of defence lawyer, in cross examination of P.W. 1, it is admitted by defence lawyer that in presence of P.W. 1 all incidents are narrated in the panchnama. The question regarding dictation of panchnama cannot arise and can not create doubt in favour of defence. From the oral evidence of Trapping Officer, the oral version of Panch is supported by the Trapping Officer and the panchnama is also proved beyond reasonable doubt.
When the Court is fully satisfied from the facts and circumstances of the case and oral evidence of panch witness and if the Court has found that the panch witness is a witness of truth, then no question can arise to say that the evidence of panch witness has created doubt. Learned Counsel for the appellant has contended that the prosecution has never examined decoy witness and the panch witness is an interested witness and, therefore, the evidence of panch witness cannot be considered in absence of any independent evidence of decoy witness. Presuming that the trap witness is a person of diabolic character, the trial Court cannot refuse to believe him without any evidence in absence of any legal warrant for the same and the trial Court cannot be prejudiced against the prosecution case only on the ground that decoy witnesses are not examined and the evidence of panch witness has created a shadow of doubt. The decoy witness has not been examined by the prosecution, who might have given further direction as to how the thing happened, would not nullify the conclusion. Non-examination of witness who would have narrated consequential part of the story, would not be fatal to the case of prosecution practically when other prosecution independent witness was there to depose it. It is quality of evidence and not quantity which is required. The crucks of the issue being is, has the prosecution been able to bring home the charge with evidence available on record and if that evidence is satisfactory in nature and trustworthy, then examination of large number or small number of witnesses cannot be termed as fatal to the case of prosecution.
Loking to the oral as well as documentary evidence led by the prosecution and looking to the conduct of the appellants accused, their intention to demand illegal gratification is clearly established beyond reasonable doubt. It is true that the evidence of demanding bribe can be corroborated by some other independent witness. In the present case the panch witnesses has fully supported the case of prosecution and the panch witnesses are the public servant and independent witnesses and their evidence is totally corroborated with the evidence Trapping Officer and the Investigating Officer.
From the perusal of above oral as well as documentary evidence, I am of the opinion that the accused have failed to rebut the presumption under Section 4 of the Act. Even from the cross examination of the witnesses, the present appellant have failed to prove their defence beyond reasonable doubt before the learned Special Judge. From the perusal of reasons assigned by the learned Special Judge, I have not found any substance to hold that the learned Special Judge has committed any error. Even from the submissions made by the learned Counsel Mr. Anandjiwala he has not convinced this Court that from which angle of the evidence, the defence version can be considered in favour of the appellant accused.
The contention of learned Advocate that the alleged incident has occurred in the year 1989 and today we are in 2010 and the appellant No.1 accused No.1 is aged about 72 years and suffering from many disease and, therefore, some lesser punishment may be awarded to the appellants accused. No doubt there is some delay in deciding the Appeal. But, it is not the fault only on the part of the prosecution, the appellant accused could have also approached the Court for early hearing by way of filing appropriate application for early hearing of Appeal. However, the appellants accused have not tried to approach this Court for early hearing of this matter. However, looking to the facts and circumstances of the case, if the sentence awarded to the appellants accused is reduced the same would serve the ends of justice. In the facts and circumstances of the case as also looking to the fact that the appellant No.1 is an old aged person, instead of awarding of sentence of 3 years imprisonment by the learned Judge, the appellants accused are ordered to undergo sentence of 1-1/2 years for the offences charged against them, maintaining the sentence to pay fine as it is.
I am, therefore, of the opinion that the learned Special Judge has not committed any error in holding the appellant accused guilty for the offences alleged against him and, therefore, I do not see any reason to interfere with the findings arrived at by the learned Special Judge. Therefore, I am in agreement with the reasons assigned by the learned Special Judge. Hence, impugned Judgment requires to be confirmed so far as conviction of the appellants is concerned. However, the said Appeal requires to be partly allowed so far as order of sentence is concerned. Hence,Appeal requires to be allowed partly.
For the reasons recoded in the Judgment, the Appeal is partly allowed. The Judgment and order of conviction dated 03.10.1994 passed by learned Special Judge, Court No.2, Ahmedabad, in Special Case No.06 of 1990 is hereby confirmed. However, the Judgment and order of sentence awarded by the learned Judge vide impugned Judgment is reduced to the following extent :
the order of sentence passed by learned Special Judge, Court No.2, Ahmedabad, awarding sentence to the appellants accused to suffer Simple Imprisonment for a period of three years is hereby reduced and the appellants accused are hereby ordered to undergo Simple Imprisonment for 1-1/2 years (one and half years) and to pay fine of Rs.1,500/- each i/d to further undergo SI for three months for the offence punishable under Section 7 of the P.C. Act.
the order of sentence passed by learned Special Judge, Court No.2, Ahmedabad, awarding sentence to the appellants accused to suffer Simple Imprisonment for a period of three years is hereby reduced and the appellants accused are hereby ordered to undergo Simple Imprisonment for 1-1/2 years (one and half years) and to pay fine of Rs.1,500/- each i/d to further undergo SI for three months for the offence under Section 13(1)(d)(i) and (ii) punishable under Section 13(2)of the P.C. Act.
The substantive sentences shall run concurrently.
Rest of the Judgment and order of the trial Court is hereby confirmed.
The appellants original accused are on bail and are hereby directed to surrender themselves before the Jail Authority within a period of six weeks from the date of this order, failing which the concerned Special Court shall issue non-bailable warrant to effect the arrest of the appellants original accused.
Bail bonds shall stand cancelled. R & P to be sent back to the trial Court immediately.
(Z.K.SAIYED, J.) sas Top