Ranjitsingh Naransingh Gohil vs State of Gujarat

K.S. Jhaveri, J.—The present appeals are directed against the judgement and order of conviction dated 16.01.1997 passed by the Special Judge, Valsad at Navsari in Special Case No. 02 of 1989, whereby the accused has been convicted of the charges leveled against him. The accused was ordered to undergo rigorous imprisonment for two years for offence u/s 5(2) of the Prevention of Corruption Act and fine of Rs. 5000/- in default simple imprisonment for six months.

1.1 Criminal Appeal No. 113 of 1997, u/s 374 of the Code of Criminal Procedure, 1973 has been filed by the original accused praying for quashing and setting aside the order of conviction whereas Criminal Appeal No. 262 of 1997, u/s 377 of the Code of Criminal Procedure, 1973 has been filed by the State Government for enhancement of the sentence.

The facts as per the prosecution could be set out in brief as under:

2.1 The elder brother of the complainant namely Rajendra More was charged and arraigned on the charges of having committed an offence punishable u/s 25(c) of Arms Act vide C.R. No. II-115 of 1987 registered at Valsad City Police Station. In connection with this offence remand was prayed for before the JMFC, Valsad by the police but the same was refused and against the said order of refusal of remand, revision was preferred in the Sessions Court which was allowed. Therefore, Rajendra More was ordered to be taken in police custody by way of remand.

2.2 On 16.08.1987, when Rajendra More, brother of the complainant was in police custody, the complainant approached the accused who at the relevant point of time was discharging his duties as a Senior Police Sub-Inspector at Valsad City Police Station and requested that the brother of the complainant should not be manhandled or beaten up during the period of remand and the complainant also offered something for obliging the complainant.

2.3 It is the say of the complainant that the accused demanded Rs. 5000/- from the complainant by way of illegal gratification other than the legal remuneration for not using any third degree methods on the brother of the complainant. The case is that out of the amount of Rs. 5000/-, Rs. 2000/- was paid immediately and for paying the rest of the amount, the complainant prayed for some more time. It is also the case of the complainant that he was threatened that if the rest of the amount was not paid then the accused would definitely harass the brother of the complainant.

2.4 The complainant however lodged a complaint at the office of Anti Corruption Bureau (ACB) in Ahmedabad. On the next day i.e. on 18.08.1987, the complainant went to the ACB office where the investigating officer one Shri N.R. Patil was present. He recorded the complainant''s complaint. He thereafter introduced the complainant to two panchas who showed their willingness to act as panchas. Then currency notes worth Rs. 3000/- was given to Mr. Patil by the complainant and anthracene Powder was applied on those notes. Certain instructions were given to the complainant regarding the same and the complainant was asked to follow them scrupulously.

2.5 Thereafter, preliminary panchnama was drawn at the office and the complainant alongwith the raiding party left for Valsad in two jeeps and reached Valsad at around 7.30 in the evening. As per the instructions, the complainant at around 2115 hours went to the chamber of the accused along with panch No. 1. The accused on seeing panch No. 1 inquired with the complainant as to who he was. On not being satisfied about the reply regarding panch No. 1, the accused asked the panch No. 1 to wait outside his chamber.

2.6 The complainant then handed over the currency notes of Rs. 3000/- to the accused and the accused willingly accepted the same and placed the currency notes in the drawer on the left side of his table. The complainant immediately left the chamber of the accused and signaled the raiding party. The raiding party completed the rest of the formalities including taking custody of the currency notes, observing the fingers and clothes of the accused in ultra violet light and drawing of panchnama.

2.7 Thereafter, on 31.03.1988, necessary sanction to prosecute the accused was sought for, which was granted on 12.01.1989. Charge was framed at Ex. 9 to which the accused pleaded not guilty. The accused was therefore put on trial and during the course of trial the prosecution examined 6 witnesses as oral evidences:

Complainant- Sunil GopalRao More - PW. 1 - Ex. 12

Panch No. 1- Sadiq Hussain Gulam Hussain Saiyed - P.W. 3 - Ex. 35

Second PSI - Maganbhai Motibhai Varia - P.W. 2 - Ex. 30

Investigating Officer - Nathuram Ruplal Patil - P.W. 4 - Ex. 43

Police Inspector - Amarsingh Mohanlal Yadav - P.W. 5 - Ex. 55

2.8 The prosecution has also examined certain documents by way of documentary evidence which are:

Original Panchnama Ex. 36

Copy of seizure memo Ex. 37

Complaint Ex. 44

Medical certificate Ex. 62

2.9 At the end of the trial, the Special Judge came to the conclusion that the prosecution has been able to prove the factum of demand and acceptance beyond reasonable doubt and accordingly convicted the accused and ordered to undergo imprisonment for a period of two years and also imposed fine of Rs. 5000/-.

Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Special Court the accused as well as the State have preferred the present appeals.

Mr. Anandjiwala, learned advocate appearing for the accused has submitted that the prosecution has failed to prove demand and acceptance of the amount in question. He has submitted that for the purpose of coming to the conclusion as to whether the accused accepted the amount or not the evidence led by the prosecution, the suggestion made by the defence in cross examination of the prosecution witnesses, the version given by the defence and the defence witnesses, if any, examined at the trial, everything is required to be considered in its totality and it is to be seen as to whether the only conclusion possible was that the accused accepted the amount. If such a conclusion is possible then only it can be held that the prosecution established the case beyond reasonable doubt. In the present case as far as the evidence of the complainant P.W. I Ex. 12 is concerned, it does not inspire any confidence as far as the factum of acceptance and demand is concerned.

4.1 Mr. Anandjiwala has further submitted that the evidence of the investigating officer if considered in the light of the contradictions and the omissions becomes very vulnerable and highly doubtful and atleast goes to suggest one thing that this witness has drawn the panchnama not at all in accordance with law but has very successfully tried to manipulate and improve the contents.

4.2 He has submitted that the recovery of the amount in question was from the left side drawer and the same was done at the instance of the prosecution which was recorded in the panchnama in presence of the police and the same is hit by Section 161 of the Indian Penal Code which is invariably invoked as a subsidiary charge in corruption cases.

4.3 He has further submitted that the prosecution has failed to prove as to how the trap amount was found from the drawer of the table when there was no powder in the drawer. He has submitted that where the defence is one of denial and the prosecution fails to establish anything more than a mere receipt, the charge must undoubtedly fail.

4.4 Mr. Anandjiwala has also submitted that first of all the panchas who were actually decided to act as panchas were changed on the d-day i.e. on 18.08.1987. Further there are serious contradictions and omissions in the version of the panchas and what is written in the panchnama. He has submitted that in such view of the matter, the panchnama ought not to have been accepted by the court below.

4.5 In support of his submissions, Mr. Anandjiwala has relied upon certain decisions of the Apex Court as well as this Court as under:

Bharatkumar Jaymanishanker Mehta Vs. State of Gujarat,

State of Gujarat v. Trambaklal Fulshanker Trivedi reported in 1979(2) GLR 60.

Unreported decision of this Court passed in Criminal Appeal No. 819 of 1985 dated 05.02.1993.

Suraj Mal Vs. State (Delhi Administration),

Ramesh Kumar Gupta Vs. State of Madhya Pradesh,

4.6 He has therefore contended that the order of conviction is bad in law, against the weight of evidence and not in consonance with the well laid down principles of criminal jurisprudence and therefore deserves to be quashed and set aside in the interest of justice.

On the other hand, Ms. Manisha L. Shah, learned APP appearing for the respondent State has submitted that this is a case where a responsible police officer-government servant is involved in a matter where after registering of criminal case under prohibition and arms act has entertained a brother of the accused in his chamber after remand order was granted.

5.1 She has contended that the panch witness who had accompanied the complainant was not allowed to stay in the chamber while the alleged money transaction had taken place. The panch witness, however, stood outside the chamber and thereafter narrated the facts which he could hear. The panch witness No. 1 has stated that he overheard the words ''lavo''(give) which establishes that the amount is accepted by the accused from the hands of the complainant.

5.2 Ms. Shah has submitted that the defence has not come out with any concrete defence except for the denial. She has submitted that the appellant-accused has failed to explain as to how the bribe amount has reached the drawer of the table in the accused''s chamber and also as to how the anthracene powder was found on the right hand of the accused. In fact the accused has resisted the raid initially and allowed it subsequently.

5.3 Ms. Shah has submitted that the Special Court came to the conclusion that the accused demanded Rs. 5000/- as illegal gratification and that the evidence of witnesses are believable. The case of the prosecution is proved, however, there was no valid and legal reason for the court below to impose lesser punishment to the accused. She has submitted that looking to the post of the accused and also the offence committed by him as a public servant, it is necessary to increase the sentence in the interest of justice and also to set an example to the society at large.

5.4 She has also submitted that merely because some of the portion of the panchnama is not supported by the panch, the whole panchnama of recovery cannot be discarded. Even if the part which seems to be objectionable is not considered by the court, the remaining part of the document may be enough for arraigning the accused. She has submitted that the entire document may not be rejected on such a ground.

5.5 She has submitted that in fact the overall conduct of the accused is enough to point a needle of suspicion towards him. She has submitted that after the remand order was granted, entertaining a relative of the person in custody is in itself not in good light. Thereafter, when the complainant and panch witness No. 1 entered the chamber of the accused, sending the panch witness No. 1 outside the chamber clearly highlights the ill intention of the accused. All these only establish the motive and conduct which is very serious and supports the case of the prosecution.

5.6 She has submitted that the State has reasonably proved demand from the complainant and acceptance by the accused which is supported by the said witnesses. However, the minor contradiction in the version of the complainant and the witness may not lead to discarding the entire evidence. She has submitted that the conviction and sentence imposed is required to be enhanced and the appeal by the accused is required to be dismissed.

5.7 In support of her submissions, Ms. Shah has relied upon the following decisions of the Apex Court as well as this Court:

State of Gujarat v. Mansurbhai Motibhai Damor reported in 1996(2) GLH 782

State of A.P. Vs. P. Satyanarayana Murthy,

We have gone through the judgement and order passed by the court below. We have also perused the oral as well as documentary evidence considered by the court below and also considered the submissions made by learned Advocates for the accused as well as State.

It has come on record that the elder brother of the complainant namely Rajendra More was charged and arraigned on the charges of having committed an offence punishable u/s 25(c) of Arms Act vide C.R. No. II-115 of 1987 registered at Valsad City Police Station. On 16.08.1987, when Rajendra More, brother of the complainant, after grant of remand, was in police custody, the complainant approached the accused who at the relevant point of time was discharging his duties as a Senior Police Sub-Inspector at Valsad City Police Station and requested that the brother of the complainant should not be manhandled or beaten up during the period of remand and the complainant also offered something for obliging the complainant.

7.1 It is to be noted at this point of time that by way of medical evidence it is borne out that there were tender injuries upon the brother of the complainant, more particularly, tenderness over anterior aspect of the chest both axillary region, back of chest and scalp and the said injuries were inflicted upon during the period of remand. This supports the case of the prosecution that the complainant approached the accused on 16.08.1987 and pleaded not to inflict any third degree upon the brother of the complainant and the accused succumbed to the said request for some illegal gratification.

7.2 After the complainant approached the ACB office, a trap was laid to arrest the accused, if guilty. Currency notes worth Rs. 3000/- was given to Mr. Patil by the complainant and anthracene Powder was applied on those notes. Preliminary panchnama was drawn at the office and the complainant alongwith the raiding party including two panchas left for Valsad in two jeeps and reached Valsad at around 7.30 in the evening. It is the say of the complainant that panch witness No. 1 accompanied the complainant to the chamber of the accused whereas the panch witness No. 2 remained with the raiding party.

7.3 The said fact also emerges from the record wherein it is indisputably accepted that the panch witness was asked to wait outside the chamber of the accused by the accused. However, the panch witness No. 1 could very well hear the conversation that took place between the complainant and the accused, more particularly, the use of words ''I have brought'', ''give'' etc. It is required to be noted that after the raiding party raided the chamber of the accused which was initially resisted by the accused, the party could find traces of anthracene powder on the right hand of the accused.

An endeavour has been made by Mr. Anandjiwala to show that as no anthracene powder was found from the drawer of the accused''s table where the notes were alleged to be kept, it only falsifies the say of the prosecution. However, this Court is of the opinion that on a close scrutiny of the panchnama it is borne out that while the currency notes were seized from the drawer, the party also seized a diary of the accused lying in the same drawer upon which traces of the powder were found. Thus the say of the accused cannot be accepted by this Court.

8.1 It is also the say of the advocate for the accused that the currency notes were in fact thrown on the table of the accused by the complainant thereby trying to trap the accused. If such a submission is required to be accepted, in such case it is pertinent that the traces of the powder ought to have been found on the table. Instead it was found in the hand/fingers and the diary which was lying in the drawer of the table where the notes were allegedly kept.

8.2 It is also to be kept in mind that the defence taken up by the accused was only denial. The accused could in no way explain as to how the currency notes reached the drawer of the accused''s table, if his plea of denial is accepted. In this context it would be relevant to peruse the decision of this Court in the case of Bharatkumar Mehta(supra) wherein it is observed that if the accused is able to prove his case by standard of preponderance of probabilities u/s 5 of Evidence Act it is sufficient as the mode of proof which is required in case of prosecution is not applicable to the accused and it is sufficient for defence to give version which competes in probability with prosecution version. If the defence version is probable it can be said that the prosecution did not establish its case beyond reasonable doubt.

8.3 However, in the instant case, there is no defence put forward by the accused except denial of the charge. There is no version on the part of the accused which competes in probability with the prosecution version which could have thrown suspicion on the prosecution case entailing its rejection by this Court.

Further in the case of State of Andhra Pradesh (supra) relied by the State, wherein in the facts of the said case the respondent therein had taken stand u/s 313 of the Code of Criminal Procedure, 1973 that bribe money was forced into his hands. The Apex Court has held that such a stand shall not be acceptable in the face of other evidence against the accused.

In the case of State of Gujarat(supra) also relied by the State, this Court has held that in bribe cases even if the direct evidence brought on record did not support the prosecution then even depending upon the circumstantial evidence on the point of demand, offer and acceptance of bribe amount, the order of conviction and sentence can be recorded. It is also held therein that unless any material brought on record showing mala fide and colourable exercise of power in selecting panch, the court cannot throw out the evidence of the panch.

As far as the case of Rameshkumar Gupta(supra) relied upon by the accused is concerned, it is submitted that this Court may reduce the sentence to period already undergone as in the case therein where the occurrence took place 16 years back and the accused underwent the agony of criminal proceedings, lost his job and had large family to support. Mr. Anandjiwala has also made such a plea considering the said decision.

11.1 In the instant case we are of the opinion that the accused is a police officer and a member of law enforcing agency. Therefore such a responsible officer taking bribe for not taking action against an accused involved in a criminal case is a serious matter. Corruption in law enforcing agency is not to be taken leniently because if such incidents are not taken seriously it would increase such practices and ultimately the public will lose trust in the law enforcing agencies. This Court does not wish to set a wrong example before the society. Moreover, the sentence imposed upon the accused is just and proper and not very high.

In another decision of the Apex Court relied upon by the accused in the case of Suraj Mal (supra), it is held that mere recovery by itself cannot prove the charge of the prosecution against the appellant, in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money.

12.1 However, in the instant case it cannot be said that there is no other evidence to prove the payment of bribe to the accused. Finding of powder traces from the fingers of the accused itself establishes the acceptance of money. Further the evidences of witnesses also corroborate the same and also throw light on the demand aspect considering the fact that part amount was paid earlier and remaining was promised to be paid.

In the other decision relied upon by the accused in the case of State of Gujarat v. Trambaklal (supra) it is observed therein that if there is no evidence worth the name regarding the initial passing of the currency notes from the side of the complainant to the side of the accused accompanied by conversation in this behalf which the panch witness was specifically directed to so hear, it would be hazardous to record a finding with regard to acceptance, that from the shirt pocket of the accused, the said notes were found that on the test being carried out, the hands of the accused and his shirt pocket revealed presence of the anthracene powder.

13.1 In the said case, the only conversation referred to by the panch witness is that the accused while referring to the talk of the complainant with regard to the certificate stated that if he waited for some time, he would give a thought to the matter. That is the only conversation between the accused and the complainant to which the panch refers. He also does not refer to any passing of the currency notes from the side of the complainant to the side of the accused.

13.2 However, in the instant case, the prosecution is able to prove by way of panch witnesses regarding overhearing of asking for the bribe money and handing over the same. There is also evidence to the effect that the powder coated notes were found from the accused after the conversation as mentioned by the panch witnesses. Further the custody of the brother of the complainant and tender injury on him only corroborates the say of the complainant.

Ms. Shah, learned APP has strongly pressed for enhancement of the sentence. She has submitted that considering the position of the accused at the relevant time, the court below ought to have imposed sentence for 7 years instead of two years. However, this Court is of the view that the sentence imposed upon by the court below does not call for enhancement more particularly considering the present age of the accused which is about 61 years. In that view of the matter, it would not be appropriate for this Court to review the sentence imposed by the court below.

In view of the above discussions and observations, this Court is of the view that the prosecution has been successfully able to prove the case against the accused beyond reasonable doubt. We are, therefore, of the considered opinion that the court below was completely justified in convicting the accused of the charges leveled against him. The sentence imposed upon the accused is just and proper and also does not call for any enhancement.

15.1 We find that the findings recorded by the court below are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.

15.2 We are, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of conviction recorded by the court below and hence find no reasons to interfere with the same. Hence the appeals are hereby dismissed.

The judgement and order dated 16.01.1997 passed by the Special Judge, Valsad at Navsari in Special Case No. 02 of 1989 convicting the accused is hereby confirmed. The sentence imposed upon the accused is hereby confirmed. Bail bonds if any shall stand cancelled.

Mr. Anandjiwala, learned advocate requests for some time for the accused to surrender. Request is accepted. The accused is granted eight weeks'' time from today to surrender before the authorities.