1. This appeal is directed against the judgment and order dated 27th November, 1997 passed by the learned Special Judge, Court No.12, Ahmedabad in Special Case No.22/1992 whereby he has acquitted the respondents (hereinafter referred to as “the accused”) for the charges levelled against them under section 7 and section 13(2) of the Prevention of Corruption Act, 1988.
2. The charge against the accused is to the effect that at the relevant time, viz., in October, 1991, and more particularly on 12th October, 1991, both the accused were holding posts of Police Constable and were discharging duties as such and were, therefore, public servants. On 12th October, 1991, both the accused were discharging duties in connection with the anti-reservation agitation near New Era School at Shah-Alam Roza Road in Ahmedabad city at which point of time accused No.1 – Manharbhai Bhikhabhai Patel under the guise of entry fee, demanded illegal gratification from driver Kanubha Mahobbatsinh of Tractor No.GUH-7364. The accused No.2 had abetted the accused No.1 and in connivance with him, demanded Rs.20/- by way of illegal gratification and the same had been accepted by the accused No.1. In this manner, they had committed the offence under section 7 of the Prevention of Corruption Act. Similarly, by accepting Rs.20/- by way of illegal gratification, they had also committed the offence punishable under section 13(1)(d)(1) and (2) as well as section 13(2) of the Prevention of Corruption Act.
3. The prosecution case is that on the day of the incident, that is, 12th October, 1991, a trap had been arranged. On the previous day of the incident, in the early morning hours, Police Inspector Mr. Pathan from the Anti-Corruption Bureau office, Ahmedabad received information that employees of the Forest Department, Municipal Corporation and Police Department were demanding illegal gratification from persons who were re-entering Ahmedabad city. With a view to confirm such information, on the previous morning, the complainant left for the said area where such position was prevailing. He had been on the road at about 11:00 in the morning hours when he met Sukhdev who was driving a private jeep. Mr. Pathan conveyed the information received by him to Sukhdev and requested for his co-operation in arranging the raid. Sukhdevsinh readily consented to the request and was asked to come to the ACB office in the evening hours. During the course of the day, arrangement was made for two panchas from the office of the District Panchayat, Ahmedabad, who were instructed to remain present as they would be taken as witnesses in the trap proceedings. In the evening hours, Mr. Pathan alongwith the raiding party and driver Sukhdev left the ACB office and picked up the two panchas from their house and reached Navapura Patia, a village situated in Dholka district. There, things were explained and instructions were given to the two panchas by Mr. Pathan that a running raid was to be arranged in view of the information which he had received in the early morning. At about 12.30 in the midnight, that is, in the early hours of 12th October, 1991, a tractor was coming from Navapura Patia and was going towards Ahmedabad. The raiding party intercepted the said tractor and asked the driver Kanubha to co-operate with them. He too was informed about the details of the information received by the complainant. The driver had currency notes of Rs.1,200/- in different denominations. Eleven currency notes were of Rs.100/-, three of Rs.20/-, two of Rs.10/- and four of Rs.5/-. A preliminary panchnama was drawn and the currency notes were treated with anthracene powder and the ultraviolet lamp test was carried out. After preparation of the preliminary panchnama, they left for Aslali Octroi Post where an employee working as Octroi Clerk of the Municipal Corporation was trapped. Thereafter, in the early hours, they had reached the spot where two constables were found to be reading newspapers. Both the constables got down from the scooter on which they were sitting and asked the driver of the tractor to stop the tractor. The driver of the tractor parked the tractor on the opposite side and came towards the scooter on which both the accused were sitting and reading newspapers, whereupon the accused No.1 asked him whether he had brought entry fee for entering the city. Kanubha enquired from him as to what entry was and the accused demanded Rs.20/- from him. Kanubha offered a currency note of Rs.20/- and the accused No.1 told him to keep the same in the newspaper. The currency note of Rs.20/- was kept in the newspaper and immediately the raiding party reached the spot and both the accused were asked to remain in the same position and necessary panchnama was prepared. Demonstration under ultraviolet lamp was given and the note of Rs.20/- was found to be treated with anthracene powder and on the fifth page of the newspaper which the accused No.1 was reading, bluish glittering signs of anthracene were seen. The said page of the newspaper was seized by drawing panchnama on the spot. Thereafter, a complaint came to be lodged by P.I. Mr. Pathan against both the accused. After investigation, a charge-sheet was submitted and the case was registered as Special Case No.22/92. The learned Special Judge, after examining the witnesses and appreciating the evidence on record, found that the prosecution had failed to prove beyond all reasonable doubt its case against the accused and acquitted them.
4. Mr. K.P. Rawal, learned Additional Public Prosecutor took the court through the depositions of the witnesses as well as the record of the case. It was submitted that though the driver Kanubha had turned hostile, the prosecution had established its case through the evidence of the panch witness and the Investigating Officer whose evidence was not shaken by the prosecution even during the course of cross- examination. It was pointed out that anthracene marks were found both on the note which was recovered from the accused No.1 as well as on the newspaper where the note was kept. It was submitted that from the evidence of the panch and the Investigating Officer, the factum of demand, acceptance and recovery stand established and are corroborated by the panchnama. Hence, the incident has been duly proved by the prosecution. Referring to the deposition of the panch witnesses, it was pointed out that the panch No.2- Prakashchandra Shankarlal has deposed regarding the demand of Rs.20/- made for the purpose of entry and the acceptance and recovery thereof which finds corroboration in the deposition of Mr. Pathan, the Investigating Officer who, in his deposition, has stated that he had also witnessed the incident as he was standing close by. It was submitted that thus the fact regarding demand, acceptance and recovery of the illegal gratification stands established through the testimony of the two eye-witnesses both of whom are independent witnesses and have no interest in falsely implicating the accused. Under the circumstances, the learned Judge was not justified in not accepting the evidence led by these two witnesses.
5. Opposing the appeal, Mr. K.B. Anandjiwala, learned counsel appearing with Mr. Kunal Shahi, learned advocate for the respondents drew the attention of the court to the deposition of driver Kanubha to submit that he has not supported the prosecution case and has, in fact, stated that no demand of Rs.20/- had been made to him and that he had voluntarily offered Rs.20/- to the accused. Referring to the deposition of Panch No.2-Prakashchandra Shankarlal, it was submitted that the said witness in his deposition is silent as regards the contents of the panchnama. It was submitted that the panchnama was not read over to him and hence, it cannot be said that the panch had proved the contents of the panchnama. It was pointed out that it was only the panch No.2 – Prakashchandra Shankarlal who had been examined as a witness whereas the panch No.1 had not been examined by the prosecution. Prakashchandra, in his deposition, has proved only his signature and has not stated that the other panch had also signed in his presence. Under the circumstances, the panchnama itself is not duly proved. It was further submitted that the panch does not say that he had dictated the panchnama and that the evidence on record shows that he did not disclose anything regarding the conversation between the complainant and the accused to Mr. Pathan soon after the trap. It was submitted that under the circumstances, the panchnama is not in the words of the panch and in any case, the panchnama can be used only by way of corroboration and is not a substantive piece of evidence. It was pointed out that in the deposition of the panch witness, he is silent regarding the number of the currency note which is alleged to have been recovered from the accused. Under the circumstances, the prosecution has not established whether the currency note which was recovered was the same which was smeared with anthracene powder.
5.1 Next, it was submitted that the raiding party was involved in two traps during the course of the day. Trap proceedings were firstly carried out at Aslali at the octroi naka where a clerk was trapped in respect of the illegal gratification accepted by him. After conclusion of the said trap proceeding, the raiding party proceeded further towards Shah Alam where the present trap proceeding was conducted. However, there is nothing on record to indicate that after conducting the trap proceeding at Aslali, the panch and the driver had washed their hands. Hence, the fact that their hands might be stained with anthracene powder prior to conducting the present trap proceeding cannot be ruled out.
5.2 Next it was submitted that the panch was a selected and highly interested witness, more particularly, when it has come on record that his superior officer was prosecuted in respect of corruption and hence, he would be acting under pressure. Therefore, no reliance can be placed upon the testimony of such witness. Another contention raised by the learned counsel was that in the present case right from the recording of the complaint till the filing of the charge-sheet, everything has been done by the Investigating Officer which is an infirmity which reflects on the credibility of the prosecution case. In support of his submissions the learned counsel placed reliance upon the decision of this court in Kanubhai Kantibhai Patel v. The State of Gujarat, 1998 (1) GLH 924, for the proposition that if everything, viz. recording of complaint, carrying out the raid and search and seizure as well as the investigation, 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 said decision was also relied upon for the proposition that when the panchnama was not dictated by the panch but by the police officer investigating into the matter and the panchas were asked to sign the panchnama mechanically, such panchnama could not be accepted as a supporting piece of evidence. Reliance was also placed upon the decision of the Supreme Court in the case of Gopal Lal Ghisulal Chippa v. The State of Gujarat, 1998 (1) GLH 943, for the proposition that when everything, right from recording of the complaint till the charge-sheet is filed before the court is done by the Investigating Officer, it would be an infirmity in the case which is bound to reflect on the credibility of the prosecution case. It was urged that the learned Special Judge has given cogent, convincing and sufficient reasons while acquitting the accused of the offences alleged hence, even if a second view is possible, in the absence of any perversity in the findings recorded by the learned Judge, the judgment ought not to be reversed.
6. A perusal of the evidence on record shows that the prosecution has examined in all, three witnesses. Witness Kanubha has been examined at Exh.9. He has deposed that on 11th October, 1991, he was going on his tractor from Chiloda towards Isanpur when some officers were coming in a jeep behind him. When the officers stopped him, he informed them that the trees which were loaded on his tractor were trees that had fallen down during the cyclone. He also told them that the officers of the Forest Department were harassing them. They had said that they would co-operate with him. Thereafter, they had arranged a running trap. At 1:45, a panchnama was made and they passed through Pirana and Aslali and started for going towards Isanpur. He was driving the tractor in front and the jeep was following till they reached the octroi naka. There he went to pay the octroi where he paid Rs.100/-. Thereafter, Kanjibhai Savjibhai Bhagora had demanded Rs.5/- from him in respect of which a trap had been arranged. After completing the trap proceedings, they set off at 4:45 in the morning and came to Isanpur. At 8:10 in the morning he sold the wood, hence they came to the timber yard at Gita Mandir. There, somebody blew a whistle. There was a school nearby, where two policemen were reading newspapers. The officer told him to go and give them money, hence he had kept Rs.20/- in the newspaper. They had not demanded any amount from him. He on his own had given the money. Thereafter, he had unloaded the wooden logs there and taken the tractor and come home. The said witness has been declared to be hostile and has been cross-examined by the prosecution. Thus, from the testimony of the driver-Kanubha, it is apparent that he has not supported the prosecution case.
7. Panch No.2 - Prakashchandra Shankarlal has been examined at Exh.10. He, in his deposition, has stated that the incident took place on 11th October, 1991 at night. On 11th October, 1991 he had gone to his place of service. His officer told him that he was required to go to assist the A.C.B. The ACB Officer had instructed him to stay at home. At 8.30 in the night, Mr. Pathan and other staff members had come to his house. Thereafter, at 10 o’clock in the night he had gone with them to Sarkhej to the house of Modanbhai. After picking up Modanbhai, they had gone to Navapura, Dholka Road, where they were informed that the octroi staff, forest department, the police apart from the legitimate amount of dues, were demanding illegal gratification from persons taking wood and hence, they had been asked to act as panchas. Thereafter, they were told that they were waiting for a vehicle and if the owner of the vehicle is ready and willing, they would take his assistance. At 12.30 at night, a tractor filled with timber came along. The driver of the tractor was explained everything regarding the trap and he expressed his willingness to give his help. Thereafter, the anthracene powder and ultraviolet lamp procedure was carried out. The witness has further deposed that after the trap at Aslali octroi, they had gone to a weighbridge and the light pieces of wood were unloaded at a timber yard and the bigger logs were to be taken to Gita Mandir. After passing through Chandola Lake, they were going on Shah Alam road where New Era school is located. There two policemen were seated on a scooter. They gestured to stop that tractor. The driver stopped the tractor. Thereafter the constable called the driver. He, Mr. Pathan and the driver, all three, had gone there. Manharbhai - the accused No.1 asked the driver whether he had brought entry. The driver said that he did not have entry and asked him what it was. Accused Manharbhai caught the paper with both his hands and told him that Rs.20/- were payable towards entry and that he should place the same in the said newspaper. At that time, it was 8.30 in the morning. Thereafter Mr. Pathan told that no one should move and gave his identification. Thereafter, the members who were in the jeep also reached there and the ultraviolet lamp demonstration was carried out on the Rs.20/- note and bluish glittery marks were found thereon. Such glitter was also found on the newspaper and such marks were circled. Upon examining his hands under the lamp, there were bluish glittery marks on his finger tips. The driver’s hands were also seen under the lamp and bluish glittery marks were found. In his cross-examination, it has come out that the driver was told to keep the money in the newspaper and that the other accused was sitting beside him. It has further come out in his cross- examination that after the trap at Aslali Tol Naka, the arrangement with regard to the first and second panch was changed and he was required to go in the tractor with the complainant and the other panch was to sit in the jeep. He has stated that he was not aware as to whether or not he had touched the anthracene tainted currency notes at Aslali and as to whether he had washed his hands thereafter. He has further stated that after the panchnama was written, no changes or additions were made therein. He has admitted that there were certain corrections in the panchnama which were not signed by them and that he was not aware as to when such changes were made. In his cross-examination, he has accepted that after the demonstration of the ultraviolet lamp was over and the accused were searched, the panchnama was written at the site itself. According to him Mr. Pathan had not heard the conversation that had taken place between driver Kanubhai and the accused because he was standing at a distance which was found to be between 15 to 18 feet. He has further admitted that in the panchnama, it has been stated that after the amount is accepted, the driver should give the pre- arranged signal by starting the tractor. He has stated that after giving the money to the accused, that is, placing the currency notes in the newspaper, he had not given any signal to Mr. Pathan. He was also not aware as to whether Kanubha had given any such signal. He has further admitted that there is no reference in the panchnama as to who had dictated the conversation between the accused and Kanubha.
8. The Investigating Officer – Bismillahkhan Sahebkhan Pathan has been examined at Exh.12. He has deposed that the incident had taken place on 11th October, 1991. On that day, he had received information that wooden logs were arriving from Dholka to Pirana and that the forest department, octroi department and the local police were demanding illegal gratification by way of entry. In his deposition, he has further stated that when they started from Chandola Lake towards Shah Alam Roza, near New Era School, two policemen were sitting on a scooter. The constables upon seeing the tractor got down from the scooter and raised their hand to stop the tractor. Out of the two policemen, Manharbhai called the accused towards him. Thereafter, Manharbhai sat on the scooter and there was a newspaper in his hand. Kanubha was accompanied by panch No.2 and he was at a slight distance behind them. Thereafter, Manharbhai asked Kanubha whether he had brought entry. Kanubha asked him what entry was, whereupon Manharbhai told him that he should give Rs.20/-. Kanubha took out an anthracene tainted Rs.20/- note from his shirt and handed over the same to Manharbhai who told him to place it in the newspaper. Thereafter, Kanubha placed the Rs.20/- note in the newspaper at which point of time he was standing behind the panch No.2 and therefore, immediately stopped Manharbhai and asked him to remain as he was. That thereafter, necessary experiment was carried out and it was found that marks of anthracene were found only on the hands of Kanubha. That thereafter, the ultraviolet demonstration was carried out on the currency note and the newspaper, both of which were found to have anthracene stains on them.
9. In his cross-examination, he has stated that he has lodged the complaint on his personal information. He has admitted that he was an eye-witness to the incident which had taken place near New Era School in Shah Alam. Upon a perusal of the complaint, he has stated that he has not written in the complaint that he had heard the conversation between panch No.2, Kanubha and the accused No.1. He has admitted that he has referred to the conversation between Manharbhai namely, the accused No.1 and Kanubha regarding entry fee only in his examination-in-chief and that there is no reference to the same in the complaint. He has further admitted that he has not stated the fact regarding taking out of a Rs.20/- note and placing it in the newspaper or that he had heard the conversation regarding entry fee between accused No.1 and Kanubha. He has further admitted that there is no reference to his having heard the conversation between Kanubha and the accused No.1 or that he had seen Kanubha place Rs.20/- in the newspaper in the case diary. Further, such facts have also not been narrated in the panchnama and that there is no reference to his being an eye-witness. In the panchnama, it was recorded that he had put on a shawl and was standing at a short distance. He has also admitted that in the complaint it has not been stated that the Rs.20/- currency note had been recovered from the newspaper and that there is no reference in the complaint as to from where the muddamal Rs.20/- note was recovered from.
10. From the deposition of the witnesses, it is apparent that the driver Kanubha has not supported the prosecution case and has, in fact, stated that there was no demand of Rs.20/- and that he had on his own, at the instance of the ACB officer handed over Rs.20/- to the accused. Insofar as the panch witness is concerned, in his examination-in-chief, he does not say anything as regards Rs.20/- being placed in the newspaper by Kanubha. In his entire deposition, he does not make any reference to the number of the currency note which was recovered from the newspaper nor does he anywhere state that the contents of the panchnama have been read over to him and that the same are true and correct. Insofar as the deposition of the Investigating Officer Mr. Pathan is concerned, he has come out with an absolutely new case that he was an eye-witness to the incident and that he had heard the conversation between the accused No.1 and that he had actually witnessed the factum regarding the placing of the Rs.20/- currency note in the newspaper. This evidence comes for the first time in his examination-in-chief and as admitted by him, there is no reference to his being eye-witness either in the panchnama, in the complaint or in the police diary.
11. Besides, the panch in his cross-examination has stated that Mr. Pathan was at a distance away from the place where the incident took place and was not witness to such incident. Thus, though the panch witness does state that a demand of Rs.20/- had been made towards entry and that Kanubha had placed Rs.20/- in the newspaper, there is nothing in his deposition to show that Rs.20/- which was recovered from the newspaper was the same currency note which was noted in the preliminary panchnama. The only place where there is reference to the number of currency note is in the panchnama of the trap proceedings. However, as rightly pointed out by the learned counsel for the respondents, the contents of the panchnama have not been duly proved by the prosecution through the deposition of the panch inasmuch as the contents of the panchnama have not been read over to the panch. Moreover, as noted hereinabove, Mr. Pathan has, in his cross-examination admitted that there is no reference to the number of currency note in the complaint which he has lodged. Under the circumstances, the factum regarding the currency note which was recovered from the newspaper being the same currency note which was handed over to Kanubha for the purpose of the trap proceedings, has not been established.
12. From the evidence referred to hereinabove, it is apparent that the aspect of demand has not been established by the prosecution beyond reasonable doubt, inasmuch as the driver-Kanubha from whom the amount is alleged to have been demanded has stated that he had given the money on his own and that no amount had been demanded by the accused. The panch No.2 in his examination-in-chief does not make reference to any demand on the part of the accused. The Investigating Officer for the first time, in his examination-in- chief states that he is a witness to the incident, which evidently is an improvement, as no such stand was taken by him earlier at the time of the panchnama, while making notes in the station diary, etc. Under the circumstances, the testimony of the Investigating Officer to the effect that there was a demand made by the accused cannot be accepted. It may be recalled that this is a case involving a running trap. Thus, there is no prior demand, before the incident. The evidence on record does not disclose any demand having been made during the trap proceeding. Under the circumstances, the prosecution has failed to prove the first factor which it is required to establish in a trap case, viz. demand for illegal gratification. Insofar as acceptance and recovery are concerned, the evidence on record reveals that the currency note was recovered from the newspaper and the hands of either of the accused were not stained with anthracene powder. Under the circumstances, considering the overall evidence which has come on record, the aspect of acceptance and recovery also cannot be said to have been established beyond reasonable doubt. Without the basic requirements, viz. demand, acceptance and recovery being established by the prosecution, there is no foundation on which the prosecution can build its case. Thus, the prosecution has failed to prove beyond reasonable doubt that the accused had accepted any amount by way of illegal gratification.
13. A perusal of the impugned judgment and order shows that the learned Judge has recorded that time and again erasures have been made in the panchnama and the numbers of the currency notes have been overwritten and to support the case of the prosecution, though panch No.2 was instructed to accompany Kanubha, it appears that a change has been made in the name of panch by overwriting 1 and converting the same into 2. The learned Judge was also of the view that there were about 19 currency notes lying in the pocket of Kanubha. Under the circumstances, it was difficult to believe that he had taken out a single currency note of Rs.20/- without the help of two hands. The learned Judge has also recorded that the same tractor which had been taken by the ACB for the purpose of the trap proceeding, had also been used by the ACB in past few months which was established by the certified copy of the chargesheet. It has also been brought out in the cross-
examination of Mr. Pathan that Sukhdevsinh was a person whose jeep was used in the past. On an overall view of the evidence on record, the learned Judge has found that the panchas were selected panchas and that Kanubha was declared a hostile witness, the panch witness did not depose to the effect that Kanubha had dropped the currency note in the newspaper. He had only stated regarding demanding of money whereas he had not stated in clear terms that the currency note had been placed by Kanubha in the newspaper. In the light of the evidence coming on record, the learned Judge was of the view that the prosecution had failed to prove beyond all reasonable doubt its case against the accused.
14. In the light of the evidence which has come on record as discussed hereinabove, it is not possible to state that the view taken by the learned Special Judge is not a plausible view. Under the circumstances, no case has been made out so as to warrant interference.
15. In the result, the appeal fails and is, accordingly, dismissed.
Record & Proceedings to be sent back forthwith.
( Harsha Devani, J. )
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