Gujarat High Court
Bimal Amthagiri Goswami vs State Of ... on 20 February, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/1139/1998 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1139 of 1998
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 ? ================================================================ BIMAL AMTHAGIRI GOSWAMI....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance:
MR AD SHAH, ADVOCATE for the Appellant(s) No. 1
MR HS SONI, APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 20/02/2015 Page 1 of 50 R/CR.A/1139/1998 CAV ORDER CAV ORDER
1. Bimal Amthagiri Goswami, the appellant -
original accused of Criminal Appeal has preferred this appeal under Section 374 of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 24.11.1998 passed by the learned Special Judge, Court No.9, Ahmedabad City, in Special Case No.13 of 1993, whereby, the learned Special Judge has convicted the appellant accused No.1 for the offence punishable under Section 7 of the Prevention of Corruption Act and sentenced him to undergo R.I. for one year and to pay a fine of Rs.500/, in default, to undergo further R.I. for one month. He is also convicted for the offence punishable under Sections 13(1)
(d) read with Section 13(2) of the Prevention of Corruption Act and sentenced to undergo R.I. for two years and to pay a fine of Rs.500/, in default, to undergo further R.I. for one month. The learned Judge has ordered Page 2 of 50 R/CR.A/1139/1998 CAV ORDER the substantive sentences to run concurrently. The accused No.2 is acquitted from the charges.
2. The brief facts of the prosecution case are as under:
On 17.2.1991 complainant Nadim Salman Saiyad has lodged a complaint before A.C.B. at Ahmedabad. He had one friend named Sunil Champaklal Dixit, who had married to one Rachna who was studying with him, he having love affair with her. After the marriage, Sunil and Rachna were residing with the complainant at the house of the complainant. In June 1990, Sunil went to America leaving Rachna at Gandhinagar with his parents. But Rachna had no good terms with her motherin law and brotherinlaw as they were torturing her and so she had left her husband's place and came to reside with the complainant. She got job as designer in Gujarat Handloom and Handicraft Corporation in October, 1990 and Page 3 of 50 R/CR.A/1139/1998 CAV ORDER was posted at Bhuj but she was frequently visiting Ahmedabad and at that time she was staying at the complainant's place. Meanwhile Sunil returned from America and quarrel took place between Sunil and Rachna. On 15.2.1991, Rachna was alone at the house of complainant and Sunil had gone to Gandhinagar. At about 11:00 a.m. complainant went out of the house for his business and Rachna was alone at his place. He returned his home at about 1:00 p.m. but the door of his house was closed. He pushed the door and opened it and found Rachna lying on the floor and her Dupatta was hanging from the ceiling fan. As Rachna was dead, the complainant informed Satellite Police Station. The postmortem was also carried out on the dead body of Rachna at Civil Hospital, Ahmedabad and at that time, the complainant, Sunil and Sunil's brother were taken to FSL where during the recess time i.e. on 16.2.1991 at about 14:30 hours one person met him who gave him address of Page 4 of 50 R/CR.A/1139/1998 CAV ORDER doctor who performed the postmortem and also told him to meet Dr.Goswami at the above address and that his work will be done nicely and that Dr.Goswami will help him. However, he did not go there at that time. He went to Police Station i.e. Satellite Police Station at night time at about 9:15 p.m. with his brother where the person who had met him in FSL office told him to go to Dr.Goswami's place, he met him there again and inquired about his meeting with Dr.Goswami but he told that he did not meet the doctor. Then he insisted him to meet Dr.Goswami and recommended that Dr.Goswami is a good man and that he will help him. Thereafter, the complainant, his brother and his friend went to Dr.Goswami's place at 9:30 p.m. Dr. Goswami welcomed them and asked them to sit in the room. As soon as the complainant gave his name, the doctor immediately told that Rachna's case is complicated one and that he will be put in difficulty and in that case Page 5 of 50 R/CR.A/1139/1998 CAV ORDER his decision will be final and with a view to meet him, he has not given his final report in the matter. By giving this consolation, he took the brother of the complainant at some distance and told him to finish whole work in favour of complainant and he demanded Rs.50,000/. Salim conveyed the same to the complainant that he will have to pay Rs.50,000/. Thereupon, the complainant and Salim both requested Dr. Goswami and after some persuasion Dr. Goswami agreed to accept Rs.9,000/ and demanded Rs.9,000/ and he agreed to give report in favour of the complainant if Rs.9,000/ is paid to him. The complainant agreed to pay the said amount and promised to pay the same by evening on 17.2.1991. They returned home. He had no wish to give this bribe amount and consequently, the complainant approached office of the Anti Corruption Bureau.
After receipt of complaint, panchas were Page 6 of 50 R/CR.A/1139/1998 CAV ORDER called, bribe amount was given by the complainant, anthracene powder was applied on the currency notes produced by the complainant. After performing all the formalities and drawing preliminary panchnama they carried out the raid by giving appropriate instructions to the panchas, complainant and other members of the raiding party, raid was successfully carried out. Dr.Goswami was found with currency notes which were recovered from the floor of his house, which he had brought on the floor after the raid of A.C.B. party. Panchnama was completed at Vejalpur police chowky, neighbours of Dr.Goswami assembled there. So after the raid was carried out, panchnama was completed and after due investigation charge sheet was submitted before the Court.
3. Thereafter, the charge was framed against the appellant to which the appellant - accused pleaded not guilty and claimed to be Page 7 of 50 R/CR.A/1139/1998 CAV ORDER tried.
4. Thereafter, prosecution has examined witnesses. The prosecution has produced documents and real evidence/muddamal. The accused has also produced documents.
5. After prosecution evidence was over, further statement under Section 313 of Criminal Procedure Code was recorded of the accused. The accused had also submitted written explanation.
6. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, convicted the appellant - accused.
7. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 24.11.1998 passed by the learned Special Judge, Court No.9, Ahmedabad City, in Special Case No.13 of 1993, the appellant - accused has preferred the present appeal before this Page 8 of 50 R/CR.A/1139/1998 CAV ORDER Court.
8. Heard Mr.A.D.Shah, learned counsel for the appellant and Mr.H.S.Soni, learned APP for the respondent - State.
9. Mr.A.D.Shah, learned counsel has contended that Rachna Sunilbhai Dixit committed suicide at the residence of the complainant, on information forwarded deadbody of Rachna Sunilbhai to Forensic Medicine Department, B.J.Medical College for the purpose of postmortem.
10. He has contended that the accused No.2 Firozmiya Amirmiya Shaikh, Police Constable of Satellite Police Station told the complainant Nadim Salman saiyed to contact accused No.1 - Dr.Bimal Goswami for favourable P.M.Report and hence the complainant Nadim Salman Saiyed went to residence of Dr.Goswami in company of his brother Salim at about 9:30 p.m. Father and Page 9 of 50 R/CR.A/1139/1998 CAV ORDER uncle of the complainant had not gone inside the bungalow. He has contended that the accused No.1 Dr.Goswami informed the brother of the complainant to pay Rs.50,000/ for favourable report and to complete the entire case. He has contended that the complainant and his brother persuaded Dr.Goswami to reduce the amount which was ultimately settled at Rs.9,000/ and the same was to be paid on 17.2.1991 at the residence of accused No.1.
11. He has contended that the prosecution has failed to prove motive shown for the purpose of demand. The Investigating Officer has not collected necessary documentary evidence on 17.2.1991 from B.J.Medical College and Satellite Police Station. The documents viz. Death Certificate Ex.45 and P.M.Report Ex.46 clearly reflect that the postmortem was completed on 16.2.1991 and the cause of death was also reflected as asphyxia Page 10 of 50 R/CR.A/1139/1998 CAV ORDER as a result of hanging.
12. He has contended that the Investigating Officer though collected some of the papers in respect of death of Rachna Sunilbhai on 17.2.1991 at the time of trap from the residence of accused, no papers pertaining to P.M. were found at the residence of accused.
13. He has contended that generally when the complainant disclosed about the demand of bribe amount on the basis of showing favour in opinion about the cause of death based on P.M. examination, the P.M.Report would necessarily be incomplete and under normal circumstances the collection of P.M.Report would have been the top priority of Investigating Officer. The seizure of P.M.Report on 17.2.1991 during the trap would have supplied the most clinching evidence, if P.M.Report was incomplete. Similarly, the seizure of postmortem report at or about the time of raid was found to be a complete Page 11 of 50 R/CR.A/1139/1998 CAV ORDER report without any possibility of manipulation as emerging from documents at Ex.45 and 46, then the claim of complainant about the accused demanding bribe amount to show favour would have been totally destroyed.
14. He has contended that the version put forward by the complainant about the meeting to accused No.1 through accused No.2 is prima facie not substantiated and the accused No.2 came to be acquitted. Further more, the complainant had no reason to apprehend involvement, more particularly in view of the fact that about this suicidal death of Rachna Sunil Dixit, complainant had already filed complaint at Satellite Police Station on 15.8.1991. He has contended that the complainant had contacted accused No.1 on 16th August at about 8:00 p.m. at the residence of Dr.Goswami. The conversation as deposed by the complainant clearly reflect Page 12 of 50 R/CR.A/1139/1998 CAV ORDER that there was nothing indicative of preparation of ground for pressing demand of illegal gratification. Thus, substantive evidence before the Court as emerging in para4 of the evidence nowhere reflect the demand by accused No.1 on 16.2.1991 at about 8:00 p.m. It was apprehension of the complainant that Sunil Dixit - husband of Rachna may attempt to involve the complainant in death of Rachna and hence he went to A.C.B. Office. Thus, there is no substantive evidence of the complainant about demand of bribe amount by accused No.1 Dr.Goswami. The crossexamination by APP after complainant was treated hostile, further reflect that on 16.2.1991, accused No.1 Dr.Goswami had not directly made demand of the amount at his residence. The complainant clearly denied the socalled demand of Rs.50,000/ by accused No.1 Dr.Goswami from his brother Salim and the said amount being settled at Rs.9,000/ is also destroying the prosecution case about Page 13 of 50 R/CR.A/1139/1998 CAV ORDER the first demand.
15. He has contended that prosecution has not examined Salim, brother of complainant who is alleged to have been taken on side by accused No.1 Dr.Goswami at his residence and making demand of Rs.50,000/ which was ultimately reduced to Rs.9,000/. Thus, the visit of complainant on 16.2.1991 at the residence of accused No.1 Dr.Goswami and demand of amount to show favour by making necessary changes in P.M.Report is totally not proved by any trustworthy and reliable evidence. He has contended that prosecution did not examine Sunil Dixit, husband of Rachna and the Investigating Officer of Satellite Police Station to substantiate the prosecution case about the cause of death being not available till 17.2.1991. The Investigating Officer Babubhai Hiralal Surti has not attached any importance to the aspect of status of P.M.Report on 17.2.1991.
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16. He has contended that the evidence of complainant Nadim Salman Saiyed - P.W. No.2 Ex.38 cannot be relied upon on various aspects, more particularly in view of the fact that even prosecution declared this witness to be hostile. As regards the reason for going to A.C.B. office as disclosed in para5 of his evidence, the same cannot inspire any confidence and in absence of evidence of Sunil, the entire version clearly reflect that there could not have been any demand by Dr.Goswami. He has contended that substantive evidence of complainant as to what transpired at the residence of Dr.Goswami on 17.2.1991 clearly reflect that there was no demand and the complainant had tried to forcibly pay the amount. There is no contradiction brought on record in the nature of omission from the evidence of complainant. The complainant denied about the aspect of demand and acceptance of currency notes. Page 15 of 50
R/CR.A/1139/1998 CAV ORDER Similarly, the version of falling of currency notes on floor is also substantiated. Thus, on the aspect of demand and acceptance of currency notes the evidence of complainant is not trustworthy.
17. He has contended that the evidence of the complainant about A.C.B. Police instructing him to give signal by lighting cigarette after acceptance of the amount by Dr.Goswami. The most crucial circumstantial evidence as to the presence of cigarette and lighter with the complainant at the ACB's office at the time of first preliminary panchanam and even at the time of second part of the panchnama is not substantiated at all. The complainant categorically stated that he had not given any agreed signal by lighting cigarette and the police officers had immediately rushed in. Thus, the evidence of complainant does not inspire any confidence on the aspect of socalled demand and Page 16 of 50 R/CR.A/1139/1998 CAV ORDER acceptance of amount and thereafter giving of agreed signal by lighting cigarette.
18. He has contended that the learned Judge ought not to have placed any reliance on the evidence of Bipinbhai Vitthaldas Gajjar P.W. No.1 Ex.23 Panch No.1. This witness was also treated hostile. The version of the panch witness about accused Dr.Goswami drawing a figure in piece of paper and then telling the complainant that the purpose of visit in this case would be solved and thereafter demand of Rs.9,000/ was made and after counting the said currency notes, the same were placed in pocket of Zabhbha and thereafter the complainant going out and giving agreed signal by lighting cigarette. This aspect is not supported by the complainant and the prosecution sought permission to treat the witness hostile. The contents of the panchnama clearly reflect that the papers contained English writing and drawn figure. Page 17 of 50
R/CR.A/1139/1998 CAV ORDER No doubt in pursuance to leading questions the panch witness has admitted those facts. However, the panch witness clearly stated about certain aspects not being mentioned in the panchnama.
19. He has contended that it clearly appears from the evidence that this panch witness clearly admitted that Police Constable Bhalchandra Patil who is known as Dada was residing in the lane behind his house in the same society and on 17.2.1991 he was serving at A.C.B.'s office. The evidence of Investigating Officer Babubhai Hiralal Surati - P.W. No.3 Ex.49 also clearly reflect that said Bhalchandra Patil was member of the raiding party. Thus the panch witness is known to Bhalchandra Patil who was member of the raiding party.
20. He has contended that evidence of Babubhai Hiralal Surti P.W. No.3 Ex.49 clearly admitted that whatever transpired at the Page 18 of 50 R/CR.A/1139/1998 CAV ORDER residence of Dr.Goswami was noted down in a piece of paper and second part of the panchnama was not drawn at the residence of Dr.Goswami, but all of them had gone to Vejalpur Police Chowky. The Investigating Officer clearly admitted that no ultra violet lamp demonstration was done at Vejalpur Police Chowky and name and address of doctor was inquired at Vejalpur Police Chowky. He has contended that Investigating Officer also admitted that the demonstration test of ultra violet lamp was done at the residence of doctor by him and not by police constable Puvar. However, this part of the evidence is not only contradicted by the contents of the panchnama but even Police Inspect Mr.Surti admitted about such mention in the panchnama. He has contended that the Investigating Officer Mr.Surti destroyed the noting purporting to have been made at the residence of Dr.Goswami and the same came to be destroyed. The Investigating Officer Mr.Surti Page 19 of 50 R/CR.A/1139/1998 CAV ORDER admitted that the noting about ultra violet lamp test and its details were not made in the piece of paper at the residence of Dr.Goswami.
21. He has contended that Investigating Officer Mr.Surti admitted that no ultra violet lamp demonstration at the place from where currency notes were picked up was done and no note was made in the panchnama. The Investigating Officer even did not try to ascertain facts mentioned by Dr.Goswami in respect to currency notes in the seizure memo either from the complainant or his brother Salim or panch witness. The Investigating Officer admitted about not mentioning of cigarette or matchbox in the pocket of the complainant in the preliminary panchnama. He has contended that seizure of xerox copies of papers also creates serious doubt about the manner of investigation. The Investigating Officer did not interrogate the complainant, Page 20 of 50 R/CR.A/1139/1998 CAV ORDER his brother or panch as to the endorsement made by Dr.Goswami on seizure memo.
22. He has contended that the evidence of prosecution as to presence of anthracene powder on fingers, top of thumb and raised portion of palm of the left hand and presence of anthracene powder on back of all the four fingers of right hand clearly raise doubt about the test of anthracene powder. The version of accused accepting 90 notes of Rs.100 denomination and counting them would clearly reflect the presence of anthracene powder on entire palm region and not only the raised portion of palm of left hand. Similarly there would not be presence of anthracene powder on back portion of four fingers of right hand. Thus, it clearly appears that there was attempt to thrust money in the pocket of Zabhbha and Dr.Goswami revolting to the action of the complainant by both hands and currency notes falling down. Page 21 of 50
R/CR.A/1139/1998 CAV ORDER He has contended that thus the preparation of panchnama at Vejalpur Police Chowky on the basis of socalled noting purporting to have been prepared at the residence of Dr.Goswami cannot be relied upon, more particularly when that noting is destroyed. Thus the evidence of Investigating Officer suffers from this serious infirmity and cannot be used for any purpose. He has contended that the prosecution ought to have examined person from the hospital and more particularly Dr.Deshmukh whose statement came to be recorded with the existence of P.M.Report and medical certificate. Thus, vital and material evidence has been withheld by the prosecution which would have completely destroyed the case of the prosecution as to the purpose and object of alleged demand.
23. He has contended that the learned Judge failed to take into consideration the explanation of the accused in respect of Page 22 of 50 R/CR.A/1139/1998 CAV ORDER document reflecting figure and writing. He has contended that no investigation on this aspect was done and case of the accused on this aspect clearly explains the paper containing figure and noting. He has contended that no papers of postmortem were found at the residence of Dr.Goswami also probablizes his explanation in respect to the paper containing figure and writing. Lastly he has contended that prima facie there is no trustworthy evidence adduced by the prosecution to substantiate the case against the accused on the aspect of demand and acceptance of currency notes of Rs.9,000/.
24. He has relied on the decision in the case of Varkey Joseph vs. State of Kerala, reported in AIR 1993 SC 1892, wherein it is observed that, "the attention of the witness cannot be directed in Chief examination to the subject of the enquiry/trial. The Court may permit leading question to draw the Page 23 of 50 R/CR.A/1139/1998 CAV ORDER attention of the witness which cannot otherwise be called to the matter under enquiry, trial or investigation. The discretion of the court must only be controlled towards that end but a question which suggests to the witness, the answer the prosecutor expects must not be allowed unless the witness, with the permission of the court, is directed thereafter in that behalf. Therefore, as soon as the witness has been conducted to the material portion of his examination, it is generally the duty of the prosecutor to ask the witness to state the facts or to give his own account of the matter making him to speak as to what he had seen. The prosecutor will not be allowed to frame his questions in such a manner that the witness by answering merely "yes" or "no" will give the evidence which the prosecutor wishes to elicit. The witness must account for what he himself had seen. Sections 145 and 154 of the Evidence Act is intended to Page 24 of 50 R/CR.A/1139/1998 CAV ORDER provide for cases to contradict the previous statement of the witnesses called by the prosecution. Section 143 and 154 provides the right to crossexamination of the witnesses by the adverse party even by leading questions to contradict answers given by the witnesses or to test the veracity or to drag the truth of the statement made by him. Therein adverse party is entitled to put leading questions but S.142 does not give such power to the prosecutor to put leading question on the material part of the evidence which the witnesses intend to speak against the accused and the prosecutor shall not be allowed to frame questions in such a manner which the witness may answer in yes or no but he shall be directed to give evidence which he witnessed. The question shall not be put to enable the witness to give evidence which the prosecutor wishes to elicit from the witness nor the prosecutor shall put into witness's mouth the words which he hoped that Page 25 of 50 R/CR.A/1139/1998 CAV ORDER the witness will utter nor in any other way suggest to him the answer which it is desired that the witness would give. The counsel must leave the witness to tell unvarnished tale of his own account. Leading questions in the instant case clearly show the fact that the prosecutor led the witnesses to what he intended that they should say about the material part of the prosecution case to prove against the accused which is illegal and obviously unfair to the accused offending his right to fair trial enshrined under Art. 21 of the Constitution. It is not a curable irregularity."
25. Heard Mr.H.S.Soni, learned APP for the respondent State. He has contended that criminal misconduct of the accused is proved by the prosecution evidence. He has contended that panch No.1, who is examined by prosecution is a public servant and totally independent person. He has contended that the Page 26 of 50 R/CR.A/1139/1998 CAV ORDER said Panch, in his oral evidence has disclosed that in his presence at the house of accused - present appellant demanded and accepted the amount of illegal gratification. He has contended that the panch witness has denied in para13 that money was lying in corridor, on the contrary, Nadim, the complainant has deposed that they were allowed to sit in the drawing room, offered tea and thereafter he told that he had some money and asked the doctor to take money from him which the doctor tried to put in his pocket and some money fell down on the floor. He has read the contents of the complaint and contended that accused made demand of illegal gratification though he was a public servant, but when prosecution has proved its case by cogent evidence, there is no question of disbelieving the same. He has further contended that the offence under the provisions of Sections 7 and 13 of the Prevention of Corruption Act is proved beyond Page 27 of 50 R/CR.A/1139/1998 CAV ORDER reasonable doubt through oral version of the prosecution witnesses and documents.
26. Mr. Soni has contended that the learned Judge has rightly believed the evidence of the complainant whereby he has stated that the appellant made demand and he gave the bribe amount. He has contended that there is ample direct and indirect evidence to connect the appellant - accused with the crime. The learned Judge has properly appreciated the evidence of the complainant as well as oral evidence of panchas. He has contended that it is admitted by the complainant that on 17.2.1991 he went to A.C.B. Office and gave a complaint and the complaint bears his signature. The complainant admitted that he gave Rs.9,000/ of Rs.100/ currency notes to A.C.B. It is clearly admitted by this witness that on 16.2.1991 at about 9:30 p.m. he and his friend and Salim went to the doctor's house. As soon as he gave his name, doctor Page 28 of 50 R/CR.A/1139/1998 CAV ORDER has started talk about Rachna's case and informed that it is a complicated one and he will be put in difficulty. The doctor told him that last decision is in his hand and only because to meet him he has not given final report. He took his brother aside and his brother informed the complainant that Rs.50,000/ were demanded and they finally settled the matter to Rs.9,000/. He has contended that this fact is not denied by the complainant and, therefore, it suggests that appellant - accused not only demanded illegal money at any cost and so he waited for him to finalize his report. Therefore, recovery of the amount of currency notes of Rs.9000/ from the floor of the drawing room of the doctor and marks of anthracene powder found on the finger tips of both hands of the accused, on his clothes, on his cloths and even inside the pocket of pyjama worn by the accused clearly support the prosecution version that the complainant gave the said Page 29 of 50 R/CR.A/1139/1998 CAV ORDER money to the doctor. From the oral evidence of the complainant and the panchas the demand and acceptance of the bribe is proved beyond reasonable doubt.
27. Mr.Soni has read the complaint and contended that looking to the contents of the complaint, demand and acceptance of illegal gratification is proved beyond reasonable doubt. He has contended that there is nothing on record to show that complainant had any enmity with the present appellant.
28. Mr.Soni has contended that from the fingers of both the hands and the pocket of the present appellant - accused, anthracene powder was found and the appellant has failed to explain the same in his statement recorded under Section 313 of the Code as to how the anthracene powder was found from his hands and pocket. He has contended that from the contents of the documents produced on record and from the crossexamination of the Page 30 of 50 R/CR.A/1139/1998 CAV ORDER complainant, the appellant has not proved that demand was not made by him and amount was not accepted by him. Looking to the contents of panchnama, the same is proved beyond reasonable doubt through oral evidence. He has read the oral version of the panch witness and contended that from the oral version of this witness, demand made by the present appellant is proved beyond reasonable doubt.
29. Mr.Soni has also contended that looking to the facts of the case presumption under Section 20 of the P.C. Act is required to be drawn against the present appellant - accused. Section 20 of the P.C. Act reads as under :
"20. Presumption where public servant accepts gratification other than legal remuneration -
(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-
section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept Page 31 of 50 R/CR.A/1139/1998 CAV ORDER or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-section (1) and (2), the court may decline to draw the presumption referred to in either of the said sub- sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn."
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30. Mr.Soni has read judgment and order passed by the Apex Court in Criminal Appeal Nos.97 and 98 of 2012 and contended that the Apex Court has also held that as per Section 20 of the Prevention of Corruption Act, presumption is required to be drawn in such type of cases.
31. Mr.Soni has relied on the decision of this Court in the case of Panchanbhai Nanjibhai Kantaria vs. State of Gujarat, reported in 2011 (3) GLR 2017. He has read para9 of the decision of this Court and contended that even if evidence of complainant is totally doubtful, evidence of panch witness who had accompanied the complainant during trap is sufficient to prove 'demand and acceptance of bribe by accused. The evidence of the panch witness who is a public servant and who has no animosity against the accused cannot be ignored unless something adverse is brought Page 33 of 50 R/CR.A/1139/1998 CAV ORDER out by defence in his crossexamination. He has contended that it is clear that Dr.Goswami signed the report on 16.2.1991 but was countersigned by the Civil Surgeon or Medical Officer higher in rank to Dr.Goswami on 19.2.1991. He has contended that no evidence was led by the accused to show that the said postmortem note was already transferred by him to higher authority and the same was not lying with him.
32. Mr.Soni has relied on the decision of this Court in the case of Narendra Champaklal Trivedi with Harjibhai Devjibhai Chauhan vs. State of Gujarat, reported in 2013(1) GLR 1. He has read para 17, 23 and 24 of the decision and contended that it is the duty of the accused to rebut presumption by bringing on record some evidence that money was accepted other than for the motive or reward as stipulated in Section 7. The Court has to consider explanation offered by accused on Page 34 of 50 R/CR.A/1139/1998 CAV ORDER 'preponderance of probability. The same is not required to be proved beyond reasonable doubt.
33. He has relied on the decision of the Apex Court in the case of State of Uttar Pradesh vs. Krishna Master and Ors., reported in (2010) 12 Supreme Court Cases and contended that if there appears to have a ring of truth, then discrepancies, inconsistencies, infirmities or deficiencies of minor nature not touching core of the case cannot be ground for rejecting the evidence. The Court should not adopt a hypertechnical approach. It is observed by the Apex Court that when such witness is subjected to gruelling cross examination for several days, some inconsistencies or discrepancies may occur in his statement which are not significant to discredit his evidence. He is not expected to have exact sense of time or remember every detail of the incident and state with Page 35 of 50 R/CR.A/1139/1998 CAV ORDER precision entire chain of events after a lapse of time.
34. Mr.Soni has read further statement of the appellant - accused recorded under Section 313 of the Code and contended that presence of the anthracene powder found from the hands and clothes of the appellant is not explained by the appellant accused. It is the duty of the appellant to rebut the presumption under Section 20 of the Prevention of Corruption Act. In support of his contention, he relied on the decision in the case of Balasubramanian Vs. State through Inspector of Police, reported in 2011 (1) GLR 739. He has contended that sufficient opportunity was given to the appellant to explain the evidence against him after the prosecution witnesses are examined and no explanation is given about the trap amount recovered from the possession of the present appellant in further statement under Section 313 of the Page 36 of 50 R/CR.A/1139/1998 CAV ORDER Code.
35. Mr.Soni has relied on the decision in the case of Nanji Govindbhai Sonagara vs. State of Gujarat, reported in 2012(2) GLR 969, and contended that in the present case also accused had demanded amount of gratification and and accepted the same. He has contended that case of the prosecution is fully corroborated with the circumstantial evidence.
36. I have heard the learned counsel for the respective parties and perused the papers produced before me. I have also considered the submissions advanced by the learned counsel for the rival parties. I have gone through the impugned judgment and order passed by the learned Judge and oral as well as documentary evidence produced on the record. I have read the oral evidence of the prosecution witnesscomplainant and also Page 37 of 50 R/CR.A/1139/1998 CAV ORDER perused the charge framed against the appellant.
37. It is true as argued by the learned APP that anthracene powder on fingers, top of thumb and raised portion of palm of the left hand and presence of anthracene powder on back of all the four fingers of right hand clearly raise doubt about the test of anthracene powder. The currency notes of Rs.9000/ from the floor of the drawing room of the doctor and marks of anthracene powder found on the finger tips of both hands of the accused, on his clothes, on his cloths and even inside the pocket of pyjama worn by the accused clearly support the prosecution version that the complainant gave the said money to the doctor.
38. From perusal of above evidence it prima facie appears that complainant has disclosed that demand was made by the accused - present appellant. In light of the crossexamination, Page 38 of 50 R/CR.A/1139/1998 CAV ORDER demand made by the complainant clearly shows that prosecution has proved demand made by the accused person - present appellant.
39. From the contents of the charge it is the case of the prosecution that demand was made by accused and the same were accepted by accused and thereby he has committed criminal misconduct and amount of trap was recovered from the accused. Looking to the evidence of the complainant, panchas and Trapping Officer it is required to be noted that from the evidence of the Trapping Officer he has admitted in his crossexamination that name of accused was mentioned in the complaint.
40. From the evidence of the complainant it is prima facie established that socalled demand is proved and it was proved that demand was made by accused. From the evidence of witnesses I have tried to find out whether the prosecution has proved that demand was made by the accused person from the Page 39 of 50 R/CR.A/1139/1998 CAV ORDER complainant, I can find out that demand was made by the accused person and in response to demand the amount was handed over to him. The version of accused accepting 90 notes of Rs.100 denomination and counting them would clearly reflect the presence of anthracene powder on entire palm region and both the hands.
41. In the present case demand is proved. Mr. Soni, learned APP has vehemently contended with the aid of Section 20 of the Act that when muddamal trap amount is recovered from the possession of the accused, the presumption is required to be drawn against the accused person. The Section 20 of the Act is reproduced hereinbelow :
20. Presumption where public servant accepts gratification other than legal remuneration. (1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a)or clause (b) of subsection (1) of Section13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any Page 40 of 50 R/CR.A/1139/1998 CAV ORDER gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under Section12 or under clause (b) of Section - 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case maybe, as a motive or reward such as is mentioned in section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in sub sections (1) and (2), the Court may declined to draw the presumption referred to in either of the said subsection, if the gratification or thing aforesaid is, in its opinion so trivial that no inference of corruption may fairly be drawn.
I have perused judgment relied upon by the learned APP Mr.Soni. I have also gone through the case of Balasubramanian vs. State through Page 41 of 50 R/CR.A/1139/1998 CAV ORDER Inspector of Police, reported in 2011(1) GLR
739. I have also perused Section 8 of the Evidence Act. Section 8 of the said Act is reproduced hereinbelow :
8. 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. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
Explanation 1.The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act."
Explanation 2.When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.
In light of Section 8 of the Evidence Act, conduct of the present appellant is to be Page 42 of 50 R/CR.A/1139/1998 CAV ORDER considered from the evidence of the witnesses like complainant and panchas to establish that the accused has obtained illegal gratification and it is prima facie proved.
1. From the evidence of the complainant as well as panchas as discussed hereinabove, the demand is established beyond reasonable doubt through oral evidence of the panchas as well as the complainant. The present appellant - accused is convicted for the offence punishable under Section 7 of the Act for illegal gratification accepted by him. Section 7 of the Act is reproduced hereinbelow :
7. Public Servant taking gratification other than legal remuneration in respect of an official act. Whoever, being, or expecting to be a public servant accepts or obtains or agrees, to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavor to any Page 43 of 50 R/CR.A/1139/1998 CAV ORDER person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government Company referred to in clause (c) of Section2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than 6 months but which may extend to 5 years and shall also be liable to fine.
Explanations.(a) "Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal remuneration". The words "Legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the Organization, which he serves, to accept.
(d)"A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or he is not in a position to do, or has not done, comes within this expression.
(e) Where a Public Servant induces a person Page 44 of 50 R/CR.A/1139/1998 CAV ORDER erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.
1.In support of submission that complainant has turned hostile Mr.A.D.Shah has placed reliance on the decision in the case of Varkey Joseph vs. State of Kerala, reported in AIR 1993 SC 1892. In reply to the said submission, it is clear that the complainant was declared hostile and with the permission of the Court he was crossexamined by the prosecution. Therefore, as per the observation of the Apex Court when the suggestive question was made with the permission of Court then said submission of Mr.A.D.Shah cannot be accepted.
2.In response to the arguments made by Mr.Soni, learned APP I have perused judgment of the Apex Court in the case of Narendra Champaklal Page 45 of 50 R/CR.A/1139/1998 CAV ORDER Trivedi vs. State of Gujarat, reported in AIR 2012 SC 2263, wherein the Apex Court has held that the demand and acceptance of the amount as illegal gratification is sine qua non for constituting an offecne under the Act. The Apex Court has further observed that, it is not to be proved beyond reasonable doubt and it is necessary to state that the prosecution is bound to establish that there was a illegal offer of bribe and acceptance thereof. I have perused the facts of the present case and from the facts of the case it is established that appellant has made demand. In a case of M.Narsinga Rao vs. State of A.P. Reported in (2001) 1 SCC 691, wherein three Judges Bench of the Apex Court referred to Section 20 of the Act and observed that, only for drawing legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. Here in Page 46 of 50 R/CR.A/1139/1998 CAV ORDER the present case there is a iota of evidence adduced from the prosecution side that demand was made by accused and in the result of that demand, there was an agreement of the appellant accused to accept bribe amount from the complainant. In the case of Madhukar Bhaskarrao Joshi vs. State of Maharashtra, reported in (2000) 8 SCC 571, it is observed by the Apex Court that the premise to be established on fact for drawing the presumption is that there was demand or acceptance of gratification. The Court has to draw presumption on the factual premises that there was payment of gratification. Now in light of this observation of the Apex Court, I have further considered the evidence of the prosecution and it is established prima faice that the complainant and his friend went to doctor house and as soon as he gave his name, doctor has started talk about Rachna's case and informed that it is a complicated one and Page 47 of 50 R/CR.A/1139/1998 CAV ORDER he will be put in difficulty. The doctor told him that last decision is in his hand and only because to meet him he has not given final report. It suggests that appellant - accused not only demanded illegal money at any cost and so he waited for him to finalize his report. In the case of State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede, it has been held that to arrive at the conclusion that there had been a demand of illegal gratification, it is the duty of the Court to take into consideration the facts and circumstances brought on record in their entirety and for the said purpose, undisputedly, the presumptive evidence as laid down under Section 20 of the Act must also be taken into consideration. In light of above observations made by Apex Court, when the demand is the main ingredient for the offence punishable under Sections 7 and 13 of the Act is proved beyond reasonable doubt Page 48 of 50 R/CR.A/1139/1998 CAV ORDER then presumption can be drawn against the appellant - accused.
3. I have minutely perused the entire evidence in light of the decisions cited before the Court. When the demand is proved prima facie from the evidence on record and panch witnesses, then, accused person - present appellant can be convicted for the alleged offence.
4. In the result, this appeal is dismissed. The impugned judgment and order of conviction and sentence dated 24.11.1998 passed by the learned Special Judge, Court No.9, Ahmedabad City, in Special Case No.13 of 1993 is hereby confirmed. Bail bond, if any, stands cancelled. R & P to be sent back to the trial court forthwith. The appellant - accused is directed to surrender before the Jail Authority within a period of four weeks from the date of this order, failing which the concerned Sessions Court shall issue non Page 49 of 50 R/CR.A/1139/1998 CAV ORDER bailable warrant to effect the arrest of the appellant - original accused.
(Z.K.SAIYED, J.) KKS Page 50 of 50