Gujarat High Court
Ajitkumar Somnath Pandya vs State Of Gujarat on 19 August, 1991
Equivalent citations: (1993)1GLR753
JUDGMENT K.J. Vaidya, J.
1. This appeal arises out of the judgment and order dated 29-8-1984, rendered in Special Case No. 5 of 1984, by the learned Special Judge, Ahmedabad, wherein the appellant Ajitkumar Somnath Pandya, who came to be tried for the alleged offences punishable under Sections 5(1)(d), 5(2) of the Prevention of Corruption Act, 1947 (for short 'the Act') and Section 161 of the I.P.C., at the end of the trial, was ordered to be convicted for the same and sentenced to R.I. for one year and, to pay fine of Rs. 1,000/- and in default, R.I. for one month.
2. The prosecution version as reflected in the evidence of the complainant Premjibhai Lakhabhai Vaghela (PW-1, Ex. 7) to be briefly stated, is to the effect that he was serving as a labourer in Ahmedabad Municipal Corporation, Road-II Engineering Division, under the supervision of the appellant. According to the complainant, on every month the appellant was demanding and accepting Rs. 10/- from each and every labourer as illegal gratification and was unduly harassing those who did not obey to the said demand. Further according to the complainant, since he also had committed defaults in paying the said instalment of the bribe amount for last four months, the appellant had reiterated his demand for the same on pay day that is on 28-10-1983 threatening him to pay in all Rs. 50/-, otherwise, he (complainant) would not be taken on work. To this, the complainant assured him that he will pay up the same next day on getting salary. On 29-10-1983, the complainant did not attend his work and following two days that is 30-10-1983 and 31-10-1983 being holidays, it was only on 1-11-1983 that he was to go on work and give the demanded amount to the appellant Now, as the complainant was not inclined to pay the said illegal gratification, on 31-10-1983 at about 5-00 p m. he went to the office of the Anti-Corruption Bureau, situated at Shahibag, Ahmedabad, and gave complaint Ex. 8, which came to be recorded by P.I, A.C.B., Mr. Yadav (PW-3, Ex. 13). The complainant was asked by P.I. Mr. Yadav to come on the next day, i e., on 1-11-1983 at 5-00 a.m. with a currency note of Rs. 50/-. Accordingly, on 1-11-1983, on complainant reporting to the office of A.C.B. P.I , Mr. Yadav, called two Panchas and introduced them to him. After carrying out the first part of the usual procedure, viz., the complaint being read over to the Panchas, taking currency note of Rs. 50/- from the complainant, applying anthracene powder to the same, carrying out experiment/demonstration under the ultra-violet lamp and passing necessary instructions, firstly to the complainant as to when he should give currency note of Rs. 50/- to the appellant and secondly to Panch witness No. 1 that he has to accompany the complainant all throughout the trap and watch, hear and see what transpired between the complainant and the appellant, (he raiding party as headed by P.I. Mr. Yadav, proceeded to site near Bapunagar Water Tank where the appellant was to come. At about 8-00 a.m. on reaching the complainant and the Panch No. 1 went to the site where other workers were sitting. In the meantime, the appellant came on a bicycle, however, as no labourer stood up, he feeling insulted and annoyed went to the "Vikas Pan Centre," which was at a distance of about 250 steps away from the place where the labourers were sitting. Seeing this, the complainant and Panch No. 1 also followed the appellant. On approaching him, the complainant requested the appellant saying-"Sir, mark my presence", to which the appellant said-"Have you brought the money" ? to which the complainant said-"Yes". Thereupon the appellant said-"give me". As a result of this demand, the complainant took out the currency note of Rs. 50/- from his right hand side pocket of his bush-shirt and gave it to the appellant, which was accepted by him by his right hand and placed the same in the left side pocket of his bush-shirt. Thereafter, as planned earlier, the complainant took out a "bidi" from the pocket of his pant, placed it in his mouth, lighted the same and thereby signalled to the raiding party, whereupon P.I. Mr. Yadav and second Panch rushed to the place of the incident. Immediately P.I. Mr. Yadav introduced himself to the appellant and the police constable Virendrasingh examined his hand in the light of ultra violet lamp. According to the complainant, this was done near "Vikas Pan Centre." On examining the right hand of the appellant, the thumb and four fingers were found shining. Thereafter, P.I. Mr. Yadav took the members of the raiding party and the appellant in a jeep to Bapunagar Police Chowki, where on search being taken of the appellant, Panch No. 1 took out the currency note of Rs. 50/- from the left side pocket of the bush-shirt put on by him. When this was examined in the light of the ultra-violet lamp, the same was found to be shining. Not only that but the thumb as well as four fingers also of the right hand of the appellant and the left hand side pocket of the bush-shirt when examined in the said light, they, were also found to be shining. The bush-shirt and the currency note of Rs. 50/- were thereafter attached under the second part of panchnama Ex. 10. On the basis of these facts, after investigation was over and the necessary sanction under Section 6 (1)(c) of the Act was obtained from the Commissioner, Ahmedabad Municipal Corporation, the appellant came to be charge-sheeted to stand trial for the alleged offences under Sections 5(1)(d), 5(2) of the Act and under Section 161 of I P.C. before the learned Special Judge, Ahmedabad.
3. At trial, the appellant denied having committed any offence and claimed to be tried. In his further statement under Section 313 of the Code, while explaining away the circumstances appearing against him, it was submitted by the appellant that on 1-11-1983 at 8-00 a. m. when he went to the site, since the labourers who were sitting there, did rot steed up for marking their presence, he went to the "Vikas Pan Centre" for taking 'Pan'. At that time, the complainant came from behind and attempted to thrust a currency note of Rs. 50/- denomination in the left side pocket of his bush-shirt, which he by holding the light hand of the complainant tried to push away, as a result of which, the same fell down on the ground from the hand of the complainant. In the meantime, raiding party appeared on scene, searched clothes put on by him, but did not find the muddamal currency note in question. The said currency note was ultimately collected from the ground and was seized by the police and thereafter the policeman catching hold his two hands took him to Bapunagar Police Chowky.
4. The learned Judge accepting and relying upon the prosecution evidence, convicted and sentenced the appellant as stated above in detail in para 1 of the judgment, and hence, the present appeal by the appellant against the same.
5. Mr. Nitin Amin, the learned Advocate for the appellant challenging the impugned order of conviction has raised following contentions:
(i) That the prosecution has failed to bring home the charge against the appellant beyond doubt, much less the reasonable doubt;
(ii) That the evidence of the complainant Premjibhai Vaghela (PW 1, Ex. 7) is not dependable enough to connect the appellant in as much as it suffers certain patent infirmities going to the root of the case such as (i) that it was on account of the report of the appellant that he came to be fined; (ii) that it was on account of the report of the appellant that the labour representative Jivanbhai Dudhabhai came to be suspended from his job about a month and a half only before the date of the incident (iii) that once again it was only on account of the difficulties created by the Appellant that the labourers were not getting their salaries in time and as a result of which, annoyed and enraged labourers were bearing strong grudge against the appellant;; (iv) that there are certain other material discrepancies on the material part of the story in the evidence of the complainant himself which cuts at the very root of his credibility such as regarding the place where the hands of the appellant in fact came to be examined, and that about the date and the place where his further statement etc. came to be recorded;
(iii) That the evidence of Panch No. 1 Bashirmahmad Shaikh (PW 2, Ex. 9) looking to his overall unnatural and doubtful conduct does not inspire any confidence and therefore should be kept out of the consideration;
(iv) Apart from this, in the alternative, even if the evidence of Panch No. 1 is held to be reliable, then even in the facts and circumstances of this case, taking into consideration the highly tainted and interested evidence of the complainant himself his evidence loses all its significance as a supporting witness;
(v) That the evidence of P.I. Mr. Yadav (PW 3, Ex. 13) in para 22 of his cross-examination, firstly to the effect that when the appellant came on site he waited there for five to seven minutes and secondly that the complainant and Panch No. 1 gave signal after fifteen to twenty minutes of their approaching and the appellant standing near "Vikas Pan Centre" is not consistent with the evidence of two other prosecution witnesses, namely, the complainant and Panch No. 1.
6. As against the above, Mr. K. P. Raval, the learned A.P.P. has broadly submitted that the learned Judge while convicting and sentencing the appellant has relied upon certain Supreme Court decisions and has given quite cogent and convincing reasons and in that view of the matter, no justifiable ground is made out to interfere with the impugned order of conviction.
7. Now developing and highlighting the contentions raised above in para 5 of this judgment, Mr. Nitin Amin, the learned Advocate for the appellant further submitted that the complainant in para 30 of his cross-examination has admitted that he was knowing Jivanbhai Dudhabhai who was a labourer representative and was working with him in his Division-11 as a permanent labourer. It is also admitted by him in para 41 & 30 of his cross-examination that few months (1 1/2 months) prior to 1-11-1983, said Jivanbhai Dudhabhai was suspended from his job on the basis of a report made by the appellant against him. It is also admitted by the complainant that Jivanbhai Dudhabhai was the only and the sole representative in his group of 40 labourers. Further in para 32 of his cross-examination, the complainant has admitted that if the appellant made report against any labourers for any of their defaults, on the basis of such report, they were fined and certain amount was deducted from their salaries. He also admitted that in the month of October 1983 Rs. 5.95 were deducted from his salary because the appellant had made a report against him. On 28-10-1983 when he went to take his salary, that he came to know about the said deduction from his salary. In this regard, in para 29 of his cross-examination the complainant has admitted that he decided to file a case of corruption against the appellant on 28-10-1983, the day on which he received his salary. He also admitted that he did not know as to in the month of October 1983 for how many days he had worked. In para 42 of his cross-examination, the complainant has further admitted that due to the irregularities of the appellant, the labourers were experiencing difficulties in getting their salaries in time and to that effect, the complaints were made against him in Corporation office. It is further admitted that because of this grievance the labourers were enraged and bearing deep grudge against the appellant. Further in para 27 of his cross-examination, the complainant has admitted that before he gave complaint on 31-10-1983 he had not made any application or grievance before the Municipal Corporation or any other institution. It is admitted by the complainant that he was knowing the Section Officer of the Engineering Department of the Ahmedabad Municipal Corporation, viz., Prakash H. Shah. It is also admitted by him that the complaint about the appellant demanding Rs. 10/- P.M. was made for the first time by him before the A.C.B. Office. In para 33 of his cross-examination, it has been alleged against the complainant that ho was in habit of consuming liquor and that number of prosecution cases were filed against him. That before 1-11-1983 on the charge of having consumed liquor, report was made against him. However, both of these suggestions having been denied, they hang like lose ends without rendering any assistance to the case of the appellant. Mr. Nitin Amin further submitted that over and above the aforesaid infirmities, the evidence of the complainant further suffers from two material inconsistencies on the vital part of the prosecution story, namely, firstly the complainant in his evidence before the Court, has in unmistakable terms stated that the right hand of the appellant was examined in the light of the ultra-violet lamp near 'Vikas Pan Centre' and thereafter P.I Mr. Yadav had taken the appellant and all of them in a jeep to Bapunagar Police Station where the appellant came to be searched and examined in light of the ultra-violet lamp. Now as against this, both -the Panch witnesses as well as P.I. Mr. Yadav has in unmistakable terms stated that the whole procedure of examining the hands of the appellant and the search and recovery of currency notes was carried out at Bapunagar Police Chowky as public had collected there and no place was available near 'Vikas Pan Centre'. Secondly, in the last line of para 18 of his evidence, the complainant has stated that after the trap was over, his further statement was recorded at Bapunagar Police Chowky only. In para 40 of his cross-examination, the complainant has further stated that after the ultra-violet lamp examination was over, he left Bapunagar Police Chowky at 9-45 a.m. and from there he straightway went to his home. It was only on the next day at 8-00 a.m. that he went to take his cycle which was lying at the A.C.B, office. He has denied the suggestion that he was called at A.C.B, office at night on the next day for recording further statement and that his further statement was recorded at that place. Now, as against this, the complainant, Panch No. 1 in para 14 of his evidence has stated to the effect that he and the complainant were asked by P.I. Yadav to come to the A.C.B. office in the evening for giving their further statements. Accordingly on both of them going to the A.C.B, office in the evening of the very day only, their statements were recorded. Even according to P I. Yadav (paras 12 and 13 of his evidence) statements of the complainant and Panch No. 1 were recorded on the very same day in the evening at the A.C.B, office. On the basis of the aforesaid submissions, Mr. Amin finally urged that -to say the least, one cannot rule out the possibility that because the appellant was quite firm and honest in discharging his duty, he has been falsely involved by some interested labourers through the instrumentality of the complainant. According to Mr. Amin, thus when the evidence of the principal witness, the complainant himself comes from the tainted and dubious source, it would be neither just, nor legal nor fair to place implicit reliance upon the evidence of such a witness. According to Mr. Amin, since the trial Court has unfortunately completely overlooked the patent infirmities in the evidence of the complainant and the basic principle of criminal jurisprudence, viz., the benefit of doubt governing the criminal cases, the impugned order of conviction and sentence deserves to be quashed and set aside.
8. Replying to the above criticism of Mr. Amin, Mr. K. P. Raval, the learned A.P.P. submitted that there is absolutely nothing unnatural, improbable or wrong for the trial Court in accepting and relying upon the evidence of the complainant more particularly when the group of labourers as a whole every month were exploited and compelled to give Rs. 10/ - from their hard earned wages - earned out of their sheer toil, tears and sweat and further if they failed to pay the same, were harassed by way of imposition of some fine, suspension, termination, etc. If under such exacting circumstances, some exasperated labourer decided to file complaint against the exploiter as has been done in the instant case, why the same should be viewed with suspicion ! The learned A.P.P. further submitted that these days not only the corruption in our country has become quite rampant and alarming but further what has been surfaced in the present case is of the worst type, wherein even the poor labourers have not been spared. The learned A.P.P. under the circumstances further submitted that merely because Jivanbhai Dudhabhai came to be suspended and/or the complainant came to be fined and/or some defaulting labourers came to be sternly dealt with on the basis of the report made against them by the appellant, these circumstances by themselves should not be given any weightage shacking, doubting and distrusting the credibility of the complainant's evidence.
9. Now undoubtedly speaking generally, what learned A.P.P. has submitted is quite understandable and indeed has some substance and force in what he says, but at the same time, what has been argued by the learned A.P.P. represents only one side of the picture of the coin. While appreciating the evidence of the witnesses in any criminal trial, no Court can ever afford to ignore taking into consideration the other equally important side of the picture, if it is so clearly probabilised in cross-examination of the witnesses and brought on the record. If under such circumstances, when the evidence of any such witness is ultimately found to be susceptible to two reasonable inferences, the baffling question that would obviously arise is as to where lies the truth ? Does it lie in the allegations levelled by the complainant against the appellant? or, Does it lie in the allegations probabilised by the appellant against the complainant? Thus when the Court finds itself on horns of dilemma or at cross-roads and feels embarrassed as to find out the way where lies the truth, the rough and ready answer and obvious mandate given by the criminal jurisprudence is to abandon the exercise in futility in search of the truth and better give the benefit of doubt to the accused by way of abundant caution. And rightly so, for what ought we know that public servants discharging their duties honestly, sincerely, and firmly without any favour or fear, in short with doubtless integrity, because sometimes they do not yield to some illegal, unjust and improper demands or favour to certain scheming disgruntled vested interests, day in and day out they have to incur and invite displeasures creating and adding to the list of their evil-wishers, they become an eyesore and obvious obstacle in way of such persons and therefore in order to remove them from their ways, false, frivolous and vexatious complaints are filed against them. Thus, taking into consideration the overall facts and circumstances of the case, since considerable doubt arises as regards the bona fides and motive of the complainant in filing the complaint, we feel that to sustain the impugned order of conviction and sentence is fraught with great hazard and risk and we indeed would not like to undertake the same. We quite appreciate the concern voiced by the learned A.P.P. regarding the cancerous growth of corruption in our country. We are equally sensitive, conscious and alert to this problem of corruption and eradication of the same, which undoubtely is required to be sternly dealt and done away with. However, at the same time, in our zeal and zest to root out corruption, we just cannot afford to blindly throw ourselves in imbalance and become so indiscreet going even to the extent of accepting the evidence of unscrupulously motivated witnesses. We all know that if on one hand the corruption is on increase, at the same time on the other hand, we also know that the equally corrupt tendency of black-mailing and harassing the honest, straightforward public servant of not liking by certain unscrupulous elements have also increased. Under such perplexing circumstances, as pointed out above, if the evidence of the complainant was not free from doubt, the order of conviction and sentence on such tainted evidence would not only be unjust, illegal and improper to the honest public servant, but it would also certainly demoralise such public servants and thereby affect the efficiency of the public administration. It appears to us that sometimes, the public servants may not mind their sincere and honest services to the society not appreciated, not rewarded and even ignored, but to crown their honesty, sincerity and integrity with the stigma, of defamation of corruption, conviction, sentence and ultimate dismissal would be simply unfair to them hitting them below the belt. It is under such circumstances that whenever the evidence of a complainant creates some reasonable doubt, the doubt has to be resolved in favour of the accused. Mind well, what we say is a 'reasonable doubt' and not 'the doubt of any timid mind' catching at some trivial flaws and excuses in evidence, and afraid of convicting the accused. (Emphasis supplied) In fact, every Court in corruption cases which entirely ultimately depends upon three star-witnesses, viz., the Complainant, Panch and the Police Officer, has to be on constant guard and must exercise utmost care, vigilence and circumspection while appreciating the evidence of the said three components of the prosecution evidence in order to see that 'justice' in hands of the Court do not turn out to be the game of chance of three cards-game-gamble in the hands of some scheming unscrupulous mischievous complainant.
10. Now turning to the other submissions of Mr. Amin pointing out two material discrepancies appearing in the evidence of the complainant as regards the places where the hand of the appellant came to be first examined; and the statements of the complainant and the panchas came to be recorded, we also feel it little too difficult to understand as to why on such vital aspects of the prosecution case, the complainant himself has given go-bye and inconsistent versions. Is it because his memory has failed him before the Court at the time of giving evidence ? Or, Is it because he felt guilty on account of false implication of the appellant by him and that is why he backed out from the earlier version ? Or, Is it because in between the alleged raid and the trial, some extra forces have played their parts pursuading and diluting the complainant to turn little soft in such a manner which may create some doubt, which the Court may ultimately resolve in favour of the appellant ? It is indeed impossible to say what way the mind of the complainant was working at the time when he filed the complaint and subsequently while giving evidence before the Court. In fact, the image and the impression that we gathered on reading and appreciating the evidence of the complainant is that he is found to be a person perhaps having no regard for truth, changing his stand frequently and therefore in our opinion it is not desirable to place any reliance upon the evidence of such weather-cock witness.
11. The learned A.P.P. Mr. Raval while making his last ditch efforts to sustain the impugned order of conviction and sentence submitted that in this case the trial Court has over and above the evidence of the complainant, relied upon the evidence of Panch No. 1, who was an independent witness and P.I. Mr. Yadav and that there was no justifiable reason to discard their evidence, which irrespective of the evidence of the complainant also connects the appellant with the crime alleged against him. Here also the things are not as simple as the learned A.P.P. wants us to believe. This Panch No. 1 has deposed to the effect that on 31-10-1983 he had gone to the Mill for duty in the night-shift which commences at mid-night and that he had to return immediately home taking half day's leave as he had suddenly fallen sick. According to this witness, he reached home at about 3-30 a. m. At 5-15 a. m. he went 'to answer the call of nature when Panch No. 2 met him on the footpath. It was a wintry night. Within a short time P.I. Mr. Yadav arrived in a jeep and asked him and the other Panch whether they would come as Panchas in a trap case, to which they readily agreed. Thereafter, he was taken to the A.C.B, office and from there to the place where the appellant was working. Now it is not possible to accept and rely upon the evidence of this witness for the simple reason that the person who taken a sudden leave from his work on the ground of his sickness and returned home for taking rest late at night, would not readily agree to go as Panch witness and to go at A.C.B, office alongwith the Police Officer and then accompanying the raiding party at Bapunagar where the trap was arranged. Looking to this unnatural conduct of this witness, it is difficult to take him as an independent and reliable witness at his face value. In this view of the matter, we do not feel safe to accept and rely upon the evidence of Panch No. 1. Similarly, the evidence of P.I. Mr. Yadav also falls little short to inspire our confidence. According to P.I. Mr. Yadav, he has stated in his evidence that the complainant gave signal after 15 to 20 minutes after he and Panch No. 1 reached near "Vikas Pan Centre". Now considering the evidence of the complainant and Panch No. 1 regarding their talks with the appellant which transpired at 'Vikas Pan Centre' regarding the demand and acceptance of the bribe amount, it would not have taken more than 2 to 3 minutes, and in that view of the matter, it is difficult to understand as to why such a long time that of 15 to 20 minutes have been deposed to by P.I. Mr. Yadav. One can understand some such inadvertant mistake appearing in the evidence of an ordinary witness, but the same and that too in the evidence of Police Officer in the background of the doubtful evidence of the complainant, which certainly assumes great importance, is difficult to be lightly accepted and relied upon at its face value. Thus, as discussed above, not only the evidence of the complainant is found to be unreliable, but even the evidence of Panch No. 1 and P. I. Mr. Yadav also unfortunately fail to carry conviction with us.
12. Lastly, a reference may also be made to the two leading decisions of the Supreme Court, reported in the case of (1) Hazari Lal v. The State (Delhi Admn.) ; and (2) State of Uttar Pradesh v. G.K. Ghosh , which were heavily relied upon by the learned A P.P. We have carefully gone through the said two judgments of the Supreme Court, are of the opinion that though undoubtedly whatever has been observed therein is of immense help and guidance in the matter of appreciation of evidence, the same do not in any way lay down any proposition of law. It may be stated that the ultimate conclusions of conviction reached in each of the aforesaid two cases are based upon the appreciation of facts of the said two cases. In fact, what we have been saying has been amply made clear in the said two judgments themselves. For example, in case of Hazari Lal (supra), the Supreme Court while appreciating the evidence of the Police Officers, who laid the trap, finding him reliable, has in para 8 of its judgment at page 876, observed as under:
We do wish to say that there is no rule of prudence which has crystalized into a rule of law nor indeed any rule of prudence which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration In the facts and circumstances of a particular case a Court may be disinclined to act upon the evidence (if such an officer without corroboration, but, equally in the facts and circumstances of another case, the Court may unhesitatingly accept the evidence of such an officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance.
(Emphasis supplied)
13. Similarly, in case of the Stale of Uttar Pradesh (supra) in concluding 10 lines of para 9, the Supreme Court has observed as under:
Ordinarily, it is only when a citizen feels oppressed by a feeling of being wronged and finds the situation to be beyond endurance, that he adopts the course of approaching the Vigilance Pepartmeot for laying a trap. His evidence cannot therefore be easily or lightly brushed aside. Of course, it cannot be gainsaid that it does not mean that the Court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict Government Official may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving a go-bye to the rules, the official refuses to yield (Emphasis supplied) Thus, taking into consideration the over all facts and circumstances of this particular case as discussed at length above, the aforesaid two decisions of the Supreme Court are not of any assistance to the prosecution.
14. In view of the aforesaid discussion, we have no hesitation whatsoever in holding that the trial Court has completely misdirected itself in placing implicit reliance upon the evidence of the complainant and in that view of the matter, the impugned judgment and order of conviction deserves to be quashed and set aside.
15. In the result, this appeal is allowed. The impugned judgment and order of conviction and sentence passed by the learned Special Judge is hereby quashed and set aside. The order as regards bail bond shall stand cancelled. Fine if paid to be refunded.