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2017 DIGILAW 641 (GUJ)

Hemtuji Ramaji Rana v. State of Gujarat

2017-03-22

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 1. The present appeal is preferred by the appellant-original accused against the judgment and order dated 21.6.2004 passed by learned Special Judge and Additional Sessions Judge, 9th Fast Track Court, Gandhinagar in Special Case No. 7 of 2001. 2. The short facts giving rise to the present case are that the complainant who is Police Inspector, ACB had arranged a decoy trap on getting the secret information that traffic police officers/RTO officers/forest officers/employees are demanding illegal gratification for not doing lawful proceedings and they are accepting the amount of bribe from the vehicle drivers passing through Gandhinagar district for going to Ahmedabad city. It is alleged that when the truck of the decoy was passing towards Ahmedabad from Chiloda circle, the appellant blown the whistle with a view to stop the vehicle and thereafter the appellant told driver of the said vehicle to give entry and hence the said driver delivered tainted currency notes who accepted the same. Hence, the complaint came to be lodged against the appellant accused. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the accused persons. 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 statements of the accused under section 313 of the Criminal Procedure Code, 1973 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 appellants have preferred the aforesaid Criminal Appeals before this Court. 5. By way of preferring the present appeal, the appellant - original accused 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. 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. Whereas the State has also preferred the appeal contending that the learned trial Judge has not properly appreciated the evidence on record though the prosecution has successfully established the guilt against the accused. 6. Mr. K.B. Anandjiwala, learned senior advocate assisted by Mr. Vishal Anandjiwala, learned advocate for the appellant-original accused has taken this Court through the entire judgment and record and argued that the complainant was not accompanied with the decoy, but he was following the accused in his jeep and therefore, the complainant has not viewed the incident and has not heard any conversation. He submitted that, however, in the complaint at Exh.19, the complainant has narrated and made assertion in the complaint as if he has heard the conversation and viewed the incident and in the same fashion, he has given the evidence. He submitted that the complainant himself has received the secret information, carried out the trap, became the complainant and also carried out the investigation and therefore his evidence is not trustworthy as he himself has assumed all the roles. He submitted that punter has not supported the case of the prosecution and that he has thrust upon the tainted currency notes in the pocket of the accused as per the direction of the ACB official though there was no demand from the accused. He submitted that on the contrary, as per the evidence of punter, the accused demanded permit from the punter for carrying on wood in his truck, but instead of showing permit, the punter thrust upon tainted currency notes in the pocket of the accused. He submitted that the punter was not able to identify the accused during the course of his deposition before learned trial Court and therefore his evidence does not lead the case of the prosecution any further to connect the accused with the crime in question. He submitted that evidence of PW-2 - panch No. 1 is also not sufficient to establish demand and acceptance as nothing worth is forthcoming from the mouth of this witness as to whether any demand of illegal gratification was made by the accused. He submitted that evidence of PW-2 - panch No. 1 is also not sufficient to establish demand and acceptance as nothing worth is forthcoming from the mouth of this witness as to whether any demand of illegal gratification was made by the accused. He submitted that the trap was carried out on the highway during nocturnal hours, whereas search and seizure were taken place at the distant place and therefore entire procedure of search and seizure is visited. Lastly, Mr. Anandjiwala 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 so far as it relates to conviction of the appellant-original accused. He submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused. He further submitted that finding recorded by learned trial Court is based upon the concrete and clinching evidence and, therefore, punishment inflicted upon the accused does not call for any interference. He submitted that learned trial Court has recorded ample reasons based on the evidence on record for convicting the accused and ingredients as regards to demand, acceptance and recovery are proved in accordance with law. 8. This Court has heard Mr. K.B. Anandjiwala, learned senior advocate assisted by Mr. Vishal Anandjiwala, learned advocate for the appellant-accused and Mr. K.P. Raval, learned APP for the 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. 10. PW-1 - Popatji Parmarji Makwana has been examined at Exh.12. The witness has deposed that he was plying truck No. GJ 7 X 8215 and that he was requisitioned as decoy in the early morning on 29.11.2000. The witness has deposed that the ACB official gave him tainted currency notes in the denomination of Rs. 100/- (total 4 currency notes), Rs. 50/- (total 4 currency notes) and Rs. 10/- (total 3 currency notes), totalling to 630/- and he was directed to hand over the said tainted currency notes to a person who demands it. The witness has deposed that the ACB official gave him tainted currency notes in the denomination of Rs. 100/- (total 4 currency notes), Rs. 50/- (total 4 currency notes) and Rs. 10/- (total 3 currency notes), totalling to 630/- and he was directed to hand over the said tainted currency notes to a person who demands it. The witness has deposed that while he was plying his truck from Chiloda to Ahmedabad and passing within vicinity of Chiloda cross roads, at that time, his truck was intercepted by the police official who was in police uniform and the said police official asked for licence and permit for carrying on goods in the truck. The witness has deposed that he has shown his licence, but he was not having permit and therefore, he voluntarily thrust the money in the pocket of the said police official and thereafter gave signal. As the witness did not support the case of the prosecution, he was declared hostile. In the cross examination of learned APP, the witness did not support the case. However, the witness has admitted in his cross examination that the police officials who were traveling along with him have directed him to handover the tainted currency notes to anybody who demands the same, but the appellant accused demanded pass/permit as well as licence, but he thrust the money in the pocket of the appellant accused. The witness has clearly and categorically admitted that the accused never demanded any amount of illegal gratification. The witness has admitted that he thrust the money in the pocket of the accused and thereafter he raised prearranged signal and hence, other members of the raiding party arrived there and caught the accused red handed. Even, the witness refused to identify the accused before learned trial Court. 11. PW-2 - Ishwarbhai Becharbhai Rathod has been examined at Exh.13. The witness has deposed that he was requisitioned as official panch as he was working in the District Industrial Center, Gandhinagar. The witness has deposed that he was made to understand regarding procedure of trap, test of ultra violate lamp on tainted currency notes. 11. PW-2 - Ishwarbhai Becharbhai Rathod has been examined at Exh.13. The witness has deposed that he was requisitioned as official panch as he was working in the District Industrial Center, Gandhinagar. The witness has deposed that he was made to understand regarding procedure of trap, test of ultra violate lamp on tainted currency notes. The witness has deposed that while he was accompanying with the punter, he heard whistle and hence, the punter stopped his vehicle and thereafter the accused who was in police uniform asked the punter for entry and therefore punter took out tainted currency notes from his pocket and handed over to the accused which the accused put the same in his pocket, however, the witness refused to identify the accused before learned trial Court. The witness has deposed that thereafter other members of raiding party arrived at the place and search and seizure were carried out at the different place as the incident had happened during nocturnal hours. In the cross examination, the witness has admitted that along with punter, he and Police Inspector Mr. Desle as well as Police Inspector Mr. Katara were accompanied. The witness has admitted that the accused has not uttered any word asking for illegal gratification except asking for entry. 12. PW-3 - Narpatsinh Dolatsinh Jetavat - complainant has been examined at Exh.18. The witness has deposed that he was serving as Police Inspector, ACB, Ahmedabad (Rural), unit at Gandhinagar and that he received secret information as noted above. The witness has deposed that he has arranged for trap, carried out the trap and after successful trap, he himself has lodged the complaint before himself. The witness has deposed that the driver of truck No. GJ 7 X 8215 was requisitioned as decoy and at the time of trap, Police Inspector Mr. Desle, Police Inspector Mr. Katara, Panch No. 1 and decoy were requested to sit in the said truck and he was following behind them in his separate jeep car. In examination-in- chief, the witness has deposed that while the said truck was proceeding towards Chiloda cross roads, at that time, the accused intercepted and stopped the truck and demanded entry and hence, punter gave Rs. In examination-in- chief, the witness has deposed that while the said truck was proceeding towards Chiloda cross roads, at that time, the accused intercepted and stopped the truck and demanded entry and hence, punter gave Rs. 50/- which was accepted by the accused by his right hand and thereafter the same was placed into the pocket by left hand indicating that he himself has viewed the incident and heard the conversation between the accused and punter. It is pertinent to note that the witness was not accompanied with the punter in the truck though in the complaint at Exh.19, he has narrated the entire story as if he himself has viewed the incident and heard the conversation between the accused and punter. 13. PW-4 - Shravankumar Tanaji Desle has been examined at Exh.21. The witness has deposed that he was member of the raiding party and that he accompanied with the punter in the truck. The witness has deposed that while the truck was intercepted by the accused nearby Chiloda cross roads, at that time, the accused demanded entry and hence, the punter handed over tainted currency note of Rs. 50/- which was taken by the accused in his right hand and placed into the pocket. In the cross examination, the witness has admitted that the members of the raiding party did not record the complaint of the punter. 14. In view of the aforesaid nature of evidence, the important question arises for determination of this Court, as to whether the prosecution has established the three ingredients i.e. demand, acceptance and recovery of illegal gratification or not ? 15. At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in A. Subair vs. 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. 16. 16. In State of Kerala and Another vs. C.P. Rao, (2011) 6 SCC 450 : AIR 2012 SC (Supp) 393, the Honourable Apex Court reiterating its earlier dictum, vis-a-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. 17. 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. 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. 18. 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. 19. 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. 19. In the backdrop of the aforesaid factual position, this Court has minutely gone through the impugned judgment and order as well as the depositions of the witnesses in light of the rival submissions made by learned advocates for both the sides. In corruption cases, as laid down in the series of judgments by the Honourable Apex Court as well as by this Court, three vital ingredients are required to be established by the prosecution beyond reasonable doubt in order to prove the offence as alleged. Recently, the Honourable Apex Court has made it clear that the proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. Precisely, failure of the prosecution to prove demand for illegal gratification would be fatal and mere recovery of amount from the person of the accused of the offence under sections 7 or 13 of the Act would not entail his conviction thereunder. In view of the aforesaid principle laid down by the Honourable Apex Court, so far as present case is concerned, the punter who was requisitioned by the complainant - PW-3 had not supported the case of the prosecution. On overall examination of the evidence of the aforesaid four witnesses, it can be noticed that none of the witness has deposed that the accused specifically demanded the amount of illegal gratification though it is alleged to have demanded entry which was believed by the complainant as the amount of illegal gratification. On overall examination of the evidence of the aforesaid four witnesses, it can be noticed that none of the witness has deposed that the accused specifically demanded the amount of illegal gratification though it is alleged to have demanded entry which was believed by the complainant as the amount of illegal gratification. As stated above, the complainant - PW-3 in his deposition has stated that he himself has received secret information, arranged for the trap and though he has not viewed the incident and heard the conversation between the accused and punter, he has narrated the entire episode in the complaint as if he has viewed the incident and heard the conversation between the accused and the punter and in the similar fashion, he gave the evidence before learned trial Court. In this view of the matter, no reliance can be placed on the evidence of the complainant - PW-3 and as a consequence, the evidence of punter leads no further the case of the prosecution. In absence thereof, the evidence of Panch No. 1 also suffers from the vice of contradictions in light of the evidence of PW-1, PW-3 and PW-4. Even otherwise also, the shadow witness has clearly and categorically admitted that he was not in a position to identify the accused but as he attended the Court for three four times and therefore subsequently, he identified the accused before learned trial Court. The complainant has clearly admitted in his cross examination that the accused has never demanded any amount of illegal gratification. Under the circumstances, there appears no uniformity in the evidence of the aforesaid four witnesses. 20. One another disturbing feature comes out from the Record and Proceedings of the case is regarding the fact that the complainant - Police Inspector - PW-3 has assumed all roles right from the stage of recording the complaint, arranging trap as well as members of raiding party, carrying out investigation till filing of the charge-sheet. This course of action goes against the basic tenets of criminal jurisprudence and fair investigation. The credibility of the case of the prosecution becomes suspicious on this count only. In the facts of the present case, the status of the investigating officer could not be placed on any pedestal higher than of a complainant and the complainant himself cannot be the sole agency of investigation. The credibility of the case of the prosecution becomes suspicious on this count only. In the facts of the present case, the status of the investigating officer could not be placed on any pedestal higher than of a complainant and the complainant himself cannot be the sole agency of investigation. There should be no occasion to suspect fair and impartial investigation. The said view is fortified by the decision of the Honourable Apex Court in the case of Bhagwan Singh vs. State of Rajasthan, AIR 1976 SC 985 , followed by this Court in the case of Kanubhai Kantibhai Patel vs. State of Gujarat, 1998 (1) GLH 924 as well as in the case of Gopal Lal Ghisulal Chhipa (supra). Therefore, in this case, the prosecution case suffers from the aforesaid basic infirmity which itself is sufficient to vitiate the whole investigation and accordingly the whole proceedings based on such investigation deserves to be quashed and set aside on this count only. Therefore, the prosecution has miserably failed to establish the demand and acceptance. So far as recovery is concerned, the same is made at the distant place from the place of trap as the incident took place during nocturnal hours and therefore, entire procedure gets vitiated. 21. In the result, the appeal succeeds and the same is allowed. The impugned judgment and order dated 21.6.2004 passed by learned Special Judge and Additional Sessions Judge, 9th Fast Track Court, Gandhinagar in Special Case No. 7 of 2001 is quashed and set aside. The appellant-accused is acquitted of the charges levelled against him. Fine, if any, paid by him be refunded to him. Record & Proceedings, if any, be sent back to the trial Court concerned forthwith. Appeal Allowed.