1. This appeal is directed against the judgment and order dated 12th May, 1997 passed by the learned Special Judge, Jamnagar, in Special Case No.15 of 1993, whereby the respondent-accused has been acquitted of the offences punishable under sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act').
2. The accused has been charged for the offences punishable under sections 7, 13(1)(d) and 13(2) of the Act on the allegation that on 24th February, 1993, he was discharging duties as a public servant in the capacity of a Jailor in the Jamnagar District Jail. At 10:00 a.m. or 10:30 a.m., the complainant-Virumal Parsottam Nathwani gave an application seeking permission to provide meals from outside to the prisoner-Vasumal Nechaldas, at which point of time the accused demanded Rs.100/- as bribe for permitting him to bring tiffin for the said prisoner and it was agreed that the amount would be paid in the afternoon. On 24th February, 1993 at about 04:30 p.m., the complainant came to the jail premises as agreed earlier for giving the tiffin, whereupon the accused repeated the demand of bribe and accepted the said amount and was caught red-handed in the trap arranged by the Anti-Corruption Bureau.
3. The case of the prosecution was that the complainant-Virumal Nathwani approached Shri V.K. Mavani, Police Inspector, Anti-Corruption Bureau, Jamnagar, on 24th February, 1993 in the afternoon and lodged a complaint against the accused stating that the accused had demanded a bribe of Rs.100/- from him for allowing him to provide tiffin to a prisoner named Vasantkumar alias Vasumal Nechaldas, but since he did not have the amount for giving such bribe to the accused, he had decided to lodge a complaint. Thereafter, Shri Mavani instructed Bhikhusha Alisha (PW-7), who was working as Head Constable in the Anti-Corruption Bureau, Jamnagar, to call two panchas. Accordingly, Bhikhusha informed the office of the Irrigation and District Panchayat on telephone to send two panchas, pursuant to which two panchas arrived at the Anti-Corruption Bureau office at 02:00 p.m. and expressed their willingness to act as panchas. Thereafter, they were introduced to the complainant, who narrated his complaint in the presence of the panchas. Since the complainant did not have any money, the amount of Rs.100/- was provided by Shri Mavani from the Government fund for the purpose of giving the amount to the accused as bribe, if demanded during the trap. Thereafter, the usual procedure of smearing the currency note with anthracene powder and examining the same under the ultraviolet lamp was carried out. Thereafter, the raiding party went in two rickshaws to the jail to trap the accused. The rickshaws were halted at some distance from jail premises. From there, the complainant and the panch No.1 proceeded towards the jail. After they entered the jail, they went to meet the accused. There was a talk between the complainant and the accused regarding delivering the tiffin to the said prisoner whereupon the accused demanded a bribe of Rs.100/-. Thereafter, the complainant handed over the bribe to the accused who accepted the same and put the currency note in the pocket of his bush-shirt. Thereafter, the complainant came outside and gave the prearranged signal, whereupon the members of the raiding party rushed into the accused’s room. Shri Mavani introduced himself to the accused and asked his name and also asked the complainant as to where the accused had kept the money which he had accepted. Immediately thereafter, the accused took out the currency note from the left side of his bush-shirt pocket, crumpled it and threw it out and the same fell inside the room. Shri Mavani asked the panch No.1-Jayantilal Patni (PW-6) to pick up the currency note and hand it over to him. The Sepoy working in the Jail, who was sitting at the table in the same room in which the accused was sitting, was asked to go out by Shri Mavani and thereafter, the hands of the complainant and the pocket of his bush-shirt as well as the hands of the accused and the pocket of his bush-shirt where the money was kept, were examined under the ultraviolet lamp and the marks of anthracene powder were found on them. The currency note of Rs.100/- as well as the bush-shirt of the accused were also found to be stained with anthracene powder. Thereafter, the second part of panchnama was drawn. On the basis of these facts, after the investigation was over, necessary sanction was obtained under section 20 of the Act and the accused came to be charge-sheeted for the above referred offences.
4. In order to prove the charge against the accused, the prosecution has examined as many as seven witnesses, including PW1-Virumal Nathwani, the complainant; PW2- Ketan Ganatra, the Panch No.1 and PW3-Vasantkumar Nechaldas, the prisoner to whom the tiffin was to be delivered. Over and above the oral evidence, the prosecution had also produced certain other documentary evidence on record. The learned Special Judge after appreciating the evidence on record found that the prosecution has not proved its case against the respondent beyond reasonable doubt and acquitted him of the offences with which he was charged.
5. Mr. K.L. Pandya, learned Additional Public Prosecutor, assailed the impugned judgment by submitting that the learned Judge has not appreciated the evidence on record in proper perspective. It was submitted that the prosecution has duly proved its case regarding prior demand, demand at the time of the incident, as well as acceptance and recovery of the amount given by way of illegal gratification, through the depositions of the panchas and other witnesses. It was submitted that the Investigating Officer Shri Mavani had expired at the time when the matter came to be tried. However, the prosecution has sufficiently proved its case through the depositions of the other witnesses. Referring to the deposition of the panch No.1, it was pointed out that he has duly stated that when they went to meet the accused at the time of trap, the complainant had asked the accused as to whether the application which he had given in the morning for the purpose of providing tiffin to the prisoner had been sanctioned, whereupon the Jailer (the accused) had told him that a recommendation had been made, pursuant to which the complainant had asked as to whether he should deliver the tiffin. At that point of time, the accused asked as to whether he has brought Rs.100/-. The complainant replied in the affirmative and took out the amount from his pocket and handed over the same to the accused, who accepted the same with his right hand and put in the left pocket of his bush- shirt. It was submitted that from the words used by the accused, it was apparent that the amount of Rs.100/- was demanded in respect of a prior demand. Thus, though the complainant has turned hostile, the prior demand has been duly proved through the deposition of panch No.1. It was submitted that the deposition of the panch No.1 finds corroboration in the panchnama, which was drawn at the time of the trap. Attention was invited to the deposition of PW7-Bhikhusha Alisha, who was a member of the raiding party, to submit that he had also corroborated the facts stated by the panch No.1. It was pointed out that the statements of the witnesses as recorded by Shri Mavani had been duly proved through the deposition of the said witness. Reference was also made to the deposition of PW4-
Bharatsinh Rajaji Vaghela, the person who was sitting in the office of the accused at the time of trap proceedings, to submit that the said witness has duly proved the presence of the complainant and the raiding party in the Jail premises, at the time of incident. It was submitted that, under the circumstances, the learned Special Judge was not justified in doubting the very presence of the complainant and the panchas as well as the members of raiding party in the jail premises at the time of trap proceedings. It was, accordingly, urged that since the prosecution had duly established its case against the respondent-accused, the impugned judgment and order passed by the learned Special Judge is required to be reversed and the respondent is required to be convicted for the alleged offences.
6. Vehemently opposing the appeal, Ms. Shilpa Shah, learned counsel for the respondent, submitted that the complainant has not supported the prosecution case and as such, the initial demand itself has not been proved. It was argued that in the absence of any prior demand for illegal gratification having been proved, the entire prosecution case falls to the ground. It was further pointed out that it is the case of the prosecution that at the relevant point of time when the complainant went to the jail premises in the morning and the demand for Rs.100/- was made, one Ramji Mavani had accompanied the complainant. However, the said Ramji Mavani has not been examined by the prosecution. Reference was made to the deposition of Ketan Ganatra, the panch No.1, to point out that he has deposed to the effect that he was not in a position to identify the Jailer who had accepted the money and thereafter thrown the currency note. It was submitted that thus, the panch No.1 has categorically stated that he does not recognise the accused. Referring to the deposition of PW4-Bharatsinh Rajaji Vaghela, it was submitted that the said witness has stated that one person had initially come to meet the accused and after sometime other persons had come in. It was submitted that the deposition of the said witness totally falsifies the case of the prosecution that the complainant was accompanied by the panch No.1 when he went to meet the accused. Referring to the deposition of PW6-Jayantilal Patni, it was pointed out that the said witness had produced the Jail Register, wherein an entry is made whenever any person visits the jail premises. It was pointed out that the said register reflected the entry of the complainant only between 11:00 hours and 11:25 hours on 24th February, 1993 and there was no entry regarding the complainant having entered the jail premises at the time when the trap proceedings were conducted. It was submitted that similarly there was no entry in the said register indicating the presence of the raiding party. It was, accordingly, urged that the learned Special Judge has duly appreciated the evidence on record and arrived at the conclusion that the prosecution has not proved the charges levelled against the accused beyond reasonable doubt. It was urged that the view taken by the learned Special Judge is a plausible view and as such, does not warrant interference by this court.
7. From the evidence which has come on record, it is seen that PW1-Virumal Nathwani, viz. the complainant, has been declared hostile to the prosecution case and he has not supported the prosecution case. Thus, the alleged initial demand of Rs.100/- made by the accused at the time when the complainant went in the morning to visit the jail premises in person, has not been established. As per the prosecution case, the complainant was accompanied by one Ramji Mavani. However, the said person has also not been examined. Hence, apparently the initial demand of Rs.100/- has not been established. It has been urged by the learned Additional Public Prosecutor that the prior demand can be inferred from the deposition of the panch No.1, who has stated that when the complainant asked the accused as to whether his application had been granted, the accused had told him that he has already made his recommendation thereon and that upon the complainant asking whether he should deliver the tiffin, the accused had asked him whether he had brought Rs.100/-, from which it may be inferred that there was prior demand of Rs.100/-. From the facts referred to hereinabove, it is apparent that the complainant has not supported the prosecution case and has denied any demand of Rs.100/- having been made from him. Insofar as the panch No.1 is concerned, he is not a witness to the initial demand. According to the prosecution, the complainant was accompanied by one Ramji Mavani. However, the prosecution has not chosen to examine him in support of its case. Under the circumstances, evidently the prosecution has not brought on record the best evidence. Merely on the basis of the fact that the panch No.1 has stated that the accused had asked the complainant whether he had brought Rs.100/-, it cannot be inferred that any prior demand for such amount had been made.
8. That apart, even if it is assumed that there was a prior demand, the next aspect to which is required to be examined is whether the prosecution has proved the demand at the time of the incident as well as acceptance and recovery. In this regard, it may be noted that in a trap proceedings, the most important witnesses are the complainant and the panch No.1. In the present case, the complainant has been declared hostile and has not supported the prosecution case. Hence, the entire case, more or less, rests upon the deposition of the panch No.1.
9. At this juncture it may be germane to refer to the findings recorded by the learned Special Judge. A perusal of the impugned judgment and order reveals that the learned Special Judge has found from the Visit Book maintained by the Jail Authority, that the names of the persons visiting the prisoners, the names of the prisoners to whom the person wants to visit, the purpose of the visit, time of the visit, signature of the visiting person and signature of the Jailer who arranged for such visit, are scrupulously maintained. That the entry of a person in jail is strictly prohibited without following the procedure laid down in the Jail Manual. That the record of the Jail Authority shows the entry of the complainant only in the morning hours between 11:00 hours and 11:15 hours. However, the said register does not reflect entry of the complainant and the panch No.1 in the noon time between 03:30 p.m. and 04:30 p.m. The learned Judge has, therefore, recorded a finding that in absence of such evidence, the say of the panch No.1 and PW7-Bhikhusha that the complainant and the panch No.1 had gone to the jail premises does not appear to be free from doubt. According to the learned Judge, the jail premises are not such premises where anybody can enter and go out as and when one desires and has accordingly found that the entry in the jail premises of both the complainant as well as the panch No.1 is itself suspicious. The learned Judge has further noted that even when Shri Mavani and the staff entered the jail premises upon the signal having been given by the complainant, no entry was made in the Jail Register. It was observed that as per the rule 352 of the Jail Manual, the gatekeeper is required to keep a continuous diary of all that happens and to enter therein the names of all the persons entering or leaving the prison, the total number and the register numbers, etc. However, no such register had been produced to show that Shri Mavani along with his staff had entered the jail premises and the alleged post raiding procedure was completed there. The learned Judge has, therefore, found that it was not possible to believe the evidence regarding the post raiding procedure. Another aspect which was noticed was that Shri Mavani had given tiffin to the complainant, who had carried it with him when he had entered the jail. However, the prosecution has not explained as to what had happened to that tiffin. In the backdrop of the aforesaid facts, the learned Judge has found that the prosecution has not established its case beyond reasonable doubt.
10. From the evidence which has come on record, namely, that the complainant has not supported the prosecution case and consequently, the initial demand is not proved; the very presence of the panch No.1 and the complainant at the time of trap proceedings is suspicious inasmuch as the jail record does not reflect any entry in the Visit Book showing the presence of the complainant and the panch No.1 therein; and PW4-Bharatsinh refers to only one person having come to meet the accused, which would then eliminate the presence of the panch No.1. As noticed earlier, the entire prosecution case is based on the testimony of the panch No.1, therefore, if his presence at the time of trap proceedings is not proved, it would destroy substratum on which the prosecution case is founded. Moreover, as rightly observed by the learned Special Judge, the very presence of the raiding party is not reflected in the Jail Registers, which are scrupulously maintained by the Jail Authorities, making the presence of raiding party itself suspicious. It is settled legal position that in a criminal case the prosecution is required to prove its case beyond reasonable doubt. In the present case, in view of what is discussed hereinabove, it is apparent that the prosecution has not been able to establish the charges against the accused beyond reasonable doubt. The learned Special Judge has given cogent, convincing and sufficient reasons for acquitting the accused and the view taken by the learned Special Judge is a plausible view. Under the circumstances, there is no warrant for any intervention by this court.
11. In the result, the appeal fails and is, accordingly, dismissed. The bail bond, if any, shall stand discharged.
(HARSHA DEVANI, J.) Aakar