Gujarat High Court
Hitendra vs State on 27 September, 2011
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
Print
CR.A/449/1998 16/ 16 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 449 of 1998
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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HITENDRA
NATWALAL RAO - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
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Appearance :
MR
HN JOSHI FOR M/STHAKKAR ASSOC. 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
: 25/02/2011
ORAL
JUDGMENT
1. The present appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 5.5.1998 passed by the learned Special Judge, Nadiad in Special Case No.7 of 1994, whereby, the learned Judge has convicted the appellant under section 161 of the Indian Penal Code and sentenced to undergo R.I. for one year and to pay a fine of Rs.1000/-, in default, to undergo three months S.I. Learned Special Judge was pleased to convict and sentence the appellant under Sections 7 and sec. 13(2)of the Prevention of Corruption Act and sentenced him to undergo R/I for two years and to pay a fine of Rs.2000/-, in default, to undergo S.I. for four months.
2. The brief facts of the prosecution case is as under:
3. It is the case of the prosecution that the appellant was serving as P.S.I. at Tarapur Police Station and one accused named Shakraji Somaji Dabhi was performing his duty as Unarmed Head Constable at the very police station. The complainant Pramodbhai Shankarbhai Patel and Bhanubhai Ambalal Purohit were engaged in business of caterers. The altercation took place between the complainant and Manubhai Parsottambhai Patel and Vishnubhai Parsottambhai regarding dues of business and about borrowing the amount to the said persons. In connection to the said dispute, against Bhanuprasad Ambalal and other three persons the complaint was lodged before Tarapur Police Station on 24.6.1993 and the investigation was handed over to Shakraji Somaji Dabhi, Head Constable. Said Constable told the complainant to meet the appellant - accused, who was P.S.I. of the Police Station, if you would want to dispose the complaint. Thereafter, complainant met the appellant and the appellant demanded Rs.15000/- from the complainant. Ultimately, the deal was fixed in the sum of Rs.6000/- therefore, the complaint was lodged against the appellant - accused and other accused, who was Constable at Tarapur Police Station regarding demand of bribe made by the accused before the ACB, Nadiad and in the said complaint, the signatures of two witnesses were taken and they were Ramanbhai Kabhaibhai Solanki and Subhasbhai Jamnadas Rathod were called from Jilla Panchayat office, Nadiad. Thereafter, P.I. Mr. Bhatt, A.C.B. told the complainant to produce the trap amount and therefore, the complainant produced the trap amount of Rs.6000/- (Rs.500 x 8 = Rs.4000/- and Rs.100 x 20 = Rs.2000/-). The numbers of said currency notes were noted in first part of Panchnama and thereafter, anthracene powder was applied to the said currency notes and experiment of ultra violet lamp of the said notes was carried out. Thereafter, the complainant, panchas and raiding party went to Tarapur Police Station, where the appellant accused was present at that time. The complainant met the accused, who had demanded the bribe amount and the said amount was accepted by the appellant accused and kept the said amount in the left pocket of pent. Thereafter, the complainant made signal to the member of raiding party, who were standing outside the police station and therefore, they entered to the police station and said currency notes were recovered from the pocket of the appellant - accused and anthracene powder was found on the hand, tips and thumb of right hand and the edge of the pocket of the accused appellant. After obtaining the sanction from the appropriate authority, the charge-sheet was filed, which was given number as Special Case No. 7 of 1994.
4. Thereafter, the charge was framed at Ex. 8 against the appellant. The appellant - accused has pleaded not guilty and claimed to be tried.
5. In order to bring the home the charge levelled against the appellant- accused, the prosecution has examined the following witnesses Complainant
- Pramodbhai Shankarbhai Patel at Exhibit 12, PW No.1 Ramanbhai K. Solanki, Panch No.1 Exhibit 15 Subhash Jamnadas Rathod Panch No.2 Exhibit 19 Gurudayalsingh Gopalsingh Add.DGP, PW 3 Pushpalsingh Nathulal Doshi PW 4 Melaji Somaji Sodha, Writer Exhibit 30 PW No.5 Udesinh Bhikhabhai Vaghela Exhibit 39, PW No.6 Suryakant Ambalal Bhatt PI ACB, Exh. 40 PW 7
6. The prosecution has also produced various documentary evidence before the trial Court to prove the case.
7. The defence side has examined following witnesses:
1.
D.W.1 Bhanuprasad Ambalal Purohit
2. D.W.2 Nutkur Gulamnabi Vhora
8. Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of Code of Criminal Procedure was recorded in which the appellant-accused has denied the case of the prosecution.
9. After considering the oral as well as documentary evidence and after hearing the parties, learned Special Judge vide impugned judgment and order dated 5.5.1998 held the appellant - accused guilty to the charges levelled against him and sentenced him as stated above
10. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Nadiad, the present appellant has preferred this appeal.
11. Heard Mr. Joshi learned advocate for the appellant and Mr H.L. Jani learned APP for the respondent-State.
12. Mr Joshi learned advocate appearing for the appellant has read the evidence of complainant Mr. Pramodbhai at Exhibit 12 and submitted that the complainant did not support the case of the prosecution and later on he was declared hostile. Therefore, it is clearly established that the appellant had not made any demand from the complainant. Even from the bare perusal of the evidence of the said witness, it appears that when the complainant went inside the chamber of the appellant, at that time, panch No.1 was not with him but he was outside the chamber. He further submitted that there are four stages, which are required to be proved though the evidence of the complainant and there should be corroboration to all four stages from independent evidence and the stages are like (1) Initial demand (2) Second demand to be made in the presence of panch (3) Acceptance and (4) recovery. He submitted that there is no evidence pertaining to initial demand or demand at the time of raid even any stage in the instant case, therefore, it cannot be said that the prosecution has established the case against the appellant. The complainant himself submitted that as per the evidence of the complainant, it appears that the appellant had never demanded any bribe money from him. The demand is most vital part, which was required to be proved by the prosecution. He further submitted that there is no evidence about that the appellant made the demand of Rs.15,000/- on 25th June and after 3 to 4 days , later on it was fixed at Rs.7000/- and thereafter, once again it was fixed at Rs.6000/-. Even the prosecution has failed to select independent person as a panch and the panchas in the instant case, were deliberately selected. As per the evidence of Mr. Bhatt at Exhibit 40, he admitted that it is true that he used to take the Government servant as a panch witness with a view to see that the Government servants can be pressurized to give depositions as per the panchnama. Therefore, the panch witnesses cannot be said to be an independent witnesses. He also submitted that the person viz. Bhanuprasad Purohit, from whom the alleged bribe was demanded, is cited as witness, but he was not examined by the prosecution. The PW 2 - Ramanbhai K. Solanki, Exh.15 stated in his evidence that he is in the government service and if he would not deposed as per panchnama written by ACB, he would have to face difficulty. The witness also submitted that the marks of anthracene powder were found inside of pocket of complainant and he has not stated with regard to the experiment of ultra violet lamp on the hands of appellant - accused and the hands of accused were seen in the ultra violate lamp. This coupled with the fact that P.W.1 - complainant has not stated any thing about acceptance of bribe by appellant - accused. Thus, acceptance of bribe cannot be said to have been proved beyond reasonable doubt.
13. Mr. Joshi learned advocate for the appellant has also contended that the sanction letter at Exhibit 21 is not correct as per law. The conduct of the complainant is also required to be considered as he was declared later on hostile. The material DW No.1 Bhanuprasad Ambalal Purohit has not supported the case of the prosecution. As per his evidence, said Pramodbhai, complainant never demanded Rs.6000/- from him, which was to be given in form of bribe to the accused and he had no knowledge that said Pramodbhai lodged complainant before ACB against the present appellant and one another accused - Constable. Therefore, it clearly appears that he has not supported the case of the prosecution even though he is a star witness and the complaint, which was lodged, in which he was main accused and due to relationship with the complainant, the complainant lodged the complainant before ACB against accused. The accused submitted the written statement at Exhibit 72 in which he denied the story narrated by the complainant in the complaint, but the same has not been considered by the learned Special Judge during the course of trial. D.W. 2 Batadoor Ghulamnabi Vora at Exhibit 75 stated that the accused made demand during the conversation with the complainant and the complainant signaled to the raiding members of the ACB. Mr. Joshi, learned advocate also submitted that learned Special Judge has not taken into consideration the statement of the accused recorded under Section 313 of the Code of Criminal Procedure. He further submitted that the complainant was a President of political party and closely associated with MLA and he frequently visited the Tarapur Police Station and was making unusual demands. Even these persons i.e. the complainant and MLA were pressurizing the accused to falsely involve the Sarpanch under Section 408 of the Indian Penal Code in the scam of one Milk Produce Society and the accused did not succumb to their illegal demand and therefore, the complainant threatened the accused to involve in the offence of bribe. Necessary entry was made in the Station diary against complainant. Mr. Joshi further submitted that the Investigating Officer Mr. Bhatt had visited Tarapur and called the accused but the accused could not meet him as he was busy with investigation of some other case and therefore, said Mr. Bhatt threatened the accused through the police constable that the appellant - accused does not know what is the ACB Department and he will teach him a lesson. He also submitted that one Criminal case being C.R. No.I 43 of 1993 was registered with Tarapur Police Station, against Bhanubhai Purohit and the investigation was not with the appellant accused. The relationship of the accused and Sakraji Dabhi, accused No.2 was not good, as the accused No.2 remained absent on duty without any report. Mr. Joshi, learned advocate also submitted that the complainant tried to give money forcefully and to put the same in the pocket and therefore, the accused caught his hand and gave a push. The money were lying on the floor and at that time, the members of raiding party came there and raid was carried out.
14. Mr. Joshi, learned advocate relied upon the case reported judgment in Criminal Law Reporter (Mah) 1986 in the case of Marverka H. Pathan Vs. State of Maharashtra, wherein in para 20 it has been observed that "once the foundation of the demand becomes not only brutal but is practically destroyed, then this must have impact on the other circumstances because as stated earlier, one circumstance in such cases always unfolds other and the impact of one on other cannot be ignored." He further submitted that in corruption cases, it is the duty of the investigating officer to secure independent and respectable witness. In support of this submission, he has relied upon the case of Raghbir Singh Vs. State of Punjab reported in AIR 1976 SC 91. Mr. Joshi, learned advocate further submitted that learned Special Judge failed to appreciate that the accused would ever demand and accept the bribe in the presence of person about whom he was not sure and in this circumstances, the appellant accused was entitled to be acquitted. He relied for this submission, on case of G.V. Nanjundiah Vs. State (Delhi Admn.), more particularly, para 21 of the judgment.
15. Mr. Joshi, learned advocate further submitted that the currency notes were not recovered from the actual or even conscious possession of the appellant and therefore, the accused has been wrongly convicted and sentenced by the learned Special Judge. He relied upon the case of Surajmal Vs. State (Delhi Administration) reported in AIR 1979 SC 1408. Learned advocate Mr. Joshi also submitted that the use of anthracene powder on the currency notes was not perfect and proper because said practice of applying anthracene powder on currency notes is deprecated by this High Court. He further submitted that learned Special Judge ought to have given the benefit of doubt to the present appellant in the circumstances, where no demand by the appellant is proved and even the aspects of acceptance or recovery of the currency notes are proved as the complainant did not support the case of the prosecution. In support of this submission, he relied upon the case of K.S. Pandya Vs. State of Gujarat reported in 1992 (1) Crimes 488. Mr. Joshi, learned advocate further submitted that in the instant case, sanctioned letter was already prepared by the ACB department, without proper application of mind. Therefore, the sanction granted against the appellant is completely contrary to law. In that view of the matter, Mr. Joshi, learned advocate submitted that the impugned judgment and order of conviction and sentence requires to be quashed and set aside.
16. As against this, Mr H.L. Jani learned APP appearing for the respondent - State has argued that the prosecution has examined in all 7 witnesses in support of the prosecution case and from the oral evidence of complainant, it is established that demand was made by the present appellant as per the tactics and practice of the office of the appellant and in connection of the said trap, amount was paid to the present appellant and, therefore, demand is proved beyond reasonable doubt. Initially, the amount of bribe was fixed at Rs.15,000/- and thereafter, after requests made by the accused, the amount was determined to the tune of Rs.6000/-. It was very well proved before the learned trial Judge that the appellant accused made demand of bribe amount and same was accepted by the accused. He has read the oral evidence of panch, complainant and Trapping Officer and argued that trap amount was recovered from the pocket of the appellant-accused and anthracene powder was also found from the fingers, tips, thumb of the appellant, therefore, presumption is required to be drawn against the present appellant. He has read the impugned judgment and order and contended that the learned Judge has considered the defence as well as case of the prosecution and he has rightly convicted the appellant as per the provisions of law and, therefore, the impugned judgment and order of conviction and sentence passed by the learned Judge requires to be confirmed. Mr Jani, learned APP has contended that suppose as per the say of the appellant, the demand is not established, yet when the acceptance is established and even the anthracene powder was found from the tips, fingers and thumb of right hand of the appellant accused and on the currency notes accepted by the appellant, then no question can arise that in absence of demand, the appellant accused is entitled for acquittal. Mr. Jani, learned APP further submitted that the sanctioned was given by competent Authority after considering the seriousness of the offence. Therefore also, the impugned judgment and order of conviction and sentence passed by the learned Judge requires to be confirmed.
17. I have gone through the impugned judgment and order passed by the learned Judge and oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellant. From the perusal of the oral evidence of complainant PW-1, it is established beyond reasonable doubt that at the event of first meeting, the complainant met the appellant but there was no any kind of conversation and no demand was made by the present appellant to the complainant. As per his evidence also, the accused No.2 - Shakrabhai, who was Head Constable, had told the complainant that there was no talk with the appellant. The complainant made his own presumption about the intention of the appellant and said Bhanuprasad and complainant went to the ACB office. The complainant also stated in his oral evidence that he presumed about the intention of the appellant to take money from the complainant, but there was no any clear conversation with the appellant or even with the said Constable Shakraji. The complainant also stated in his evidence that the complainant went into the police station and there was no any person with him and after giving Rs.6000/- to the appellant, he gave signal to the ACB personnel. As per the complainant, he had even no knowledge about where the appellant had kept the money, after taking the same from the complainant. From the perusal of the judgment and order passed by the learned Special Judge, it appears that the complainant was declared hostile when he was cross-examined and he had not supported the case of the prosecution. It is also admitted fact that on the same day, the complainant has never talked to the appellant with regard to the bribe amount, so the demand as per the prosecution case is not established beyond reasonable doubt. In this case, the demand is not proved and the demand in a corruption case is a sine qua non for proving a case. This demand is missing in this case. Moreover, the panch No.1 was admittedly out side the police station and therefore, he cannot be said to be witness, in his presence, the demand was raised by the appellant - accused. Therefore, in absence of proof of demand, the offence under Section 13(1)(d) of Act cannot be held to be established.
18. So far as the oral evidence of P.W. 2 Ramanbhai Solakni a Exhibit 15 is concerned, there were certain contradictions and this evidence is not a corroborative piece of evidence. Even from the evidence P.W.3, he fairly admitted that the sanction was given without applying mind. Therefore, he has not supported the case of the prosecution. Therefore, as per the complaint, initial conversation regarding disposal of the complaint was made with the accused No.2 and thereafter, the accused No.2 told the complainant to meet the appellant accused. So, the story narrated in the complaint and in the deposition of this witness is quite different. Thus, present accused was not having charge of investigation of that case. As per the deposition of P.W.5 Melaji Somaji Sodha at Exhibit 30, the said wintess stated in his cross-examination that the investigation was handed over to accused No.2 with regard to the complaint being C.R. I 49 of 1993 and not with the appellant and he also admitted that the accused No.2 was frequently remained absent on duty and therefore, appellant condemned him to remain present on duty and therefore, altercation took place between them. But he had not averred or admitted that the appellant had made demand of bribe amount and the acceptance about the bribe money. Therefore, he had not supported the case of the prosecution at all. Therefore, it is very well established that the appellant had never demanded any bribe or illegal gratification from the complainant. P.W.40 Suryakant Ambalal Bhatt, P.I., ACB, stated in his deposition that he has no knowledge about what had happened before entering into the police station, where the accused was P.S.I., he had solely relied upon the statement of the complainant. He had no knowledge about strained relationship between the accused No.1 and 2 and he had not made any inquiry about past history of the complainant and later on he came to know that the complainant was not reliable person.
19. D.W.1
- Bhanuprasad stated in his deposition at Exhibit 74 that the accused never demanded money from him and the complainant made any demand from the said witness about Rs.6000/- towards bribe amount. D.W. 2 - Nutkur Gulamnabi Vhora stated in his deposition at Exhibit 75 that the complainant himself kept the bribe money in the pocket of the appellant and at that time, the accused threw the money on the floor and immediately, the complainant rushed down outside the police station for indicating the ACB personnel. When the ACB personnel came into the police station, the money was found on the floor. In his cross-examination, he admitted that during the conversation between the complainant and accused, there was no demand made by the accused and he also denied that after taking the money, the accused kept the same in his pocket. It is also proved beyond reasonable doubt from the oral evidence of the complainant as well as witnesses that at Tarapur Police Station, the appellant had not on his own accepted bribe money or made any demand of bribe and the complainant himself declared hostile then there is no question regarding any kind of allegation against the accused pertaining to demand and acceptance. So, no doubt, as per the say of the prosecution, recovery of trap amount and presence of anthracene powder is also established against the present appellant, however, looking to the record, it is established that there is contradictory version of the panch and complainant It is the case of the prosecution that the trap amount was found from the appellant and produced before the Trapping Officer, but when the demand is not established beyond reasonable doubt, then acceptance and recovery is not sufficient to convict the present appellant-accused. This coupled with fact that panch No.1 does not say that hands of accused were seen in ultra violet lamp or marks of anthracene powder were found on hands of the accused. The panchnama has not supported the case of the prosecution. The accused also submitted the written submission before the lerned Sessions Court at Exhibit 74, wherein he stated that due strained relation with the accused No.2, the accused has been wrongly arraigned in the offence. Even Bhanubhai, who was accused of the alleged crime, has supported the case of the accused and in the written statement, it reflects that said Bhanubhai has not lodged complaint before ACB, but Pramodbhai lodged the complaint against the accused and therefore, it appears that the complainant had some grudge with the appellant accused and therefore, complaint was lodged before the ACB. I have also perused the statement of the present appellant recorded under sec.313 of Code of Criminal Procedure and in that view of the matter, it cannot be considered that the statement of the appellant recorded under sec. 313 of Code of Criminal Procedure, is an after thought. The probable defence is established by the present appellant beyond reasonable doubt. In the latest decision of the Supreme Court in the case of Banarsi Das Vs. State of Haryana, reported in AIR 2010 SC 1589, wherein, the Hon'ble Supreme Court has observed that mere proof of recovery of bribe money from accused not sufficient to prove the offence. In that view of the matter, I am of the opinion that so far as the offence of bribery is concerned, the demand and acceptance of bribe is required to be proved beyond reasonable doubt and mere proof of recovery of bribe money from accused is not sufficient to prove the offence and to hold the person guilty. Presumption cannot be raised when demand is not proved in this case. Therefore, in absence of any evidence regarding the demand, then mere alleged recovery is not sufficient to convict the present appellant and hence, this appeal deserves to be allowed.
20. In the result, the appeal is allowed. The judgment and order dated 5.5.1998 passed by the learned Additional Sessions Judge, Nadiad in Special Case No.7 of 1994, is hereby quashed and set aside. The appellant - accused is hereby acquitted from the charges alleged against him. Bail bonds shall stands cancelled. R & P to be sent back to the concerned trial Court, forthwith.
(Z.K.SAIYED,J.) ynvyas Top