Gujarat High Court
Bavabhai Bachubhai Hirpara vs State Of ... on 21 March, 2017
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.A/380/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 380 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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BAVABHAI BACHUBHAI HIRPARA....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR UMESH TRIVEDI, ADVOCATE FOR MR HM PRACHCHHAK, ADVOCATE
for the Appellant(s) No. 1
MS MH BHATT, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 21/03/2017
ORAL JUDGMENT
1. The appellant has preferred the present appeal under Section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 08/03/2004 Page 1 of 16 HC-NIC Page 1 of 16 Created On Mon Aug 14 22:25:38 IST 2017 R/CR.A/380/2004 JUDGMENT rendered by the learned Special Judge (ACB), Amreli in Special (ACB) Case No.26 of 1992 whereby the appellant has been convicted for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for a period of six months and fine of Rs.5,000/- and in default to pay fine, to under go one month simple imprisonment. The appellant has been further convicted for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for a period of one year and fine of Rs.5,000/- and in default to pay fine, to under go three months simple imprisonment. It is also ordered to run both the sentences concurrently.
2. The short facts giving rise to the present appeal are that the present appellant-accused was serving as Talati-cum- Mantri in the village Khadkhad, Taluka Kukavav of District Amreli in the year 1990-1991. That complainant Panubhai Jagubhai Vala of the same village had purchased a house from one Nathiben Jivabhai of the same village and for transferring the said house in the name of Panubhai Jagubhai Vala, the present accused demanded bribe of Rs.500/- which was scaled down to Rs.300/-. The complainant gave Rs.200/- and remaining Rs.100/- was agreed to be given on Monday. As the complainant did not want to give such bribe, he approached ACB Office and lodged complaint. Accordingly, a trap was arranged and in the trap, the accused caught red handed accepting bribe and, thereby the appellant committed the offence as alleged. Hence, the complaint came to be lodged against the appellant-accused.
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3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the appellant 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 several 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 Cr.P.C. and hearing the arguments on behalf of 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 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. Umesh Trivedi, learned advocate for Mr. H. M. Prachchhak, learned advocate for the appellant has taken this Court to the entire records and proceedings of the learned Page 3 of 16 HC-NIC Page 3 of 16 Created On Mon Aug 14 22:25:38 IST 2017 R/CR.A/380/2004 JUDGMENT trial court and has read over the evidence of the material witnesses and has argued that evidence of the complainant is not established qua vital ingredients of demand, acceptance and recovery and in the cross examination, he has admitted the accused accepted Rs.100/- for the clothes i.e. for the price of clothes which was purchased by the accused through him and not as the illegal gratification. Further he has argued that even the evidence of the complainant suffers from many other vices and contradictions as well as his evidence is not at all consistent. He has also argued that the complainant himself is involved in several offences like murder etc. so his credibility is not beyond reasonable doubt. He has further argued that the trap happened near pan-bidi shop after sun set whereas seizer procedure was carried out in the panchayat office and both the places are different and therefore entire procedure is vitiated according to his submissions. Learned advocate has further argued that in view of depositions of the complainant himself, house was not transferred to him as no sale deed was executed in his favour and only agreement to sale came to be executed in the year 1989 and thereafter he never applied for entering his name in the revenue record and similarly even the owner of the said house had also not applied qua the same. Consequently, therefore, there was no application for mutating his name and there appears no reason for any mutation. Entire evidence is baseless for mutating his name in the record of Panchayat and therefore also no reliance is required to be placed over the complaint at Exh.15 as well as depositions of the complainant. He has further argued that the evidence of the panch though to some extent appears to be consistent with the panchnama, however, recovery came to be effected through panch no.2 Page 4 of 16 HC-NIC Page 4 of 16 Created On Mon Aug 14 22:25:38 IST 2017 R/CR.A/380/2004 JUDGMENT and the said recovery was not carried out in accordance with known procedure as the same was carried out at different place i.e. at Panchayat office in lantern light in absence of electricity. The entire procedure remain defective even as per the recitals made in the panchnama as well as any other documents. The mark of anthracene powder which came to be noticed in ultra violet lamp cannot be believed in absence of electricity. Once anthracene powder is smeared over the currency notes, powder is never visible, only bluish florescent light can be noticed by using ultra violet lamp. In that view of the matter, entire procedure of search and seizure is vitiated and his evidence is also getting vitiated due to darkness and it is clear in his deposition that search and seizure came to be effected in the office of Panchayat and panchnama came to be recorded in the panchayat office by Shri Simpi, Police Inspector and thereafter signature was taken out from him. All throughout he was being made to sit outside the room of Panchayat office and he had not at all participated in search and seizure procedure. Therefore, he has urged this Court to allow the present appeal and set aside the judgment of conviction.
7. On the other hand, Ms. M. H. Bhatt, learned APP has supported the judgment rendered by learned trial Court and has argued that the judgment of conviction recorded by the learned trial court requires no interference of this Court. The learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant-accused and ingredients as regards to demand, acceptance and recovery are proved in accordance with law and, therefore, this Court should not disturb the finding recorded by learned trial Court, Page 5 of 16 HC-NIC Page 5 of 16 Created On Mon Aug 14 22:25:38 IST 2017 R/CR.A/380/2004 JUDGMENT as such.
8. This Court has heard Mr. Umesh Trivedi, learned advocate for Mr. H. M. Prachchhk, learned advocate for the appellant and Ms. M. H. Bhatt, learned Additional Public Prosecutor for the respondent-State.
9. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. As per the prosecution version, the complainant approached the accused who was serving at the relevant time as Talati-cum-Mantri of village Khadkhad for mutating his name for purchase of house from one Nathiben Jivabhai of the same village. At that time, the accused demanded Rs.500/- as illegal gratification for effecting mutation entry which was scaled down to Rs.300/-. At that time, the complainant handed over Rs.200/- on the spot and remaining amount of Rs.100/- was to be paid on 10/06/1991 and as he was not willing to pay the amount of bribe, he lodged the complaint. A trap was arranged. During the trap on 10/06/1991, the accused caught red handed with tainted currency notes of Rs.100/- and thereby committed offence punishable under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act.
10. At this juncture, it would be fruitful to refer to some decisions of Hon'ble Apex Court. In the case of A. Subair vs. State of Kerala reported in (2009) 6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act, the Hon'ble Apex Court ruled that the prosecution has to prove the charge Page 6 of 16 HC-NIC Page 6 of 16 Created On Mon Aug 14 22:25:38 IST 2017 R/CR.A/380/2004 JUDGMENT thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
11. In the case of State of Kerala and another vs. C.P. Rao reported in (2011) 6 SCC 450, the Hon'ble Apex Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
12. In a recent enunciation by the Hon'ble Supreme Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined by the Hon'ble Apex Court in the case of B.Jayaraj vs. State of A.P. Rerpoted in AIR 2014 SC (Supp) 1837, in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged Page 7 of 16 HC-NIC Page 7 of 16 Created On Mon Aug 14 22:25:38 IST 2017 R/CR.A/380/2004 JUDGMENT therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.
13. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, the Hon'ble Apex Court in the case of Sujit Biswas vs. State of Assam, reported in (2013) 12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.
14. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.
15. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d) Page 8 of 16 HC-NIC Page 8 of 16 Created On Mon Aug 14 22:25:38 IST 2017 R/CR.A/380/2004 JUDGMENT
(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.
16. In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court. If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt.
17. PW-1 Panubhai Jagubhai Vala who is the complainant has deposed that he is agriculturist and having agricultural land at village Khadkhad. He has deposed that he purchased a house from one Nathiben and he wanted to mutate his name in her place for which he approached the accused for mutating his name. He has deposed that initially the accused demanded Rs.500/- which was scaled down to Rs.300/- and at that time he handed over Rs.200/- to the accused and remaining Rs.100/- was agreed to be paid on 10/06/1991. He has deposed that as he was not willing to pay such bribe, he lodged the complaint which he identified at Exh.-5. He has deposed that the ACB officials arranged for the trap and necessary requisition was made for panchas and on the day of trap, he along with one panch went to village Khadkhad and reached there about 7:50 p.m. at pan-bidi shop situated nearby the office of gram panchayat and while they were Page 9 of 16 HC-NIC Page 9 of 16 Created On Mon Aug 14 22:25:38 IST 2017 R/CR.A/380/2004 JUDGMENT standing in front of pan-bidi shop, at that time, the accused arrived there and asked about him as to whether he was out of station and thereafter he asked the accused regarding mutating his name. He has deposed that at that time, the accused told him to pay outstanding amount of Rs.100/- as agreed due to which he took out the currency note of Rs.100/- and handed over to the accused and the accused placed the same in pocket of his shirt. He has deposed that thereafter he gave pre arranged signal due to which other members of raiding party arrived there. He has deposed that at that time, there was no electricity power due to which they were taken to the office of Gram Panchayat where also there was no electricity power, due to which lantern was asked for and thereafter in the light of lantern, nothing was found over such currency notes. He has deposed that search was also taken. However, in the cross examination, he admitted that since they reached village Khadkhad and entire procedure of trap was carried out, there was no electricity power. He has also admitted that entire procedure of trap was carried out in light of lantern in absence of electricity power. He has also admitted that neither the clothes worn by the accused nor his hands were examined by the ultra violet lamp in his presence. He has also admitted that search and seizure as well as panchnama was carried out in the office of Panchayat by Shri Simpy. He has also admitted that he and panchas were made to seat outside the panchayat office and thereafter, signatures were obtained afterwards. He has also admitted that no sale deed is executed in his favour by Nathiben and only agreement to sell was there. He has also admitted that he had never applied for mutating his name in place of Nathiben. He has also admitted that old occupant Nathiben had also not Page 10 of 16 HC-NIC Page 10 of 16 Created On Mon Aug 14 22:25:38 IST 2017 R/CR.A/380/2004 JUDGMENT applied for mutating his name. He has also admitted that as and when he inquired about mutating his name, the accused used to tell that he has to search for the application, so he suspected bonafide of the application and due to such impression, he lodged the complaint. He has also admitted that he is aware of the fact that the accused used to remain present in the village during the evening hours. He has also admitted his involvement in several criminal cases and also admitted that he also remained in jail in the murder case of Jasmin Joshi. He also admitted that he handed over the currency note of Rs.100/- to the accused for the price of clothes he asked for. He also admitted that total price of clothes was Rs.250/- and he had earlier paid Rs.150/- and Rs.100/- remained unpaid and when he visited the accused on 08/06/1991, at that time, the accused told him to pay Rs.100/- on Monday evening. Except that, there was no other conversation.
18. PW-2 Janakray Dalpatray who was serving at the relevant time in the office of Sale Tax, Amreli and was requisitioned as panch has deposed that he was made to understand the procedure of trap and he was directed to remain all throughout with the complainant and hear the conversation and view the incident at the time of trap procedure. He has deposed that at the time of trap while they reached at pan-bidi shop situated in the village Khadkhad, the accused was passing from there. He has deposed that at that time, the complainant asked as regard mutating his name and the accused told him to pay Rs.100/- as agreed and thereafter the complainant handed over Rs.100/- to the accused which the accused accepted and placed into his pocket of shirt and Page 11 of 16 HC-NIC Page 11 of 16 Created On Mon Aug 14 22:25:38 IST 2017 R/CR.A/380/2004 JUDGMENT thereafter the complainant raised pre-arranged signal due to which P.I. Shri Simpy and other members of raiding party arrived there and search and seizure was came to be effected and Rs.100/- was recovered by panch no.2 and thereafter they were taken to the office of village Gram Panchayat where rest of the procedure of search and seizure and panchnama was carried out. He has deposed that during that procedure, in the ultra violet lamp, impression of fingers as well as stains of powder came to be noticed. However, in the cross examination, he has admitted that he read his statement as well as panchnama several times prior to deposition and he crammed entire panchnama as well as police statement. He has also admitted that during the procedure of ultra violet lamp test, they noticed impression of fingers as well as stains of powder over the clothes as well as currency notes. He has also admitted that he also marked finger impression of the accused over the tainted currency notes. He has also admitted that there was no electricity power all throughout during the trap in village Khadkhad.
19. PW-3 Jaswantrav Marutirav Dhone who was serving as Constable in the ACB Police Station at the relevant time and he was working as a lamp operator has deposed that he carried out the ultra violet test procedure during the course of trap. He has deposed that after trap, during the course of search and seizure, he also carried out the test over the hand as well as clothes worn by the accused wherein stains of powder i.e. presence of powder was noticed in the ultra violet lamp test. In the cross examination, he has admitted that he read the panchnama as well as the statement several times. He has also admitted that there was no power supply.
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20. On overall analysis of the aforesaid evidence on record, so far as the evidence of the complainant as regards to demand and acceptance of illegal gratification are concerned, though in examination in chief he has clearly stated that the accused demanded Rs.100/- and he handed over it, however, in the cross examination, as stated above, he has admitted that he handed over Rs.100/- towards the price of clothes he had purchased through the accused. Further, he has admitted that no sale deed was executed in his favour by Nathiben and therefore, he did not apply for mutating his name. Consequently, there was no question of even entering his name in absence of any sale deed. Not only that, upon strength of agreement to sale, no such application for entering and mutating name of the complainant could be given to the office of panchayat. In view of the aforesaid clear admission made by the complainant, the entire complaint becomes baseless as there was no application for mutating his name. In absence of any such application, there was no question of mutating his name and if there was no question of mutation in the record of Gram Panchayat, there was no question of demanding any amount of illegal gratification. On that count also, the entire complaint as well as depositions made by the complainant in examination in chief falls on the ground. More particularly, whenever at the last he has admitted that he had paid the aforesaid amount towards the price of clothes and not towards the amount of illegal gratification, in view of aforesaid factual scenario, taking into consideration criminal antecedents regarding his involvement in crime of murder and he has also remained in jail, in that view of the matter, credibility of his evidence is doubtful and Page 13 of 16 HC-NIC Page 13 of 16 Created On Mon Aug 14 22:25:38 IST 2017 R/CR.A/380/2004 JUDGMENT that is also required to be appreciated.
21. So far as evidence of panch who accompanied at the time of trap, even his evidence is not consistent so far as test of ultra violet lamp as well as recovery of Rs.100/- is concerned wherein also he has deposed that stains of powder was noticed over the hands of the accused as well as over the tainted currency notes which is not possible. Presence of powder cannot be noticed through the test of ultra violet lamp but presence of powder can be marked due to presence of blueish florescent marks over such article where anthracene powder is smeared.
22. Indisputably at the time of trap, there was no electricity supply and due to which entire trap was carried out in the darkness of night at about 8:00 p.m. in presence of light of lantern and that was also found to be insufficient and due to which while the trap was carried out in front of pan-bidi shop and thereafter the complainant, accused and other persons of raiding party were shifted to the office of Gram Panchayat where detailed search and seizure as well as panchnama was carried out. Consequently, therefore, search and seizure was taken at different place whereas trap was laid in front of pan- bidi shop and that procedure was carried out in the darkness and therefore it is not free from doubt as admitted by all the three witnesses. Therefore, entire procedure of search and seizure as well as recovery becomes doubtful.
23. This Court has minutely evaluated the evidence of the three witnesses. However, the investigating officer Shri Simpy died prior to recording the evidence. Therefore, he Page 14 of 16 HC-NIC Page 14 of 16 Created On Mon Aug 14 22:25:38 IST 2017 R/CR.A/380/2004 JUDGMENT could not be examined. However, on overall evaluation of the three witnesses, this Court finds that their evidence is not consistent to each other and not only that but there appears inconsistency in the evidence of each one of the witnesses and therefore, this Court is of considered opinion that evidence of them are not sufficient to confirm the judgment of conviction recorded by the learned Special Judge. It appears that the entire finding recorded by the learned trial court is not sustainable at law.
24. As such in the present appeal, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial court. If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies upon the prosecution to prove its case beyond reasonable doubt. In the present case, in view of the aforesaid nature of evidence, it is clear that there is no clinching cogent and reliable evidence beyond reasonable doubt to confirm the conviction and therefore as a result, the learned trial court has committed error in relying upon the version put forth by the prosecution. This Court has also gone through the decisions of the Apex Court in the cases of (i) P. Satyanarayan Murthy vs. District Inspector of Police, State of Andhra Pradesh reported in (2016) 1 SCC (Cri.) 11, (ii) Selvaraj Vs State of Karnataka, reported in (2016) 1 SCC (Cri) 19 and (iii) Krishan Chander Vs State of Delhi, reported in AIR 2016 SC 299. In view of settled position as emerging from the aforesaid decisions, in absence of specific and clinching evidence to prove all such acts by the accused, conviction Page 15 of 16 HC-NIC Page 15 of 16 Created On Mon Aug 14 22:25:38 IST 2017 R/CR.A/380/2004 JUDGMENT recorded by learned trial Judge is not sustainable.
25. For the reasons recorded above, the appeal succeeds. The impugned judgment and order of conviction dated 08/03/2004 rendered by the learned Special Judge (ACB), Amreli in Special (ACB) Case No.26 of 1992 is quashed and set aside. The appellant-accused is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith. Fine, if any paid, shall be refunded.
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