State Of Gujarat vs Kalusinh Shivsinh ... on 10 March, 2014

[Cites 12, Cited by 7]

Gujarat High Court

State Of Gujarat vs Kalusinh Shivsinh ... on 10 March, 2014

Equivalent citations: 2015 CRI. L. J. 1520, 2016 (168) AIC (SOC) 8 (GUJ), (2014) 3 GUJ LR 2313, (2014) 3 GUJ LH 76, (2015) 1 CURCRIR 83, (2015) 2 RECCRIR 959, 2014 CRILR(SC MAH GUJ) 306

1. The present Criminal Appeal is directed against the impugned judgment and order rendered in Special Case No. 2 of 1995 by the learned Additional District and Sessions Judge, Himmatnagar dated 25.6.1999 recording acquittal of the Respondent / Original Accused for the alleged charges of offence under the Prevention of Corruption Act on the grounds stated in the present Appeal.

2. The facts of the case briefly summarized are as follows:

3. The genesis or the background of the case as revealed from the prosecution case is that one Prithvisinh Sursinh Jhala of Raigadh is serving in the school as a teacher and his matrimonial uncle Abhaysinh Bapusinh Mackwana has a dispute with regard to the land with Vaktusinh @ Vijaysinh Javansinh of village Vasna, which has resulted in altercation, for which the FIR was registered with Gambhoi Police Station. The arrest were made of the persons of both the sides. The Respondent accused, is said to have been working as a writer of the Police Sub- Inspector, and when the complainant party had gone to Gambhoi Police Station, the Respondent Accused is said to have made a demand for illicit gratification / bribe for making the case weak against the complainant party. The Respondent accused is also said to have made an arrangement of meeting, and ultimately, settled for a bribe of Rs.1400/-, and out of this amount, Rs.500/- was accepted on the same day. Thereafter, the complainant and the maternal uncle Abhaysinh had gone to Page 2 of 20 R/CR.A/906/1999 JUDGMENT Ambika hotel at Gambhoi. They had met the accused, and the accused is said to have asked them to make the payment of remaining nine hundred rupees on the next day, i.e. on 11.11.1994 at the same hotel Ambika between 9:00 to 10:00 AM. However, the complainant did not desire to pay such illegal gratification / bribe. He lodged the complaint with the ACB, on the basis of which, a trap was arranged, and on the next day, when the accused had met the complainant at the same place, i.e. Ambika Hotel offering an amount of Rs.900/-, the respondent accused accepted the said amount, and the tainted currency notes were recovered from the respondent accused.

4. Therefore, after the trap, it was registered as Special Case No.2 of 1995 with the learned Special Judge, Himatnagar. The learned Special Judge, Himatnagar framed the charge and proceeded with the trial.

5. After the recording of the evidence of the prosecution witnesses was over, the learned Special Judge also recorded the further statement of the accused under Section 313 of Cr.PC.

6. After hearing the learned APP and learned Advocate for the defence, the learned Special Judge recorded the acquittal of the accused, which has lead to the present Criminal Appeal.

7. It is this judgment and order, which has been assailed in this appeal on the ground that the learned Special Judge has totally Page 3 of 20 R/CR.A/906/1999 JUDGMENT recorded the findings contrary to the material and evidence on record with regard to the relevant facts like the recovery of the tainted currency notes, for which the court's finding is given. Similarly, the acceptance and the recovery is not believed though the tainted currency notes have been recovered from the person of the accused. Further, the marks of anthrecene powder have been found on the finger tips and also on the thumb, and the observations have been made that the marks of anthrecene powder are not found on his thumb to believe that he has not accepted the tainted currency notes. Therefore, it has been contended that the judgment and order is perverse and contrary to the material and evidence on record, and the appeal may be allowed.

8. Learned APP Ms. Monali Bhatt for the Appellant-State has referred to the testimony of the witnesses like PW-1 - at Exhibit

- 21 and PW-2 - eye witness. She has pointedly referred to the documents including Exh.24 and the panchnama and submitted that the testimony of both this witnesses are consistent and reliable and still the observations have been made that there are contradictions. Learned APP Ms. Monali Bhatt tried to submit that the narration may be in different manner, but both the witnesses are consistent on material aspect. She has again referred to the testimony of the complainant at Exh.21. It was submitted that as observed in the panchnama at Exh.87, it is evident that the marks of anthrecene powder have been found Page 4 of 20 R/CR.A/906/1999 JUDGMENT on the pocket of shirt of the accused, whereas the observations have been made by the court below that it has not been verified. Similarly, she has referred to the testimony of the trap laying officer Shri Patel at Exh.35 and submitted that he has also stated that the shirt of the accused was examined with ultra violet lamp and the tainted currency notes were recovered as stated in the panchnama. Learned APP Ms. Bhatt submitted that the same tainted currency notes, numbers of which have been mentioned in the panchnama of the first part, have been recovered, and therefore, the demand, acceptance and recovery are established. Learned APP Ms. Bhatt has submitted that the court below has erroneously made the observations with regard to the demand on the basis of the fact that there was no specific demand at the time when the trap was made, and in the absence of demand by the accused, when it is tendered to the accused, the offence is not established. Learned APP Ms. Bhatt has however submitted that the evidence has to be read as a whole in background of the facts where the demand was made previously, and on the basis of the previous demand, the amount was settled, which was sought to be given. Therefore, learned APP Ms. Bhatt submitted that whether the demand of the amount is made at that time is not much relevant. She emphasized that, on the contrary, on the basis of the demand and the part payment made earlier, it was agreed to be made at Ambika hotel and Page 5 of 20 R/CR.A/906/1999 JUDGMENT the accused came there and his presence is found at the same place, which is not in dispute. Therefore, it was submitted that when the accused is found at Ambika Hotel without any explanation or justification, it corroborates the prosecution case, and therefore, the impugned judgment and order requires to be quashed and set aside.

9. Learned Counsel Shri K.B.Anandjiwala for the Respondent / Original Accused has referred to the judgment and submitted that there are three main ingredients, which are required to be established by the prosecution mainly; demand, acceptance and recovery. Learned Counsel Shri Anandjiwala submitted that whether the accused was in a position to do any favour, is required to be considered. He submitted that he was posted at Raipur outpost on 1.7.1994, and he was not a writer to the P.S.I. He therefore submitted that there is nothing to show that he can investigate the offence against the complainant and could do any favour as suggested. Learned Counsel Shri Anandjiwala referred to the testimony of witness particularly the complainant and PW-1 and submitted that there is no independent evidence to support the testimony of these two witnesses. He emphasized that the investigation is not fair and the complainant is an accomplice in the offence, and therefore, his testimony cannot be accepted without any corroboration. Learned Counsel Shri Anandjiwala submitted that there is no specific demand by the accused. For that he referred to the Page 6 of 20 R/CR.A/906/1999 JUDGMENT evidence of both the witnesses and submitted that they have stated that the accused has never uttered a word making any demand like 'lao', 'aapo'. He therefore submitted that, if the testimony is seen, the complainant has volunteered for making the payment without any demand, and therefore, the court below has observed that without any demand, mere so called acceptance would not be sufficient. He submitted that the testimony of the panch witness and the complainant are not consistent. They both have stated that the accused has not uttered about the demand, and therefore, as the demand is not established, it creates a doubt.

10. Learned Counsel Shri K.B.Anandjiwala referred to and relied upon the judgments of the Hon'ble Apex Court reported in AIR 2010 SC 166- V.K.Kannan v. State Rep. By Inspector of Police and (2009) 6 SCC 587 - A.Subair v. State of Kerala and also the judgment reported in 2011 (1) GLH 769- Bharatkumar Ramniklal Shah v. State of Gujarat. He submitted that the panchnama is also not admissible in evidence as the same is not prepared or dictated by the panch. He has referred to the testimony of the panch witness Exh.-21. He emphasized that the panchnama was dictated by the trap laying officer and therefore the panchnama is not reliable. In support of his submission he has referred to and relied upon the judgment reported in 1998 (1) GLH 924 - Kanubhai Kantibhai Patel v. The State of Gujarat. Page 7 of 20

R/CR.A/906/1999 JUDGMENT Similarly, the judgment reported in 2006 (1) GLR 418 and 23(1) GLR 605 - Bharatkumar Jaimanishanker Mehta v. State. Learned Counsel Shri K.B.Anandjiwala submitted that the pre-conversation or the agreement is a vital part, which the prosecution must establish. Learned Counsel Shri Anandjiwala submitted that the accused was not posted and was not required to do any work in the said police station as he was posted at the outpost. He therefore submitted that there is no corroborating evidence with regard to the previous demand, and unless the previous demand is established by independent evidence, the same cannot be accepted. He submitted that the theory of the defence is more probable than the prosecution. He submitted that admittedly, when the demand is not made and complainant has volunteered to make the payment, he has thrust upon the accused the currency notes, which cannot be permitted as acceptance.

11. Learned Counsel Shri Anandjiwala submitted that the totality of the facts and circumstances may be considered, and if the case of the defence is probable, then the benefit, which has been given, may be sustained. He submitted that it is an obligation of the prosecution to establish the guilt of the accused. Learned Counsel Shri Anandjiwala has also referred to the unreported judgment of this Court (Coram:S.H.Sheth and T.U.Mehta,JJ) in Criminal Appeal No.479 of 1970 dated 9 th August 1971 to support his submission. Finally, he submitted Page 8 of 20 R/CR.A/906/1999 JUDGMENT that the long period has passed, and therefore, the conclusion arrived at is probable, and merely because the other view is possible, is not sufficient to entertain the present Appeal.

12. In rejoinder, learned APP Ms. Monali Bhatt has again referred to the evidence and the complaint to establish about the demand, acceptance and the recovery. Learned APP Ms. Bhatt submitted that if there was no previous demand, arrangement or the agreement, then the accused would not have come to the hotel to meet the complainant. Learned APP Ms. Bhatt again referred to the testimony and submitted that it was in background of the understanding that the amount has been offered as a illicit gratification. She emphasized the testimony of both the complainant and the panch witness, where it has been specifically recorded the assurance given by the accused 'savalaj nathi' (there is no question). Learned APP Ms. Bhatt therefore submitted that both the witnesses are consistent with regard to the conversation as well as the assurance, which corroborate the prosecution case fully, coupled with the recovery of tainted currency notes. She has therefore submitted that the present Criminal Appeal may be allowed.

13. In view of this rival submissions, it is required to be considered whether the present Criminal Appeal can be entertained or not.

14. Though this Court is conscious about the broad guidelines Page 9 of 20 R/CR.A/906/1999 JUDGMENT and the scope of Section 378 referring to the acquittal appeals in catena of judicial pronouncements clearly observing that there is no embargo on the powers of the High Court, if there is a finding contrary to the record, or it has resulted in miscarriage of justice. The Hon'ble Apex Court in a judgment reported in AIR 2008 SC 2573 - Syed Peda Aowalia v. Public Prosecutor, High Court of Andra Pradesh, Hyderabad has made the observations:

"5. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not."

The observations have been made that if the convincing material or relevant material has not been considered, it would Page 10 of 20 R/CR.A/906/1999 JUDGMENT be a compelling reason to interfere.

15. Similarly, the observations have been made by the Hon'ble Apex in a judgment reported in (2007) 4 SCC 415 - Chandrappa and Ors. v. State of Karnataka:

"15. Bare reading of Section 378 of the present Code (appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the legislature on the powers of the appellate court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to reappreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal."

16. It is required to be considered that the law commission had recommended for the acquittal appeals and suitable amendment in view of the fact that the trial courts were recording the acquittals, which may be counter productive for the administration of justice. Therefore, in order to give more discretion, the provision has been made. At the same time, the Hon'ble Apex Court in catena of judicial pronouncements has laid down the broad guidelines exercising the word of caution laying down the broad guidelines for exercise of such discretion. It has been clearly observed that the High Court is empowered to re-appreciate and re-consider the material and evidence, if the judgment is either perverse or contrary to the Page 11 of 20 R/CR.A/906/1999 JUDGMENT material and evidence on record, or the court below has totally misdirected in appreciating the evidence and application of law. In the facts of the case, as stated above, the court below has not appreciated the fact about the acceptance and recovery. While referring to the testimony of the complainant Exhibit-21 and the testimony of PW-1, has made the observation trying to suggest about inconsistency, though, in fact, there is no inconsistency on material aspects. Both the witnesses have stated about assurance of the accused, when he had offered to help in making the case weak by saying that there is no question ('savalaj nathi'). There is no dispute that the tainted currency notes have been found and recovered from the accused. The marks of anthrecene powder are found on the finger tips of the accused. Though the feeble attempt has been made that there was no marks of anthrecene powder found on the thumb of the accused, the same is also contrary to the evidence, as it is specifically stated by the panch witness about the marks having been found on the thumb of the accused, which is also to be found in the panchnama. This implies the acceptance by him, and the recovery of tainted currency notes from the pocket of the accused establishes the acceptance. The submission made by learned Counsel Shri K.B.Anandjiwala for the Respondent Accused cannot be readily accepted, as, had it been thrust upon, it would not be found in his pocket, as in probability, the currency notes, which were offered, would Page 12 of 20 R/CR.A/906/1999 JUDGMENT fall down and would not go in his pocket coupled with the fact that this has not been stated at the initial stage, and therefore, merely because such a defence has been raised as an afterthought, cannot be believed. The conduct is also required to be considered vis-a-vis the other evidence. In the facts of the present case, he has not suggested any such thing, and therefore, the submission that it was thrust upon him, cannot be believed or accepted.

17. The another facet of the submission, which has been much emphasized referring to the impugned judgment and order about the demand, is misconceived. There is no doubt that at the time of the trap, when the accused and the complainant met in the hotel, accused may not have said 'lao', 'aapo' referring to the demand at the time, but it has to be read in continuation of the entire background of the facts. As it is revealed from the facts, the accused had demanded an illegal gratification or bribe for making the case weak for the complainant in their quarrel with the other party. It is also evident that ultimately, Rs.1400/- was agreed, out of which Rs.500/- was also paid. Thereafter, when the accused and the complainant met in the Ambika hotel, it was agreed that on the next day at the same hotel remaining amount of Rs.900/- would be paid as demanded by the accused. Thus, as it has a reference to the previous demand and it is only because of such previous demand, the accused has remained present at Page 13 of 20 R/CR.A/906/1999 JUDGMENT the hotel at the same time as agreed. The presence of the accused at the hotel is not in dispute. If the accused was serving at the outpost, and assuming that he was required to attend the Gambhoi Police Station for some work, there is no reason for him to remain present at the Ambika Hotel, that too, at the time stated by the complainant in the evidence. This is completely corroborating about the version of the prosecution regarding the previous demand, pursuant to which the accused had remained present at the Ambika hotel. Therefore, the court below is totally misdirected that there is no demand, only focusing on what transpired at the Ambika hotel ignoring the previous demand or what was agreed, pursuant to which he had remained present at the Ambika hotel. Similarly, the findings with regard to the anthrecene powder and the marks on the pocket of the shirt of the accused, are also contrary to the evidence on record. As could be seen, along with the nine hundred rupees, another currency notes were also recovered from the pocket of the accused, which would suggest that the currency note was touching the outer side of the pocket and the tainted currency note came in contact with the another currency note of the accused and not the cloth. Again, the marks of anthrecene powder are found on the pocket and the finger tips, and the currency notes have been recovered from the pocket of the accused, for which there is no explanation except it was thrust upon him. This theory of forcibly handing Page 14 of 20 R/CR.A/906/1999 JUDGMENT over or thrusting into the pocket, do not inspire the confidence as stated above, as in that case, the money would have fallen on the floor. When the marks of anthrecene powder are found on the finger tips as well as thumb, merely it has been suggested that he tried to resist, and in the process, it has been found, cannot be believed. The court below having much emphasized on the aspect of demand has misdirected as stated above.

18. The another facet of the submission with regard to the panchnama with much emphasis that it was dictated by the panch witness, is required to be considered. The court below has accepted the submission that the panchname is not admissible because the panch witness has himself not dictated. It is required to be appreciated that even if the panch has not supported, in may cases the panchnama is proved with the testimony of the I.O. and therefore such a submission could not have been readily accepted even if the panchnama is not dictated. Therefore, considering the testimony of the panch witness as well as the panchnama, which has been exhibited at Exh.-87, it cannot be brushed aside.

19. To curb the menace of the corruption, the amendment has been made in the provision of Prevention of Corruption Act by virtue of Section 20. The provisions of Section 20 of the Corruption Act reads:

"Presumption, where public servant accepts gratification other Page 15 of 20 R/CR.A/906/1999 JUDGMENT than legal remuneration."

Section 20(3) provide:

"Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn."

20. Thus, the inference about the illegal gratification or the bribe, or corruption, could be made as provided in Section 20, and once the prima facie case is established with regard to such presumption, the burden will shift upon the accused to give necessary explanation either rebutting the presumption or by probable evidence that the presumption may not be raised. The accused is not required to plead or prove about the reasonable doubt, but also has to establish and rebut the inference by probability. Therefore, the defence, which could be taken or suggested, has to be prima facie, a probable defence. A close look on Section 20 of the Corruption Act refers also to the fact that, when he has agreed to accept, would also be sufficient.

21. A useful reference can also be made to the observations made by the Hon'ble Apexd Court in a judgment reported in (2000) 8 SCC 571-Madhukar Bhaskarrao Joshi v/s State of Maharashtra referring to the presumption under Section 20 which can be considered with reference to Section 114 of the Page 16 of 20 R/CR.A/906/1999 JUDGMENT Indian Evidence Act. It has been observed:

"That when a money is received and no convincing credible explanation is offered by the accused as to how it came to him, the presumption would be available."

Therefore, this part of the evidence or the testimony of the complainant and the other prosecution witnesses like Panch No.1 as a eye witness cannot be brushed aside.

22. The Hon'ble Apex Court referring to the provisions of Section 20 in catena of judicial pronouncements has specifically observed that the expressions "may presume" and "shall presume" are defined in Section 4 of the Indian Evidence Act 1972. The presumption falling under the former category are compendiously known as "falling presumptions" or "discretionary presumptions" and those falling under the latter as "legal presumptions" or "compulsory presumptions". Further, when the expression "shall be presumed" is employed in Section 20(1) of the Evidence Act, it must have the same import of compulsion.

23. A useful reference can be made to the observations made by the Hon'ble Apex Court in a judgment reported in JT 2003 (9) SC 119 - State of Andhra Pradesh v.

V.Vasudeva Rao. It has also been observed:

"18. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is only applying a process of intelligent Page 17 of 20 R/CR.A/906/1999 JUDGMENT reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But is could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the court can draw an inference and that would remain until such inference is either disproved or dispelled."

Referring to the earlier judgment in case of Raghubir Singh v. State of Punjan (supra), it has been observed:

"21. We may note that a three-judge bench in Raghubir Singh v. State of Punjab held that the very fact that the accused was in possession of the marked currency notes against an allegation that he demanded and received the amount is "res ipsa loquitur"."

24. Therefore, the proof does not mean the proof to rigid mathematical demonstration, because that is impossible it must mean such evidence as would induce a reasonable man to come to a particular conclusion. It is also now well accepted that the doctrine of probability is also required to be considered. In the circumstances, when the money is recovered and no convincing, credible or acceptable explanation is offered by the accused, the presumption would be available.

25. Therefore, considering the aforesaid evidence and material on record, the findings and conclusion arrived at with the reasons given by the court below, cannot be sustained as Page 18 of 20 R/CR.A/906/1999 JUDGMENT discussed herein above. The approach of the court below is rather too casual without reference to the material and evidence and also the provisions of Prevention of Corruption Act, which has resulted in acquittal. Therefore, the findings and the conclusion arrived at on the basis of the reasons cannot be sustained and the present Criminal Appeal deserves to be allowed.

26. Accordingly, the present Criminal Appeal stands allowed. The impugned judgment and order recording acquittal of the Respondent Accused for the offence under Sections 7, 13(1)(d), read with Section 13(2) of Prevention of Corruption Act is hereby quashed and set aside and the charges against the Respondent Accused are held to be proved beyond reasonable doubt, and therefore, the respondent accused is convicted for the offence under Section 7 and also for the offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Bail bond shall stand cancelled.

(RAJESH H.SHUKLA, J.) Further Order:

27. After the judgment is pronounced setting aside the impugned judgment and order of acquittal, learned Counsel Shri K.B.Anandjiwala has submitted about the mitigating circumstances as well as the fact that many years have been passed and leniency may be shown and the same may be Page 19 of 20 R/CR.A/906/1999 JUDGMENT considered.

28. Learned APP Mr. Monali Bhatt however, referring to the judgment of the Hon'ble Apex Court reported in (2012) 7 SCC 80 - Narendra Champaklal Trivedi v. State of Gujarat has submitted that the lapse of time is not a mitigating circumstances and therefore the same may not be a ground for any leniency in the sentence.

29. In view of this rival submissions and considering the facts as well as the judgment reported in (2012) 7 SCC 80, the interest of justice would be served if the respondent accused is ordered to undergo RI of 1 year with fine of Rs.2000/- for the offence under Section 7 of the Prevention of Corruption Act and also RI of 1 year and fine of Rs.2000/- for the offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. Both the sentences are ordered to run concurrently.

30. Learned Counsel Shri K.B.Anandjiwala has requested that 8 weeks time to surrender may be granted, which is reasonable, and granted, in order to enable the respondent accused to take recourse to the higher forum.

(RAJESH H.SHUKLA, J.) jnw Page 20 of 20

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