1. The appellant – State of Gujarat has called in question the judgment and order dated 7th January, 1998 passed by the learned Special Judge, Panchmahals at Godhra in Special (Corruption) Case No.8/1995 whereby he has acquitted the respondent of the charges levelled against him under sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.
2. The complainant – Yohanbhai Holiyabhai Gamit who, at the relevant time, was serving as the police constable in the State Reserve Police Force, Group II, Vav, District Surat and was posted at Godhra lodged a complaint with the Anti- Corruption Bureau, Godhra stating that he was serving as a police constable in the aforesaid Group since February, 1992 and was in the ‘D’ Company. His company was posted at Bharuch for bandobast at which point of time on health grounds, he had remained absent from service and had gone to his village Pipalkuva in Songadh taluka and was accordingly absent from 18th July, 1994 to 4th October, 1994. On 5th October, 1994, he had reported before the Senapati at Vav and was given a relieving order and he reached Godhra late at night on 6th October, 1994 and reported to his Company Commander V.C. Puwar. He talked to his RAW head who was known as Babuji and requested him to pay him his arrears and TA dues, whereupon he sent him to the Company Commander. He approached the said officer and asked him to pay him his Government dues whereupon he had asked him as to what amount he would give him. In response thereto, he has said that his position was bad to which he had said that he should give him Rs.200/- otherwise since he had the habit of remaining absent time and again, he would submit an adverse report against him and since he was only a recruit, he would be sent home. That he had agreed to give him Rs.200/- and the accused had told him that he should first come and pay him Rs.200/- and then he would get his money; that he had arranged for Rs.200/- and come and lodged the complaint since he did not want to give the amount of illegal gratification demanded by the accused. Pursuant to the complaint, a trap was laid by soiling four currency notes of the denomination of Rs.50/- and carrying out the ultraviolet lamp procedure and after which the raiding party proceeded towards the ACB office. The complainant was accompanied by the panch No.1 whereas the other members of the raiding party and the panch No.2 were following behind them. As per the prosecution case, the accused had accepted Rs.200/- from the complainant and in this manner, had accepted illegal gratification and thereby committed the offence punishable under sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act. Pursuant thereto, investigation came to be carried out and upon conclusion of the investigation; the Investigating Officer submitted a charge-sheet before the concerned court. The case was numbered as Special Case No.8/95(Corruption). The trial court after appreciating the evidence on record came to the conclusion that the prosecution has miserably failed to establish its case against the respondent and accordingly acquitted him of the charges levelled against him.
3. Mr. K.L. Pandya, learned Additional Public Prosecutor appearing on behalf of the appellant submitted that the prosecution has duly proved the prior demand, demand at the time of the trap, acceptance and recovery and hence, the learned Judge was not justified in holding that the prosecution had not proved its case against the accused. It was pointed out that the complainant in his deposition has stated that the accused had demanded a sum of Rs.200/- for giving the complainant his dues as well as for not filing an adverse report against him in respect of his remaining absent from duty. Thus, the prior demand had been duly established by the prosecution. Insofar as the demand, acceptance and recovery at the time of the trap proceeding are concerned, from the depositions of the complainant, the panch witness as well as the Investigating Officer, it is apparent that the accused had demanded and accepted a sum of Rs.200/-, which sum was recovered from the accused. That while conducting the ultraviolet lamp test after the raid, both the hands of the accused were found to be tainted with anthracene powder and anthracene tainted currency notes were recovered from a plastic bag which was kept below a book. Thus, the say of the complainant that the accused had demanded and accepted the said amount from him, stands duly proved. It was submitted that once the amount was recovered from the possession of the accused and his hands were tainted with anthracene powder, there was a presumption that he had demanded and accepted the said amount. It was urged that the accused having failed to explain the marks of anthracene on his hands, the learned Judge was not justified in holding that the prosecution had not proved the demand and acceptance. It was pointed out that the witnesses had deposed after a considerable period since the date of the incident hence, it was natural that there would be minor inconsistencies in their evidence. However, in the absence of any material discrepancy, the learned Judge was not justified in discarding the evidence led by the prosecution witnesses. Referring to the findings recorded by the learned Judge, it was submitted that the findings are contrary to the evidence on record and that the learned Judge has failed to appreciate the evidence on record in proper perspective and as such, the impugned judgment and order of acquittal deserves to be set aside and the respondent ought to be convicted for the alleged offences.
4. Vehemently opposing the appeal, Mr. Jayesh Dave, learned advocate for the respondent drew the attention of the court to the deposition of the witnesses. It was pointed out that the complainant in his deposition has stated that he had approached the ACB office on 8th October, 1994 and had introduced himself to P.I. Shri Pandey and had narrated the entire incident to him. That Shri Pandey had identified himself and had taken down his complaint whereas the prosecution has not examined P.I. Pandey as a witness but has examined P.I. Shri N.J. Pathan instead. As per the deposition of P.I. Pathan, the complainant had lodged the complaint with him and it was he who had taken down the complaint. Thus, there is a basic inconsistency in the evidence led by the prosecution which goes to the root of the matter as to who had taken down the complaint and as to who had conducted the trap proceeding. It was submitted that though in the deposition of the complainant, reference is made only to P.I. Pandey having registered the complaint and having conducted the trap proceeding, in the panchnama there is reference to both P.I. Shri Pandey and Shri Pathan whereas according to the deposition of Shri Pandey, he was the main person who had arranged the trap and who had recorded the complaint of the complainant.
4.1 Next, it was pointed out that there is no demand at the time of the incident. It was submitted that from the deposition of the witnesses and the panchnama, it is evident that the outstanding dues of the complainant were paid to him without any demand from him. However, subsequently, even after such amount was paid to him, the complainant and the panch witness went to meet the accused and thereafter, it is alleged that the accused had demanded and accepted the amount. It was submitted that the facts indicate that the complainant who had an axe to grind against the accused, who was entrusted with the inquiry in respect of the departmental proceedings against him and various other members of the D-II Company including one Thavaraji, who is the person who had furnished the amount which was used for the purpose of the trap proceeding. It was submitted that under the circumstances, the entire exercise appears to have been carried out with a view to falsely implicate the accused. The learned Judge has, therefore, come to the right conclusion after due appreciation of the evidence on record and has acquitted the accused of the charges levelled against him. Various other discrepancies in the depositions of the witnesses have been pointed out, reference to which shall be made at a later stage.
5. The contents of the complaint have already been narrated hereinabove.
6. The complainant – Yohanbhai Holiyabhai Gamit has been examined at Exh.11. He has testified in terms of the complaint lodged by him. He has further stated that after he approached the ACB office and his complaint was registered, two panchas were called by P.I. Pandey and currency notes amounting to Rs.200/- were taken from him. Thereafter, the notes were soiled with anthracene powder and the ultraviolet lamp test was carried out. After carrying out the ultraviolet lamp procedure, the complainant, the two panchas and members of the ACB staff went to Hanuman Tekri where their office was situated. Panch No.1 accompanied him whereas the rest of members of the raiding party were following them. When they reached there, the accused was standing outside. He (the complainant) saluted him. The accused commented that he (the complainant) was not doing any work and was just coming to take money, whereupon the complainant had answered that he had come as told by the accused. Thereafter, the accused told the writer that give Yohan his pay. He and the panch thereafter went and sat on the cot lying nearby and the writer asked him to put a ticket and thereafter paid him his dues. After taking the money, he and the panch went to the room of the accused and he again saluted him. The accused was wearing a dhoti and banyan and was sitting there and reading something. When he went to offer him the amount of illegal gratification, he had asked him as to who was accompanying him to which he had said that he was his paternal uncle's son. The accused told him to give the amount to the orderly Narsinh who was outside. After going out he could not find Narsinh, hence he and the panch again entered the room. The panch was standing near the door while he had approached the accused and told him that Narsinh was not there hence, he should take the money, whereupon the accused had accepted the same. Thereafter he came outside and gave the pre-arranged signal and Mr. Pandey and rest of the ACB staff came inside.
7. The complainant has further deposed that the accused after taking the money in his hand had put it in a book. When Pandey and the other members came inside, his hands and the hands of the accused were observed under the ultraviolet lamp and stains of anthracene powder were found. The currency notes were recovered form the book and anthracene powder was also detected on the said currency notes. Thereafter, the panchnama was drawn and Mr. Pandey had also recovered his ( the complainant’s) leave and TA bills as well as the currency notes of Rs.200/-. Thereafter, he had returned to the company office.
8. In his cross-examination, he has admitted that he had without taking oral or written leave from Commander or Senapati remained absent from 2nd June, 1994 to 13th July, 1994, for 179 days and was declared to be an absconder. He has also accepted that once a person is declared to be an absconder, if departmental proceedings are initiated and proved, penalty is imposed. He has admitted that he had taken a loan of Rs.200/- from Thavaraji Pandor which was used for the purpose of the trap. In his cross-examination, it has been further revealed that when he went to get his outstanding dues, Pandey and the other staff members were waiting near the temple. He has admitted that after saluting the accused, he was going to take his salary whereupon Shri Pandey called him and asked him whether he had given the amount of illegal gratification at which point of time even the Panch No.1 was present with him. He has admitted that at that point of time as no amount was demanded, hence nothing was given. He has further admitted that after hearing his reply, P.I. Pandey was angry with them.
9. Ramanbhai Kanabhai Parmar, panch No.1 has been examined at Exh.15. He, in his deposition, has stated that he and the second panch were called to the ACB office where they were introduced to P.I. Pathan and P.I. Pandey, who had explained everything to them. He has further deposed that after they left the ACB office, they had gone to the SRP office where Police Inspector Puwar was sitting on the verandah outside his house and was wearing a lungi and a banyan and was sitting on a chair. The accused had commented that he did not want to work but always came along to get his pay, whereupon the complainant told him that he was to take his salary as per the instructions of the accused, whereupon the accused had called one Bara and told him to tell Babuji to pay the complainant his salary. Thereafter, he, Bara and the complainant went to the office which was located on the other side. Shri Bara took a revenue ticket from the complainant and after affixing the same, paid the complainant his salary. After they were returning from there, they again approached the accused. He had also gone with the complainant inside the office, but the accused gestured towards him with his finger to go outside. Hence, he had gone outside and was standing near the door. The complainant was determined to give Rs.200/- to the accused, but the accused told him to give the amount to his orderly. The complainant had said that the orderly was not to be seen outside and asked the accused to take the money. Thereafter the complainant had come out and told him that the accused had accepted the said amount, pursuant to which, he and the complainant gave the pre- arranged signal and the rest of the raiding party arrived there. He has further deposed that thereafter the ultra-violet lamp experiment was carried out and the hands of the complainant and the accused were found to be soiled with anthracene powder. That the currency notes were found in a plastic bag which was placed below some religious books. It was the panch No.2 who has found the same. That upon comparing the numbers of the currency notes with the numbers noted in the preliminary panchnama, they were found to tally. The deposition of the panch indicates that he has deposed in terms of the panchnama, wherein more or less similar facts have been recorded.
10. Shri N.J. Pathan has been examined at Exh.21. He has deposed that on 8th October, 1994, he was working as a P.I. in the ACB office at Godhra. On that day, the complainant had come to lodge a complaint against the accused. He had recorded the complaint as given by the complainant. Thereafter he had sent a yadi to the Mamlatdar, Godhra for allocating two persons to act as panchas. Upon the panchas coming to the office, they were introduced to the complainant and thereafter necessary procedure was carried out. At about 3 o'clock in the evening, they had gone on foot to Lalbagh Tekra whereby the SRP camp was situated. The complainant had gone to the office of the accused and thereafter given the pre- determined signal after which the raid was carried out. He has further deposed that both the hands of the accused were tainted with anthracene powder. At that time, they had carried out search and four Rs.50/- currency notes were found under a religious book. Upon carrying out the ultra-violet lamp experiment on the currency notes, stains of anthracene were found thereon. The hands of the complainant as well as inner part of his pocket were also found to be soiled with anthracene when examined under the ultra-violet lamp.
11. In his cross-examination, he has admitted that normally the time, date and place of the panchnama are stated in the first as well as in the second part of the panchnama whereas in the facts of the present case, there is no date in the first part as well as the second part of the panchnama and that he has also not put any date below his signature. He has admitted that at the time of the raid, P.I. Pandey had accompanied them and had assisted him in the proceedings. He has denied that the complainant had given the complaint to P.I. Shri Pandey. He has admitted that when they reached the scene of the incident, the panch No.1 and the complainant had twice or thrice gone from one office to the other and that the complainant had given the pre-arranged signal after he had taken the salary. He has admitted that the place where the signal was given and the place where the salary was taken were different. In his cross-examination, he has admitted that when they entered the room the accused was holding a religious book in his hand and was reading the same. That they had conducted the ultra-violet lamp procedure on the said book, however, no stains of anthracene were found on the said book.
12. It is in the backdrop of the above evidence that the court is required to examine as to whether or not the prosecution has proved the charges against the accused beyond reasonable doubt. It is by now well settled that in a trap case, the prosecution is required to prove a prior demand, as well as demand, acceptance and recovery at the time of the incident. Hence, what is required to be examined in the present case is whether the prosecution has succeeded in satisfying these requirements. Insofar as prior demand is concerned, as per the deposition given by the complainant, the accused had demanded Rs.200/- for the purpose of giving him his outstanding dues as well as for not submitting any adverse report as regards his absenteeism from duty.
13. The next thing that the prosecution is required to establish is the demand at the time of the incident. In this regard, from the facts noted herein, at the time of the incident when the complainant and the panch approached him, the accused had instructed one Bara to tell one Babuji to pay the complainant his dues pursuant to which Bara took a revenue ticket from the complainant and after affixing such ticket, Babuji handed over his outstanding dues. Thus, the outstanding dues of the complainant were paid without any demand of illegal gratification having been made. Under the circumstances, as rightly held by the learned Judge, the complainant could have left the premises and gone as no amount had been demanded for the purpose of paying his salary. However, the complainant on the insistence of the Trapping Officer had again approached the accused. From the incident that has taken place subsequent thereto also, it is evident that at no point of time the accused had demanded any amount from the complainant. Even as per the say of the complainant, he himself had gone and offered the amount by way of illegal gratification, whereupon the accused had asked him to pay the amount to the orderly who was standing outside. However, the complainant had told him that the orderly was not there and that he should take the money. Thus, even as per the say of the complainant, no demand was made by the accused at the time of the trap proceedings.
14. It has been contended on behalf of the prosecution that in view of the fact that the currency notes were found from the custody of the accused and his hands were stained with anthracene powder, there is a presumption that the same were accepted towards illegal gratification. In this regard, apart from the fact that there was no demand of illegal gratification made by the accused, even the aspect of acceptance has not been established by the prosecution. It may be noted that various versions have come out as regards the place from where the currency notes have been found. The complainant has stated that the accused after receiving the amount has placed the same in a book and that the currency notes were recovered from the said book. The panch witness had stated that the currency notes were found out by the panch No.2 from a plastic bag which was kept below some religious books. The trapping officer, has stated that the four Rs.50/- currency notes were found below a religious book. He does not refer to the amount being found in a plastic bag. Thus, even as regards recovery of the amount, there are different versions coming forward.
15. Another notable aspect of the matter is that it is the case of the prosecution that both the hands of the accused including the fingertips of his fingers and his thumbs were found to be stained with anthracene powder. It has also come out from the deposition of the witnesses that at the time when the raiding party entered the office of the accused, he was reading a religious book. However, from the evidence of the witnesses as well as the categorical statement made by the trapping officer, no anthracene marks were found on the said book. Under the circumstances, it is difficult to believe that if the hands of the accused were stained with anthracene powder, the book which he was holding in his hands would also not be similarly stained. Thus, there are material discrepancies in the prosecution case which strike at the foundation of the prosecution case. The prosecution has, therefore, failed to prove the charges against the accused beyond reasonable doubt.
16 The learned Special Judge, in the impugned judgment, has after discussing the evidence on record threadbare, given cogent, convincing and sufficient reasons while acquitting the accused of the charges levelled against him.
17. Under the circumstances, for the reasons recorded herein as well as for the reasons stated in the impugned judgment and order, this court is of the view that the prosecution has failed to establish the guilt of the accused. It is, therefore, not possible to state that the impugned judgment and order suffers from any legal infirmity warranting interference by this court.
18. In the result the appeal fails and is, accordingly, dismissed.
( Harsha Devani, J. ) hki