Gujarat High Court
Jayantibhai Khodabhai Solanki vs State Of ... on 9 June, 2017
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.A/936/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 936 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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JAYANTIBHAI KHODABHAI SOLANKI....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 1
MR PRATIK B BAROT, ADVOCATE for the Appellant(s) No. 1
MR KL PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 09/06/2017
ORAL JUDGMENT
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1. The appellant has preferred the present appeal under section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 15.05.2004, rendered by learned Special Judge & Additional Sessions Judge, Fast Track Court No.14, Gandhinagar in Special A.C.B. Case No. 1 of 1999, wherein the appellant was convicted for the offence punishable under Section 7 of the Prevention of Corruption Act and ordered to undergo simple imprisonment for six months and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for further 15 days and also convicted for the offence punishable under Section 13 (1) (d), 1, 2, 3 read with Section 13 (2) of the Prevention of Corruption Act and ordered to undergo simple imprisonment for one year and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for further one month.
2. The short facts giving rise to the present Appeal are that complainant - P.W.No.2 - Mr.D.K.Vaishnav was serving as a Police Inspector, A.C.B., Ahmedabad and Gandhinagar. When he was on duty on 12.11.1997, he received secret information from his own sources that the police officials, home guard personnel, R.T.O. personnel and veterinary doctors were stopping Page 2 of 16 HC-NIC Page 2 of 16 Created On Fri Aug 18 07:33:53 IST 2017 R/CR.A/936/2004 JUDGMENT the vehicles carrying live stock passing from Gandhinagar, Ahmedabad and especially coming from Mehsana and were demanding and collecting Rs.20/- to Rs.100/- as an amount of bribe towards entry fee without following any lawful procedure. On receiving such secret information, he requisitioned the panchas, carried out necessary procedure and arranged the trap. On 13.11.1997, during the course of trap, the accused was caught red handed while accepting the amount of Rs.50/- towards bribe and thereby, committed the offence punishable under Sections - 7, 13 (1) (d), 1, 2, 3 read with Section 13 (2) of the Prevention of Corruption Act, 1988.
3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried.
3.1 In order to bring home the guilt, the prosecution has examined four witnesses and also produced several documentary evidences.
3.2 At the end of the trial, after recording the statement of the accused under section 313 of the CrPC and hearing the arguments on behalf of Page 3 of 16 HC-NIC Page 3 of 16 Created On Fri Aug 18 07:33:53 IST 2017 R/CR.A/936/2004 JUDGMENT the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above.
4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court.
5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that the learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such.
6. Mr. Pratik Barot, learned advocate for the appellant - accused has taken this Court through the entire judgment and record and argued that this is a case, wherein a running trap was held by the complainant as he received secret information that the police officials, home guard personnel, R.T.O. personnel and veterinary doctors were stopping the vehicle carrying live stock passing from Gandhinagar, Ahmedabad and Page 4 of 16 HC-NIC Page 4 of 16 Created On Fri Aug 18 07:33:53 IST 2017 R/CR.A/936/2004 JUDGMENT especially coming from Mehsana and were demanding and collecting Rs.20/- to Rs.100/- as an amount of bribe towards entry fee without following any lawful procedure. In order to testify his aforesaid secret information, he himself arranged the trap and also requisitioned punter / decoy and thereafter, the major portion of the investigation was also carried out by P.W.No.2 - Mr.D.K.Vaishnav. In view of the aforesaid factual scenario, Mr.Barot, learned advocate for the appellant - accused submitted that the prosecution examined only the police officials, but did not examine any independent witnesses in order to corroborate the testimony of the complainant who is the police official. The entire case of the prosecution becomes doubtful for want of necessary corroboration as such and in support of his arguments, he placed reliance upon the judgment rendered by the Hon'ble Apex Court in the case of T.K.Rameshkumar Vs. State through Police Inspector, Banglore, reported in (2015) 15 Supreme Court Cases 629, para Nos.12, 13 and 14 and also in the case of Sans Pal Singh Vs. State of Delhi, reported in (1998) 2 Supreme Court Cases 371. Mr. Barot, learned advocate for the appellant - accused has further argued that though Punter - Jumamiya Ismailbhai Parmar - driver of truck was cited as a witness in the charge-sheet and was requisitioned as a panch / Page 5 of 16 HC-NIC Page 5 of 16 Created On Fri Aug 18 07:33:53 IST 2017 R/CR.A/936/2004 JUDGMENT punter, he had not been examined by the prosecution. Further, he has drawn attention of this Court that it is clearly indicated in the material on record that at the time of trap, over and above the police officials - Mr.Vaishnava and Mr.Dodiya, the cleaner of truck as well as the custodian of live stock were also traveling upon the aforesaid truck. According to the submission of Mr.Barot, learned advocate for the appellant - accused, three independent witnesses were available in the aforesaid trap when the running trap was conducted. However, the prosecution has not examined any of the aforesaid three witnesses. On that count also, the case of the prosecution suffers from infirmities for not examining the independent witnesses though they were available and also for want of corroboration. On that count also, according to his submission, the conviction is required to be quashed and set-aside as such. Mr.Barot, learned advocate for the appellant - accused vehemently contended that since the trap was a running trap, complainant - Mr.Vaishnav himself received secret information and it was brain child of complainant
- Mr.Vaishnav to arrange the trap and he himself became a member of running trap and even after completion of successful trap, he himself lodged the complaint before himself and thereafter, he carried out major portion of the investigation Page 6 of 16 HC-NIC Page 6 of 16 Created On Fri Aug 18 07:33:53 IST 2017 R/CR.A/936/2004 JUDGMENT and assumed all the role as such. On that count also, the entire procedure of investigation vitiated and therefore, the conviction is required to be quashed and set - aside and he places reliance upon the decision of the Hon'ble Apex Court in the case of "Bhagwan Singh Vs. State of Rajasthan, reported in AIR 1976 SC 985 and also argued that the aforesaid judgment is also followed by this Court in the case of Kanubhai Kantibhai Patel Vs. State of Gujarat, reported in 1998 (1) GLH 924. Mr.Barot, learned advocate for the appellant - accused argued that though in the alleged complaint as well as oral depositions of witnesses, it is alleged that the accused asked for entry fees, but nowhere it is clearly spelt out that the accused had ever demanded any amount of illegal gratification and therefore, for want of specific assertion as regards illegal gratification, it would not be prudent to presume the same as an amount of illegal gratification as such.
7. On the other-hand, Mr.K.L.Pandya, learned APP has supported the judgment rendered by learned trial Court. He submitted that this is a fit case, wherein the learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused which calls for no interference. He further Page 7 of 16 HC-NIC Page 7 of 16 Created On Fri Aug 18 07:33:53 IST 2017 R/CR.A/936/2004 JUDGMENT submitted that the finding recorded by the learned trial Court is based upon the concrete and clinching evidence and, therefore, punishment inflicted upon the accused does not call for any interference. He submitted that the learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant and ingredients as regards demand, acceptance and recovery are proved in accordance with law. He urged that this Court may not interfere with the judgment and order of conviction. He further argued that the evidence of the complainant and shadow panch are very consistent and clearly establishing the vital ingredients as regards demand, acceptance and recovery. He further argued that in the running trap, normally except the punter, other witnesses are the police officials and when there is concrete evidence to implicate the accused in the crime and taking into consideration some sort of cases, the members of public are not at all concerned for such cause and therefore, for merely not associating the public person, the present case would not be fatal and if such sort of view is taken, then it would not be in the interest of justice taking into consideration the present scenario that the cases of corruption are increasing day by day.
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R/CR.A/936/2004 JUDGMENT
8. This Court has heard Mr.Pratik Barot,
learned advocate for the appellant - accused and Mr.K.L.Pandya, learned APP for the respondent - State.
9. This Court has minutely gone through the impugned judgment rendered by the learned trial Court as well as the evidence on record in the nature of paper book.
10. P.W.No.1 - Makansinh Kalubhai Rathod - shadow panch has been examined vide Exhibit - 10. He has deposed that he was serving as a clerk in the office of the District Panchayat, Gandhinagar. He was requisitioned as a panch by P.I. Mr.Vaishnav. He was apprised as regards the procedure of trap. On the day of trap, he accompanied Punter Jummamiya and when the truck was passing within vicinity of Chiloda Circle, one person wearing khaki trouser and shirt inspected vehicle and asked some questions to the driver and thereafter, asked for the entry fee and thereafter, the driver of the said truck Jummamiya took out tainted currency note of Rs.50/- and handed over to the accused and thereafter, the driver of the said truck gave pre-arranged signal, due to which other members of raiding party arrived there and Mr.Vaishnav also arrived at the spot. Mr.Vaishnav asked him as regards the incident and thereafter, Page 9 of 16 HC-NIC Page 9 of 16 Created On Fri Aug 18 07:33:53 IST 2017 R/CR.A/936/2004 JUDGMENT Mr.Vaishnav asked the name of the said person who worn khaki uniform, to which he replied that his name is to be Jayanti Solanki and thereafter, the test of ultraviolet lamp and search - seizure procedure was carried out and it was found to be positive.
11. P.W.No.2 - Mr.D.K.Vaishnav has been examined vide Exhibit - 17. He has deposed that on 13.11.1997, he was serving as a Police Inspector, A.C.B., Ahmedabad and Gandhinagar. He received secret information that the police officials, Home-guard personnel, R.T.O. personnel and veterinary doctors stop the vehicle carrying live stock passing from Gandhinagar, Ahmedabad and especially coming from Mehsana and are demanding and collecting Rs.20/- to Rs.100/- as an amount of bribe towards entry fee without following any lawful procedure. In order to testify this secret information, he arranged the trap and requisitioned decoy thereof and carried out necessary formalities in respect of trap. On the day of trap, he proceeded to hold the trap along with punter and other members of raiding party. He requisitioned the driver of truck bearing registration number G.R.W.610. When the truck was proceeding within vicinity of Chiloda Circle, the driver, he - himself, panch no.1, Mr.Dodiya and Mr.Parag - Constable took their Page 10 of 16 HC-NIC Page 10 of 16 Created On Fri Aug 18 07:33:53 IST 2017 R/CR.A/936/2004 JUDGMENT respective seats in the said truck. The cleaner and custodian of live stock were also traveling upon the truck along with live stock and other members of raiding party were following them in the official jeep. When the truck was passing within vicinity of Chiloda Circle, the accused stopped the vehicle and asked certain questions to the driver of truck and then, asked for entry fees. Thereafter, the driver handed over tainted currency note of Rs.50/- to the accused and thereafter, gave pre-arranged signal, due to which other members of raiding party arrived there and the complainant recovered tainted currency notes of Rs.50/- through the panch no.2 from hand of the accused. Thereafter, the test of ultraviolet lamp was carried out and it was found to be positive so far as the person of the accused is concerned.
12. P.W.No. 3 - Dhirendrasinh Lakhaji Dodiya has been examined vide Exhibit 19. He has deposed that he was performing duty as a Police Inspector, A.C.B., Ahmedabad (Rural) and Gandhinagar on 13.11.1997. He was handed over the complaint, panchnama, statements of Jummamiya - truck driver, Dinesh - Homeguard, Shakabhai and Natavarsinh - Police Constable. He also recorded the statements of other independent witnesses. Thereafter, he handed over the police papers to Page 11 of 16 HC-NIC Page 11 of 16 Created On Fri Aug 18 07:33:53 IST 2017 R/CR.A/936/2004 JUDGMENT Mr.Maisurvala. In the cross examination, he admitted that he did not record the statements of cleaner, custodian of live stock, Mr.Rathod - Police Inspector and Mr.D.K.Vaishnav - Police Inspector.
13. P.W.No.4 - Mr.K.K.Maisurvala - Police Inspector has been examined vide Exhibit 21. He has deposed that he received the papers from Mr.Dodiya. On receiving sanction to prosecute on 18.12.1998 and as there was sufficient evidence against the accused, he filed the charge-sheet. The competent officer gave permission in writing to prosecute the case against the accused.
14. On overall analysis of the aforesaid evidence on record, indisputably, the trap was running trap and it is the brain child of P.W.No.2 - Mr.D.K.Vaishnav - Police Inspector, A.C.B., Gandhinagar and Ahmedabad (Rural). Upon receiving such secret information, he himself arranged the trap and thereafter, he requisitioned official panchas. Thereafter, he himself has found out Jummamiya - driver of the vehicle as narrated above who acted as a punter / decoy. During the course of trap, when the aforesaid truck was passing within vicinity of Chiloda, the trap was found to be successful as narrated above. After carrying out trap, Page 12 of 16 HC-NIC Page 12 of 16 Created On Fri Aug 18 07:33:53 IST 2017 R/CR.A/936/2004 JUDGMENT requisite panchnama was drawn and the major portion of investigation was carried out by him. He himself lodged the complaint at Exhibit 18 before himself. Thereafter, he carried out most of the part of the information.
15. Indisputably, as revealed from the prosecution case that at the time of holding the running trap, punter - Jummamiya as well as the cleaner of the vehicle and the custodian of the live stock - three public persons were available and they are the eye - witnesses of the incident. Out of these three persons, Jummamiya - punter was cited as a prosecution witness, however he was not examined as a witness for the reason best known to the prosecution and the statements of rest of two persons were not recorded by the Investigating Agency though it was a running trap. In the aforesaid factual scenario, the prosecution case rested only on the deposition of P.W.No. 2 - Mr.D.K.Vaishnav who himself assumed all roles from receiving the secret information, arranging the running trap, carrying out the procedure of trap and most of the part of the investigation and then, he himself became the complainant and lodged the complaint before himself. Though he himself carried out the investigation, he could not produce the punter before learned Special Judge for his examination Page 13 of 16 HC-NIC Page 13 of 16 Created On Fri Aug 18 07:33:53 IST 2017 R/CR.A/936/2004 JUDGMENT and for the reasons best known to the prosecution, the independent witnesses were not examined in the present case. This course of action goes against the basic tenets of criminal jurisprudence and fair investigation. The creditability of the prosecution case becomes suspected on that count only. In the present facts of the case, the status of the Investigating Officer i.e. Mr.D.K.Vaishnav could not be placed on any pedestal higher than of a complainant and the complainant himself cannot be sole agency of the investigation. There should be no occasion to suspect fair and impartial investigation. The said view is fortified by the decisions of the Hon'ble Apex Court in the case of "Bhagwan Singh Vs. State of Rajasthan" (supra) followed by this Court in the case of "Kanubhai Kantibhai Patel Vs. State of Gujarat" (Supra). Therefore, in this case, the prosecution case suffers from the aforesaid basic infirmity which itself is sufficient to vitiate the whole inveestigation and accordingly, the whole proceedings based on such investigation deserves to be quashed and set aside.
16. Indisputably, in the present case, Jummamiya and other two public persons were available though the prosecution had not examined them and therefore, the testimony of the police Page 14 of 16 HC-NIC Page 14 of 16 Created On Fri Aug 18 07:33:53 IST 2017 R/CR.A/936/2004 JUDGMENT officials remains uncorroborated and for want of corroboration also, the conviction recorded by the learned Special Judge is not sustainable in the eye of law in view of clear ratio laid down by the Hon'ble Supreme Court in the the aforesaid two decisions in the case of Sans Pal Singh, (1998) 2 Supreme Court Cases 371 and T.K.Ramesh Kumar Vs. State through Police Inspector, Bangalore, (2015) 15 Supreme Court Cases 629.
17. For the reasons recorded above, the judgment of conviction recorded by learned Special Judge is not sustainable in the eye of law as the prosecution has not at all associated with any member of public while recording the evidence and due to which, the entire testimony of the prosecution witness remains uncorroborated for want of association of public person and the prosecution case based upon the evidence of the police official, which is not sustainable at law. Out of four witnesses, three witnesses i.e. P.W.Nos. 2, 3 and 4 are the police officials who were the members of the raiding party and P.W.No.1 is only the official panch under the State of Gujarat. It is the consistent practice of the ACB to requisition the government servant as a panch witness who is termed as an official panch and is required in order to ensure that the public servant may not turn hostile, on that Page 15 of 16 HC-NIC Page 15 of 16 Created On Fri Aug 18 07:33:53 IST 2017 R/CR.A/936/2004 JUDGMENT count also, the sole testimony inspires no more confidence to be relied upon in absence of any other corroboration.
18. For the reasons recorded above, the appeal succeeds. The impugned judgment and order of conviction dated 15.05.2004 rendered by learned Special Judge & Additional Sessions Judge, Fast Track Court No.14, Gandhinagar in Special A.C.B. Case No. 1 of 1999 is quashed and set aside. The appellant is acquitted of the charges leveled against them. Bail bond, if any, stands canceled. Fine, if any, paid by them be refunded to them. R & P be sent back to the trial Court, forthwith.
(R.P.DHOLARIA,J.) mmshaikh Page 16 of 16 HC-NIC Page 16 of 16 Created On Fri Aug 18 07:33:53 IST 2017