Gujarat High Court
Mahendra vs State on 29 March, 2011
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
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CR.A/275/1999 21/ 21 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 275 of 1999
With
CRIMINAL
APPEAL No. 331 of 1999
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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MAHENDRA
MAGANLAL VACHHANI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
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Appearance
:
MR
KB ANANDJIWALA for Appellant(s) : 1,
MR HL JANI ADDITIONAL PUBLIC
PROSECUTOR for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 29/03/2011
COMMON
CAV JUDGMENT
1. Since both the Appeals arising out of common judgment, they are taken for hearing together with the consent of parties and are disposed of by this common judgment.
2. Challenge in this appeal is to the judgment of learned Special Judge, Bhavnagar, passed in Special Case No.7 of 1993 (ACB) dated 19.2.1999, whereby the learned Special Sessions Judge, was pleased to convict the appellant-accused under Section 7 of the Prevention of Corruption Act and awarded sentence to the appellant to suffer rigorous imprisonment for 6 months and to pay fine of Rs.2,000/-, i/d, to further undergo simple imprisonment for one month. The appellant was also ordered to suffer rigorous imprisonment for one year and to pay a fine of Rs.2000/-, i/d to suffer simple imprisonment for three months for the offence punishable under Sections 13(2) of the Prevention of Corruption Act. All the sentences shall run concurrently.
3. Prosecution version is that on 5.7.1992, the complainant lodged a complaint before the ACB Inspector, ACB office, Bhavnagar stating that the complainant is residing with family at Bhavnagar and is carrying on business of oil after receiving from the ship at Alang Shipping Yard. He was at the relevant point of time interested in starting business of food processing being onion Dehydration and therefore, he purchased plot at Shihor G.I.D.C., Plot No.10 admeasuring 1783 Sq. Mtr. The complainant obtained necessary permission for construction from Shihor Nagarpalika and he carried out construction work upto lintel level. After sometime, he came to know about the permission from the GIDC is also necessary before starting construction work and therefore, he contacted GIDC office and submitted one application dated 24.6.1992 to the Manager, G.I.D.C. Along with the application, entire bunch of papers were handed over to the accused, who at the relevant point of time, was serving as a Site Supervisor Engineer. The accused received the same and put endorsement and handed over the duplicate copy to the complainant. On 30.4.1992, the complainant met the accused along with plans of shed and the accused suggested some alterations to the complainant and after about two months, the revised plan was submitted on 24.6.1993. At the relevant point of time, the accused inquired about the stage of construction from the complainant and the complainant told that some construction was carried out without prior permission of the G.I.D.C. In turn, it was informed to the complainant that he would be liable for 6 to 7 times penalty, which can be imposed. The accused suggested the complainant that if he want to avoid paying such penalty, he will have to pay Rs.3000/- to the accused and the accused would set right all the papers. Subsequently, the complainant bargained with the accused to accept Rs.2000/-, but said request was turned down by the accused. Ultimately, the complainant agreed to pay the amount of Rs.3000/- on condition that his work should be expeditiously completed to which the accused agreed. Thereafter, the complainant met the accused for 3 to 4 times and the accused asked the complainant to deposit Rs.494/- in the account of G.I.D.C. and all necessary formalities were completed by the complainant. On 24.6.1992, the complainant showed his willingness to pay the amount of bribe but the accused said that he would accept such amount later on. The complainant was asked by the accused to collect the plan from the office on 4.7.1992. Since the complainant did not reach there, the accused contacted him and told him to come to his house at about 8:30 in the morning on 6.7.1992 to take th plans after giving Rs.3000/-. Thereafter, the complainant decided to lodge a complaint with ACB Office and his complaint was taken down by ACB Inspector, Bhavangar. On the next day, the complainant was asked to come to ACB office with the amount of bribe of Rs.3000/-. On next day, the ACB Inspector arranged for two panch and thereafter, signature of both panchs were taken on the complaint. Thereafter, the currency notes 30 in numbers of Rs.100/- each were handed over to the ACB Inspector. The panchnama and other formalities including experiment of ultra violet lamp were completed by the ACB personnel. After completing the formalities, the raiding party of ACB left for the house of the accused at about 7:35 in the morning. The complainant was instructed by the ACB Inspector that unless and until the amount is demanded by the accused, the complainant should not hand over the amount directly to the accused and after the amount of accepted by the accused, the complainant should give signal to the ACB staff. Thereafter, the panch No.1 and complainant proceeded towards the house of the accused and they entered the house of the accused. After some time, the complainant demanded the plan papers and complainant told the accused that as per talk, he is ready to pay Rs.1500/- out of Rs.3000/- and the accused replied that he had bitter experience in the past and he asked for full amount. Thereafter, the complainant took out currency notes from pocket of his shirt and handed it over to the accused with right hand and the accused accepted the amount of Rs.3000/- with the right hand and put the same in the right pocket of shirt. In the said room of the accused, there was one tipoy in the corner, where bunch of papers were lying and the accused took out one paper from the bunch and took a pen from a pen stand and noted down the address of the complainant and said pen was kept on paper. Immediately, the panch No.1 and complainant came out and gave signal to the ACB personnel and the entire raiding party rushed to the spot. The ACB staff carried out procedure of ultra violet lamp and anthracene powder marks were seen on the fingers as well as on the shirt of the accused and also on the pen and paper, which were with the accused. The seizure list was prepared and necessary panchnama was drawn, statement of the accused was recorded. The offence, thereafter, was registered and the as accused falls within the definition of "public servant", necessary sanction was obtained before prosecuting him.
4. After investigation, the Investigating Agency submitted the charge-sheet. During the trial, prosecution examined the witnesses and got exhibited large number of documents. The witnesses examined by the prosecution viz. PW-1, Sherali Allauddinbhai, complainant at Exhibit 29, PW-2, Suryakant Champakbhai Bhatt at Exhibit 44, PW-3, Chandrakantbhai Govindjibhai Shah, panch witness at Exhibit 55, , P.W.4 - Ramanlal Bavanbhai Exhibit 57, and P.W. 5- Suryakantbhai Ambalal Bhatt at Exhibit 61, who is Investing Officer. Thereafter, the documentary evidence viz. list of sanction at Exhibit 45, sanction for prosecuting criminal case against the accused at Exhibit 46, letter at Exhibit 48, xerox copy of first page of service book of the accused at Exhibit 49, transfer order of accused at Exhibit 50, letter of information given by GIDC to ACB at exhibit 51, appointment order of accused at Exhibit 52, application for permission made by the complainant at Exhibit 53, agreement form at Exhibit 54, panchnama at Exhibit 56, copy of statement at Exhibit 58, office order of the accused regarding additional work at Exhibit 59 and Exhibit 60, seizure list at Exhibit 62, office copy of approved plan at Exhibit 27 were produced. During recording of the further statement under Section 313 of Code Criminal Procedure, the accused stated that he had no knowledge about case and denied demand of the amount.
5. The trial court on appreciation of the evidence came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubts. While doing so it considered the defence version and rejected the same. Accordingly the appellant was convicted and sentenced as above by the trial court
6. Learned advocate Mr. K.B. Anandjiwala appearing on behalf of the appellant submitted that impugned judgment and order is bad in law and against the evidence on record. Even charges and examination of the accused are not in conformity with the provisions of the Code. He further submitted that proper sanction in corruption matter is the backbone of the entire prosecution case and without proper sanction, the person, who has been put to trial, cannot be prosecuted. He also submitted that validity of sanction depends on the application of mind by the sanctioning Authority to the facts of the case as well as material and evidence collected during the investigation. He further submitted that the sanction order did not bear the date on which it was accorded, therefore, it is no sanction. On the basis of this sanction, charge-sheet was filed in the Court of Special Judge and cognizance was taken by the Special Judge on the same. Thereafter, the department realized that there is no sanction as far as prosecution for the offence under Section 7 of the Act is concerned and subsequently, after cognizance was taken by the Special Court, a fresh sanction order vide Exhibit 46 came to be produced, when the trial had already commenced. Therefore, this case is nothing, but, complete non-application of mind on the part of the Authority and this goes to show the callous approach of the authority in passing the sanction order which is supposed to be the basis of prosecution case. He further submitted that there are so many contradictions between the contents of the complaint and oral evidence of the complainant P.W. 1 at Exhibit 29 and therefore, the evidence of the P.W. 1 is not acceptable and trustworthy with regard to the demand made by the appellant accused for the bribe amount of Rs.3000/-. He further submitted that it was the duty of the prosecution to prove the demand and without any independent evidence on record, it cannot be said that the demand is proved. Therefore, the accused cannot be held guilty for the charges framed against him. Statement of the P.W.1 that at the time of visiting the house of the accused, some conversation took place between the accused and complainant, is not proved by the prosecution by any evidence. Learned advocate also read the cross-examination of the said witness and submitted that initially, the demand was not raised by the accused, but the complainant himself was ready to give Rs.1500/-. He further submitted that in fact, the trap amount was on the tipoy when the signal was given and trap was carried by the trapping officer, but P.W. 1 has stated something different in his evidence and therefore, his evidence is not reliable and acceptable. The complainant was involved in one adulteration case and therefore, the complainant is not a reliable person. The contents of the complaint do not corroborate with the evidence of the P.W.1. He submitted that P.W.2 is Suryakantbhai Champaklal Bhatt, who was Assistant Manager in Inquiry Department of G.I.D.C. and said witness stated in his evidence that one Mr. Ravi Saxsena is the appointing authority of the accused and at the time of incident, the accused was Deputy Engineer, G.I.D.C. office at Bhavnagar. Looking to the evidence of this witness, it appears that the sanction which was given for prosecution is not as per the provisions of law. Learned advocate also submitted that when the sanction was given, Section - 7 was not mentioned due to bonafide mistake and therefore, later on, after charge-sheet, again sanction to prosecute the case, was sought and it was produced at Mark 26/26, in which the signature of Mr. Ravi Saxsena is very well reflected and said witness had identified the same and same sanction letter was exhibited as Exhibit 46. Even in the cross-examination of said witness, it appears that initially in the letter of sanction, the reference of Section 7 was not stated and it was simply signed and he had not received the original papers from the ACB office. The witness also stated in his evidence that he was not able to say that as to whether the competent officer had perused the papers properly before giving sanction letter. Learned advocate submitted that looking to the evidence as well as cross-examination of this witness, it transpires that the sanction was given without application of mind and just with a view to involve the accused in the offence and when the sanctioning authority has failed to prove the contents of sanction, it cannot be said to be a valid sanction. When the sanction, which was given for prosecuting the case, is not valid, then the conviction is required to be held unjust and improper and the judgment and order is required to be quashed and set aside. Learned advocate further submitted that looking to the evidence of P.W. 3 Chandrakant Shah, it appears that he is interested witness and his evidence cannot be considered and from the evidence, when the aspect of demand is not proved then the question of recovery of the bribe amount does not arise. The evidence of witness creates doubt and therefore, benefit of doubt is required to be given to the appellant. This witness is a habitual panch and he acted as panch in so many raids. Learned advocate read para 10 of the oral evidence of this witness and submitted that he was panch in 3 to 4 raids and the raids have failed. He submitted that this witness admitted that in the seizure list, there is no number of the currency notes. He has drawn attention to the contents of panchnama at Exhibit 56 and submitted that there are so many contradictions between the contents of the panchnama and oral evidence. He also read the evidence of Ramanlal Bavanbhai Gohil at Exhibit 57 and submitted that no work was entrusted to the appellant - accused and therefore, the question of demand and acceptance cannot arise. Even the defence was made by the appellant, but the learned Sessions Judge has not considered the same.
7. Learned advocate Mr. Anandjiwala submitted that looking to the evidence of investigating officer P.W. 5 Suryakant Bhatt at Exhibit 61, it appears that if this officer had idea about the role of panch in corruption, then he would not have left to some other persons to call for the panch, more particularly, when this witness admitted that he was not able to recollect as to when he had told to call for panch and whether those persons were the members of the raiding party or not. In Cross-examination, in para 7, this witness admitted that on 5.7.1992 at night hours, he himself had not gone for the search of panch nor he had given any yadi in writing for the same. He told one of the staff members to arrange for some panch but he was not able to recollect the names of those persons. On next day, when this witness came to the office, he saw the panch were sitting in the office. The panch had denied about acting as panch in the past in any raid. As a matter of fact, the panch had acted as panch in 3 to 4 raids. This witness further admitted that the State Government had issued a circular that if a person has acted as panch in one raid, he should not be called for second time and the officer must be particular about this aspect and despite this fact, the Investigating Officer selected the panch who had remained as a panch in three to four raids. The investigating officer did not care to verify the past records of the complainant about his genuineness, about his past antecedents etc.
8. Mr. Anandjiwala, learned advocate submitted that when the complainant himself and panch turned hostile, and when the panch cannot be treated as independent witness, the order and judgment of conviction is required to be quashed and set aside. He further submitted that when the accused came in the room, where the complainant and panch were sitting, the accused was wearing "baniyan" and "loongi" and it is not the case of the complainant and panch that at any point of time, the accused got up and put a shirt on his "baniyan". He further submitted that the accused was in "baniyan" and "loongi" at the time of acceptance of amount and at that time, on receiving the signal, the raiding party rushed inside the residence of the accused and therefore, it is clear that at the time of raid, the accused was in "baniyan" and "loongi" and he did not put on shirt. If this version of the prosecution and evidence on record is believed then how it can be believed that the amount which was accepted was put by the accused in his left pocket of the shirt and that shirt was also smeared with anthracene powder and that anthracene powder marks were seen on the shirt. This infirmity destroyed the entire prosecution case and credibility of all the witnesses is also doubtful. Even the Investigating Officer has very candidly and categorically admitted in his cross-examination that the muddamal article No.3, the bush shirt, did not contain any circle made with the pen denoting or indicating the presence of anthracene powder while in the panchnama, it is stated that in the ultra violet lamp, on the shirt, the shining marks of anthracene powder were visible and seen. In the panchanama and evidence, nowhere it has come out that ultra violet lamp was focused on the fingers and palm of panch No.1. He submitted that considering all these aspects judgment and order passed by the learned Sessions is required to be quashed and the appeal may kindly be allowed.
9. Learned advocate Mr. Anandjiwal relied on the decision in the case of State of Gujarat through CBI Vs. Kumudchandra Pranjivan Shah reported in 1997 Supreme Court Cases (Cri) 750 and submitted that in that case, the panch witness acted as such in numbers of previous cases and they were public servants. This fact was initially suppressed by both the panch witnesses and police witness and no other evidence was led to corroborate their evidence. Therefore, the conviction was set aside and in the present case, the said ratio is applicable and therefore, the order of conviction and sentence may kindly be set aside.
10. As against that, the learned APP Mr. Jani submitted that the charge is proved against the accused as per the facts and circumstances of the case and, therefore, question regarding defective charge cannot arise. He also submitted that even in the cross-examination of witnesses, the defence has never raised any question regarding the "baniyan" and also no other defence was taken by the accused and therefore, the question of his wearing cloths like "baniyan" and "loongi" at the time of raid, cannot be considered in favour of the appellant. He further submitted that even from the oral evidence of the complainant as well as panch witnesses, the aspects of demand and acceptance are very well proved and if the accused had not accepted the amount of bribe, then he could have defended during the defence as well as statement which is recorded under Section 313 of the Code of Criminal Procedure. He further submitted that the accused could not explain the presence of anthracene powder and recovery of the trap amount. He further submitted that the contention regarding sanction is explained by the witnesses and there was bonafide mistake of the Authority regarding Section 7 and later on after verifying all the papers, the sanction was given to prosecute the accused. Therefore, the sanction was rightly given by the Authority and thereafter the accused was prosecuted. Learned APP Mr. Jani has relied on the decision rendered in the case of Subbu Singh Vs. State By Public Prosecutor reported in 2009(0) GLHEL-SC 44137.
He also relied upon the decision in the case of State of M.P. Vs. Jiyalal reported in 2010 (1) GLH 597, wherein it is observed that unless serious failure of justice caused is not shown, even if there is error, omission, irregularity, it is not correct to set aside conviction. The sanction order is passed by the Authority in discharge of official function and hence, there is presumption that the same is done in bona fide manner, so it cannot be considered that the sanction is granted mechanically. Therefore, there is no requirement for prosecution to examine sanctioning Authority as witness. When the aspect of recovery of the trap amount is very well established on record, then the demand and acceptance aspects can be said to be proved beyond reasonable doubt. Learned APP Mr. Jani submitted that looking to the facts of the case presumption under Section 20 of the Prevention of Corruption Act is required to be drawn against the present appellant - accused. The accused has failed to prove that he has not accepted the bribe amount or he never raised demand for bribe. Here in this case, the demand is proved and the accused received the said bribe amount and therefore, Section 20 comes into play. It is for the accused to establish that the amount was not received as bribe, but the accused has not proved his case and therefore, the judgment and order passed by the learned Sessions Judge is required to be confirmed by dismissing the appeal.
11. Heard the parties and perused the record. It appears from the judgment that learned Special Judge has specifically made attempt to frame the charge in connection with the demand and acceptance. I have perused oral evidence of P.W. 1 complainant at Exhibit 29 and it appears from the evidence that on 24.6.1992, he applied again and when that application was given for the construction, present appellant told the complainant that if he does not want to pay heavy penalty, then he would have to pay Rs.3000/- as bribe. In that connection, present complainant requested to reduce the amount and he was ready to pay Rs.2000/-, but the appellant has refused to accept any amount less than Rs.3000/-. I have also perused Section 8 of the Evidence Act and from the conduct of the appellant accused and from the evidence of the P.W. 1, it is established beyond reasonable doubt that the demand of bribe money of Rs.3000/- was made by the appellant and he was not ready to even reduce the amount. I have also perused Exhibit 37, complaint and contents of the complaint, are proved through the evidence of P.W.1 and other witnesses. From the oral evidence of P.W.1, it appears that he has very well explained the facts of the case and also the demand made by the accused from him. He also proved the address of the appellant given in writing by the appellant accused. The anthracene powder was also found from the shirt, papers, pen and from the bribe amount, which was received from the pocket of accused, when the recovery and search was made by the Trapping Officer. So far as the raid carried out by the Trapping Officer is concerned, it cannot be said that he has committed any illegality or irregularity with regard to the aspect of search or seizure of muddamal. I have perused the contents of panchnama at Exhibit 56 and from the contents of panchnama and oral evidence of P.W.3 at Exhibit 55, it is found that there are no contradictory versions made by the panch witness. Learned advocate for the appellant submitted that said witness is special witness and habitual panch and he has acted in so many traps laid by the ACB. From the evidence of P.W.3, it appears that it is admitted by this witness that on 6.7.1992, he was informed to go to ACB office. In the year 1992, one trap was carried out against P.S.I., Songadh and in the said trap, he was panch and Mr. Bhatt was also ACB Inspector, but the same had failed. In another case, in which trap was laid against the Swimming Pool run by the Bhavangar Municipal Corporation, he was also one of the panch. The said trap was also failed. Therefore, it cannot be said that he is a habitual witness or stock witness. In the present case, looking to the explanation of the panch witness about failure of traps, wherein he was panch, it cannot be said that the said panch witness is stock witness or habitual witness or he is interested witness. Therefore, I am of the opinion that the panch cannot be considered as doubtful witness and his evidence cannot be thrown away only on the ground that he was panch in two or three trap cases.
12. Learned advocate Mr. Anandjiwala has relied upon the judgment in the case reported in 1997 Supreme Court Cases (Cri) 750 (Supra). In that case, the panch witness had acted in number of previous cases, but there was no other corroborative evidence in support of the case against the accused. However in this case, it is true that the panch acted previously in two or three raids, but the prosecution has proved the case by producing corroborative piece of evidence as the anthracene powder was found on the fingers, shirt, pen and paper as well as on tipoy, which was in the room of the accused. Therefore, merely because the panch acted in previous raids, it cannot be said that the prosecution has not proved the case against the accused and it cannot be said that the accused never demanded bribe amount from the complainant and he has not accepted the same. Not only that during the course of experiment of ultra violet lamp, the marks of anthracene powder were found on the finger, shirt, pen and paper as well as on tipoy. Therefore, it is established fact that the accused had taken bribe amount by raising demand of bribe from the complainant. It has come on record that Rs.3000/- were demanded as bribe, but the complainant was not ready and he requested the accused to reduce the same to the extent of Rs.1500/-. In reply to the same, the accused told the complainant that previously, in one case, he had bitter experience of not getting money even after the work was done. In the instant case, there is sufficient evidence produced against the accused by the prosecution and evidence of three witnesses are in corroborative in nature, therefore, the decision relied by the learned advocate for the appellant is not applicable in this case. For the purpose of sanction, learned advocate for the appellant submitted that the sanction was not given as per the provisions of law and without application of mind. I have perused the oral evidence of P.W. No.2 - Suryakantbhai Champakbhai Bhatt and he has explained in his evidence about the initial sanction in which Section 7 was not mentioned due to bona fide mistake, but later on sanction was given properly by citing Section 7 after verifying all the papers. Therefore, it cannot be said that there was any illegality or irregularity committed by the sanctioning authority.
13. Learned APP Mr. Jani has also relied upon the decision reported in 2010(1) GLH 597 (Supra) and he submitted that in the said case, Hon'ble Supreme Court has observed that "Even if there has been error, omission, irregularity, it is not correct to set aside the conviction and sanction order passed by the District Magistrate in discharge of official function and hence, there is presumption that the same is done in bona fide manner.". Therefore, in the instant case, initially the sanction order was granted earlier without referring Section 7 in bona fide manner, and therefore, it cannot be said that sanction was not proper and without application of mind. Even in this case, subsequently, the sanction order was passed after making reference of Section 7. Therefore, the same cannot be said to be illegal in any way. He also relied upon the judgment in the case of Subbu Sigh V. State By Public Prosecutor reported in 2009(0) GLHEL SC 44137, wherein aspect of the demand and acceptance aspects were proved against the accused and in the case on hand, the same have also been proved. From the evidence, it is clear that the accused had demanded bribe and accepted the same from the complainant and that amount has been also recovered from the possession of the accused. Even the anthracene powder marks were found on the fingers, shirt, pen, tipoy as well as on paper, where the accused wrote down and therefore, in this case also, Section 20 comes into play. There is a presumption under Section 20 of the Prevention of Corruption Act, it is for the accused to establish that the amount is not received as bribe and from the defence version, it is not established that the said amount of bribe was not demanded and accepted by the accused. Even from the statement of the accused under Section 313, it is transpired that the accused has failed to explain the recovery of the money and presence of anthracene powder, which was found on fingers, shirt, tipoy, pen and paper. Therefore, there is no reason to believe that the learned Sessions Judge has committed any error in holding the accused guilty for the charges levelled against him and therefore, there is no scope for interference with the same.
14. From the above observation, I do not have any reason to believe the submissions of the learned advocate Mr. Anandjiwala for the appellant
- accused that the accused had not made demand of illegal gratification and had not accepted the same. In the facts of the present case, I am of the opinion that both the ingredients to bring the act within the meaning of Sections 7 and 13 (2) of the Act are satisfied. From the evidence led on behalf of the prosecution it is evident that the appellant demanded the money from the complainant in connection with the plans prepared by the accused and in the presence of P.W. 3, that demand was made and the amount was accepted by the appellant - accused. The presence of anthracene powder vis-Ã -vis on the fingers, shirt of the accused and tipoy, papers, pen go to show that he has voluntarily accepted the bribe. Thus there is sufficient evidence of demand of illegal gratification and the voluntary acceptance thereof.
15. All the submissions made on behalf of the appellant being devoid of any substance, I do not find any merit in this appeal and it is dismissed accordingly. The judgment and order passed by the learned Special Judge, Bhavnagar in Special Case No.7 of 1993 dated 10.2.1999 is hereby confirmed. Appellant is on bail and in view of dismissal of appeal, his bail bonds are cancelled and he is directed to surrender before the Jail Authority within three weeks from the date of this order, failing which, the concerned Court shall issue non-bailable warrant to effect the arrest of the appellant. R & P to be sent back to the trial Court, forthwith.
16. So far as Criminal Appeal No.331 of 1999, filed by the State, for enhancement of sentence is concerned, looking to the fact that the matter is very old and after such a long time, it would not be proper and desirable to enhance the sentence awarded by the learned judge. In the facts of the case, the appeal for enhancement also deserves to be dismissed and it is dismissed.
(Z.K.SAIYED, J.) ynvyas Top