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2017 DIGILAW 233 (GUJ)

Bhikhabhai Valjibhai Parmar v. State of Gujarat

2017-01-31

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. The appellant - original accused No. 1 has preferred the present appeal under section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 24.8.2004 rendered by learned Special Judge, Sabarkantha at Himatnagar in Special Case No. 2 of 1999, whereas the case against original accused No. 2 abated as he died during pendency of the trial and original accused No. 3 has been acquitted of the charges levelled against him. 2. The short facts giving rise to the present appeal are that Mr. L.P. Solanki, Police Inspector, ACB, Ahmedabad had received information that on National Highway No. 8 i.e. Gandhinagar - Chiloda - Himatnagar - Shamlaji - Modasa - Bayad road, the traffic police and local police used to stop taxi vehicles carrying passengers and under the guise of entry fee and with a view to avoid initiation of proceedings, they are demanding and accepting illegal gratification and hence, he arranged the trap when the accused were on duty. It is alleged that accused No. 1 demanded Rs. 300/- from the driver of Matador Taxi vehicle No. GJ-1-Y-2555 in aid and abetment of each other by three accused. It is alleged that accused No. 1 accepted the said amount on behalf of all the three accused. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined witnesses and also produced documentary evidences. 3.2 At the end of the trial, after recording the statement of the accused under section 313 of the Code of Criminal Procedure and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. 4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such. 6. Mr. A.D. Shah, learned advocate for the appellant has taken this Court through the charge as well as evidence of material witnesses and argued that the trap in question was running trap wherein upon receipt of secret information by the complainant that on National Highway No. 8 i.e. Gandhinagar - Chiloda - Himatnagar - Shamlaji - Modasa - Bayad road, the traffic police and local police used to stop taxi vehicles carrying passengers and under the guise of entry fee and with a view to avoid initiation of proceedings for violating traffic rules, they are demanding and accepting illegal gratification and hence, the complainant laid running trap on 27.7.1998 and it is alleged that in the said trap, accused No. 1 demanded and accepted the amount of Rs. 300/- as illegal gratification, however, during the course of trial, defence witness came to be declared hostile, but he has deposed that the raiding party instructed him to hand over the money to any of the official either it may be traffic police or local police. He submitted that the defence witness has not supported the case of the prosecution, on the contrary, taking into consideration his evidence, the money came to be thrusted upon sit cover by the decoy and therefore, instant demand is not established. He submitted that though panch No. 1 - PW 2 has supported the case of the prosecution, but he has made certain improvements during the course of his deposition which have also been brought on record. He submitted that though panch No. 1 - PW 2 has supported the case of the prosecution, but he has made certain improvements during the course of his deposition which have also been brought on record. He submitted that even if the evidence of Panch No. 1 may be taken into consideration as it is, in that case also, in absence of primary evidence of the decoy, it would be hazardous to record the conviction solely on the basis of the evidence of the panch and that the evidence of the panch cannot be considered to be sufficient evidence as the person at whose behest, the entire trap was laid has not supported the case of the prosecution and therefore, the evidence of panch No. 1 which is normally used to be considered as "corroborative evidence" with "primary evidence" is missing in the present case and therefore, it would be unsafe to confirm the judgment and order of conviction solely based upon the corroborative piece of evidence. He submitted that innocence of the accused is revealing on analysis of the evidence on record and other mitigating circumstances. He submitted that there appears manifest error in the impugned judgment as only one accused has been convicted and that too by holding that he demanded and accepted the bribe amount solely based upon the evidence of PW 2. He drawn attention of this Court towards Exh. 58 and submitted that on the very day, first attempt through decoy was made at 10.00 O'clock wherein decoy - PW 1 himself was stopped by another District Traffic Branch and was issued the memo for carrying on passengers in the said vehicle and the signature of the decoy was also obtained on the memo and therefore once the memo was issued by the District Traffic Branch and soon after within half an hour, the accused stopped him and hence, at that time, the decoy could have pointed out as regards to issuance of the memo for violating the traffic rules, but instead of doing so, the money was thrusted upon the accused as deposed by the said Decoy in his deposition that as instructions were issued by the police official to thrust upon the money on any police official/RTO/traffic police or any official and therefore, the entire trap has become doubtful. He further submitted that the complainant himself has carried out the entire trap and thereafter to some extent, he himself has carried out investigation and therefore, the prosecution is vitiated. Lastly, Mr. Shah requested this Court to allow the present appeal. 7. On the other-hand, Mr. K.P. Raval, learned APP has supported the judgment rendered by learned trial Court. He submitted that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant and ingredients as regards to demand, acceptance and recovery are proved in accordance with law and, therefore, this Court should not disturb the finding recorded by learned trial Court, as such. He submitted that from overall perusal of the evidence on record, the prosecution has successfully proved the case beyond reasonable doubt and therefore, the order of conviction calls for no interference by this Court. He submitted that learned trial Court has rightly believed the evidence of Panch No. 1 which is getting corroboration from the deposition of the Investigating Officer. 8. This Court has heard Mr. A.D. Shah, learned advocate for the appellant and Mr. Raval, learned APP for the respondent State. 9. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. As per the prosecution version, accused No. 1 was serving as Police Sub Inspector at Prantij Police Station and other two accused were also serving in the said police station as subordinate to him. Whereas, the complainant was serving as Police Inspector, ACB, Ahmedabad. Upon receipt of secret information that various police officials and RTO officials were collecting the amount of illegal gratification under the guise of not initiating the proceedings for violating the traffic and other provisions of law, the complainant laid the running trap on 27.7.1998, at that time, the present appellant accused stopped the vehicle of the decoy and that he demanded and accepted Rs. 300/- as illegal gratification and thereby the appellant committed the offence, as alleged. 10. PW 1 - Girishbhai Punambhai Rathod has been examined at Exh. 27. The witness has deposed that he was running Matador No. GJ-1-Y-2555 belonging to one Gabhaji Thakor. 300/- as illegal gratification and thereby the appellant committed the offence, as alleged. 10. PW 1 - Girishbhai Punambhai Rathod has been examined at Exh. 27. The witness has deposed that he was running Matador No. GJ-1-Y-2555 belonging to one Gabhaji Thakor. The witness has deposed that he was called by the police and he was also instructed by them to hand over the money to the official of RTO/highway police/police and he was called by 5 - 6 police officials. The witness has deposed that thereafter he was directed to report at Himatnagar Police Station in the morning and was also instructed to take 5 - 6 passengers in his matador and thereafter he was handed over tainted currency notes of Rs. 300/-, at that time, he was instructed by the said police official that in case if any traffic police/RTO/highway police demands the money, then to hand over it by any means. The witness has deposed that thereafter he was directed to raise prearranged signal to other members of the raiding party. The witness has deposed that during the course of trap, while his car was passing within vicinity of Himatnagar - Prantij highway, at that time, the District Highway Traffic intercepted his car and issued memo to him and thereafter while his car was passing within vicinity of railway crossing at Prantij, at that time, one car having No. 38 arrived there and then one official from the said car demanded licence and papers of his car. The witness has deposed that at that time, he reported to the said official, at that time, he alone went to the office and the said official was writing something and while the said official was busy with the writing, at that time, the witness put the tainted currency notes below the seat cover and thereafter he raised alarm and hence other members of the raiding party came there and the said tainted currency notes were recovered at the behest of the accused No. 1. The test of anthracene powder was also found positive. As the witness did not support the case of the prosecution, he was declared hostile and after declaring hostile, he was cross examined. Though the witness did not support the case of the prosecution, he was confronted with his previous statement, but he did not admit the same. The test of anthracene powder was also found positive. As the witness did not support the case of the prosecution, he was declared hostile and after declaring hostile, he was cross examined. Though the witness did not support the case of the prosecution, he was confronted with his previous statement, but he did not admit the same. However, in the cross examination, the witness has admitted that Police Inspector Mr. Solanki asked the accused to take out tainted currency notes from below the seat cover and hence, he found it out and gave it to Mr. Solanki. 11. PW 2 - Ahmedbhai Jabubhai Malek has been examined at Exh. 32. The witness has deposed that he was serving as Assistant Traffic Inspector in ST Corporation, Nadiad and he was requisitioned as official panch by the raiding party on the date of raid i.e. 27.7.1998. The witness has deposed that he was made to understand as to how running trap was to be laid and as regards to test of anthracene powder and tainted currency notes and that he was directed to accompany the decoy and to hear and view the incident at the time of trap. The witness has deposed that while he accompanied the decoy and their vehicle was passing within vicinity of railway crossing, Prantij, at that time, one car No. P-38 stopped their car. The witness has deposed that thereafter, one constable by raising gesture called him and hence, he had gone along with decoy, at that time, the decoy said that "it is matador and the passengers are there" and in turn, the accused stated to detain the vehicle. The witness has deposed that thereafter the accused demanded the money and hence, the decoy took out the money from the pocket of his bushirt and gave it to the accused, to which, the accused placed the said amount below the seat cover and thereafter the decoy raised the alarm. In the cross examination, the defence has challenged as regards to conversation took place between the accused and decoy, however, the witness did not admit the same. 12. PW 3 - Laxmansinh Parvatsinh Solanki has been examined at Exh. 42. The witness has deposed that he was serving as Police Inspector (ACB), Ahmedabad Head Quarter in the year 1988. In the cross examination, the defence has challenged as regards to conversation took place between the accused and decoy, however, the witness did not admit the same. 12. PW 3 - Laxmansinh Parvatsinh Solanki has been examined at Exh. 42. The witness has deposed that he was serving as Police Inspector (ACB), Ahmedabad Head Quarter in the year 1988. The witness has deposed that he received secret information as regards to collection of illegal gratification by the local police/traffic police/RTO official at Modasa - Ahmedabad highway and hence, he verified the information from his own sources and found some substance in it and therefore, at his motion, he arranged for running trap by requisitioning two panchas as well as decoy and held the trap on 27.7.1998 at about 10.00 O'clock. The witness has deposed that the District Traffic Police intercepted the car of the decoy and issued the memo for carrying on passengers and violating the traffic rules and thereafter after half an hour, while the car of the decoy was passing within vicinity of the railway crossing, Prantij, at that time, the car of the decoy was intercepted by the accused wherein the accused was caught red handed along with tainted currency notes. The witness has deposed as to how he managed and laid the trap as well as regarding recovery of tainted currency notes and antracene powder test and ultra violate lamp being found positive. 13. PW 4 - Prahladsinh Shivrajsinh Gehlot and PW 5 - Anil Chandulal Pratham have been examined for bringing on record the sanction granted for prosecuting the appellant accused. PW 6 - Dalsukhbhai Motibhai Parghi has been examined at Exh. 53. The witness has deposed that he has carried out part of the investigation. In the cross examination, the witness has admitted that Panch No. 1 had not stated before him that decoy stated him that accused told him regarding something. 14. PW 6 - Dalsukhbhai Motibhai Parghi has been examined at Exh. 53. The witness has deposed that he has carried out part of the investigation. In the cross examination, the witness has admitted that Panch No. 1 had not stated before him that decoy stated him that accused told him regarding something. 14. At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in A. Subair v. State of Kerala, (2009) 6 SCC 587 : (2009 AIR SCW 3994), while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction. 15. In State of Kerala and another v. C.P. Rao (2011) 6 SCC 450 : (AIR 2012 SC (Supp) 393), the Honourable Apex Court reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 16. In a recent enunciation by the Honourable Apex Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayraj (AIR 2014 SC (Supp) 1837) (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 17. In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court. If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt. 18. It is also pertinent to note that the trap in question was a running trap and therefore, there appears no question of predemand and the complaint has been lodged by the trapping officer Mr. Solanki, Police Inspector after carrying out the raid and material part of investigation. In the backdrop of the aforesaid factual as well as legal position and on overall analysis of the evidence on record, it appears that the evidence of the decoy who has been requisitioned as decoy by the trapping team as well as evidence of the Panch No. 1 who used to accompany the decoy at the time of running trap is crucial for determination of the issue involved in the present case. In the present case, the decoy has not at all supported the case of the prosecution, on the contrary, he went on saying to the extent that the trapping officials have instructed him to hand over the money to any official, be it local police or RTO or traffic police and even if the vehicle of the decoy was stopped, then he tried to hand over the money and even in his examination-in-chief, the decoy has stated so that at the time of trap, he was called by the accused and he alone approached him and when he found the chance of placing the tainted currency notes below the seat cover, he placed it. The decoy has not stated that panch No. 1 was accompanied with him at the time when he was called and he alighted to go to the accused. Not only that, in his police statement, the decoy has been confronted by the learned Public Prosecutor before learned trial Court as to whether he has stated before the police or not. However, on going through the depositions of the Investigating Officers i.e. PW 3, PW 6 and PW 7 i.e. Police Inspector Mr. Solanki, Mr. Dalsukhbhai and Mr. Ninama who investigated the case have not proved the contents of their statements invoking the provisions of section 145 of the Code of Criminal Procedure 1973 and therefore so far as the previous statement of the decoy is concerned which is contemporaneous in nature and came to be recorded during the course of investigation could not be proved by the prosecution before learned trial Court. In this view of the matter, so far as the evidence of the decoy is concerned, the same does not lead the case of the prosecution any further and not at all linking the accused with the crime in question. 19. So far as the sole evidence of Panch No. 1 at the time of running trap is concerned, his evidence is available to some extent against the present accused. 19. So far as the sole evidence of Panch No. 1 at the time of running trap is concerned, his evidence is available to some extent against the present accused. In his examination-in-chief, panch No. 1 has clearly stated that he heard the conversation as regards to giving the money to the accused and hence, the decoy has handed over the money i.e. tainted currency notes to the accused, but so far as initiation of conversation is concerned, panch No. 1 has made certain improvements which have been brought on record during the course of examination of the Investigating Officer as narrated above. Indisputably, in the State of Gujarat, the official of the ACB used to requisition the official panch who is Government servant so that chance of turning hostile be nullified. In that situation, when the Government servant is requisitioned as official panch and his previous statement is recorded and he has stated so, which is not at all getting support from the decoy with whom the question of demanding illegal gratification has taken place. Not only that even as regards to demand and acceptance also, the decoy has not stated anything. However, so far as handing over the money is concerned, the decoy has stated that he placed the money below the seat cover in the car. In this view of the matter, when the primary evidence of the bribe demander and bribe giver is missing, then in this eventuality, as to whether the evidence of PW 2 who has acted as official panch No. 1 and his evidence is in the nature of corroborative the say of the decoy cannot be sole basis for recording conviction. Indisputably, on overall reading of the evidence on record as well as documentary evidence except evidence of PW 2 - Panch No. 1, no iota of evidence is available on record against the present appellant. It is also pertinent to note that the trap in question was also in the nature of running trap, as stated above and therefore, there was no question of demand and the complaint was also lodged after the alleged successful trap. Under the circumstances, it would be very hazardous to record and confirm the conviction of the appellant accused solely based upon the evidence of PW 2 - Panch No. 1. Under the circumstances, it would be very hazardous to record and confirm the conviction of the appellant accused solely based upon the evidence of PW 2 - Panch No. 1. Therefore, as stated above, in absence of specific and clinching evidence to prove all such acts by the accused, conviction recorded by learned trial Judge is not sustainable. 20. For the reasons recorded above, the appeal succeeds. The impugned judgment and order of conviction dated 24.8.2004 rendered by learned Special Judge, Sabarkantha at Himatnagar in Special Case No. 2 of 1999 is quashed and set aside. The appellant is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. Fine, if any, paid by the appellant be refunded to him. R & P be sent back to the trial Court, forthwith.