Chandrasinh Ishwarbava Rajput vs State of Gujarat

Z.K. Saiyed, J.—The Appellant was put on trial for the commission of the offences u/s 7 and Section 13 of the Prevention of Corruption Act, 1988 (hereinafter referred ''the Act''). The learned Additional Special Judge, Vadodara, in Special Case No. 26 of 1993 passed judgment and order of conviction and sentence dated 13.11.2000, whereby the learned Special Judge was pleased to convict the Appellant-accused u/s 7 of the Prevention of Corruption Act and awarded sentence to the Appellant to suffer R.I. for one year and fine of Rs. 1000/-, in default, to further undergo S.I. for one year. For the offence punishable u/s 13 of the Act, the Appellant was ordered to suffer R.I. for two years and to pay fine of Rs. 2000/-, i/d, to further undergo S.I. for 1 year. All the sentences were ordered to run concurrently.

According to the prosecution, at the relevant time, the Appellant - accused was serving as Head Constable at Sankheda Police Station and was investigating officer in one complaint lodged against Balwantsinh Hamirsinh, who is complainant in this case. During the course of investigation, the Appellant - accused had demanded Rs. 1000/- as bribe from the complainant and finally the deal was fixed at Rs. 700/-. Therefore, the complainant approached the ACB office. Thereafter, as per the plan of the ACB Office to carry out trap, the complainant, his father-in-law and panch witness had gone to Sankehda Police Station, but on that day i.e. 9.6.1993, the accused was not available and therefore, the trap could not be successful. Therefore, the complainant, his father-in-law and panch witness again went to Sankehda Police on 10.6.1993 and the complainant gave Rs. 700/- smeared with anthracene powder to the accused as illegal gratification and the accused accepted the said amount and thereby the accused has committed offence punishable under Sections 7 and 13(1)(d) and 13(2) of the Prevention of Corruption Act.

After investigation, the Investigating Agency submitted the charge-sheet. The prosecution had examined the witnesses and got exhibited a large number of documents. The witnesses examined by the prosecution are PW-1, Balwantsinh Hamirsih Rathod, complainant at Exhibit 8, PW-2, Mahesh Laljibhai Asari panch witness at Exhibit 9, PW-3, K.M. Patel, Police Inspector, ACB Office, at Exhibit 13, P.W.4 - Pritamchand Thakur, Exhibit 14, P.W. 5- L.M. Vaghela, Investigating Officer at Exhibit 20. Thereafter, the documentary evidence viz. complaint at Exhibit 21, trap panchnama at Exhibit 10 and 11, seizure list at Exhibit 22, transfer order of the accused, Exhibit 23, Diary of police station at Exhibit 24, the details of general combing at Exhibit 25, muster roll of Police Station at Exhibit 26, sanction at Exhibit 15 were exhibited. After the prosecution concluded its oral evidence, the learned trial Judge recorded the further statement of the Appellant u/s 313 of the Code of Criminal Procedure and the Appellant in his further statement denied generally all the incriminating circumstances put to him by the trial Court

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 stated above by the trial court

Learned advocate Mr. Harnish V. Darji, appearing on behalf of the Appellant, submitted that the judgment and order is bad in law and against the evidence on record. Even framing of charge and examination of the accused are not in conformity with the provisions of the Code. He further submitted that presumption cannot be drawn against the Appellant because on mere receipt of the money and it must be further proved that the money was received by way of bribe. The complainant had stated in his evidence that the Appellant had not made any demand of bribe amount from him, but it was the money lent by the original accused which was repaid by the complainant. He further submitted that the offence cannot be said to have been proved without proof of acceptance of money as bribe. He further submitted that the prosecution has not furnished any explanation for not using Phenolphthalein Powder and when currency notes are not treated with anthracene powder, scientific proof is not available. He further submitted that the evidence of the complainant and panch witness and other police witnesses are contradictory to each other in material particular and hence, it is fatal the case of prosecution. The panch witnesses and other members of the raiding party are interested witnesses and even their depositions do not inspire any confidence. He further submitted that it is not proved that the Appellant had accepted any illegal gratification and that it was as a motive or reward for doing or forbidding to do any official act or for showing any favour in the exercise of official function. Mr. Darji, learned advocate submitted that the investigation carried out and sanction granted, were without any authority of law and without application of mind. He further submitted that the learned Sessions Judge has not followed the provisions u/s 313 of the Code of Criminal Procedure in true letter and spirit.

Mr. Darji, learned Counsel has read the charge at Exhibit 4 and submitted that the charges have not been proved against the accused and submitted that in corruption cases, the demand is required to be proved. He has drawn attention of the Court to the oral evidence of P.W.1 - complainant - Balvantsinh Hamirsinh Rathod at Exhibit 8 and submitted that the complainant was declared as hostile and when the star and material witness - complainant turned hostile, the question of demand cannot arise and therefore, there is no question of acceptance on the part of the Appellant. From his evidence, it appears that the Appellant had never made any demand of any bribe, but he made demand of his own money, which was given by the Appellant. He read evidence of P.W. 2 - Maheshkumar Laljibhai Asari at Exhibit 9 and P.W. 3 - Kanjibhai Mangaldas Patel at Exhibit 13, Trapping Officer and submitted that the aspects of demand and acceptance of the bribe amount are not proved as per the provisions of Act. He read the complaint at Exhibit 21 and stated that the contents of the complaint are not corroborated with the oral evidence of P.W.1 and other documentary evidence. He also submitted that the Appellant - accused was falsely implicated in the case of prosecution, as the complainant did not want to return money which was borrowed by the Appellant. He read the contents of panchnama at Exhibit 10 and also read the oral evidence of P.W.2, who dictated the panchnama. He further submitted that said witness is selected witness and therefore, his evidence cannot be said to be reliable and trustworthy. He read the cross-examination of this witness, and submitted that if it is minutely scrutinized, it creates doubt about the demand and acceptance. Therefore, benefits of doubt ought to have been given to the present Appellant. He also submitted that the Trapping Officer was not aware about due amount, which was given by the Appellant to the complainant, therefore, the evidence of the Trapping Officer is also doubtful. He further submitted that mere recovery is not sufficient ground to believe the case of the prosecution. Therefore, he submitted that the judgment and order of conviction and sentence passed by the learned Sessions Judge is required to be dismissed by allowing this Appeal.

Learned APP Mr. H.L. Jani for the State, vehemently opposed the submissions made by the learned advocate Mr. Darji. He has read the complaint at Exhibit 21 and submitted that from the complaint itself, it appears that the demand is proved beyond reasonable doubt and said complaint contains the signature of the complainant himself. Learned APP further submitted that though the complainant was declared hostile, his cross-examination itself reflects the aspect of demand and the accused threatened the complainant that if the complainant would not give said bribe amount, then the accused would put the complainant behind bars. Therefore, the complainant frightened and lastly the deal was finalized at Rs. 700/- instead of Rs. 1000/-, which was initially demanded by the accused. He further submitted that even if it is believed that the money was borrowed as per say of the complainant, there is nothing on record to show as to when the said money was given to the complainant. Even from cross-examination of the complainant, it is clear that the complainant was taken by the accused in gallery near the police station and panch No. 1 was very much present there. He further submitted that the complainant declared himself as hostile is not sufficient to establish that the accused had not accepted and demanded any bribe money from the complainant. He further submitted that from the oral evidence of P.W.2 - Maheshkumar Laljibhai Asari at Exhibit 9, it appears that initially, the accused demanded Rs. 1000/- from the complainant and, thereafter, the complainant agreed to give Rs. 700/- to the accused. In the complaint, this witness has put his signature along with the complainant. This witness also stated in his oral evidence that the currency notes, which were given to the accused, were smeared with anthracene powder and said amount was accepted by the accused with his right hand and was put in right side pocket of the pent. This witness stated that the marks of anthracene powder were found on the fingers of the right hand of the accused and even on the pent of the accused. Therefore, it is established that in presence of panch No. 1, the accused made demand and accepted the bribe amount from the complainant. Therefore, it is clearly established that the accused committed offence under the provisions of the Prevention of Corruption Act. Learned APP further submitted that P.W.3 Kanjibhai Mangaldas Patel stated in his oral evidence at Exhibit 13 that the accused put the bribe amount in his right pocket of pent. Learned APP further submitted that sanction was given after considering all the papers by the P.W.3 Pritamchandra Thakur at Exhibit 14 and he was Police Officer at Vadodar Rural on 18.10.1993. He read the oral evidence of P.W.5 at Exhibit 20 and he also read the contents of the panchnama at Exhibit 10 and 11. He also submitted that even from the statement u/s 313 of the Code of Criminal Procedure, the accused made attempt to establish his probable defence just to show that the amount in question was accepted towards legal dues but it was not established by any cogent evidence that the same was towards legal dues.

Mr. Jani, learned APP has relied upon the decision rendered in Criminal Appeal No. 323 of 2009 decided on 7.12.2009 by this Court. He stated that in the said case, the complainant was declared hostile, but the basic fact required to be proved by the prosecution have been duly established by the prosecution through other evidence. He further relied on decision of the Hon''ble Supreme Court in the case of V. Kannan Vs. State represented by The Inspector of Police, . He submitted that in that case, the complainant stated that trap was laid and money was handed over to Appellant of that case, in presence of independent witness and evidence of independent witness corroborated the testimony of complainant. He submitted that in the instant case, the demand and acceptance on the part of the Appellant was very well proved in the presence of the panch witness. Therefore, judgment and order passed by the learned Special Judge is required to be confirmed and appeal is required to be dismissed.

I have examined the record and proceedings in context with the submissions made by the rival sides.

Examining the evidence on record and especially considering the evidence of PW-1 complainant Balvantsinh Hamirsinh Rathod examined at Exhibit 8, there is no dispute that the complainant did not support the case of the prosecution and was declared as hostile witness. However, despite the fact that he is declared as hostile witness, what emerges from his evidence is that he had visited the ACB police station, Vadodara on 10.6.1993 and had informed the ACB P.I. about the demand of illegal gratification made by the Appellant and accordingly the trap was arranged in presence of panchas and complainant PW-1. Since the complainant - Balvantsinh Hamirsinh Rathod informed police that by way of illegal gratification, Rs. 700/- were demanded, therefore, the currency notes containing phenolphthalein powder were inserted in his pocket. However, it transpires that the raid arranged on 9.6.1993 did not succeed due to non-availability of the accused in the Police Station. In this respect, considering the panchnama, Exh.11 and especially internal page 5 of the panchnama, it transpires that the complainant along with panch No. 1 went to the Police Station to meet the Appellant and the Appellant made demand of Rs. 700/- and accepted money by his right hand and the accused asked the complainant whether it is of Rs. 700/- or not and the complainant confirmed the same. From the contents of said panchnama, the marks of the anthracene powder were found from the fingers, tip of thumb, palm of the right hand of the accused.

Considering the evidence of PW-2 Maheshkumar Laljibhai Asari examined at Exhibit 9, who is panch No. 1 and who accompanied the complainant twice to the office of the Appellant, categorically deposed the facts transacted during the course of the raid. Considering his evidence, it is clear that at the time when there was a talk between the complainant and the Appellant about payment of illegal gratification amount, this panch was very much present and the fact remains that in his presence, the Appellant received the tainted currency notes of Rs. 700/- and immediately upon signal being passed, the Officers of the raiding party rushed to the office of the Appellant and at the instance of P.W. 5, the currency notes which were in the pocket of the pent of the Appellant, were taken out. It further transpires that the fingers of the right hand of the Appellant were found with marks of anthracene powder. From the evidence of P.W.3 Kanjibhai Mangaldas Patel examined at Exhibit 13, it appears that at the instance of P.W.5, the accused stood up and took out the currency notes from his pocket of the pent and put the same on table. Further he stated that the marks of anthracene powder were found on the tip or thumb, fingers of the right hand of the accused during the experiment of ultra violet lamp. I have perused the oral evidence of P.W.4 Pritamchandra Thakur at Exhibit 14, who stated in his evidence that he gave sanction to prosecute the Appellant after considering the papers produced before him. I have also perused the complaint lodged by the complainant which bears the signatures of complainant and other two panch witnesses and the contents of the complaint are corroborated with the evidence of the witnesses.

From the perusal of record, it appears that the accused demanded Rs. 1000/- at first instance and thereafter, the complainant agreed to give Rs. 700/- and then the deal was finalized. Thereafter, once the trap failed due to non-availability of the accused in the police station and on very next day, the trap was carried out and from the fingers, tips, thumb of the right hand of the accused as well as on the pent of the accused, the marks of anthracene powder were found. I have also perused the statement of the accused recorded u/s 313 of the Code of Criminal Procedure, wherein the accused made only defence about the demand of his own money, but the Appellant has not produced any cogent evidence in that regard and that averment of the accused is not corroborated with any oral or documentary evidence and, therefore, it is not believable.

As stated above, while re-appreciating the entire evidence on record in this judgment, despite the fact that the complainant Balvantsinh turned hostile, the fact about the demand and more particularly about the acceptance have been duly established by the prosecution by examining the witnesses on record in this case. I have also found that evidence of the panch witnesses is clear and no ambiguity arises therefrom.

I have gone through the impugned judgment and order rendered by the trial Court. Keeping in mind the evidence adduced by the prosecution, in my view, the trial Court has rightly appreciated the evidence. There is no reason whatsoever for this Court to interfere with either the reasonings assigned by the trial Court while appreciating the evidence on record, or to interfere with the ultimate conclusion arrived at by the trial Court on the basis of the appreciation of evidence on record, adduced by the prosecution. The judgment of this Court relied by the learned APP Mr. Jani in Criminal Appeal No. 323 of 2009, is applicable to this case, as in that case, the complainant was declared hostile, but other evidence of witnesses and documentary evidence produced by the prosecution have supported the case of the prosecution. I have also perused the another decision relied by the learned APP reported in V. Kannan Vs. State represented by The Inspector of Police, In that case, the demand was made in the presence of the panch and herein, in the present case, the demand is proved because the same was made in the presence of panch. In such a situation, I am of the considered opinion that the appeal is devoid of any merits and deserves dismissal.

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, Special Court, Vadodara in Special Case No. 26 of 1993 dated 13.11.2000 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.