Gujarat High Court
Somabhai vs State on 14 February, 2011
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
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CR.A/292/1997 22/ 22 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 292 of 1997
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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SOMABHAI
GOPALBHAI PATEL - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
BS PATEL for
Appellant : MRS RANJAN B PATEL for Appellant
MR HL JANI, APP for
Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 14/02/2011
ORAL
JUDGMENT
The appellant - original accused has preferred this appeal under sec. 374 of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 21.03.1997 passed by the learned Special Judge, Banaskantha at Palanpur, in Special Case No. 215 of 1992, whereby, the learned Special Judge has convicted the appellant - accused for the offence under sec. 7 of the Prevention of Corruption Act and sentenced him to undergo rigorous imprisonment of 1 (one) year and to pay a fine of Rs. 1,000/-, in default, to undergo further S.I. For (6) six month. The appellant is also convicted for the offence under section 13(2) r/w Section 13(1)(d) 1,2 & 3 of the P.C. Act and sentenced him to undergo R.I. for a period of two years and to pay a fine of Rs. 1,500/-, in default, to undergo further SI for 6 (six) month, which is impugned in this appeal. The learned Judge has ordered that substantive sentences are to run concurrently.
It is the case of the prosecution that when the appellant (original accused) was serving as Talati - cum - Mantri, at Ratanpur village, he demanded bribe from one Ranchhodbhai Motibhai Patel, father of the complainant herein. It is the case of prosecution that father of the complainant wanted to install electric motor of 1.5 H.P. in the field of village Ratanpur, for which the father of the complainant has to submit an application to G.E.B. along with necessary documents, like village form No. 7, 12, 8A, certificate for insufficient water and the map from revenue record, etc. Therefore, the father of the complainant had approached the appellant for providing the documents, referred herein above. It is alleged that at that time the appellant asked him to pay the amount as per his desire and thereafter he will give necessary papers to him. It is alleged that as the complainant was not willing to pay the said amount to the appellant - accused, he lodged complaint in the office of A.C.B. at Palanpur against the appellant
- accused. On receiving the complaint, the Investigating Officer called two Panchas, who were Government servants. The complainant produced currency notes of Rs.300/-, i.e. two notes of Rs.100/- and two notes of Rs.50/- denomination and necessary experiments of anthracene powder and ultra-violet lamp were carried out in presence of panch witnesses. It is alleged that thereafter the complainant and P.W. No.1 came to the office of Panchayat where the appellant - accused was sitting on the chair. The complainant occupied the chair with the accused and then inquired from the accused that how much amount would be required to be paid and thereupon the accused informed the complainant that whatever he desires, should be paid. It is alleged that the complainant gave Rs.250/- to the accused which was put by the accused on the left hand side pocket and on signal, raiding party reached the place. The panchnama was drawn. Thereafter, investigation was carried out and after completing the necessary procedure, and on receipt of sanction, the charge-sheet against the accused came to be submitted before the Court.
Thereafter, the charge was framed against the appellant. The appellant - accused has pleaded not guilty and claimed to be tried.
In order to bring home the charge levelled against the appellant- accused, the prosecution has examined six witnesses and also produced documentary evidence on record before the trial Court.
Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of Cr PC was recorded in which the appellant-accused has denied the case of the prosecution. During that time the accused had also gave written explanation vide Exh.50.
After considering the oral as well as documentary evidence and after hearing the parties, learned Special Judge, Palanpur, vide impugned judgment and order dated 21.03.1997, held the appellant - accused guilty to the charge levelled against him and awarded the sentence as stated herein above.
Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Jamnagar, the present appellant has preferred this appeal.
Heard Mr. B.S. Patel, learned advocate for the appellant and Mr H.L.Jani, learned APP for the respondent-State.
Mr. Patel for the appellant has read the charge (Exh.5) and contended that the charge is defective and from the contents of the charge itself it is established that the prosecution has failed to prove its case beyond reasonable doubt. He has contended that the complainant is a material witness in connection with the demand and acceptance of bribe amount by the appellant - accused, but, here in the present case the complainant has not supported the case of prosecution and he had turned hostile. The complainant was cross-examined by the prosecution, but, the prosecution could not be able to prove its case beyond reasonable doubt. Mr. Patel has also read the oral evidence of P.W.2 - Ranchhodbhai Motibhai Patel (Exh.14) and contended that this witness has also not supported the case of prosecution. He has contended that from the record, it is clearly established that the appellant has not made any demand from the complainant and, therefore, there is no question of accepting any amount from the complainant. He has contended that when the material witnesses have not supported the case of prosecution then the evidence of panch witness and the Investigating Officer cannot be considered as corroborative piece of evidence in support of the prosecution case. Mr. Patel has read the oral evidence of P.W. 3 - Ismailbhai Jusabbhai (Exh.30), who is Panch witness and contended that this witness is a Government servant and under the fear of further reaction he deposed against the appellant - accused.Mr. Patel has contended that whatever the amount has been accepted by the appellant - accused was towards the land revenue. He also contended that looking to the the panchnama of search and seizure, the prosecution has failed to establish its case beyond reasonable doubt that the trap amount was recovered from the pocket of the accused. He has contended that during the search of the appellant - accused, the anthracene powder was found only on the toe of thumb of the appellant - accused, which clearly supports the version of the accused that he had not accepted any amount from the complainant and put the amount of bribe in his pocket. He has contended that practically it is impossible that the accused has put the amount without the help of other fingers of the accused. He has contended that when a person accepted the amount from the person and put the said amount in his pocket, then the anthracene powder must have been found on his fingers. Here, in this case, the anthracene powder was found only on the toe of the thumb of the accused. He has also contended that it is the case of the prosecution that during the search, the amount was found from the pocket of the accused along with other papers and currency notes, however, no antracene powder was found from the other papers and currency notes lying in the pocket, except on the currency notes given by the complainant. It is practically impossible that only on the currency notes the anthracene powder could be found and not on the other articles lying in the pocket of the appellant - accused. Therefore, the recovery of amount is also doubtful. Mr. Patel has also read the oral evidence of P.W. 6 - Madarsing Parthiji (Exh.44), Head Constable, who is one of the members of raiding party, and contended that this witness is an interested witness and his evidence only can be considered as hearsay evidence. Mr. Patel has also read the evidence of P.W.7 - Ranvirsinh Madansinh Puwar (Exh.45), who was Police Inspector and Trapping Officer and contended that even from the oral evidence of this witness, the prosecution could not be able to prove the demand. He has contended that from the oral evidence of this witness, anthracene powder was found from the toe of thumb of the accused. He has contended that during the cross examination of this witness probable defence is made out by the accused. He has contended that the appellant - accused has clearly explained vide Exh.50 in his further statement that the amount was given to him which was not accepted by him, but, simply it was pushed with the help of thumb and then the raid was carried out and he was arrested by the Trapping Officer. He has contended that looking to the contents of the panchnama, the recovery of trap amount is totally doubtful which is not acceptable and trust worthy in the eyes of law. He has contended that the appellant - accused is poor person and the Judgment and order of conviction is very harsh. Mr. Patel has also placed reliance of the decision of the Hon'ble Apex Court in the case of BANARSI DAS v/s STATE OF HARYANA reported in (2010) 4 SCC 450 and contended that in the case before the Hon'ble Supreme Court, the complainant has not supported the case of the prosecution and the accused was acquitted. Here in the present case also the complainant and P.W. 2 have not supported the case of the prosecution. He has contended that from the oral evidence of Panch and the member of raiding party, their evidence is hearsay evidence regarding the demand. So, the observations made by the Hon'ble Supreme court in the above decision are squarely applicable in the facts of this case and only on the basis of inference, the Judgment and order of the trial Court requires to be quashed and set aside.
On the other hand, learned APP Mr HL Jani has supported the Judgment and order of the learned Special Judge and contended that the trial Court has fully appreciated the evidence produced on record by the prosecution and, therefore, no interference may be called for by this Court. He has contended that merely because the complainant and P.W. 2 have not supported the case of prosecution, that does not mean that the prosecution has not proved its case beyond reasonable doubt. He has contended that the complainant was won-over by the appellant - accused and that the complainant is accomplice. Mr. Jani has read the oral evidence of complainant (P.W.1) and contended that from the provision of Section 154 of Evidence Act, the question which was put by the Prosecutor to his own witness is permissible in law. He has contended that the prosecution has not committed any illegality or irregularity. He has contended that from the examination of complainant, it is admitted by him that the trap amount of Rs.250/- which was in his pocket was given to the Talati (accused). So, the question regarding bribe amount of Rs.250/- is established beyond reasonable doubt. He has also contended that from the cross examination of the witnesses, the defence has never made any attempt to show that no demand was made by the present appellant
- accused. He has contended that Panch (P.W.3) is a public servant and he has no reason to give false evidence against the accused and even no enmity is established with the appellant - accused. He has contended that P.W.6 Madarsing (Exh.44) is an eye witness for search, seizure and recovery. He has also contended that no doubt the complainant and P.W. 2 have not supported the case of the prosecution, but, even in absence of their evidence the demand and acceptance is proved by the prosecution. Therefore, the prosecution has proved its case beyond reasonable doubt and the learned Judge has rightly held the appellant - accused guilty of the offence alleged against him. Therefore, the Judgment and order of the learned Judge is required to be confirmed.
Heard the learned counsel for the parties. I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness and also perused the charge framed against the appellant and considered the submissions made by learned counsel for the parties. I have also considered the decision of the Hon'ble Apex Court, referred to and relied upon by the learned Advocate for the appellant - accused.
The contention of Mr. Patel that the charge (Exh.5) is defective in nature. However, from the perusal of the contents of the charge, it appears that the learned Judge has considered every aspects of the matter and the allegations made against the present appellant - accused. The learned Judge has also considered and explained in his Judgment the demand and acceptance of amount by the appellant and also the criminal misconducted committed by the accused. It has come in evidence that when the complainant approached the accused with the papers and when the complainant told the accused that how much amount is to be given to him, at that time the accused has replied that whatever amount he wants to pay, he may pay. This conversation between the accused and the complainant clearly established the demand made by the accused and thereby the appellant - accused has committed criminal misconduct. No doubt the complainant (P.W.1) has not supported the case of the prosecution, but, he was not declared hostile and under the provision of Section 154 of the Evidence Act, certain questions were put to him. It is admitted by the complainant that he gave Rs.250/- to the accused. As per the evidence of Panch witness, the said amount was given to the accused by the complainant in his presence. The Panch witness is a public servant. He was called with other panch witness at A.C.B. office and the facts of the complaint are explained and thereafter the signature of the panch was obtained. P.W. 3 Panch witness has stated in his evidence that he accompanied the complainant on his scooter and went to the Gram Panchayat Office and at that time 2-3 persons were there on the Osari and the present appellant - accused was present on his chair. The complainant was well-come by him and the complainant and panch witness took their seat on the chair. Thereafter some questions were put by the appellant - accused to the complainant and then the complainant asked him that how much amount he is required to pay to him and at that time the accused told that whatever amount he wanted to pay, he may pay. The complainant asked him whether Rs.250/- would be sufficient, the complainant told him that "O.K.". Thereafter the amount of Rs.250/- was given by the complainant to the present appellant - accused which was accepted by him and inserted the same in the pocket of his shirt. Thereafter, the complainant went out-side and signal was given and the raid was carried out. From the oral evidence of this witness, it is clearly established beyond reasonable doubt that the prosecution has proved the demand and acceptance of amount by the appellant - accused.
Regarding the experiment of anthracene powder is concerned, the learned Advocate for the appellant has contended that the anthracene powder is found on the toe of the thumb of the appellant - accused and, therefore, there is no question of accepting the amount by the appellant - accused without the help of fingers. It has come from the evidence of the Panch witness as well as of the evidence of trapping Officer that after the aforesaid trap, from the pocket of the accused currency notes and other articles were found. They have matched the serial number of the currency notes which were written in the first part of the panchnama and the same were tallied. The trapping officer has also admitted in his deposition that on the experiment of ultra violet lamp, anthracene powder was found on the pocket of the shirt of the accused. Even if the submission of Mr. Patel is considered that anthracene powder was found only on the toe of thumb of the accused and it was not found on other fingers of the accused and, therefore, it was difficult to believe the story of the prosecution that the accused has accepted the amount of bribe, Mr. Patel has not clarified as to who has put the currency notes in the pocket of the shirt of the accused. Here, in this case, the currency notes, smeared with anthracene powder, were found and recovered from the pocket of the shirt of the accused. Moreover, the numbers of the currency notes, so recovered, were tallied with the first part of the panchnama. Therefore, the recovery of amount is proved by the prosecution.
From the perusal of evidence of P.W. 3 - Panch witness, P.W.6 - Madarsing (Exh.44) and P.W. 7 - Trapping Officer (Exh. 45), it clearly appears that the appellant - accused has accepted the illegal gratification from the complainant. It has also come in evidence that demand is also raised by the accused, no doubt, particular amount was not asked by the accused, but, he has simply conveyed that "whatever amount, you want to pay, you may pay". Therefore, in the facts of the case, in my opinion, the raid was a successful raid and the prosecution has proved its case beyond reasonable doubt.
I have also considered the conduct of the present appellant - accused. From the evidence of P.W. 3 - Panch witness, it is clearly established that he has accepted amount by way of illegal gratification. It is true that the evidence regarding the demand and acceptance is required to be corroborated by some other independent evidence. In the present case, panch witness who is an independent witness, has fully supported the case of the prosecution. Even it is not a case of appellant that he has any enmity with the panch witness. It appears from the deposition of this witness that after the raid the trap amount was collected and in the light of ultra-violet lamp the anthracene powder was found on the thumb and on the pocket of the appellant - accused. Even the currency notes smeared with antracene powder were found from the possession of the appellant - accused. The numbers of currency notes, which were found from the pocket of the accused, were also tallied with the first part of the panchnama which was made before the raid. This is sufficient to prove the guilt of the appellant - accused. The Hon'ble Apex Court has also held in catena of decision that the evidence of independent witness cannot be discarded mainly branding it as that of a tutored witness. The evidence of Government servant cannot be rejected mainly because he is called to associate the raiding party. When the Court is satisfied from the facts and circumstances of the case that the panch witness is a witness of truth then his evidence cannot be discarded. I have also found that the appellant - accused has abused his position as "public servant" and the abuse of position was also dishonest and it is also proved that the appellant has deliberately caused wrongful act by obtaining pecuniary benefit and his pecuniary benefit is also proved beyond reasonable doubt.
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 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."
Looking to the evidence produced on record it appears that the illegal gratification was accepted by the appellant - accused. It also appears that the appellant - accused has not properly explained the presence of anthracene powder. From the perusal of evidence on record, I am of the opinion that the appellant - accused has failed to rebut the presumption drawn under Section 20 of the P.C. Act. Even from the cross-examination of witnesses also, I have found that the appellant has failed to prove his probable defence beyond reasonable doubt before the trial Court.
As per Section 8 of the Evidence Act, the conduct of the accused is required to be considered. From the record it is clearly established that at the place of occurrence, the accused was found and from his possession the trap amount was recovered in presence of panch witness and hence that conduct of the accused can be considered that there was motive of the accused to commit the offence and just to get some illegal gratification. Therefore, the contention of the appellant - accused that the accused was wrongly involved in the commission of offence is not believable.
This Court has also gone through the latest decision of the Hon'ble Supreme Court in the case of BANARSI DAS v/s STATE OF HARYANA, reported in (2010) 4 SCC 450. In the case before the Hon'ble Supreme Court, the complainant and another independent witness have not supported the case of the prosecution and, therefore, the Hon'ble Supreme Court has quashed and set aside the Judgment of the High Court and acquitted the accused of the charges levelled against him. In the present case, no doubt P.W.1 the complainant (Exh.10) and P.W. 2 (Exh.14) have not supported the case of the prosecution, but, the panch witness has fully supported the case of the prosecution and his evidence is fully corroborated with the circumstantial evidence. In Banarsi Das (Supra) the Hon'ble Supreme Court in Para - 20 has also observed that ...."It is a settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that regard so far as it satisfies the essentials of a complete chain duly supported by appropriate evidence." In the present case before me, the panch witness has fully supported the case of prosecution and even by circumstantial evidence each link of the chain of events is established to prove the case of prosecution. Panch witness categorically deposed in his deposition that in his presence the amount was accepted and when the complainant said that he wishes to give Rs.250/-, then the accused has agreed to accept the same. No doubt, the accused has not demanded any particular amount of demand, but, he has accepted the amount which the complainant has paid to him. Even from the circumstantial evidence it is clearly established that the anthracene powder was found on the thumb of the accused as well as from the pocket of his shirt, the numbers of the currency notes were also tallied as well as criminal misconducted committed by the appellant - accused is also proved. Therefore, in my opinion, in the facts of the case, the decision of the Hon'ble Apex Court in the case of BANARSI DAS (supra) will not be of any help to the appellant - accused, Looking to the facts of the case, I am of the opinion that the prosecution has proved that the appellant - accused, being a public servant, has demanded the amount and also accepted the bribe amount from the complainant, The accused has not explained by discharging his burden of rebutting the statutory presumption of guilt against him. From the facts and evidence on record, it is clearly established beyond reasonable doubt that the amount by way of bribe was demanded by the accused and he accepted that amount voluntarily as an illegal gratification.
In view of above, I am in complete agreement with the findings, ultimate conclusion and resultant order of conviction and sentence passed by the trial Court and I am of the view that no other conclusion except the one reached by the trial Court is possible in the instant case as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence.
In the result, this appeal is dismissed. The impugned judgment and order of conviction and sentence dated 21.03.1997 passed by the learned Special Judge, Banaskantha at Palanpur, in Special Case No. 215 of 1992 is hereby confirmed. Bail bond 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-bailable warrant to effect the arrest of the appellant - original accused.
(Z.K.SAIYED, J.) sas Top