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Gujarat High Court · body

2020 DIGILAW 469 (GUJ)

State of Gujarat v. Girishbhai Himmatlal Mehta

2020-03-20

B.N.KARIA

body2020
JUDGMENT : B.N. KARIA, J. 1. The State-appellant herein has challenged the judgment and order dated 30.09.2006 passed by learned Additional Sessions Judge/Special Judge, 5th Fast Track Court, Surat in Special (ACB) Case No. 17 of 1997 wherein the accused persons have been acquitted for the charges levelled against them. 2. Short facts of the present case are stated as below. 2.1 It is the case of prosecution that on 21.06.1996 at about 1.05 hours, while respondents were discharging their duties as a Class-IV employees on Puna Jakatnaka of Surat Mahanagarpalika, the prosecution witness Kamruddin Shamsher Sai, who was a truck driver appeared before him and shown builty of the goods loaded in truck to accused No. 3 Surendra in the presence of panch witness Natwarsingh Khumansinh Yadav. Accused No. 3-Surendra seen the builty and returned to driver after making necessary entry in the register. In the mean time accused No. 1 Girishbhai demanded Rs. 5/- towards illegal gratification from the driver Kamruddin against which he handed over one currency note of Rs. 10/- to accused No. 2 Rameshbai. They said Rameshbhai returned balance amount of Rs. 5/- to the prosecution witness Kamruddin. It is further the case of prosecution that accused No. 2 after receipt of currency note of Rs. 10/- gave the same currency note to accused No. 3 Surendra, which was accepted by him. Thus, the respondents accused No. 1, 2 and 3 with the help of each other have demanded and accepted illegal gratification from driver Kamruddin for which they were not entitled as they were public servant and therefore, complaint was filed against respondents for the alleged offence, under Sec. 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruptible Act. 2.2 After completing evidence of the prosecution, statements under Section 313 of the Cr.P.C. of the accused were recorded by the court. The accused denied the charges levelled against them. 2.3 Learned Additional Sessions Judge/Special Judge, 5th Fast Track Court, Surat after hearing learned advocates for the respective parties and considering the evidence on record, was pleased to pass an order dated 30.09.2006 acquitting the accused, as stated above. 3. Heard learned APP for the appellant-State and learned advocate for the respondent- accused. 4. Learned APP for the appellant-State of Gujarat has submitted that judgment and order of acquittal is contrary to law, evidence on record and principles of justice. 3. Heard learned APP for the appellant-State and learned advocate for the respondent- accused. 4. Learned APP for the appellant-State of Gujarat has submitted that judgment and order of acquittal is contrary to law, evidence on record and principles of justice. That, the judgment and order of acquittal is based on inference not warranted by facts of the case and also on presumption not permitted by law. That, the learned Judge has not properly appreciated oral as well as documentary evidence on record of the case. That, the reasons given by the learned Judge while appreciating the evidence on record as well as while acquitting the accused are improper, perverse and bad in law. That the learned Judge has not appreciated the fact that so far as the demand, acceptance and recovery of muddamal note is concerned, it is proved by the prosecution by way of evidence of prosecution witnesses then in that case, learned Judge ought to have convicted respondents for the charges levelled against them. That the learned Judge has not appreciated the fact that muddamal tainted note was recovered from conscious possession of accused and accused persons have failed to give plausible explanation with regard to conscious possession of muddamal note. Then in that case, learned Judge ought to have presumed against respondents as per Section 20 of Prevention of Corruption Act. That learned Judge has failed to appreciate that repeated summons were issued to decoy witness driver in spite of the fact he has not appeared before the Court and therefore, report was made by P.I. ACB, Surat on 10th June 2005 which is on record of the case. That learned Judge has not appreciated the evidence of Ajabsinh Mulasinh Rathod (Exh.30) who has arrested the accused persons and investigated the case. There was sufficient evidence against the respondents and therefore, charge-sheet was filed before the Trial Court after obtaining sanction vide Exh.43. That, learned Sessions Judge has not properly appreciated the evidence of Natvarsinh Khumansinh Yadav vide Exh.15 wherein he has fully supported prosecution case in respect of demand, acceptance and recovery of muddamal note. That, witness has stated in his evidence that respondent accused has demanded Rs. 5/- towards illegal gratification against which driver has given Rs. 10/- and balance of Rs. 5/- was returned to him. That, witness has stated in his evidence that respondent accused has demanded Rs. 5/- towards illegal gratification against which driver has given Rs. 10/- and balance of Rs. 5/- was returned to him. That this prosecution witness has no enmity with the respondents so as to give false evidence against them. If the evidence of this witness is considered, then there is no material contradictions in the evidence of this witness. In-spite of the fact, learned Judge has committed error in acquitting the respondents. Ultimately, it was requested by learned APP for the appellant to allow the appeal and convicted the accused persons for the charges levelled against them. 5. Learned advocate for the respondent has submitted that since the complainant being Investigating Officer has addressed a complaint before himself, meaning thereby the informant has addressed an information of commission of offence before himself and Investigation to the offence is also carried by informant himself. Thus, when investigating Officer addressed a complaint before himself, the entire investigation is vitiated since inception. The investigation to the offences and to the offender is prejudiced prior to its registration. Therefore, fundamental right under Article 21 of accused is willfully hindered. Thus, the outcome of investigation and foundation of prosecution is not in consequence with the principles of justice, fair play and fair investigation. The Co-ordinate bench of this Hon'ble Court on 08.05.2018, while deciding the Conviction Criminal Appeal 2601 of 2005, Ishwarbhai Rammabhai Parmar vs. State of Gujarat under the Provisions of Prevention of Corruption Act, passed an order setting aside the conviction and sentence while considering very aspect that complainant addressed a complaint before himself. That prosecution has miserably failed in establishing the case of prosecution beyond reasonable doubt with regard to twin requirement of Demand and Acceptance under PC Act. That from the charge framed at Exh.7 indicates that prosecution has failed in bringing any oral or documentary evidences under Section 226 of the Code, during the course of trial to establish or to prove that the alleged bribe of Rs. 5/- was demanded by accused No. 1 on behalf of accused No. 2 and accused No. 3. At the same time the prosecution has failed to establish the onus that accused No. 3 has accepted the bribe amount of Rs. 5/- on behalf of accused No. 1 and accused No. 2. 5/- was demanded by accused No. 1 on behalf of accused No. 2 and accused No. 3. At the same time the prosecution has failed to establish the onus that accused No. 3 has accepted the bribe amount of Rs. 5/- on behalf of accused No. 1 and accused No. 2. Therefore, without invoking the provisions of section 34 or 114 or 120 (B) of IPC 1860 the vicarious liability of the onus to rebut the presumption under Section 20 of the PC Act cannot be shifted upon each accused independently. Further the charge is entirely silent about the aspect of Recovery. Thus prosecution has failed in producing the documents under 226 of the Code or leading the oral evidence which may attract the probability that bribe amount of Rs. 5/- was demanded and accepted in connivance of each accused to achieve common object of illegal gratification. That there are total 14 witnesses cited as witness in Charge-Sheet Exh.1. That out of 14 witnesses the Prosecution thought fit to examine only 3 witnesses to prove its case. That prosecution is failed in establishing and leading the evidence to prove that all the accused accepted or obtained or agreed to accept or to attempt to obtain from Decoy witness Kamruddin for themselves or for any other person any gratification of Rs. 5/- other than legal remuneration as a motive or reward for doing or forbearing to do any official act in the exercise of their official function, favour or disfavour to Decoy witness Kamruddin for rendering or attempting to render any service or disservice. It is undisputed fact that truck loaded with vegetables in present case green chilies is exempted from paying any tax. Learned advocate for the respondent has placed his reliance in case of Mohan Lal vs. State of Punjab, 2018 (17) SCC 627 and requested to dismiss present appeal. He has therefore submitted written submission also. 6. Having considered the facts of the case, submissions made by learned APP for the appellant-State and learned advocate for the respondents as well as relevant papers/written submission produced on record, it appears from the record that the information of illegal demand at Pune Jakatnaka, by employees was received by Mr. Kulkarni, Police Inspector of ACB. To verify the correctness of the information received by him, he made an arrangement of trapping. Mr. Kulkarni, Police Inspector of ACB. To verify the correctness of the information received by him, he made an arrangement of trapping. Mr. Kulkarni was a Trapping Officer in the trap arranged by him along with the Police Officials as they were the members of the raiding party. It further appears that after completing trap, he became the complainant of the offence, and thereafter, he also started investigation of the offence. The entire investigation was completed by him. During the course of trial, he was not examined as witness by the prosecution on the ground that he was expired later on. Of course, a complaint registered against the accused by Mr. Kulkarni was exhibited in a trial, but contents were not proved because the complainant, being a Trapping Officer, was not examined before the Sessions Court. The prosecution has completely relied upon the depositions of the panch-witnesses. In a normal course, in a case under the provisions of the Prevention of Corruption Act, panch-witness would be a Government Employee, and therefore, to some extent, under the influential of the officer of the ACB and under fear, he would be compelled to give his evidence in favour of the prosecution with a view to avoid any difficulty in his career. In absence of any supporting evidence, in the present case, it would be difficult to accept the evidence of the panch-witnesses only and convict the accused. The Hon’ble Supreme Court, in the case of Mohan Lal vs. State of Punjab, (2018) 17 SCC 627, has held as under: “In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the instigation would therefore be a foregone conclusion. The discussion in the present case may not be understood as confined to the requirements of a fair investigation under the NDPS Act only carrying a reverse burden of proof. Thus, in view of the conflicting opinions expressed by different two-Judge Benches of the Supreme Court, the importance of a fair investigation from the point of view of an accused as a guaranteed constitutional right under Article 21 of the Constitution of India, it is considered necessary that the law in this regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.” 7. Since the complainant himself is not examined by the prosecution, it would be difficult to accept the case of the prosecution to prove charge against the accused. The complainant, to some extent, can be said to be an interested witness of the prosecution. 8. Further, it appears that the prosecution has tried to establish his case of decoy trap. As per the settled principle of law, in a case of decoy trap, decoy witness would be an independent witness as he is a witness to corroborate the police official. 8. Further, it appears that the prosecution has tried to establish his case of decoy trap. As per the settled principle of law, in a case of decoy trap, decoy witness would be an independent witness as he is a witness to corroborate the police official. Such a decoy witness would be interested with the prosecution and would have no grievance against any party, and therefore, his evidence is very material for the prosecution. As per the prosecution case, Truck Driver-Kamruddin was the decoy witness from whom, demand of bribe was made by the accused persons and he had paid an amount of Rs. 10/- only. Conversation of demanding bribe by the accused persons as well a paying an amount of Rs. 10/- by the said witness was between them. However, it appears from the record that this material decoy witness, Truck Driver-Kamruddin was not examined by the prosecution. It appears from the record that the prosecution has tried to call him as a witness to exam before the Special Judge, but the prosecution did not succeed to secure the presence of this witness. If he was not available or not traced out by the prosecution for recording his evidence before the Special Judge, it would mean that the prosecution is failed to establish the case beyond reasonable doubt for the charges levelled against the accused in absence of any supporting or trustworthy evidence. In a case of bribe, three vital ingredients i.e. demand, acceptance and recovery are materially to be proved by the prosecution. Even if the recovery is believed to be proved, in absence of establish to accept the demand and acceptance, it would be meaningless. From the record of the prosecution, it appears that the prosecution has clearly failed to prove that the alleged bribe of Rs. 5/- was demanded by accused no. 1 on behalf of accused no. 2 as well as accused no. 3. There is nothing on record produced by the prosecution that accused no. 3, on behalf of accused nos. 1 and 2, accepted the bribe amount of Rs. 5/-. Without invoking the provisions of Section 34 or 114 or 120B of the Indian Penal Code, vicarious liability or onus to rebut the presumption under Section 20 of the P.C. Act cannot be shifted upon each accused independently. 3, on behalf of accused nos. 1 and 2, accepted the bribe amount of Rs. 5/-. Without invoking the provisions of Section 34 or 114 or 120B of the Indian Penal Code, vicarious liability or onus to rebut the presumption under Section 20 of the P.C. Act cannot be shifted upon each accused independently. If we consider the charge framed by the Court, it is silent about the aspect of recovery. No documentary evidence or any oral evidence was produced by the prosecution before the Sessions Court which would attract the probability of bribe amount of Rs. 5/- demanded and accepted in connivance of each accused to achieve common object of illegal gratification. In a case of Dashrath Singh Chauhan vs. Central Bureau of Investigation, 2018 SCC Online SC 1841 (Criminal Appeal No. 127 of 2010), the Hon’ble Supreme Court has held that “it is for the reason that in order to prove a case against the appellant, it was necessary for the prosecution to prove the twin requirement of “demand and the acceptance of the bribe amount by the appellant”. In this case, it was the case of the prosecution in the charge that the appellant did not accept the bribe money, but the money was accepted and recovered from the possession of the accused no. 1. It was further observed by the Hon’ble Supreme Court that “since in order to attract the rigors of Sections 7, 13(2) read with Section 13(1)(d) of PC Act, the prosecution was under a legal obligation to prove the twin requirement of “demand and acceptance of bribe money by the accused” the proving of one alone but not the other was not sufficient.” It appears from the charge-sheet that total 14 witnesses have been cited as witness by the prosecution. During the course of trial, the prosecution has examined only three witnesses to prove its case namely PW-1 Natwarsinh Khumansinh Yadav (panch witness), PW-2 M.M. Rathod (Investigating Officer from 01.10.1997) and PW-3 G.M. Solanki (officer from raiding party). Decoy witness no. 4 Kamruddin Sai from whom accused no. 1 is alleged to have demanded Rs. 5/- and from whom accused no. 3 is alleged to have accepted the bribe of Rs. 5/- is dropped by the prosecution from examining him on oath. As discussed above, the evidence of decoy witness Kamruddin was very material for the prosecution in respect of demand. 4 Kamruddin Sai from whom accused no. 1 is alleged to have demanded Rs. 5/- and from whom accused no. 3 is alleged to have accepted the bribe of Rs. 5/- is dropped by the prosecution from examining him on oath. As discussed above, the evidence of decoy witness Kamruddin was very material for the prosecution in respect of demand. Without his evidence being recorded and corroborated with the evidence of panch-witness no. 1, demand cannot be proved and the Special Judge has rightly acquitted the accused persons without any error. It appears that PW-3 Ganeshji Maletji Solanki (Officer of Raiding Party) was examined by the prosecution. The evidence of this witness would not be believed by the Court or relied upon because this witness also sailed in a same boat with the Investigating Officer Mr. Kulkarni, during the time when conversation took place between decoy witness Kamruddin and accused no. 1 since PW-3 was also standing surrounding of the toll booth at a distance with other officers of raiding party so none can recognize them. Therefore, when accused no. 1, allegedly, demanded Rs. 5/- from decoy witness Kamruddin, PW-3 was unable to hear the conversation since he was not present with decoy witness Kamruddin. 9. It appears from the record that in support of the evidence of PW-1, no corroborative independent evidence was available with the prosecution. Solely on the basis of evidence of PW-1, without any corroboration with the evidence of other panch-witnesses like (i) evidence of panch-witness, who applied the ultra lamp operator (ii) evidence of panch-witness, who carried out the procedure of affixing anthracene powder (iii) evidence of sanctioning authority, etc. and most critical in a trap case, the evidence of decoy witness. No serious efforts were made by the prosecution to call upon the other witnesses during the course of trial. It appears that on 31.3.2006, in trial, the prosecution has filed closing pursis of its evidence declaring that rest of the witnesses do not support the case of prosecution as well as they are not required to be examined. Though there were 14 witnesses cited in the charge-sheet, prosecution has selected only three witnesses for proving its case. These three witnesses have tried to support the case of the prosecution and even their evidence cannot be relied upon to convict the accused persons. 10. Though there were 14 witnesses cited in the charge-sheet, prosecution has selected only three witnesses for proving its case. These three witnesses have tried to support the case of the prosecution and even their evidence cannot be relied upon to convict the accused persons. 10. It also appears that on 21.06.1997, trap came to be arranged and carried out. After completing the raid, necessary panchnama was drawn on 21.06.1997. Thereafter, accused persons were arrested on 15.10.1997. The prosecution has made no explanation on record to establish the delay of 120 days in arresting the accused persons when they are alleged to have caught raid handed on the spot on 21.06.1997. The story of the prosecution of accepting bribe amount cannot be believed on the basis of the hands turning pink. In respect of the demand of bribe by the accused as well as of acceptance, there was no satisfactorily evidence led by the prosecution. Further, it appears that there is nothing on record to prove that all the accused persons accepted or obtained or agreed to accept or to attempt to obtain from decoy witness Kamruddin for himself or for any other person and any bribe of Rs. 5/- other than legal remuneration as a motive or reward for doing or forbearing to do any official act in exercise of their official function, favour or disfavor to decoy witness Kamruddin for rendering or attempting to render any service or disservice. Further, it appears that the truck was loaded with vegetables and in present case, green chilies was exempted from paying any tax. It also appears from the record that entry to the same was made by accused no. 2 in the register also. Therefore, story of the prosecution, demanding of Rs. 5/- as illegal gratification, appears to be concocted and got up. In absence of any evidence of demand and acceptance of Rs. 5/- from decoy witness Kamruddin, there was no question to attract Section 13(2) of the P.C. Act since the ingredients of Sections 7 and 13(1)(D) of the P.C. Act are not proved beyond reasonable doubt. If we consider the deposition of PW-1, at the time of trapping, Trapping Officer Mr. Kulkarni (complainant) was standing surrounding of toll booth at a distance with other officers of raiding party so none can recognize them. Therefore, when accused no. 1 allegedly demanded Rs. If we consider the deposition of PW-1, at the time of trapping, Trapping Officer Mr. Kulkarni (complainant) was standing surrounding of toll booth at a distance with other officers of raiding party so none can recognize them. Therefore, when accused no. 1 allegedly demanded Rs. 5/- from decoy witness Kamruddin, PW-3 was unable to hear the conversation since he was not present with decoy witness Kamruddin. It is pertinent to note that decoy witness Kamruddin has not lodged any complaint before the Trapping Officer Mr.Kulkarni. On the contrary, Mr. Kulkarni has lodged a complaint before himself describing and narrating in the complaint that the demand was made by accused no. 1 and the same was accepted by accused no. 3 in presence of the complainant, however, he has not seen or heard the conversation. The Coordinate Bench of this Court, in the case of Ishwarbhai Ramabhai Parmar vs. State of Gujarat in Criminal Appeal No. 2601 of 2005 under the provisions of the Prevention of Corruption Act, has set aside the conviction while considering the very aspect that the complainant addressed a complaint before himself. Further, there is no evidence led by the prosecution to prove that the accused, by corrupt or illegal means or by abusing their position while holding office as public servant, obtained Rs. 5/- as valuable thing or pecuniary advantage from decoy witness Kamruddin. 11. The Hon’ble Supreme Court, in the case of Chandrappa and Others vs. State of Karnataka, 2007 (4) SCC 415 , has held as under: “The following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 put no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fat and of law. (3) Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. (3) Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, 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.” 12. In light of the circumstances of present case, the Special Court has rightly felt that the accused could get acquittal. The said view cannot be held to be illegal, improper or contrary to law. Hence, even though in an appeal against acquittal, powers of the Appellate Court are as wide as that of the Trial Court and it can review, re-appreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law. In present case, the view taken by the Special Court for acquitting the accused was possible and plausible. The possible view on the evidence of prosecution had been taken by the Special Court which ought not to have been disturbed by the Appellate Court. This Court is of the considered view that learned advocate for the respondents-accused persons is right in submitting that the High Court ought not to have disturbed an order of acquittal recorded by the Special Court. While acquitting the accused, the Special Court has observed that the prosecution has failed to examine the certain witnesses, who could have unfolded the genesis of the prosecution case. The Special Court indicated that the vital witness Kamruddin from whom the illegal gratification was demanded and he paid Rs. 10/- was the root of the prosecution case, but he was not examined. Trapping Officer Mr. The Special Court indicated that the vital witness Kamruddin from whom the illegal gratification was demanded and he paid Rs. 10/- was the root of the prosecution case, but he was not examined. Trapping Officer Mr. Kulkarni the complainant was also not examined as he was expired. Lamp Operator, who was also a material witness, was dropped by the prosecution for recording his evidence. In this case, a possible view on the evidence of the prosecution was rightly taken by the Special Court which should not be disturbed by the Appellate Court. 13. In view of the above discussions and observations, present appeal deserves to be dismissed and accordingly the same is dismissed and the impugned judgment and order dated 30.09.2006 passed by the Additional Sessions Judge, Surat in Special (ACB) Case No. 17 of 1997 is hereby confirmed.