Gujarat High Court
Bhagwansing vs State on 25 August, 2011
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
Print
CR.A/1107/1997 17/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1107 of 1997
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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BHAGWANSING
@ BHAGAVATIPRASAD FULSINH RAOLJI & 1 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
======================================
Appearance :
MR
NITIN M AMIN for Appellant(s) : 1 - 2.
MR HL JANI ADDITIONAL
PUBLIC PROSECUTOR for Opponent(s) :
1,
======================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 25/08/2011
CAV
JUDGMENT
1. Challenge in this appeal is to the judgment of learned Special Judge, Mehsana, passed in Special (ACB) Case No.6 of 1992 dated 29.10.1997, whereby the learned Special Judge, was pleased to convict the appellant No.1 Bhagwatiprasad Fulsinh Raolji - accused and awarded sentence under Section 7 of the Prevention of Corruption Act to the appellant to suffer rigorous imprisonment for two years and to pay a fine of Rs.2,500/-, i/d, to undergo simple imprisonment for further three months. The appellant No.1 was also convicted and sentenced to suffer two years rigorous imprisonment and to pay a fine of Rs.2500/-, i/d, three months S.I. for the offence punishable under Section 13(1)(d)(i)(ii)(iii) read with Section 13(2) of the Act. The accused No.2 - Mehendrabhai Nathabhai Raval was convicted and sentenced for the offence punishable under Section 12 of the Act, to suffer two years rigorous imprisonment and to pay a fine of Rs.2500/-, in default, three months S.I.
2. Prosecution version is that in the year 1991, the accused No.1 Mr. Bhavansinh Fulsinh Raolji was Police Sub-Inspector at Langnaj Police Station and accused No.2 - Mr. Mahendrabhai Nathabhai Raval was an Unarmed Police Constable at the very police Station. They were serving and acting in the capacity of the public servants. The complaint was lodged by the complainant Mr. Vikrambhai Chaturbhai Patel before Mr. V.K. Amliyar, Police Inspector, Anti Corruption Bureau, Shahibag, Ahmedabad on 17.6.1991 that the accused No.1 and 2 had demanded illegal gratification of Rs.2000/- under the pretext that Mr. Chatubhai Maganbhai Patel, father of original complainant Mr. Vikrambhai would be detained in a judicial custody on holidays before two months approximately and if said amount would be given to them, Mr. Chaturbhai would not be arrested as well as detained in police custody on holidays. As per the complainant, the amount of Rs.1000/- out of Rs.2000/-, was paid to the accused by the complainant in the month of April, 1991 and same was accepted by the accused. However, the previous demand by way of unpaid part of illegal gratification of Rs.1000/- only, was continued from time to time. The prosecution came forward with another incident as alleged to have happened on 15.6.1991, as there was some quarrel between Lilaben, who is wife of the brother of the original complainant and his mother. The present accused Nos. 1 and 2, in the capacity of a Police Sub-Inspector as well as Unarmed Police Constable of Langnaj Police Station approached the original complainant and his father Chaturbhai and demanded illegal gratification in form of food grains i.e. Bajri in connection of the other complaint filed by said Lilaben. The Bajri of 100 Kgs. in gunny bag was unloaded at the quarter of accused No.1. It is alleged that the accused had demanded Rs.1000/- towards unpaid part consideration of Rs.1000/- to be collected in respect of complaint filed by Lilaben in the month of April, 1991 and another Rs.2000/- towards illegal gratification in connection of the subsequent complaint filed by Lilaben on 15.6.1991 at Langnaj Police Station, therefore, the original complainant Vikrambhai Chaturbhai Patel was constrained to lodge a complaint on 17.6.1991 before the ACB office, Ahmedabad. The trap was arranged against the accused persons in connection of the complaint filed by said Vikrambhai at the Langnaj Police Station. At the relevant time, the accused No.1 being Police Sub-Inspector In Langnaj Police Station was found and caught at the time of demanding and accepting illegal gratification of Rs.2000/- from the father of the complainant. The prosecution alleged that the accused Nos. 1 and 2 being Police Sub-Inspector as well as Unarmed Police Head Constable inspite of being public servants, they demanded and have accepted illegal gratification other than legal remuneration in respect of official act which was required to be performed by them. It was successful trap of ACB against accused Nos.1 and 2 on 18.6.1991, therefore, ACB Inspector was pleased to lodge FIR No.9 of 1991 thereafter, it was investigated by Mr. G.P. Puwar, the Inspector, ACB and concerned Investigating Officer was pleased to obtain the sanction for initiating criminal prosecution against the accused Nos. 1 and 2 because there was proper and reasonable prima facie evidence against the accused. Thereafter, valid sanction was received by ACB, Mehsana for initiating the criminal prosecution against the accused Nos.1 and 2 for the offence punishable under Sections 7,12, 13(1)(d) 1,2,3 read with Section 13(2) of the Prevention of Corruption Act, 1988 and thereafter, the accused were charge-sheeted for the said offence.
3. 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, Vikrambhai Chaturhai Patel complainant at Exhibit 26, PW-2, Mr. Chaturbhai Maganbhai Patel at Exhibit 27, PW-3, Mr. Gautambhai Revabhai Solanki, panch witness at Exhibit 28, , P.W.4 - Mr. Virsinhbhai Kalubhai Ambliyar Inspector. ACB, Head Quarter, Ahmedabad Exhibit 35 and P.W. 5 - Mr. Gajendrasinh P. Puwar at Exhibit 51. Thereafter, documentary evidence viz. original sanction order for criminal prosecution against accused No.1 at Exhibit 32, original sanction order for prosecuting criminal case against the accused No.2 at Exhibit 33, complaint at Exhibit 36, Panchnama at Exhibit 30, original certificates of duties of the accused at Exhibit 57, case papers of the complaint lodged by Lilaben being II C.R. No.89 of 1991 of Langnaj Police Station at Exh. 40 to 49, relevant papers of the complaint being I C.R. No.62 of 1991 and other relevant documentary evidence at Exhibit 54 to 56 were proved. During recording of the further statement under Section 313 of Code Criminal Procedure, the accused denied the charge. The accused filed further statement in form of written statement.
4. 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
5. Learned advocate Mr. Amin appearing on behalf of the appellants submitted that impugned judgment and order is bad in law and against the evidence on record. He also submitted that if the evidence of these two witnesses is appreciated and considered, it becomes amply clear that the prosecution has not proved its case beyond reasonable doubt. He also submitted that the wife of the brother of complainant had filed a complaint of harassment and cruelty by her in-laws and for that the offence under Section 198-A, 320 and 504 of the Indian Penal Code was registered against the parents of the complainant vide C.R.No.62 of 1991. The accused No.1 was investigating the said case and immediately he searched for the accused but, they could not be found out and therefore, he made an arrangement to call for the accused. During this time, the communal riots were erupted and therefore, on 28.4.1991, the accused No.1 with police party proceeded to Ambaliasan village along with his higher officers. He also submitted that during that period on 29.4.1991, parents of the complainant appeared before accused No.1 and after recording their statements, they were arrested and were sent to the Court of the learned Judicial Magistrate First Class, Mehsana with report as offence registered against them was non-bailable. On 26.4.1991, there was no complaint of Lilaben, brother's wife of the complainant and no offence was registered so far as harassment is concerned. Therefore, there was no question to contact parents of the complainant or there was no reason to call them to the police station, and therefore, there is no question of demanding any illegal gratification on 26.4.1991 as alleged by the complainant. This fact is borne out from the record that there is no FIR or any complaint of Lilaben which was registered on 26.4.1991. On 29.4.1991, the accused No.1 had arrested the parents of the complainant and they were produced before the learned JMFC, Mehsana with report as they were accused of the offence punishable under Section 498-A of the Indian Penal Code. Therefore, as per the submission of the learned advocate, it is impossible to believe that on that day, accused No.1 had accepted Rs.1000/- from the father of the complainant as no favour was shown to him and on the contrary, they were arrested and produced before the learned Magistrate. The mother of the complainant was not examined by the prosecution and other persons Babubhai and Manorbhai, who were with the father of the complainant, were also not examined by the prosecution. He also submitted that on 15.6.1991, the accused was busy in police bandobast due to election on that day. There is no corroboration with regard to the demand and acceptance of money by any independent person. The panch No.1 stated in his evidence that he has not heard or seen anything at the relevant time and he was sitting outside the chamber of the accused No.1. Learned advocate further submitted that the notes were found on the table which shows that the accused No.1 is innocent and he was wrongly roped in the false case. As per submission of the learned advocate, the prosecution had examined only interested witnesses, especially regarding giving of the amount to the accused, there were material contradictions in the evidence of the complainant and his father. The complainant admitted in his evidence that when the complainant, his father and two panchas went to the police station, accused No.1 had never demanded any money from the complainant nor from the father of the complainant.
6. Learned advocate Mr. Amin read charge at Exhibit 13 and submitted that looking to the contents of the charge framed against the accused persons, the prosecution has not proved the case through the documentary as well as oral evidence. He also submitted that meaning of abetment is required to be considered from the evidence of the witnesses and when the main ingredients of Sections 107 and 108 of the Indian Penal Code are not proved beyond reasonable doubt, then the question of abetment in commission of the offence, cannot arise. Mr. Amin, learned advocate read oral version of P.W.1 - Mr. Vikrambhai Chaturbhai Patel, complainant at Exhibit 26 and submitted that he has failed to prove the case of the prosecution beyond reasonable doubt. He also read the cross-examination of this witness and submitted that the demand was not proved beyond reasonable doubt through the oral and documentary evidence of the witness. In this case, even though from the oral evidence of the witness, the prosecution has not proved the demand made by the present appellants in connection of abetment of each other. Mr. Amin, learned advocate read the oral evidence of P.W.2, father of the complainant - Chaturbhai at Exhibit 27 and submitted that the role of present appellant No.2 is not proved beyond reasonable doubt and said appellant was wrongly booked by the complainant in the said offence. He also submitted that from the evidence of these witnesses, there were material contradictions in their versions. Therefore, benefit of doubt is required to be given in favour of the present appellants. He drew attention to the further statement recorded under Section 313 of the Code of Criminal Procedure, wherein the accused had explained the incident by saying that said Chaturbhai and Vikrambhai again came in his chamber and tried to give him the bribe money, but same was not accepted and the bribe money was lying on the table, when raiding party came to the accused. Sufficient explanation was given by the accused, so presumption cannot be drawn against him. Learned advocate further submitted that from the oral evidence of P.W.3 Mr. V.K. Ambliyar at Exhibit 35, the aspects of demand and in turn acceptance were not at all proved, when as the raiding party came to the accused, the money was not found on the hands of the accused. He also submitted that when the demand is not proved and the probable defence is established by the accused, then the judgment and order of conviction and sentence passed by the learned Special Judge is required to be quashed and set aside. P.W.1 and P.W.2, they are father and son and therefore, they are interested witness and on this count, as per his submission, the judgment and order passed by the learned Special Judge is required to be quashed and set aside.
7. 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 read cross-examination of P.W.1 - Vikrambhai Chaturbhai Patel at Exhibit 26 and P.W.2 Chaturbhai Mangandas Patel at Exhibit 27 and submitted that demand and acceptance on the part of the accused is very well proved. He read the contents of panchnama and complaint and submitted that only due to their relation as father and son, their evidence cannot be discarded on the ground that they are interested witnesses. He further submitted that the demand was raised by the accused and same was accepted in presence of the panch and abetment on the part of the appellant No.2 is proved beyond reasonable doubt. Even as per the oral evidence of the P.W. 4 - V.K. Ambliyar at Exhibit 35, the stains of anthracene powder were found on the hand of accused No.1 and accused No.2 has abetted the accused No.1 and in collusion with each other, they have committed such offence. Learned APP further submitted that even the case of accused is believed,the accused has to establish that the amount was not received as bribe and the amount which was received by him from the complainant, was only for the electricity. 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.
8. Heard the learned advocates for the respective parties and perused the record. It appears from the judgment that learned Special Judge has specifically made an attempt to frame the charge in connection with the demand and acceptance. I have perused oral evidence of P.W. 1 complainant at Exhibit 26 and from the evidence of the complainant, it clearly appears that there was quarrel regarding house loan, between the complainant and his brother Amrutbhai and therefore, on 26.4.1991, a complaint was lodged by the wife of Amrutbhai, namely, Lilaben at Langhanj Police Station and in connection of that complaint, the complainant was asked by the accused persons to give them Rs.2000/- for not arresting the father of the complainant. On 15.6.1991, another complaint was lodged against the complainant and his mother, by the said Lilaben regarding their internal dispute. Therefore, the accused persons visited the house of the complainant and informed them to come to the Police Station on next day. The accused No.2 told the complainant to come with Rs.2000/- for previous complaint along with one witness. Thereafter, the complainant and his father decided not to give any amount towards bribe to the accused and they approached the ACB Office, Dafnala, Ahmedabad and lodged the complaint about demand of Rs.2000/- as an illegal gratification, made by the accused. After completing the formalities like application of anthracene powder and calling witnesses, the complainant, panch and ACB members proceeded to the spot where the trap was to be arranged. They reached at Langhanj Police Station at about 10:00 and the accused P.S.I. Shri Raulji was present in the police station. The complainant, his father and two panch had entered into chamber of the accused. The mother of the complainant and one Jayantilal Panchal were sitting outside the chamber. The accused No.1 had instructed the complainant and his father to meet the accused No.2 and thereafter, the accused No.1 called the father of the complainant. The father of the complainant entered into the chamber of accused No.1, where some private talk was made and thereafter, immediately, the father of the complainant told the complainant to bring the money and at that time, the panch No.1 and 2 were very well present there. The accused instructed the complainant and father of the complainant to the put said amount of bribe money of Rs.2000/- on the cupboard in the chamber. The accused asked the complainant about the full money i.e. Rs.2000/- and therefore, the complainant gave the money to the accused and the accused counted the same and once it was found to be Rs.1700/-, the accused told the complainant that the same was only Rs.1700/-. The complainant also told that the said amount was Rs.2000/- and not Rs.1700/-. At the time of counting the money, the stains of anthracene powder were not on the hand of the accused and therefore, he came to know that the notes were smeared with anthracene powder and so, the accused threw the notes under the table. The ACB members rushed to the chamber after prearranged signal and found the notes under the table. During the course of experiment of ultraviolet lamp, the marks of anthracene powder were found on the tips of the hand of the accused. I have perused the cross-examination of this witness, wherein it appears that the accused demanded money about the complaint lodged in April, 1991, by Lilaben, wife of the brother of the complainant. He also admitted that the accused had counted the money, which were found to be Rs.1700/- and thereafter, the accused calculated the same on second time and at that time, he came to know about smeared notes and he threw the notes and thereafter, the complaint was lodged by the complainant before the ACB office. This witness also admitted that the accused No.2 was investigating the complaint lodged on 15.6.1991 and the witness also admitted that the accused No.2 had also demanded the money from the complainant. I have also perused the oral evidence of P.W.2 - Chaturbhai Magandas Patel, father of the complainant. The said witness also deposed that on 26.4.1991, Lilaben, wife of his son lodged complaint against this witness and his wife and in connection of that complaint, the accused Nos.1 and 2 went to the house of the complainant and informed them to come at Langhanj Police Station and therefore, this witness requested the accused for not going to the police station. Thereafter, the accused told this witness to give him Rs.2000/-, so the accused can give relief and at that time, one Manoharbhai and Babubhai were very well present. Even the accused demanded Bajri from the complainant and his father and therefore, the complainant had sent Bajri at his residence by loading the same in jeep. Thereafter, this witness and his son complainant went to the police station, where the accused told about money to the complainant. When this witness and complainant were leaving the police station, the accused No.2 told the witness in an indirect manner. Thereafter, this witness was instructed to come with Rs.2000/- to Rs.3000/- on next day and then they would complete the work. After lodging the complaint at ACB office, the complainant and this witness along with panch and ACB members went the police station. This witness met the accused and the accused told him about Rs.2000/- and so, this witness told the complainant that the amount was with his son (complainant). Thereafter, the accused told to put the amount on cupboard. During that time, the accused counted the money and he found it to be Rs.1700/- and therefore, the accused again counted the money and at that time, he found smeared notes and therefore, he put the notes on the table. Immediately, on receiving the signal from the complainant, the ACB members rushed to the spot, where the accused had taken the money. During the course of experiment of ultraviolet lamp, on the left hand of the accused, the stains of anthracene powder were found. I have also perused cross-examination of this witness. But it is clear that there is corroboration between both the evidence of aforesaid two witnesses. I have also perused the oral evidence of P.W.3 Gautambhai Revabhai Solanki. From the evidence of P.W. 4 - Virsinhhai Kalubhai Amaliyar at Exhibit 35, it transpires that the complainant stated before the said witness that the accused demanded Rs.2000/- as bribe and thereafter, after registering the complaint of the complainant and completing formalities, they proceeded towards the police station, where the accused were performing their duties. This witness also stated in his evidence that the stains of anthracene powder were found on the hand of the accused and said fact was admitted by him in his cross-examination. Therefore, it is established that the accused persons demanded the money for illegal gratification from the complainant and they also accepted the same. I have also perused the contents of the complaint coupled with panchnama and they are corroborating with the evidences as led before the trial Court. From the evidence of the complainant, it is clear that how the accused Nos.1 and 2 have abetted each other in committing such offence under the Prevention of Corruption Act. Even it appears that the accused No.1 and 2 had taken disadvantages of their posts like P.S.I., appellant No.1, and Urarmed Police Head Constable, appellant No.2, and extended threat to the complainant or his father to detain in the custody on holidays. The prosecution examined P.W.5 Gajendrasinh Pratapsinh Puwar Exhibit 5. The said witness was working as the Inspector of ACB, Mehsana and he investigated the subject matter of the original complaint filed by the complainant Vikrambhai Chaturbhai Patel on 17.6.1991 and thereafter, planned for trap at Langhanj Police Station and he found involvement of the accused Nos.1 and 2 in the commission of the offence. He also made appropriate clarification in the evidence that how it was inquired and investigated by him and thereafter, it was found that there was clear, cogent and consistent prima facie evidence against the accused persons and thereafter, it was finalized to prosecute against the accused after obtaining necessary sanction. I have also carefully scrutinized the judgment and order passed by the learned Special Judge, Mehsana and I am of the opinion that the learned Special Judge has given cogent and convincing reasons for arriving conclusion of holding the accused guilty and thereby convicting and sentencing them as awarded in the order.
9. The appellant No.1 was P.S.I. and appellant No.2 was Unarmed Police Constable at Langhanj police Station and they were enjoying the posts as public servant, therefore, it is expected in the society that they would maintian the law and order in the society and they would not indulge themselves in such type of offences of corruption in the concerned police department. The society is having high expectation from the public servant and especially, the Police Officer. Therefore, I am of the view, that the accused being public servants, as Police Officers, indulged themselves in such corrupt practice, are not entitled to even benefit of doubt and therefore, learned Special Judge has rightly convicted and sentenced the appellants.
10. From the above observation, I do not find any reason to believe the submissions of the learned advocate for the appellants - 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, 13 and 13 (2) of the Act are satisfied. From the evidence led on behalf of the prosecution, it is evident that the appellants demanded and accepted the money from the complainant. The presence of anthracene powder on the hand of the accused goes to show that he has voluntarily accepted the bribe. Thus there is sufficient evidence of demand of illegal gratification and the voluntary acceptance thereof.
11. All the submissions made on behalf of the appellants 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, Mahesna in Special Case No.6 of 1992 dated 29.10.1997 is hereby confirmed. Appellants are on bail and in view of dismissal of appeal, their bail bonds are cancelled and they are directed to surrender before the Jail Authority within four weeks from the date of this order, failing which, the concerned Court shall issue non-bailable warrant to effect the arrest of the appellants. R & P to be sent back to the trial Court, forthwith.
(Z.K.SAIYED, J.) ynvyas Top