Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 1028 (GUJ)

Naginbhai Dalpatbhai Chamar v. State of Gujarat

2016-06-06

S.G.SHAH

body2016
JUDGMENT : S.G. Shah, J. 1. The appellant has been convicted by the impugned judgment and order dated 15.12.2001 by Special Judge, Vadodara in Special Case No. 25 of 1994, whereby appellant has been awarded to undergo R.I of one year and to pay Rs. 2,000/- as fine and in default of such payment, to undergo further S.I for 3 months for the offence punishable u/s. 7 of the Prevention of Corruption Act, 1988; whereas to undergo R.I for 2 years with fine of Rs. 3,000/- and in default of payment of fine, to undergo further S.I for 4 months for the offence punishable u/s. 13(2) of the Prevention of Corruption Act, 1988. 2. I have perused the impugned judgment and record and proceeding. On consideration of submission by the appellant as well as the prosecuting agency i.e. State, prima facie it becomes clear that there is no cogent and reliable evidence to confirm conviction. 3. In such appeal, basically now, the law is well settled whereby to verify that whether conviction is proper or not, we have to scrutinize the evidence to see that whether following four basic ingredients to confirm commission of offence under the Act has been proved or not. "a. Prior demand of bribe amount before raid; b. Demand of bribe amount at the time of raid; c. Acceptance of bribe amount; and d. Possession of tainted currency notes with the accused at the time of raid." 4. Therefore, basically we have to scrutinize the evidence to ascertain that whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm that appellant - accused has committed the offence as alleged. If there is no such evidence on record, then, irrespective of raid and sanction by the competent authority to prosecute the accused, the conviction cannot sustain since in criminal trial, it is the duty of the prosecution to prove its case beyond reasonable doubt, more particularly when such conviction creates a stigma in the life of the accused, if at all he has not committed any such crime. 5. 5. Therefore, if we scrutinize the available evidence, it becomes clear that the complainant himself has not only been cross-examined, but he was cross-examined at length by the prosecuting agency and even after such cross-examination, when it becomes clear that practically, there is substance in the defence version that in fact the complainant has borrowed some amount from the appellant - accused and when appellant - accused has demanded such amount back, the complainant in order to avoid paying the full amount, tried to falsely implicate the appellant in such charges under the Prevention of Corruption Act. 6. If we peruse the evidence of complainant at Exh. 13, being PW-1, namely, Rajubhai Manilal Pandya, it becomes clear that right from the complaint itself, it is his case that accused has demanded Rs. 250/- from all the vendors, who were doing their business in nearby area, including tea-stalls and it is his categorical statement that when appellant has demanded such amount, his servant was present with him and he confirmed to the appellant that he will collect the amount from all the vendors and tea-stall owners for paying it to the appellant. It is also his categorical disclosure both in the FIR as well as in his evidence that thereupon, he has collected such amount from other vendors and presented the currency notes of Rs. 250/- in denomination of two notes of Rs. 100/- and one note of Rs. 50/- to the investigating officer Mr. Vaghela in ACB office, and thereupon, Mr. Vaghela has managed and arranged to lay the trap, so as to catch the appellant red-handed. The complainant passed on such amount to the accused as illegal gratification and bribe for allowing those vendors to continue their business at the place. It is undisputed fact that in fact appellant is posted at the place where he has to work as a wireless operator in a nearby tent, which was arranged for security purpose against the threat of terrorist activities in the area. It is also undisputed fact that appellant has no power or reason either to control the traffic or to take any action against all such vendors since he is merely a wireless operator. However, the allegation in the FIR and chargesheet is to the effect that appellant has demanded an amount of Rs. It is also undisputed fact that appellant has no power or reason either to control the traffic or to take any action against all such vendors since he is merely a wireless operator. However, the allegation in the FIR and chargesheet is to the effect that appellant has demanded an amount of Rs. 250/- so as to allow the vendors, including the complainant to carry out their business activities in the area. In light of such fact, if we recollect the basic evidence, which is discussed herein above, it becomes clear that the demand of bribe is not only from the complainant, but it is from all the vendors and tea-stall owners, who were doing the business in surrounding area and as admitted by the complainant, and even as alleged in the chargesheet, when complainant has collected such amount of Rs. 250/- from different vendors and tea-stall owners, some of them, if not all, are certainly relevant and material witnesses to prove the commission of offence as alleged. Surprisingly, the investigating agency has never bothered to even call upon any such vendor to prove that, yes the complainant has demanded or collected the money for passing on to the accused as bribe, as alleged in the complaint and chargesheet. Therefore, prima facie and basically in absence of any such evidence and that too after an admission to the effect that amount of Rs. 250/- was collected by the complainant from different vendors for offering it as bribe to the accused, it cannot be said that evidence available on record is sufficient and reliable evidence to confirm the conviction, more particularly when accused - appellant has came forward with a specific plea and defence that in fact complainant has borrowed some amount from him, which he has demanded back and amount, which was offered to him at the time of raid was such amount, which is legally due and not the amount as illegal gratification or bribe so as to offer any favour to the complainant in any manner whatsoever. 7. 7. In addition to such prima facie evidence on record, the perusal of deposition of the complainant makes it clear that in fact the complainant has admitted such situation and when complainant is examined as PW-1 and if at all prosecution thought that complainant has been liberal or hostile in favour of the accused, then, prosecution has got all the chance to examine further witnesses and to prove the charges levelled against appeal. However, when the prosecution has failed to do so and relied only upon panch witnesses, then, in absence of proper, cogent and reliable evidence beyond reasonable doubt to prove one of the basic ingredient for confirming conviction under such charges, namely, the prior demand, the conviction cannot be sustained, more particularly even at the cost of repetition it is to be recollected that the accused - appellant was able to prove his defence prima facie to create a doubt in the prosecution evidence and thereafter, prosecution has failed to rebut such evidence or to prove the guilt of appellant - accused beyond doubt. 8. The scrutiny of evidence of the complainant further makes it clear that there is one another glaring contradiction with reference to the recovery of tainted currency notes from the accused when the complainant says that at the time of raid, accused has accepted the tainted currency notes by his left hand and when he was trying to keep it or put it in the pocket of his pant, the ACB officer has got him and taken away the currency notes from his hands. If it is so then, there is no reason for the investigating agency to recover the clothes worn by the accused during the investigation. 9. As against that if we peruse the evidence of PW-2 at Exh. 17, namely, Ajitkumar Budhalal Solanki, the panch witness so also all other oral evidence of other police witnesses, they all have in categorical terms deposed that when complainant had offered the amount to the accused, the accused has counted it by both the hands after accepting it by his right hand and thereafter, it was kept in backside pocket of his pant from where I.O. Mr. Vaghela has taken off the currency notes. This is also material contradiction, which vitiates the authenticity of the evidence when there is material contradiction regarding recovery of currency notes from the possession of the appellant - accused. Vaghela has taken off the currency notes. This is also material contradiction, which vitiates the authenticity of the evidence when there is material contradiction regarding recovery of currency notes from the possession of the appellant - accused. 10. The complainant has also admitted that when the accused has demanded the amount, one Ashokbhai was present, but the investigating agency has failed to examine such Ashokbhai to confirm such prior demand. During his cross-examination by the prosecution, though complainant has admitted several things, in fact all such admission goes against the case of the prosecution since it results into material contradiction on record. Surprisingly, the Special Judge has allowed such type of cross-examination wherein each and every sentence of the FIR was asked to the appellant and when appellant admits some of those statements, it results into contradiction in material evidence on record. Other witnesses were examined and therefore, practically, such cross-examination by prosecutor instead of proving the commission of offence, results into evidence in favour of the appellant - accused so as to create doubt in entire set of evidence by the prosecution and therefore, in absence of cogent and reliable evidence beyond reasonable doubt, the Special Judge has committed legal error in confirming that appellant has been guilty and thereafter, convicted him by impugned judgment. 11. Whereas, during cross-examination of the complainant by the advocate for the appellant - accused, the complainant has admitted that in all there were 28 - 30 vendors in that area and that he has collected the amount of bribe from such vendors. In that case, non-examination of any such other vendors, would certainly create doubt in the entire set of evidence by the prosecution. Complainant has also admitted that accused was serving as a wireless operator and he has no duty of regulating the traffic. He further admits that because of their contact, during night duty of the accused, they became friends and therefore, before a month or two from the date of incident, he had demanded some amount from the accused when his wife was sick and accused has given him some amount. He also admits that while demanding such amount, when he could not find accused at relevant place at relevant time, he has written a note demanding some money from the accused. Such handwritten note dated 14.2.1991 is produced on record at Exh. He also admits that while demanding such amount, when he could not find accused at relevant place at relevant time, he has written a note demanding some money from the accused. Such handwritten note dated 14.2.1991 is produced on record at Exh. 16 and it is admitted by the complainant, wherein it is stated that complainant has demanded Rs. 600 to 700/- from the accused for treatment of his wife with a promise to return it back within two months. He also admits that at the time of incident, the accused has demanded back such amount of Rs. 500/-. He further admits that before a week from the date of trap and raid, there was traffic jam on road and while clearing such jam, there was quarrel between the complainant and the accused. He further admits that because of such disturbance, accused has slapped him and abused his wife and therefore, he was annoyed and hence, he has filed a complaint against the accused while returning back the amount, which in fact, he has borrowed from the accused and thereby, he categorically admits that the amount paid to the accused at the time of raid was not towards illegal gratification or as bribe. Thereby, practically, such amount was the amount which was borrowed by the complainant from the accused, but it seems that because of some quarrel between them, the complainant has filed a complaint while returning back such amount, probably to teach a lesson to the accused for slapping him and abusing his wife. So far as the panch witness is concerned, the complainant has also admitted that when panch witness came to the ACB office, Mr. Vaghela has invited him and called upon by his name and therefore, there is reason to believe that they were knowing each other. He further admits that at the time of raid, he does not show any presence of powder on the hands of the accused and that police has not recorded either his complaint or FIR as per his statement and that in fact police has never asked him anything after such raid. He further admits that his servant was very well present when accused had met him while demanding the amount. 12. Surprisingly, though the prosecution has declared the complainant as hostile. The overall scrutiny of the complaint at Exh. He further admits that his servant was very well present when accused had met him while demanding the amount. 12. Surprisingly, though the prosecution has declared the complainant as hostile. The overall scrutiny of the complaint at Exh. 14 and the deposition of the complainant goes to show that, practically, the complaint and his deposition are in corroboration with each other wherein there are material contradictions with the case of the prosecution and the charges leveled against the accused. Therefore, prima facie it becomes clear that the complainant and investigating agency have falsely implicated the accused in such case. 13. As aforesaid, PW-2 at Exh. 17, namely, Ajitkumar Budhalal Solanki, panch witness is also non-reliable for the simple reason that his evidence makes it clear that he is regular panch witness in such cases and therefore, he is supporting the prosecuting agency and though he has tried to support the prosecution case, it becomes clear that while deposing in favour of the chargesheet, practically, he had contradicted the evidence of the complainant, both in the complaint and oral evidence as discussed herein above and therefore, such evidence alone could not be considered as sufficient evidence to confirm conviction. 14. Rest of the witnesses being PW-3, namely, Laxmanbhai Muljibhai Vaghela at Exh. 25 is the raiding officer as well as the investigating officer. However, when he says that he has recorded the statement of complainant even after the raid, he creates a contradiction from the evidence of the complainant, who admits that no statement was recorded after the raid. He also supports the panch witness, but then it results into material contradiction on record regarding possession and recovery of tainted currency notes. He also admits that he has not included the witnesses from the public so as to prove the prosecution case. This confirms that when independent witnesses are available, the investigating officer has chosen not to examine them. He also admits several contradictions by the previous witnesses from document evidence. 15. The other documentary evidence regarding procedure in raid and sanction to prosecute the appellant is not much material when there is lack of basic evidence to confirm the guilt of the appellant and when appellant is successful in creating doubt in the evidence by the prosecuting agency so as to consider that he has certainly committed offence as alleged. 16. The other documentary evidence regarding procedure in raid and sanction to prosecute the appellant is not much material when there is lack of basic evidence to confirm the guilt of the appellant and when appellant is successful in creating doubt in the evidence by the prosecuting agency so as to consider that he has certainly committed offence as alleged. 16. Therefore, when the trial Court has relied upon only two witnesses i.e. (1) panch witness and (2) the raiding officer, against whom there are allegations that though there are other officers in his office, he has continued the investigation though he is raiding officer also till the filing of the chargesheet. Therefore, the appellant has relied upon several decisions of Hon'ble Supreme Court as well as this High Court, which confirms that when other officers are available, it would not be appropriate for the raiding officer to continue with the investigation. 17. In view of above facts and circumstances as emerged from the record available, it becomes clear that there is no cogent and reliable evidence to confirm that accused has accepted the amount towards illegal gratification, but as admitted by the complainant, he has offered him the amount borrowed by him from the accused and at that time raid was conducted. 18. When the evidence itself is sufficient to prove the guilt of the accused, I do not see any reason to discuss all other citations referred by the accused before the Special Judge when the Special Judge has misinterpreted such citations and solely relied upon the procedural part of raid, for convicting the accused. 19. The perusal of entire record and impugned judgment makes it clear that there is no sufficient, cogent and reliable evidence to confirm guilt of the accused. 20. If we peruse the entire evidence of all the witnesses together, it certainly gives an impression that for filing such cases, the raiding party are being rewarded and therefore, when witness admits such fact that he has been rewarded for such case though he does not recollect the exact amount, there is reason to believe that the raiding party had arranged such raid for their personal gain. 21. The above discussion makes it clear that there is no clinching, cogent and reliable evidence beyond reasonable doubt to confirm the conviction. 21. The above discussion makes it clear that there is no clinching, cogent and reliable evidence beyond reasonable doubt to confirm the conviction. This goes to show that the Special Judge has blindly relied upon the story of the prosecution and confirmed that accused has committed crime and awarded sentence as aforesaid, but scrutiny of evidence, which is discussed herein above, makes it clear that there is no cogent, reliable and clinching evidence beyond reasonable doubt to confirm that accused has committed offence as alleged. As aforesaid, there are material contradictions in statement of all three witnesses. There is no positive evidence regarding all the four ingredients to confirm the commission of offence. 22. It is submitted by the appellant that trial Court has failed to appreciate the provisions of Section 144of the Evidence Act while considering the contradictions. The trial Court has also relied upon the police statement against the evidence of independent witnesses and therefore, conviction cannot be upheld. 23. For such determination, I am relying upon following decisions:-- "(A) P. Satyanarayana Murty v. District Inspector of Police, State of Andhra Pradesh, reported in 2016(1) SCC (Cri.) 11; (B) Selvaraj v. State of Karnataka, reported in, 2016(1) SCC (Cri.) 19; (C) Krishan Chander v. State of Delhi, reported in, AIR 2016 SC 299." In all such cases, it is heard that for confirming conviction, all 3 below-mentioned actions are must and should be proved by prosecution beyond reasonable doubt viz; (i) prior demand (ii) demand at the time of trap and (iii) acceptance of the amount. In absence of specific and clinching evidence to prove all such acts by the accused, there cannot be any conviction. Evidence of other witnesses may not be sufficient to prove demand even though recovery is proved. In that case, benefit of doubt is to be extended to the accused. Mere acceptance of any amount alone by way of illegal gratification or recovery thereof de hors the proof of demand, ipso facto reiterated, would not be sufficient to bring home the charge. Thereby, admission and acceptance of bribe is sine qua non for constituting offence under the Prevention of Corruption Act. Mere acceptance of any amount alone by way of illegal gratification or recovery thereof de hors the proof of demand, ipso facto reiterated, would not be sufficient to bring home the charge. Thereby, admission and acceptance of bribe is sine qua non for constituting offence under the Prevention of Corruption Act. If complainant or witness turns hostile on the point of demand and acceptance of bribe and when panch witness did not hear the conversation between accused and complainant at the time when complainant had gone to give bribe money, it is held by Hon'ble Supreme Court of India that factum of demand cannot be considered as proof and thereby, conviction was set aside. 24. Therefore, the present Criminal Appeal is allowed. The judgment and order dated 15.12.2001 by Special Judge, Vadodara in Special Case No. 25 of 1994, is quashed and set-aside. Thereby, appellant is acquitted from the charges leveled against him. Since the appellant is on bail, his bail bond shall stand cancelled. 25. R & P be sent back forthwith to the concerned trial Court.