1) This appeal is directed against the judgment and order dated 22nd June, 1998 passed by the learned Special Judge, Bhavnagar in Special (A.C.B.) Case No.12 of 1994.
2) The following charges have been levelled against the accused:
2.1) At the relevant time, that is, on 29th July, 1994 the accused No.1 was a Head Constable at Bhavnagar Police Station, Bhavnagar. Similarly, the accused No.2 was also discharging duties as a Head Constable at the police head-quarter. The accused No.3 was a Driver- cum-Police Constable in the Motor Transport Section and accused No.4 was a Wireless Operator and Constable at Bhavnagar police head-quarter. Thus, all the four accused were discharging public duties and, as such, were public servants. Despite the fact that they had no authority to demand any amount by way of illegal gratification or otherwise other than by way of legal remuneration, the four accused persons, in connivance with each other, in the early morning on 29th July, 1994 at about 7:40 A.M., had demanded and accepted illegal gratification at the time when a running trap was arranged near the Shitla Mataji Temple, situated at Ghogha Road at a distance of about seven kilometres from Bhavnagar. At that time, a Matador bearing No.GUW-9062 was coming from Ghogha and Koliyak and when the Matador reached the scene of the incident, that is, near the Shitla Mataji Temple, the accused No.1 stopped the vehicle ad demanded illegal gratification from the driver Sardarsinh Ratansinh Jadeja under the guise of ‘Entry Fee’ and accepted the same through the accused No.2. At that time, the remaining accused, viz., accused No.3 and 4 were also discharging duties and were present there and the above amount was recovered in the presence of Panchas. Thus, all the four accused had, in connivance with each other, abetted each other for the commission of the offence punishable under section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the Act”).
3) The facts of the prosecution case are that the incident occurred on 29th July, 1994 at about 7:40 A.M. On the previous day, Shri D.L. Dodia, P.S.I., A.C.B., Bhavnagar, viz., the complainant, received information through an informant that a police party was posted at a tent near Shitla Mataji Temple on Bhavnagar/Ghogha Road and these police personnel, under the pretext of patrolling, were stopping passengers whose vehicles were plying between Shitla Mataji Temple and Pipalia Bridge, leading to Ghogha for checking and under the guise of ‘Entry’, they were collecting and receiving illegal gratification other than legal remuneration, ranging from Rs.10/- to Rs.100/- from the drivers of such vehicles. On receiving such information, P.S.I. Shri Dodia decided to arrange a running trap. He, therefore, on 28th July, 1994, contacted one Sardarsinh R. Jadeja, driver-cum-owner of Matador No.GUW 9062 and asked him to extend his cooperation by giving his Matador on hire for the purpose of the trap. Sardarsinh Jadeja expressed his willingness to cooperate and hence, he was asked to remain present with his Matador in the A.C.B. Office at 4:45 A.M. on 29th July, 1994. P.S.I. Shri Dodia also summoned two panchas, namely, (1) Rasikbhai Popatbhai Vachhani, and (2) Shantilal Ambalal Tadvi, both Surveyors from the Land Record Office, Bhavnagar, to the A.C.B. Office on 28th July, 1994 and asked them to work as panchas in the proposed trap, to which, they consented. Therefore, they were asked to remain present in the A.C.B. Office, Bhavnagar at 4:45 A.M. on 29th July, 1994.
4) The punter-Sardarsinh and both the panchas arrived at 4:45 A.M. on 29th July, 1994 at the A.C.B. Office, Bhavnagar. Shri Dodia introduced them to each other and appraised them about the facts of the proposed trap. He also introduced them to the other A.C.B. staff. Thereafter, the ultraviolet lamp demonstration came to be carried out. The Head Constable, A.C.B. Shri Bachubhai presented one currency note of Rs.50/-, four currency notes of Rs.10/- and two currency notes of the denomination of Rs.5/-, totalling to Rs.100/- from the A.C.B. grant. After carrying out the procedure, the raiding party started at about 6:15 A.M. on 29th July, 1994 in two different vehicles. The Matador was proceeding ahead and the Government Jeep was following it at a safe distance. They reached Koliyak via Budhel. Thereafter, after taking passengers from village Koliyak, Gundi and Bhuteshvar, which was a pre-decided route, the Matador reached near the Shitla Mataji Temple, near Pipalia Bridge, viz., the scene of the offence at about 7:35 A.M. At that time, a Police Mobile was standing there facing the Bhavnagar side and on the side of the road, near the mobile, two uniformed police personnel were standing. Of these, Head Constable-Prabhashankar Joshi signalled to the driver of the Matador. The punter-driver stopped his Matador at a little distance from the Police Mobile, whereupon, Head Constable Shri Prabhashankar Joshi asked him reverse the Matador and park it near the Police Mobile. Thereafter, he asked the driver to come out, whereupon, the driver and the panch No.1 stepped down from the Matador and went to the place where Head Constable Prabhashankar Joshi and Police Constable Chhatrabhai Damor were standing. On a query by Head Constable Prabhashankar Joshi regarding his address, Sardarsinh Jadeja replied that he was a resident of village Koliyak. Head Constable Shri Prabhashankar Joshi also asked him whether he had started plying the Matador recently, to which, Sardarsinh replied in the affirmative and said that he had started plying the Matador from that very day only. Head Constable Shri Prabhashankar Joshi, therefore, demanded ‘Entry’ of Rs.25/- from the punter-driver Sardarsinh Jadeja. Sardarsinh Jadeja, therefore, took out the muddamal powdered currency notes from the left upper pocket of his shirt with his right hand, took out Rs.25/- therefrom and after putting back the remaining muddamal currency notes in his pocket, he presented the muddamal powdered currency notes with his right hand to Head Constable Shri Prabhashankar Joshi. However, Head Constable Joshi asked Sardarsinh to hand the same over to Police Constable Chhatrabhai, who was standing near him. Sardarsinh, therefore, handed over the Muddamal currency notes to Police Constable Chhatrabhai, which he received with his right hand and put the same in the right pocket of his pant. Sardarsinh also asked Head Constable Shri Joshi as to whether they would now be safe from any harassment by the police on their way ahead, to which, he had replied that the police will be standing near the garden and he would also have to pay ‘Entry’ to them. Since the Matador was standing on the road, punter- Sardarsinh and panch No.1 boarded the Matador and parked it on the side of the road ahead and signalled and informed the P.I. Shri Dodia about the incident, whereupon, P.I. Shri Dodia, panch No.2, Shri Pancholi, punter-Sardarsinh and the panch No.1 reached the scene of offence. In the meanwhile, the Government Jeep with A.C.B. Staff also arrived there. It was also the say of the complainant that while they were crossing the road to reach the place of offence, another Matador was coming from Ghogha and the driver of the said Matador slowed down the vehicle and presented some amount to both these policemen from his Matador while in motion, and the said amount was accepted by Chhatrabhai and the vehicle proceeded ahead towards Bhavnagar.
5) Upon the raiding party reaching the scene of offence, P.I. Dodia introduced himself to Head Constable Joshi and Police Constable Chhatrabhai and after inquiring about the details regarding their names, address etc., the other two accused were also summoned. Thereafter, accused No.1 and 2 were taken behind the Government Jeep and, thereafter, the ultraviolet lamp experiment was carried out on the accused as well as all the members of the raiding party. It was found that except for Chhatrabhai and the punter-Sardarsinh, signs of anthracene powder were not found on the hands of the rest of the persons, whereas both the hands of Chhatrabhai and Sardarsinh showed bluish glittering marks of anthracene under the ultraviolet lamp. The currency notes recovered from Chhatrabhai were compared with the details of the currency notes recorded in the preliminary panchnama and were found to tally. After following the due procedure, all the facts were noted down in the second part of the panchnama which was completed at about 10:15 A.M. on 29th July, 1994 at the scene of offence and the signatures of both the panchas were obtained on it after the same was read over to them. Thereafter, P.I. Shri Dodiya returned to Bhavnagar and lodged his complaint at the A.C.B. Police Station at Bhavnagar at 13:30 hours on 29th July 1994. Thereafter, detailed investigation was carried out and after obtaining sanction to prosecute the accused; charge- sheet was prepared and filed in the Court of the learned Special Judge at Bhavnagar, which came to be registered as Special Case No.12 of 1994.
6) In support of its case, the prosecution had examined three witnesses, namely, P.W. No.1-punter Sardarsinh R. Jadeja, P.W. No.2-Rasiklal Popatbhai Vachhani-the Panch No.1 and P.W. No.3 D.L. Dodia, Police Inspector, A.C.B., namely, the complainant. The prosecution had also placed reliance upon various documentary evidences like the panchnama, Seizure Memo, complaint, etc.
7) At the conclusion of the trial, the learned Special Judge, upon appreciation of the evidence on record, came to the conclusion that though there was some grave suspicion, the guilt of the accused had not been established beyond reasonable doubt and, accordingly, acquitted the accused of the charges leveled against them.
8) Mr. K. L. Pandya, learned Additional Public Prosecutor, assailed the impugned judgment and order by submitting that the prosecution has duly proved demand, acceptance and recovery of the amount demanded by way of illegal gratification, other than legal remuneration, by the accused. It was submitted that the demand has been proved through the depositions of the punter and the panch No.1 as well as the Investigating Officer and that the acceptance of the amount so demanded by Chhatrabhai has also been proved by the said three witnesses. It was submitted that the anthracene powder tainted muddamal currency notes were recovered from the accused No.2 Chhatrabhai, whose hands were found to be stained with anthracene powder when examined under the ultraviolet lamp. It was submitted that the numbers of the currency notes so recovered were found to tally with the numbers of the currency notes noted down in the preliminary panchnama. It was submitted that the learned Special Judge has placed undue emphasis on minor discrepancies in the depositions of the witnesses. According to the learned Additional Public Prosecutor, the depositions of the witnesses were recorded after a period of more than three years hence, it was but natural that there would be minor inconsistencies in the depositions of the witnesses. However, merely because of such minor inconsistencies, the learned Judge was not justified in discarding the evidence led by the prosecution. It was, accordingly, urged that in a corruption case, when the prosecution has succeeded in satisfying the relevant factors, namely, demand, acceptance and recovery, the learned Judge was not justified in acquitting the accused of the charges levelled against them.
9) Vehemently opposing the appeal, Mr. J.M. Buddhbhatti, learned counsel for the respondent drew the attention of the court to the deposition of the punter-Sardarsinh to point out that he had been declared to be hostile to the prosecution case and had been cross-examined by the prosecution. It was submitted that both, the punter as well as panch No.1 have admitted that they have deposed on the basis of the first information report and panchnama, which they had perused prior to deposing before the court. It was further pointed out that though the anthracene stained currency notes had been kept in the right pocket of Sardarsinh’s shirt, the shirt had not been seized by the prosecution. Further, the muddamal currency notes were not seized by the prosecution and no experiment had been carried out on the remaining currency notes of Rs.75/-. It was further submitted that though it had been decided that the punter and the panch No.1 would, after the amount is accepted by the accused, give the prearranged signal, no such signal was given. From the cross-examination of the punter-Sardarsinh, it was pointed out that he was involved in a criminal case regarding an accident which had taken place in the year 1992, wherein about thirty two persons had died and the accused No.1 was one of the Investigating Officers in respect of such accident. Thus, the punter was not an independent witness. It was further submitted that the punter had time and again been called by the A.C.B. Officers for acting as a punter and, as such, he was a selected witness. It was also pointed out that the panchas were not independent witnesses inasmuch as the Trapping Officer had requisitioned their services by name. Moreover, these officers were on probation and, as such, were under the influence of the concerned department and hence, would not be in a position to depose independently. It was pointed out that in the present case, the trap was in the nature of a running trap. The Investigating Officer himself was the complainant who had acted on the basis of information received by him. However, in his cross-examination, it has come out that he has not noted down the receipt of such information, nor has he disclosed the identity of the person from whom such information had been received and nor has he bothered to verify the correctness of such information. It was submitted that in the light of the numerous inconsistencies in the prosecution case, the learned Judge was justified in holding that the prosecution had not proved its case beyond reasonable doubt and acquitting them of the charges levelled against them.
10) A perusal of the depositions of the witnesses indicates that the punter/driver-Sardarsinh had firstly deposed to the effect that the Matador was stopped by the accused No.1 who had asked him from where he was coming, to which, he had replied that he was coming from Koliyak and was going towards Bhavnagar. He had asked him the number of passengers who were sitting in the Matador, to which he had replied that about 15 to 17 passengers were sitting therein. At that time he told him to pay “Entry” and then go. He had asked him to pay Rs.25/-. Thereafter, he had taken out the muddamal notes and handed over Rs.25/- therefrom to Shri Prabhashankar, which Prabhashankar took and handed over to another person standing next to him. However, immediately thereafter, in the very next breath, he has stated that Prabhashankar had demanded Rs.25/- from him and told him to hand the same over to the person next to him who was also a Police Constable. That he had handed over the amount of Rs.25/- to the said person, who had put the same in the pocket of his shirt. Thereafter, he had driven the Matador at a short distance and stopped the same. That the A.C.B. Jeep, which was following them, wherein the A.C.B. Officers were sitting, stopped and the A.C.B. Officers alighted and thereafter the raid was carried out. He, however, has denied that another vehicle had also come at that time and the driver of the said vehicle had handed over some amount to the accused. At this stage, the said witness has been declared to be hostile to the prosecution case and the learned Public Prosecutor has sought the permission of the court to cross-examine him. In his cross-examination by the learned counsel for the accused, it has come out that earlier also, on one or two occasions, the A.C.B. Office had used his Matador while arranging a running trap. On each occasion, he had been chosen to act as a punter and since then he was acquainted with the A.C.B. Staff. Prior to his visting the A.C.B. Office, he knew Inspector Shri Gohil as well as A.C.B. Inspector Shri Barot and A.C.B. Inspector Shri A.T. Gohil. He has further stated that on an earlier occasion when a trap was arranged, the very same officers formed part of the raiding party. In his cross-examination, it has further come out that in the year 1992, he had a bus that had met with an accident at Ambala on 14th January, 1992, which resulted in the death of 35 persons including thirty two women. The bus was of his ownership and his brother-in-law was the driver and was absconding since then. That at the time when the said accident took place, the accused No.1 was discharging duties as a Police Constable at the Songadh Police Station. When he learnt about the accident, he had gone to the Songadh Police Station. At that time, his statement had been recorded at the police station in the presence of the accused No.1. That the police had pressurized him to secure the presence of his brother-in-law Girirajsinh and that he was arrested in connection with the Ambala accident was kept in custody for a period of one month. That as per his opinion, despite there being no fault on his part, he had been arrested and the police had pressurized him a lot and harassed him without any rhyme or reason, which he did not like.
11) In his further cross-examination, he has admitted that on the previous day, he had been read over the first information report and the panchnama and that in his cross-examination by the Public Prosecutor, he has deposed in terms of his statement and the panchnama. He has further stated that he does not remember everything that had happened at the time of the offence as the incident had taken place three years prior thereto. That he was informed by the A.C.B. Office that in a case of this kind, he should depose in terms of the complaint, statement and the panchnama and that he had deposed accordingly.
12) P.W.2-Rasiklal Popatbhai Vachhani has, inter alia, deposed that when they reached the Shitla Mataji Temple, a Police Mobile Van was standing there and two policemen were standing on the road. Both of them were in uniform. When the Matador passed through, they gestured to stop the vehicle. Since the Matador had gone a bit further, the driver Sardarsinh had reversed it. The police had asked Sardarsinh to alight from the vehicle and hence, he and Sardarsinh stepped down from the vehicle and went near the two policemen. The policemen had asked Sardarsinh as to whether he had started plying the vehicle recently, whereupon he had said that he had started plying it on that very day. The policemen told Sardarsinh to pay Rs.25/- towards “entry”, whereupon Sardarsinh took out the muddamal notes from his shirt and handed over Rs.25/- to the policemen. That he did not know the names of the two persons at the time of the trap and came to know of the same subsequently. One person was named Prabhashankarbhai and the other was named Chhatrabhai. He has further stated that he is not in a position to correctly identify the said two persons because a period of three and a half years has elapsed. He has further deposed that when Sardarsinh started handing over Rs.25/-, Prabhashankar asked him to give the same to Chhatrabhai and hence, Sardarsinh handed over Rs.25/- to Chhatrabhai. After accepting the amount, Chhatrabhai put the same in the right pocket of his pant. Thereafter, he and Sardarsinh boarded the Matador and parked it on the side of the road. When they returned to the Matador, Sardarsinh informed Shri Dodia and Shri Pancholi about the incident and, thereafter, Shri Dodia and Shri Pancholi alighted from the vehicle and he and the punter-Sardarsinh also alighted. Thereafter, by the time they reached the policemen, the other jeep had also arrived. Shri Dodia and Shri Pancholi introduced themselves to Prabhashankar and Chhatrabhai. Thereafter, the procedure with regard to ultraviolet lamp etc. was followed and anthracene marks were found on the hands of Chhatrabhai and Prabhashankarbhai. In his cross- examination, he has stated that he does not remember the entire procedure carried out in view of the lapse of three and a half years since the time of the incident and that prior to deposing before the court, he had read the panchnama as well as his police statement. That since he had read both the said documents, he had deposed accordingly. That if he had not read the panchnama and the police statement, he would not have been able to depose in this manner. He has further stated that the panchnama was dictated by Shri Dodia in the jeep. He has also deposed that the shirt worn by the driver Sardarsinh was not seized. When the shirt was examined under the ultraviolet lamp, signs of anthracene powder were seen. He has further stated that the ultraviolet lamp experiment was not carried out on the steering of the Matador or its cabin. In his cross-examination, it has further come out that when he and Sardarsinh alighted from the vehicle and went towards the police, the Matador was parked at a distance of about four to five feet and its engine was running. From the time when he and Sardarsinh alighted and handed over the amount and returned, two to three minutes had passed. In his cross-examination, it has been further brought out that at the relevant time both he and the panch No.2 were on probation and that in case a Government servant who acts as a panch does not depose in terms of the panchnama, departmental proceedings are initiated against him, pursuant to which, he may be either suspended or dismissed.
13) Police Inspector Shri Dodiya, viz., the complainant as well as the Trapping and Investigating Officer has deposed that when they reached the Shitla Mataji Temple, a Police Mobile Van was standing there and two policemen in uniforms were standing nearby. Out of them, Head Constable Prabhashankar gestured to stop the Matador. Since the Matador had gone ahead, Head Constable Shri Joshi gestured with his hand and also asked the driver to reverse the Matador. The driver reversed the Matador and parked it next to the Police Mobile Van. Thereafter, Head Constable Joshi asked the driver to alight, whereupon, the driver of the Matador stepped down from the Matador and went to the spot where Head Constable Prabhashankar and Police Constable Chhatrabhai were standing. Head Constable Joshi asked him where he was staying, whereupon Sardarsinh told him that he was staying at Koliyak. He also asked him whether he had started plying the vehicle recently, whereupon Sardarsinh told him that he had started plying the vehicle on that very day. Thereafter Head Constable Joshi asked him to pay “Entry” of Rs.25/- pursuant to which the driver took out Rs.25/- from his pocket and after separating the same from the other anthracene stained currency notes, handed over the same to Prabhashankarbhai, who told him to give the same to Chhatrabhai, whereupon Sardarsinh handed over Rs.25/- to Chhatrabhai. In his cross-examination, it has come out that he has acted upon information and he has not made any note as regards receipt of such information nor has he verified the correctness thereof. He has admitted that he is the complainant, the Trapping Officer as well as the Investigating Officer. In his cross-examination, he has further deposed that the remaining Rs.75/- had been handed over by Sardarsinh at the scene of offence itself. The said amount had been deposited with the A.C.B. That Rs.75/- had been returned to him, which he had taken. Prior to his taking the notes, he had cleaned the powder and had thereafter taken the notes and hence, stains of anthracene were not seen on his hands. This was because he had accepted the notes after the same had been cleaned. The notes had been cleaned by the driver. That after the currency notes were cleaned by the driver, the ultraviolet lamp test had not been carried out thereon.
14) From the facts and evidence noted hereinabove, the following glaring inconsistencies in the prosecution case are noticeable. The punter witness, namely, Sardarsinh is a selected witness who has been involved in several other trap cases and has earlier also acted as a punter. He is well acquainted with the staff members of the A.C.B. Division. He is facing prosecution in a motor vehicle accident case in which a vehicle owned by him was involved, which had resulted in the death of thirty five persons. In connection with the accident, the said witness had been arrested and kept in custody for about a month. According to the said witness, he had wrongfully been kept in custody despite there being no fault on his part and that at the time when his statement was recorded by the police in connection with the said offence; the accused No.1 was present there. That apart, the very fact that a vehicle of his ownership was involved in an accident case, which had resulted in the death of thirty five persons is indicative of the fact that such a witness would be susceptible to influence by the police and would not be an independent witness. Besides, the incident had taken place on 29th July, 1994, whereas the depositions of the witnesses have been recorded in September, 1997, after a period of more than three years. The witness has himself stated that he was told by the A.C.B. Office that he should depose in terms of the complaint, panchnama and his police statement and that he had been read over the said documents on the previous day. Thus, it is apparent that such witness has not deposed independently as per his own knowledge, but has deposed in terms of the panchnama, complaint and his police statement.
15) The panch No.1 is also not an independent witness for the reason that both the panchas had been appointed in January, 1993 and were on probation at the time when the incident took place. The Trapping Officer had requisitioned there services by name. The panch No.1, in his deposition, has admitted that in case they do not depose in terms of the panchnama and the statement recorded by the police, they would be subjected to departmental proceedings, which may result in their suspension or dismissal. Though merely, requisitioning the service of a Government witness would not mean that such witness is a selected witness. However, in the facts of the present case, where both the panchas are probationers and the Trapping Officer has requisitioned their services by name, the same does give rise to a doubt that they are selected witnesses. Moreover, the said witness has also deposed that he does not remember the incident properly and that he had been read over the panchnama, his statement and the complaint and was told to depose in terms thereof, and that he had deposed accordingly. Thus, the testimony of this witness is also not based on his own knowledge. He, therefore, cannot be said to be an independent witness.
16) The Investigating Officer, in his testimony, has come out with a totally new case, which is not borne out from the complaint, namely that, he had heard the conversation between the accused and the punter. The say of this witness appears to be highly improbable inasmuch as from the deposition of the panch No.1, it has clearly come out that when they alighted from the vehicle, the engine was still running and the Investigating Officer was seated in the Matador while the accused were standing at a distance of four to five feet away from the Matador. Under the circumstances, when the engine was running and the accused were at a distance of four to five feet from the vehicle, it would not have been possible for the Investigating Officer to hear the conversation that had taken place between the punter and the accused. Under the circumstances, the version regarding the incident as given by the Investigating Officer does not appear to be at all reliable.
17) Apart from the fact that the witnesses referred to hereinabove are not independent witnesses and the Investigating Officer is not witness to the actual incident, there were other basic defects in the prosecution case, which go to the root of the matter. Firstly, the shirt worn by the punter has not been seized despite the fact that it is the case of the prosecution that the anthracene stained currency notes were kept in the right pocket of his shirt and that the anthracene marks were found on the shirt when examined under the ultraviolet lamp. Moreover, the muddamal currency notes have not been seized by the prosecution. Further, no anthracene marks were found on the hands of the Investigating Officer to whom the remaining currency notes of Rs.75/- were handed over by the punter-Sardarsinh. According to the Investigating Officer, Sardarsinh had first, cleaned the notes and then handed over the same to him and hence, there were no marks of anthracene on his hands. Such a version is totally unbelievable inasmuch as it is difficult to accept that anthracene stained notes could have been cleaned by the driver to such an extent that the anthracene marks would no longer remain on such notes.
18) Insofar as the accused Ns.3 and 4 are concerned, except for the fact that they have been arraigned as accused persons, there is no evidence whatsoever as regards their involvement in the offence in question. None of the witnesses make any reference to their presence or their involvement in the offence in question.
19) In the light of the aforesaid facts, it is apparent that the prosecution has not established its case against the accused beyond reasonable doubt. The learned Special Judge was, therefore, justified in holding that though on the material before the court, there is a grave suspicion against the accused, however, the guilt of the accused has not been established beyond reasonable doubt.
20) In the premises aforesaid, in the opinion of this court the view adopted by the learned Special Judge is a plausible view and cannot in any manner be said to be perverse. Under the circumstances, in the absence of any perversity in the impugned judgment and order passed by the learned Special Judge, there is no warrant for interference by this court. The appeal is, accordingly, dismissed.
(HARSHA DEVANI, J.) Vahid