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Gujarat High Court · body

2019 DIGILAW 784 (GUJ)

State Of Gujarat v. M. G. Chauan

2019-08-23

A.P.THAKER

body2019
JUDGMENT : 1. Being aggrieved and dissatisfied with the judgment of acquittal rendered by learned Additional Sessions Judge, Fast Track Court No.9, Vadodara dated 28.2.2005 in Special Case No.4 of 1993, whereby the learned Trial Court has acquitted both the accused from the offence punishable under Sections 7, 12, 13(1)(d) and Section 13(2) of the Prevention of Corruption Act, 1988, the State has preferred this Appeal under Section 378(1)(3) of the Code of Criminal Procedure. 2. The brief facts of the prosecution case are that Shri L.M.Vaghela, Police Inspector, ACB Vadodara, had received secret information that on National Highway No.8 near RTO, the State Highway Police and Local Police were demanding and accepting illegal gratification under the guise of entry fee and in case if any person does not pay the amount then his vehicle is being detained. It is further case that upon such secret information, he called two panch-witnesses namely Santubhai Bakabhai Baria and Rashiklal Mangaldas Bhatt at 7 O’Clock on 25.9.1991 at his office. That, first part of panchnama was prepared and panchas were explained the facts as well as use of ultraviolet lamp and Anthrcene Powder. That they proceeded by Government Jeep from Office and went through Vishwamitri Lalbaug, Jambula three roads. 2.1 It is alleged that the complainant tried to contact drivers of the vehicles going on National Highway No.8 to co-operate him in the matter, but nobody was ready. That thereafter they went to Vasad petrol pump and requested the driver namely Dattatray Jagannath Korekar, resident of Bombay and who was driving Truck No.MTL-6745. It is also alleged that the raiding party gave introduction to the said driver and informed him about the complaint and, at that time, the driver expressed his willingness and readiness. That he was given notes of Rs.50/- each of Rs.10/- denomination. He was also explained the characteristics of anthracene powder and its result when it was examined in the ultraviolet lamp. Thereafter, Panch No.1 and the complainant travelled in the truck driven by Dattatray. When they reached National Highway No.8 near Gujarat State Fertilizers Company, where there was diversion, opponent accused No.1 intercepted the truck and accused No.2 assisted in the said interception. That accused No.1 demanded Rs.20/- under the guise of entry fee. Thereupon, the driver gave Rs.20/- out of Rs.50/- to the accused no.1. When they reached National Highway No.8 near Gujarat State Fertilizers Company, where there was diversion, opponent accused No.1 intercepted the truck and accused No.2 assisted in the said interception. That accused No.1 demanded Rs.20/- under the guise of entry fee. Thereupon, the driver gave Rs.20/- out of Rs.50/- to the accused no.1. After that, the accused were caught red-handed and accused no.2 was attempting to run away from the trap. It is also alleged that Rs.20/- was recovered from the hands of accused no.1 and signs of powder were found on his hands and on the currency notes. That, the accused have also having wallet with an amount of Rs.255/- for which they could not give any explanation. That thereafter necessary panchnama was prepared and accused were arrested. 2.2 After completion of investigation, the complainant himself has filed the charge-sheet before the trial Court where it was registered as Special Case No.4 of 1993. 2.3 The learned Trial Judge has framed the charge against the accused whereupon they have denied to have committed any offence and pleaded for trial. Accordingly, evidence of prosecution was examined. The prosecution has examined 4 witnesses and has produced 8 documentary evidence. After closure of the evidence of the prosecution, further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. Therein also, the accused have denied of having committed any offence and they have not examined the defence witness nor examined themselves on oath. However, accused no.1 has stated in his further statement that at the time of incident, he was standing near Pappu’s handcart and at that time 3 persons caught hold of him from behind. According to him, he found that there was one Mr. Vaghela who was serving with him in Surat and there was animosity between them due to service condition. According to him, due to that animosity, a false case has been inflicted upon him. 2.4 After considering the evidence on record and hearing both the sides, the learned Trial Court has ultimately acquitted both the accused from the charges levelled against them. 3. Heard Mr. K.P. Raval, learned APP for the State-Appellant and Mr. M.A.Kharadi, learned advocate for the accused at length. Perused the material placed on record and the impugned judgment. 4. Mr. 2.4 After considering the evidence on record and hearing both the sides, the learned Trial Court has ultimately acquitted both the accused from the charges levelled against them. 3. Heard Mr. K.P. Raval, learned APP for the State-Appellant and Mr. M.A.Kharadi, learned advocate for the accused at length. Perused the material placed on record and the impugned judgment. 4. Mr. K.P. Raval, learned APP has, while reading the entire oral evidence, vehemently submitted that the Panch-witness and the decoy witness as well as the complainant have supported the basic version of the prosecution case regarding demand, acceptance and recovery of bribed amount from accused no.1 and assistance of accused no.2 in the said act. He has also submitted that there are minor contradictions in the evidence of panch-witness, but, those contradictions are of minor nature and they could not be said to vitiate the entire trial. According to him, the complainant has fully supported the version of the prosecution and he being the Investigating officer also, has tendered material evidence connecting the accused with the crime. It is his submission that the learned trial Court has not properly appreciated the evidence on record and has committed serious error of facts and law in acquitting the accused from the charges levelled against them. He has also contended that the impugned judgment is not sustainable in the eyes of law and same deserves to be set aside by this Court. He has prayed to allow present appeal by quashing and setting aside the impugned order of acquittal and to convict the accused. 5. Per contra, Mr. Kharadi learned advocate for the accused has vehemently submitted that the learned trial Court has properly appreciated the evidence on record and has not committed any error of facts and law in acquitting the accused. He has also contended that, in this case, everything from very beginning till the filing of the charge-sheet has been done by the complainant himself and, therefore, this fact alone goes to the root of the prosecution case. He has also contended that there is no evidence against accused no.2 and whatever evidence is against accused no.1 is also not sufficient to connect accused no.1 with the alleged crime. He has also contended that there is no evidence against accused no.2 and whatever evidence is against accused no.1 is also not sufficient to connect accused no.1 with the alleged crime. It is his submission that the learned trial Court has taken into consideration all the aspects of the case and has properly acquitted the accused and the impugned judgment is sustainable in the eyes of law. According to him, the impugned judgment does not warrant interference at the hands of this Court. He has prayed to confirm the impugned judgment by dismissing the present Appeal. 6. It is well settled by catena of decisions that the Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 7. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with. 8. It is well settled by the Apex Court in the case of A. Subair Vs. State of Kerala, reported in (2009) 6 SCC 587 , while dwelling on the purport of the statutory prescription of Sections 7 and Section 13(1)(d) of the Act ruled that the prosecution has to prove the charge under beyond reasonable doubt like any other criminal offence and that the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredient necessary to be established to record a conviction. 9. In the case of State of Kerala and another Vs. C. P. Rao, reported in (2011) 6 SCC 450 the 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. 10. In the recent enunciation by the Apex Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in the case of B. Jayaraj v. State of A.P, reported in AIR 2014 SC (Suppl.) 1837 in unequivocal terms that mere possession and recovery of the currency notes from an accused without proof of demand would not establish the offence under Section 7 as well as Section 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. 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 in respect of the offence under Section 7 and not the offence 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. 11. Panchwitness Santubhai Bakabhai Baria, PW-1, Exh-10, has deposed that he and Mr. R.M.Bhatt were called as Panch witness in the office of ACB and they were informed that Mr.Vaghela had information that, on the National Highway, RTO personnel are demanding bribe. He has stated that they were explained the characteristics of anthracene powder and that of ultraviolet lamp and the currency note of Rs.50/- each of Rs.10/- denomination were smeared with the anthracene powder. He has stated that thereafter all of them went to Vasad and, at that place, one truck driver informed Mr.Vaghela that near Vaghodiya Chowkdi, on National Highway, there is one Highway Police Jeep and they are collecting money under the guise of entry fee. He has stated that, therefore, the other truck coming from Ahmedabad side and going towards Bombay was stopped and they all seated in the said truck and currency notes were put in the pocket of driver of the truck, viz. Dattatray. According to his version, two notes were put in the shirt’s pocket whereas three notes were put in the pant’s pocket of driver-Dattatray. He has also stated that driver was instructed to give the tainted currency notes if any demand is made. Dattatray. According to his version, two notes were put in the shirt’s pocket whereas three notes were put in the pant’s pocket of driver-Dattatray. He has also stated that driver was instructed to give the tainted currency notes if any demand is made. 11.1 He has further stated that when they reached near Vaghodiya Chowkdi the truck was intercepted by one constable and he instructed the truck driver to meet his superior, who is standing on the opposite side. It is his version that, thereafter, driver went towards the Police Officer and at that time, he was instructed by Mr.Vaghela to follow the driver and to hear and see whatever may happen there. According to him, the Police Officer asked the driver as to what is there in the truck and at that time the truck driver told that Sarees are there in the truck and the driver handed over Rs.20/- to accused no.1-Mr.Chauhan. According to the witness, this Rs.20/- note was given from the shirt pocket of the driver and no receipt was given by the accused to the driver for this Rs.20/-. He has stated that, thereafter, some signals were given by the driver and thereupon all came there and at that time when Mr.Chauhan was trying to put the amount in his pocket, he was caught by the raiding party. It is his version that thereafter hands of accused no.1 were seen in the ultraviolet lamp, whereof signs of powder were found on his right hand. It is stated that when Mr.Chauhan was caught, the constable who has intercepted the truck, was also present and he was also caught. Thus, initially this witness supported the prosecution witness and has not supported the material witness. As such, with the permission of the Court, his memory was refreshed by invoking Section 159 of the Evidence Act. 11.2 Thereafter, after perusing his previous statement and the panchnama, he has admitted the contents of the panchnama and his version in the police statement. He has admitted that the sign of anthracene powder was found on the finger tips and on the palm of Mr.Chauhan and the same was found on the thumb and on finger-tips of two fingers of Mr.Dattatray. He has also admitted that remaining currency notes of Rs.30/- were found from the shirt pocket of the driver. He has admitted that the sign of anthracene powder was found on the finger tips and on the palm of Mr.Chauhan and the same was found on the thumb and on finger-tips of two fingers of Mr.Dattatray. He has also admitted that remaining currency notes of Rs.30/- were found from the shirt pocket of the driver. 11.3 In his cross-examination, conducted on behalf of the defence, he has stated that it is true that no writing was prepared when they left ACB Office and their signatures were not taken thereon in the Office. He has also admitted that initially no truck driver had consented to give co-operation for the raid. He has also submitted that the driver-Dattatray was not understanding Gujarati language. He has also admitted that when the truck driver alighted the driver at the place of incident, he had certain papers like National Permit, Bill, Bill-T, etc. He has admitted that he was instructed by Mr.Vaghela to alight from the truck and therefore he alighted from the cleaner side of the truck. He has also stated that constable Lalubhai and Mr. Vaghela had also alighted from the cleaner side and they have speedily crossed the road. He has admitted that Mr.Vaghela had caught hold Mr. Chauhan from back side by holding his collar and this lasted for almost 2 to 5 minutes. According to him, the conversation between the accused and Dattatray lasted for 15 to 20 minutes and it was in Hindi language. He has admitted that he has not narrated anything in the panchnama and everything was dictated by Mr.Patil to his writer constable. He has admitted that the entire experiment of ultraviolet lamp was carried out in the mid-noon. He has admitted that they were explained that for carrying out the experiment of ultraviolet lamp, there is need of darkness. He has admitted that he has not narrated certain facts in the panchnama nor in his police statement which includes the facts of putting up of currency note of Rs.20/- in the shirt pocket and remaining currency note of Rs.30/- in the pant pocket, etc. 12. On perusal of the evidence of decoy witness Mr.Dattatray Jagannath, PW-3, Exh-16, it appears that currency notes were put in his left side shirt pocket and he was informed by PI to give the same as and when demanded by someone. 12. On perusal of the evidence of decoy witness Mr.Dattatray Jagannath, PW-3, Exh-16, it appears that currency notes were put in his left side shirt pocket and he was informed by PI to give the same as and when demanded by someone. According to him, when they reached near the place of incident the Police demanded Rs.20/- and therefore he has paid the same. He has stated that, thereafter, other police personnel came there and they were talking in Gujarati language which he could not understand. He could not identify the accused in the Court. Thus, this witness has not supported the basic version of the prosecution. Therefore, he has been declared hostile by the prosecution and he has been thoroughly cross-examined, but in such cross-examination also he has not supported the basic version of the prosecution. 12.1 During his cross-examination on behalf of defence, he has admitted that he does not know Gujarati language and PI Mr.Patil had conversation with him in Marathi. He has stated that he did not know regarding the powder as well as the lamp and no procedure thereof was carried out in his presence. He has stated that he could not identify the policeman who had accepted Rs.20/- from him. 13. On perusal of the evidence of complainant-cum-IO, Mr.Laxmanbhai Muljibhai Vaghela, PW-4, Exh-33, it is found that he has supported the version of the prosecution and the facts of having secret information regarding collection of bribe amount in the guise of entry fee by the RTO Police and other Police. He has also supported the version of the prosecution regarding carrying out the expirement of anthracene powder and ultraviolet lamp and putting the smeared currency notes in the pocket of the driver-Dattatray and of recovery of the amount from accused no.1 and preparing of second part of the panchnama as well as the facts of carrying out the investigation himself and filing of charge-sheet thereof. He has also supported the fact that he has obtained necessary sanction from the competent authority. 13.1 During his cross-examination, on behalf of defence, he has admitted that in this case from very beginning till filing of the charge-sheet, all procedures have been carried out by himself. He has admitted that if the tainted currency notes are kept in fist, then the marks of the powder could be found on the palm of the accused. 13.1 During his cross-examination, on behalf of defence, he has admitted that in this case from very beginning till filing of the charge-sheet, all procedures have been carried out by himself. He has admitted that if the tainted currency notes are kept in fist, then the marks of the powder could be found on the palm of the accused. He has also admitted that the incident has happened on a public road and there was public movement. He has admitted that there was no case of demand by constable Mehboobmiya Chhotumiya and acceptance of money by him. He has denied that without obtaining sanction for prosecution, he has laid the charge-sheet against the accused. He has admitted that he has sent the draft sanction letter to the sanctioning authority. 14. Mr.Prataprai Laljibhai Jani, PW-2 at Exh-14, who has given sanction for the prosecution of both the accused, has supported the version of the prosecution. He has given sanction. According to him, after leading all the materials which were provided by the ACB and after applying his mind, he has given sanction to prosecute police constable Mehboobmiya Chhotemiya. 14.1 During his cross-examination on behalf of the defence, he has shown his inability to state anything as to whether any amount was recovered from accused No.2. However, he has denied the suggestion of the defence that without application of mind, he has given sanction to prosecute accused no.2 and he has not read all the papers and has signed the draft sanction which was sent by ACB to him. 15. Considering the entire evidence on record, it clearly appears that there is no iota of evidence against the accused no.2. It also appears from the documents that the only role of the accused no.2 is sending the truck driver to his higher officer. No other action has been initiated or taken by him regarding demand and acceptance of the amount from the truck driver. Even from the evidence of Panch and the decoy witness, no role has been attributed to him. No amount of bribe has been recovered from him. Thus, the entire evidence reflects that accused no.2 has not taken any part in the said alleged crime. Even bare reading of FIR and panchnama, do not suggest that accused no.2 has taken part in any manner in the alleged crime. No amount of bribe has been recovered from him. Thus, the entire evidence reflects that accused no.2 has not taken any part in the said alleged crime. Even bare reading of FIR and panchnama, do not suggest that accused no.2 has taken part in any manner in the alleged crime. Though it is stated by the sanctioning authority that he has read all the materials before granting sanction for prosecution of accused no.2, it appears that the sanctioning authority has not applied his mind and has mechanically signed the draft of sanction. Therefore, so far as accused no.2 is concerned, there is no case made out by the prosecution and his acquittal is justified. 16. So far as accused no.1 is concerned, the evidence on record is also not sufficient. The decoy witness, who is a material witness of the prosecution, has not supported the version of the prosecution regarding demand and acceptance of bribe amount by accused no.1. Not only that, but it also appears from the record that there is material contradiction in the version of panch-witness as well as complainant-cum-IO in keeping the currency notes of Rs.50/- smeared with anthracene powder in the pockets of the decoy witness. According to the panch-witness, only Rs.20/- was kept in the shirt pocket and Rs.30/- was kept in the pant pocket of the decoy witness, whereas, according to the complainant-cum-IO the entire amount of Rs.50/- was kept in the left side of the shirt pocket of the decoy witness. If the version of the complainant regarding keeping Rs.50/- in the shirt pocket is believed and out of it, Rs.20/- is handed over by the decoy witness to accused no.1 will become doubtful, as out of Rs.50/- one cannot get Rs.20/- through with his thumb and first two fingers only. If one has to get Rs.20/- out of Rs.50/-, one has to use his other hand also or he has to use more than two fingers for taking out the amount from his pocket. 17. Further, it also appears from the evidence that entire panchnama has not been dictated by the panchas but it has been dictated by the concerned Police Officer to his writer head constable. Even this aspect also affects the case of the prosecution. 17. Further, it also appears from the evidence that entire panchnama has not been dictated by the panchas but it has been dictated by the concerned Police Officer to his writer head constable. Even this aspect also affects the case of the prosecution. In this regard, in the case of Kanubhai Kantibhai Patel v. State of Gujarat, reported in 1998 (1) GLH 924 , this Court held as under in paragraph 6:- “6. .............. No doubt panchnama was prepared which is produced at Exh.38, and the facts stated therein would lead any one to hold that offence as alleged is constituted, but that panchnama cannot be looked into. About the panchnama a question was raised before this court in Criminal Appeal No. 876 of 1981. In that case, the panchnama was not dictated by the panchas but it was dictated by the police officer investigating into the matter. No reliance was therefore placed thereon because in that case it was held that it was not the record prepared on the basis of what was told by the panchas and what the panchas heard and saw. In this case also, it is made clear by Deveshbhai Ramanlal, that P.I.,Mr. Gadhvi dictated the panchnama to his writer constable and the panchas were asked to sign mechanically. The panchas have not stated what they saw and heard. When that is so as per the decision of this court in Criminal Appeal No. 876 of 1981 the panchnama cannot be accepted as a supporting piece of evidence. ..............” 18. In the present case, Mr.Vaghela, PI, ACB, has carried out the entire investigation for his own complaint and he himself has filed the charge-sheet. These facts go to the root of the case of the prosecution. This is also one of the reasons for acquittal of accused. In the case of Kanubhai Kantibhai Patel (supra), this Court held as under in paragraph 5:- “5. ............ The Supreme Court in the case of Bhagwansingh v. The State of Rajasthan - A.I.R. 1976 S.C. 985 has held that if every thing is done by the police officer it would be an infirmity in the case which is bound to reflect on the credibility of the prosecution case. ............ The Supreme Court in the case of Bhagwansingh v. The State of Rajasthan - A.I.R. 1976 S.C. 985 has held that if every thing is done by the police officer it would be an infirmity in the case which is bound to reflect on the credibility of the prosecution case. In that case the complaint was recorded by the Investigating Officer, raid was also carried out by the Investigating Officer, search and seizure were also made by the same Investigating Officer and thereafter the investigation was also carried out by the same Investigating Officer till the chargesheet was filed. Here in the case on hand, Mr. Gadhvi the Police Inspector has done every thing in the matter right from recording of the complaint till the chargesheet was filed. When that is the case the credibility of the case of the prosecution is certainly suspicious and on that count the prosecution must fail. ...........” 18.1 Above observations of this Court also supports the finding of the trial Court. 19. On consideration of the material placed on record, it is clearly found that the prosecution has miserably failed to prove the necessary ingredients of the offence of corruption namely demand, acceptance and recovery. 20. On perusal of the impugned judgment of the trial Court, it clearly appears that the trial Court has properly appreciated the evidence on record in its true perspective and has come to a right conclusion. There is no perversity in the impugned judgment and the same is sustainable in the eyes of law. The same does not warrant interference at the hand of this Court. 21. In view of the above, the present Appeal deserves to be dismissed. Accordingly, it is dismissed. The impugned judgment dated 28.2.2005 passed by learned Additional Sessions Judge, Fast Track Court No.9, Vadodara in Special Case No. 4 of 1993 is hereby confirmed. Bail bond of the accused stands cancelled. R&P to be sent to the concerned Trial Court forthwith.