BEFORE THE ADDITIONAL SESSIONS JUDGE 2ND FAST TRACK COURT OF PANCHMAHAL AT GODHRA
SPECIAL A.C.B. CASE NO. 1/2006
Exhibit: 68
Complainant: Hon’ble Government
V/s.
Accused: Dilipsinh Laxmansinh Rathod
Occupation: Police Sub-Inspector (Rajgadh Police Station), Taluka Ghoghamba
Offence: Under Section 7, 13(1)(GH), 13(2) of Prevention of Corruption Act, 1988
Advocates: On behalf of Complainant: Learned PP. Shri D. H. Thakkar
On behalf of Defence: Learned Advocate Shri B. R. Trivedi
JUDGMENT
1. That the details in short of Complainant Sabbirbhai Yusufbhaibhai Kesari, resident of Chelawada, Taluka Ghoghamba against accused through a Complaint dated 28/03/2005 is that the Complainant is residing at Chelawada and engaged in business of agriculture and have two Jeeps, which belongs to Farukbhai Yusufbhaibhai Kesari and running a ferry service between Halol and Chelawada and the administration of said vehicles are carrying on by the Complainant and these vehicles are presently moving within the limits of Rajgadh Police Station. Shri Dilipsinh Rathod is posted since last one year as Police Sub-Inspector of Rajgadh Police Station and he was asking for Rs. 500/- for each Jeep from the Complainant and the Complainant went to pay the said amount on 27/03/2005, when he was standing near the Baba Ramdev Temple and PSI Dilipsinh was on duty and at that time he took the Complainant near the Temple and demanded Rs. 500/- for each Jeep. The Complainant did not have money at that time and so the vehicles of Complainant were detained by the him and threatened him of issuance of RTO Memo, therefore, the Complainant asked him to take some less amount, the PSI Rathod demanded for Rs. 400/- for each vehicle. The Complainant did not have facility for paying the said amount and therefore PSI Rathod asked him to pay the said amount before 28/03/2005. The Complainant was not desirous of paying the said amount and therefore, he contacted personally PSI Rakesh Sharma of A.C.B. Office, Vadodara and there he filed a Complaint with respect thereof. After registering the Complaint he called for two acquainted Government Panch Persons and made them to know each other with staff of ACB Office. The Complainant described his Complaint in short which was written in the Office of the ACB Vadodara, and thereafter he took signatures of the Complainant and Panch Persons thereon, after readding the same thoroughly. Thereafter, the Complainant along with the Panch Persons and persons of raiding party went into the Chamber of PSI Sharma, wherein PSI Sharma called Gamsingbhai and given him key for cupboard, who took out some two bottles, two beakers, Phenolphthalein Powder, Sodium Carbonate, etc., along with the required materials and thereafter Complainant was given to understand and was handed over eight currency notes of each of Rs. 100/-. Gamsingbhai thereafter, put the some piece of papers on the table and fetch water in beaker and put his both hand in water thereafter demonstrated them the color of water, which he thrown away and took another quantity of water, which did not have any color. He put some quantity of Phenolphthalein Powder in his hands and put his hands in the beaker, which became of Pink color. The Complainant was demonstrated the whole experiment and thereafter the currency notes given to Complainant were applied with Phenolphthalein Powder and were given to Complainant, which he took into his right hand and put into pocket on Left Hand side of his shirt. The Complainant was instructed that not put his hand inside the pocket till the event of amount of currency notes are to be given to Accused as bribe, and thereafter both Panch Persons and PSI Sharma, Amarsing, Fulabhai, Dilipsinh and PI Limba, etc. took off from Vadodara Kothi Office at about 4.50 riding two jeeps reached Rajgadh Police Station at about 6.15 hours. The Complainant along with Panch Person No. 1 Sunilkumar Upadhyay went inside the Police Station and inquired with the office employee about Rathod. They were told that the Rathod is not inside and thereafter after about 10 minutes the Panch Person No. 1 again inquired he was again told that Rathod Saheb is not in, if you are in hurry he is available at his residence. The Residence is situated opposite the Police Station, and therefore, the Complainant along with Panch Person No. 1 went at the residence of Rathod and knocked the door. Rathod came out and inquired that how much money they have brought. The Complainant informed that he had brought Rupees Eight Hundred. Thereafter, the Complainant was asked to wait in side the Compound of residence, wherein in one chair the Complainant and in another one the Panch Person No. 1 were sitting, while in third chair was taken by PSI Rathod. Thereafter, PSI extended his Right Hand wherein Complainant given him currency notes, which was applied with Phenolphthalein Powder and were kept in his Left side pocket, which Rathod took in his left hand and slipped in his pocket of white color underwear (which is known as Sadara in local parlance) and thereafter the Complainant made a sign, so the persons of raiding party came inside and given their identification to PSI Rathod and thereafter PSI Rathod was given to understand that on the basis of Complaint given by Complainant he was to be taken for action against the offence of accepting bribe under the Prevention of Corruption Act. The Accused given his name as Dilipsinh Laxmansinh Rathod. Thereafter Head Constable Rathva prepared liquid of Sodium Carbonate and applied the said liquid water on the hands of persons other than Complainant and Accused, the water did not change its color and thereafter no presence of Phenolphthalein Powder was found and thereafter in presence of witness the wash of hands of Accused Rathod was taken in two different beakers of Sodium Carbonate Water and the Water became of pink color of both the beakers, which was taken into possession and thereafter taken out of all the things of upper underwear of the Accused wherefrom currency notes of total eight numbers were seized which had identical numbers identified through Panch Person No. 1, which were as described in the Panchnama and the same currency notes were applied with Sodium Carbonate and when the said notes came into contact with liquid of powder the pink color was found and thereafter, the required statements of witnesses were taken and an inquiry was made of the offence, which was registered under the Offence Register Sr. No. 2/2005 punishable under the Sections 7, 13(1)(GH), 13(2) of Prevention of Corruption Act, 1988.
2. On investigation in to the offence, the evidences were available to prosecute the Accused therefore under the provisions of Section 173 of Criminal Procedure Code and Section 19 of aforesaid Act, a departmental permission was obtained and Charge Sheet for Special ACB Court Case was framed and the Case was registered under Special ACB Case No. 1/2006 which was transferred before this Court for regular disposal.
3. A Charge Sheet is framed against Accused under Exhibit-12, which was read over to the Accused and was given to understand same. Thereafter under Exhibit-13, a statement, the Accused denied the offence, therefore oral evidences were recorded as under:
Oral Evidences:
(1) Oral Evidence of Complainant Sabbirbhai Yusufbhai Kesari under Exhibit-17
(2) Oral Evidence of Witness Sunil Naginbhai Upadhyay under Exhibit-26
(3) Oral Evidence of Witness Rakesh Baldevkrishna Sharma under Exhibit-35
(4) Oral Evidence of Witness Vijaykumar Tuljaram Navle under Exhibit-41.
From the Complainant side, under the List of Exhibit-8, the following documentary evidences were submitted:
(1) Original Complaint at Exhibit-36
(2) List made by ACB Sharma in presence of Government Panch Persons under Exhibit-37
(3) Original Panchnama made at the time of Bribe Trap underExhibit-31
(4) Office Copy of Seizure Report of things seized from the Accused under Exhibit-38
(5) Certificate of Gold Smith under Exhibit-39
(6) List of Seizure of Service Revolver of Accused under Exhibit-40
(7) Transfer Order of Accused under Exhibit-44
(8) True copies of Statements of Police Station under Exhibit-44
(9) List of F.S.L. Despatch under original Exhibit-42
(10) F. S. L. Report under Exhibit-43
(11) Original Letter of Joint Police Commissioner for filing Complaint under original Exhibit-46
(12) Pursis for closure of Evidence under Exhibit-51
(13) Written Arguments submitted by Learned APP on behalf of Complainant under Exhibit-52
(14) Written Statement of Accused under Exhibit-53
(15) Written Arguments submitted by Learned Advocate for Accused under Exhibit-55
(16) Pursis submitted by Learned APP under Exhibit-56
4. The Complainant was given opportunity for filing clarification of the circumstances against the Accused under the provisions of Cr. P. C. Section 313, wherein the Accused denied the Oral Evidence of Complainant and further submitted that it is false case filed against him in consultation of each other and has also submitted with respect to the behavior of ASI Kantibhai that Kantibhai was transferred to Godhra and after six months he was transferred at Rajgadh Police Station and he was prejudiced and therefore he put some money at my place before one of the event in respect of transaction of Land, and also he was aware of all these and therefore the entire case is falsely filed against him. Thereafter, the Written Arguments submitted by Learned APP Shri D. H. Thakkar under Exhibit-52 and also his submission of oral arguments, and also the written arguments submitted on behalf of Learned Advocate Shri B. R. Trivedi under Exhibit-55 and further submission of his oral arguments.
5. Heard the submissions of oral arguments of Learned Advocates of Opponent and also considered the evidences on record, to decide the balance of success of Complainant, according to me, the following issues are raised:
Issues:
(1) Is it proved beyond doubt that the Accused of this case as he is working as Police Sub Inspector at Rajgadh Police Station, Taluka Ghoghamba of District Panchmahal in Government of Gujarat cannot be removed under the provisions of Section-2 (C) of Prevention of Corruption Act, 1988 is covered under the definition of Government or Public Servant and therefore he was Government Employee?
(2) Is it valid and legal permission which is given before filing this case?
(3) Is it proved beyond doubt that the Accused was on duty as Government or Public Servant during the year 2005 and he has misused his designation and availed amount except of Salary, Allowances or amounts receivable by him, demanded for amount of Rs. 800/- towards the bribery installment of month of March of 2005 of Rs. 400/- for each Jeep for running illegal ferry service operation between Chelawada and Halol on 27/03/2005 as an inducement and on 28/03/2005 between 18.15 at his residence was trapped for accepting an amount of Rs. 800/- from the Complainant at Rajgadh Police Station and was caught during the raid with materials and committed an offence punishable under the provisions of Section 7, 13(1)(GH) and also under Section 13(2) of said Act?
(4) What Order?
6. My decisions to the above issues are as under:
(1) Affirmative
(2) Affirmative
(3) Negative
(4) As per Final Order.
Reasons:
Issue No. 1:
7. Initially, it is necessary that it should be checked whether the Accused is covered under the definitions of Public Servant as defined under the provisions of Section-2(c) of Prevention of Corruption Act, 1988? Because, the Public Servant or Government Servant who is on duty serving to Public as Government Servant and commit any offence under the provisions of said Act is to be considered as an offence committed on duty. Therefore, it is for consideration whether Accused was on the day of event i.e. on 28/03/2005 when the Complainant filed a Complained on 27/03/2005, the Accused Dilipsinh Laxmansinh Rathod was on duty at Rajgadh Police Station of Taluka Ghoghamba, as per the documentary evidences submitted by Complainant under Exhibit-44 & 45. Considering the documents submitted under Exhibit-44, the Accused was transferred from present District Gandhinagar to Rajgadh Police Station of District Panchmahal, which order is at Exhibit-44 and further considering the details of his services rendered at places of District Panchmahal as PSI and also the copy of First Page of his Service Book. As per this Exhibit-45 the Accused was on duty as PSI at Rajgadh Police Station and also considering the copy of First Page of his Service Book, his Birth Date is shown as 14/01/1948 which bears the signature of DSP Godhra, wherein his education qualifications and mark of identifications on body are also shown. While, the Order dated 18/01/2006 bearing No. H/742/PSI/WS/06/146 is passed by Joint Police Commissioner, Special Branch, Ahmedabad for approval of prosecution against the Accused under Section 19, Sub-Section (1) part (g) of Prevention of Corruption Act, 1988 and also therefore it is established that he was on duty as Government Servant during the month of March, 2005 at Rajgadh Police Station, Taluka Ghoghamba of District Panchmahal and Joint Police Commission, Special Branch, Ahmedabad is authorised to remove him from said post. Thus, the Accused is Government Servant and he cannot be removed from his post without obtaining permission from the Government of Gujarat and therefore, as defined under Section-2 (c) of said Act, it is established that the Accused is Government Servant as on date. The Prosecution has not disputed the contents of Exhibit-46 with respect to Order of approval to prosecute the Accused and therefore I arrive to decision that the Accused was Government Servant of Government of Gujarat as Public Servant and therefore, cannot be removed from his post without approval of Government of Gujarat and therefore, I decide in affirmative the issue No. 1.
8. The Complainant Sabbirbhai Yusufbhai, resident of Chelawada, Taluka Ghoghamba, who is operating illegally two jeeps for ferry service and Rs. 400/- for each jeep i.e. aggregating to Rs. 800/- in total as an installment of March, 2005 was demanded by Accused as an inducement, while he was on duty at Rajgadh Police Station, but the Complainant was reluctant to give said amount and therefore filed a Complaint and on 28/03/2005 the Accused was trapped in trap of Anti Corruption Bureau for accepting bribe of Rs. 800/- and as the same was misuse of his designation and position for receiving the amount except those of his salary, allowances and legal remuneration of Rs. 800/- and for taking economic advantage his position he was trapped while accepting th same and for proving the said charge, the Complainant examined four witnesses and also various documentary evidences submitted under documentary evidences Exhibit Nos. 8/1 to 8/11 the same are proved, therefore the same have been given separate exhibit numbers.
9. As regards the Written Arguments submitted by Learned Government Pleader Shri D. H. Thakkar, and further submission of oral arguments, as submitted by him, the Complainant has given information of facts as per his Compliant in his deposition. The Complainant has identified his signature in the Complaint. The Complainant has also identified the Accused and considering his deposition at Exhibit-36, the accused has demanded for amount of money from the Complainant and in presence of Panch Person No. 1 Sunilbhai the Accused has accepted the amount of money and while taking the search by Panch Person No. 2, the amount of currency notes of Rs. 800/- are found. Thus, the recovery of money is made from PSI Rathod. Thus, the proof of demand, acceptance and recovery are available, which should be accepted. Sunilbhai, who is Panch Person No. 1 is examined under Section-26, who is Government Servant and therefore, looking to his entire deposition, it can be considered that the demand, acceptance and recovery of amount of money is recovered by him and therefore his statement is believable. Rakesh Baldev Sharma has given his deposition at Exhibit-35 and he has described the act of his work in his deposition. The Panchnama is also carried out in his presence and Article Serial No. 1, the currency notes, Article No. 2 to 7 are identified by him and also has identified the Accused before the Court. The witness Vijaykumar Navle, deposition at Exhibit-45, has stated that for obtaining approval of prosecution he send report to Head Office on 22/08/2005 and as there were sufficient proofs against the Accused, the permission for prosecution was granted and filed a Charge Sheet on 06/02/2006. The witness has identified all the articles and also identified the Accused before the Court. Learned APP has submitted in his arguments that the demand, acceptance and recovery are the important factors and on the basis of oral and documentary evidences of the Complainant, it is established. It cannot be believed that the questions asked by the Defence to the witnesses of the Complainant are contradictory, omissions and questions asked are having no material facts. The facts of demand, offer, acceptance and recovery are proved on the basis of oral and documentary evidences, therefore, it is proved beyond doubt that the Accused has taken bribe for setting an example in the Society, the Accused should be published.
10. The Learned APP has submitted following citations during his arguments, which give as under:
(1) AIR 1998 SUPREME COURT 1474
APPELLANT: STATE OF
V/S.
RESPONDENT: Zakaullah
The Hon’ble Supreme Court has held that:
“(A) Prevention of Corruption Act (2 of 1947), S. 5(2) – Bribery –Proof – Delinquent official caught red-handed in trap laid by trap officer – Complainant’s evidence corroborated by evidence of trap officer – Complainant’s evidence cannot be rejected merely because he was aggrieved against the bribe take – Fact that trap officer successfully trapped delinquent is no ground to conclude his animosity against the delinquent – Order of High Court acquitting delinquent on patently wrong and tenuous considerations not proper – Set aside.”
“(B) Evidence Act (1 of 1872), S.3 – Independent witness – Case involving police raid or search of Acquaintance of independent witness with police or fact that he helped police action – Would not by itself discredit evidence of said independent witness.”
“(C) Prevention of Corruption Act (2 of 1947), S.5(2) – Bribery case – Evidence of Trap officer – Can be relied on even without corroboration.”
“(D) Prevention of Corruption Act (2 of 1947), S. 5(2) – Bribery – Trap Case – Accused caught red-handed with tainted currency notes – Non-sending of sample of solution used for conducting Phenolphthalein test to chemical – Would not vitiate trap.”
(2) GLR 1997 (1) 751
Appellant: State of
V/s.
Respondent: Ghanshyamsinh Ranchhodsinh Vaghela.
The
“(A) CRIMINAL TRIAL – Anti Corruption Cases – Hostile witness – Appreciation of evidence – evidence Act, 1872 (1 of 1872) – Sec. 154 – Prevention of Corruption Act, 1988 – Sect. 13 – Demand and acceptance of bribe money not supported by decoy witness although he supported prosecution case with regard to other aspects of the Trap – evidence of such witness, even though declared hostile, ought to be accepted and relied upon to the extent it supports the prosecution – Overall content of evidence of such witness in total perspective must be examined – Principles in this regard stated.”
“(B) CRIMINAL TRIAL – Appreciation of evidence – Anti Corruption Cases – Prevention of Corruption Act, 1988 – Sec. 13 – Criminal Procedure Code, 1973 (II of 1974) – Sec. 154 –Evidence of Inspector who arranged the trap not believed on the ground that certain details were not mentioned in the complaint filed by him – Acquittal on this ground held wholly illegal.”
“(C) CRIMINAL TRIAL – Appreciation of evidence – Anti-Corruption Cases – Prevention of Corruption Act, 1988 – Sec. 13 – Appreciation of evidence of prosecution witnesses in trap cases – Guidelines by Supreme Court in various judgments discussed.”
“(D) PANCHNAMA – Panch witnesses – Criminal Procedure Code, 1973 – Sec. 100 (4) – Evidence Act, 1872 – Sec. 159 – Examination of Panch witness – Panch entitled to refresh his memory by reading the Panchnama – Public Prosecutor and Court should invite attention of Panch witness to contents of the Panchnama if panch omits to state some detail – Held further, evidence of panch cannot be brushed aside merely because some error creeps in his evidence.”
“(E) PENOLOGY – Sentence – Prevention of Corruption Act, 1988 – Sec. 13 – Police constable accepted bribe of Rs. 20 – Imprisonment for 18 months imposed. Merely because in another case High Court had modified the sentence of imprisonment to one of heavy fine that cannot be treated as precedence.”
(3) GLR 2007 (1) 99
Appellant: Jayantilal Kuberdas Sharma
V/s.
Respondent: State of
The
“(A) CRIMINAL TRIAL – Appreciation of evidence – Evidence Act, 1872 (I of 1872) – Sec. 3 – Principles regarding appreciation of evidence – There cannot be a prosecution case with a cast-iron perception in all respects – Court has to analyze and sift evidence keeping in mind level of understanding and power of perception of witnesses – Principles formulated.”
“(E) Prevention of Corruption Act, 1947 (II of 1947) – Sec. 4(1) – Acceptance of bribe money amply proved by prosecution – Defence of false implication and any of accused that trap Officer thrust money in his pocket not found probable – Held, trial Court rightly drew the presumption envisaged in Sec. 4 – Court is entitled to presume existence of certain facts from the proved circumstances.”
“(C) CRIMINAL TRIAL – Appreciation of evidence – Proof beyond reasonable doubt is mere guideline and not fetish – Legitimisation of trivialities would make a mockery of administration of criminal justice.”
(4) GLR 2007 198
Appellant: Dahyabhai M. Bariya
V/s.
Respondent: State of
The
“(A) CRIMINAL TRIAL – Trap case –Prevention of Corruption Act, 1947 (II of 1947) – Secs. 5(1)(d) & 5(2) Indian Penal Code 1860 (XLV of 1860) Sec. 161 – Appreciation of evidence – Powdered currency notes not recovered from accused – Evidence by prosecution that seeing the men of raiding party, accused dropped tainted currency notes on ground and rubbed his hands with ‘lungi’ and ‘towel’ he was wearing – Marks of anthracene powder found on hands, ‘lungi’ and ‘towel’ of accused – Held acceptance proved.”
“(B) CRIMINAL TRIAL – Trap case – Prevention of Corruption Act, 1947 (II of 1947) – Secs. 5 (1) (d) & 5(2) – Indian penal Code, 1860 (XLV of 1860) – Sec. 161 – Obtainment of pecuniary advantage by abuse of official position – Case of demand of bribe for winding up of a case – Evidence that it was not within power of accused to wind-up the case and that accused is superior officer was seized with the matter – Contention by Defence that mere recovery of tainted notes not sufficient to constitute offence – Element of ‘obtainment’ required to be proved. – Held, Sec. 5(1)(d) covers within its sweep obtaining of illegal gratification by public servant for himself or for any other person.”
“(C) CRIMINAL TRIAL – Trap case – Prevention of Corruption Act, 1947 (II of 1947) – Secs. 5(1)(d) & 5(2) – Indian Penal Code, 1860 (XLV of 1860) – Sec. 161 – Appreciation of evidence – Contradiction in evidence by complainant and decoy panch – Held, unless contradictions are of material dimensions evidence of witness cannot be discarded in total merely on account of some variations or infirmities.”
“(D) CRIMINAL TRIAL – Trap Case – Prevention of Corruption Act, 1947 (II of 1947) Sec. 5(1)(d) & 5(2) – Indian Penal Code, 1860 (XLV of 1860) Sec. 151 – Sentence – Held, under the Act of 1947, the Court has discretionary power to award less than minimum sentence – Considering accused’s family circumstances, sentence reduced from two years to 8 months rigorous imprisonment – Appeal against conviction dismissed.”
11. Learned Advocate for Defence Shri B. R. Trivedi, submitted his Written Arguments under Exhibit-55 and further his oral arguments submitted that there are big contradiction between the oral evidences recorded and documents submitted. As per the Complainant, the Accused demanded on 23/03/2005at 10.00 O’ Clock Rs. 1000/- towards the installments for vehicles and if not given then threatened to detain the vehicles and issue Memo and Complainant requested that he will pay Rs. 800/- till evening of 28/03/2005 at Rajgadh Police Station. With this respect, the Complainant Sabbirbhai Kesari admits in his Cross-Examination that earlier he was given Court Memo, it was submitted that the same was false and therefore he did not defend in Court and admitted the offence. Further, he states that there was a fair and on that account vehicle owners were in hurry to carry out more number of trips. He was returning from Ranjitnagar to Chelawada, his residence and was meeting the friends on road side and had all light and general talks with them. Further, the Complainant states in his Cross-Examination that went to ACB Office, Vadodara after the day he went to temple. He also admits that at 10.30 he went to his house at Chelawada and at no other place. He thought to go to ACB Office on 27/03/2005 at about 12.00 O’ Clock noon. Thus, looking to the facts of Complaint and statement personally made before the Court, the reason for filing this Complaint on 27/03/2005 at about 10.00 O’ clock he had a talk with Accused that accused had demanded and threatened him is a false Complaint. The Complainant as deposited in his oral evidence that he did not meet Accused on 27/03/2005. Thus, the Complaint is false and baseless. The Complainant has further deposited in his Cross Examination that he might be allowed illegally to carry the passengers and for that purpose if the accused accepts any installments of bribe, he had no objection, but no officer shall allow him to carry illegally the passengers and he had no objection if his vehicle is detained. Thus, looking to this it can be said that the Complainant had opportunity of making a false Complaint. Also he further admits that the Complaint, which was written by Sharma Saheb at ACB Office is not the same Complaint. Thus, the evidence recorded at Exhibit-15 contradicts the Complaint at Exhibit-15 and the story of first demand is also proved to be false. The case of ACB is dependent on Demand, Acceptance and Recovery. It is essential that the Demand should be proved and except the same there is no cause of action for raising the Complaint and in lieu of Acceptance and Recovery cannot be believed to be there or cannot be presumed. Looking to the Cross-Examination of Complainant the main facts are not proved in the case and there was no reason for filing this Complaint as well there were is nothing alternate thereof. The Complainant statement is false, which is confirmed by Panch Person No. 1. The same is confirmed by Panch Person No. 1 in para-18 of his cross examination. Also the Complainant has stated that he thought of doing wrong at one stage. The Complainant is not aware that at which the Complaint is written. One cannot place his reliance on trustworthiness of contents of Panchnama. The Panch persons were selected persons and they were called by their names. As stated by Panch Person No. 1 he was not present when the Panchnama was prepared. The Complainant admits at his Cross-examination that when entire process of preparing of panchnama was carried out they were sitting near Platform of the Tree (Chotra in local parlance). It has not been done that a Panchnama is prepared in presence of Panch Persons by asking them the questions. Further, Learned Advocate for Accused submitted in his Written Arguments that Complainant has failed to prove the acceptance and recovery. In this case of ACB, there is only base for success is presence of Powder. In this case of ACB, there are no description made in the Panchnama with respect to the presence of Phenolphthalein and anthracene nor these facts are confirmed by any evidence. Thus, on the issue of demand, acceptance and recovery, the Panchnama is not in corroborating. Also the Complainant has admitted at his Cross-Examination that after reaching at Police Station he had seen together Rathod Saheb and Sharma Saheb and they had altercations and haggling. There was further haggling between both when Sharma Saheb was taking him to Police Station from Quarter and at that time Accused was in Uniform. Under these circumstances, it cannot be believed that the Accused was wearing upper under garment (which is known as “Sadara” in local parlance) and the amount of money were placed in side the same. The possibility of doubts cannot be refused that when the Accused went to quarter and Sharma Saheb went to Police Station, the misuse with bad intention of upper under garment is made, because the Complainant has admitted that at the place of Quarter there is open Varanda wherein clothes of Rathod Saheb were lying. Also in the statements of Panch Persons, at more than hundred times, they have stated for most of the questions that they do not remember, they do not know about it. Most of the details of the Panchnama Panch Persons have replied as they do not know, thus it can be said that the Panchnama is only signed by them and no role except that is played by them. Also the statements made by Trapping Officer and Panch Persons are in conformity to Complainant. Thus, looking to the all evidence it can be said that the Complainant and Accused had no good terms and were displeased by each other and had good terms with Kantibhai PSO and had dispute with the Accused and the same was made issue of status, the Complainant was just waiting to teach the lesson to Accused. The fact of leaving big amount of money at the place of accused was open and therefore together with Complainant and ACB, it was to grab an opportunity to teach the lesson to Accused. Thus, the Complainant has failed to prove the case and there are no confirmation through any of oral documentary evidences. The issues of Demand, Acceptance and Recovery are not proved beyond doubt and allegations against the Accused are not proved and therefore the accused should be released guiltless. Learned Advocate for Accused submitted citations during his arguments, which are given hereunder:
(1) 2006 – TLPRE – O – 555, 2006 (TLS) 43301 SUPREME COURT OF
Appellant: V. Venkata Subbarao
V/s.
Respondent: State
The Hon’ble Supreme Court has held that:
“The impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed. The appellant is on bail. He is discharged from the bail bonds.”
(2) GLR – 138 - 1960
Appellant: Ramsing Bhadrasing
V/s.
Respondent: State
The
“The Prevention of Corruption Act, 1957 (II of 1957) – Use of Anthracene powder – Duty of prosecution to prove its nature by expert evidence or books of science.”
(3) 1985 – GLH – 103
Appellant: Kishorchand mansukhlal Joshi
V/s.
Respondent: State of
The
“The Prevention of Corruption Act, 1947 – Ss. 5(1)(d) and 5(2) – Criminal Trial – Indian Evidence Act, 1879 – S.3 – Credibility of witness – In a corruption case evidence of the complainant and panch witness must be credible and acceptable.”
Appellant: Ajitkumar Somnath Panya
V/s.
Respondent: The State of
The
“Indian Penal Code, 1860 – Section 161 Prevention of Corruption Act, 1954 – Sections 5 (1)(d) & 5(2) – Conviction for the offence under – Appeal – Complainant was serving as a labourer under the supervision of the appellant – According to the Complaint, on every month the appellant was demanding and accepting Rs. 10/- from each and every labourer as illegal gratification – Trap case – Considerable doubt arises as regards the bonafides and motive of the complainant in filing the complaint. He is found to be a person perhaps having no regards for truth, changing his stand frequently – Trial court has completely misdirected itself in placing reliance upon the evidence of the Complainant – Impugned judgment and order of conviction deserves to be quashed and set aside.
(5) AIR – 1980 SUPREME COURT 1558
Appellant: Gulam Mahmood A. Malek
V/s.
Respondent: The State of
The Hon’ble Supreme Court has held that:
“(A) Prevention of Corruption Act (1947), Sec. 5 (1)(d) – Conviction for accepting bribe – Appreciation of evidence – background of the case should not be lost sight of Cri. A. No. 837 of 1973 Dt. 12-11-1974 (Guj.) Reversed – (Criminal P.C. (1974), Sec. 161; Evidence Act (1872), Sec. 3)”
(B) Criminal P. C. (1974) Sec. 386 – Appeal against acquittal – Reversal of order of acquittal – High Court must have sufficient grounds for holding the appreciation of evidence by trial Court is unsupportable.”
(6) AIR – 1976 SUPREME COURT 1489
Appellant: Hari Dev Sharma
V/s.
Respondent: State (
The Hon’ble Supreme Court has held that:
“(A) Penal Code (1860), S. 161 – Prevention of Corruption Act (1947), Section 5(1) (d) read with Section 5 (2) Vital part of prosecution case disbelieved by High Court – Order for conviction passed by trial Court, held, could not be affirmed. 1971 Cri. LJ 1615 (
Issue No. 2:
12. An original letter giving approval for filing a Complaint is produced by the Complainant under Exhibit-46 in this case and therein it is clearly mentioned that after careful scrutiny of allegations made against Accused, it appears to this office that Dilipsinh Rathod is guilty and this letter is signed by Joint Police Commissioner, Special Branch, Ahmedabad City and further under the powers vested under the provisions of Section 19(1) Part(g) of Prevention of Corruption Act, 1988 I accord approval for filing a Case against Accused and the Defence has not disputed this letter and therefore under these circumstances, it is decided that the letter of approval given for filing this case is valid and the same is proved beyond doubt and therefore, the answer to this issue is in affirmative.
Issue No. 3:
13. It is necessary that the Complainant should prove the issues the significant issues of Demand, Acceptance and Recovery, in this case. Firstly, if we look at the Complainant Shabbirbhai Kesari Exhibit-15 and Complainant has filed a false Complaint against accused and there was no reason for Complaint with the Complainant. With regard to same, we look at the Complaint of Complainant, the Complainant is having 2 jeeps whereby he is transporting the passengers. On 27/03/2005 the Accused demanded for Rs. 1000/- towards the installment of 2 jeeps and if not given he will detain his vehicle and threatened him for issue of RTO Memo and on request of Complainant agreed to pay Rs. 800/- till 28/03/2005. Now, the Complainant has admitted in his Examination at Para-8 and at Para-11 of Cross-Examination that earlier Accused had issued him Memo and offence was admitted by him. Also, the Complainant has admitted at Para-14 of Page-9 that he is having no objection if Accused is taking installment as he like for transportation of Passengers and further he has admitted that if any Officer do not allow to carry passengers and detain the vehicles, there is no dispute. The Vehicle of Complainant was detained before 3 months and he paid fine at Court. Also further it is further admitted by the Complainant in his deposition at Para-25 that the Accused filed a case against Complainant for storage of Joggery (Raskat Gol in local parlance) on 12/10/2004 and also at Para-28 admitted that though he had good relations with the Police Staff, he faced a false case of Joggery and therefore he had dispute with the Accused. Considering these facts, it cannot be said that the Complainant had filed a false Complaint against the Accused. Also, the Complainant has stated at Para-10 of his Cross-Examination Page-10 thaton 27/03/2005 the Accused met the Complainant at Temple and there was a fair opposite the temple, where the Complainant also met his friends had chit-chat with them for half an hour and had general talks, thereafter he went directly to his residence at Chelawada and had not gone to any other place. Thus, the facts of the Defence are supported and Accused had no talk with the Complainant on 27/03/2005 and Accused has not demanded any money. Although, there is office of ACB in Godhra and any body can find it. The Complainant knows that PI Rakesh Sharma is in ACB. The Complainant is directly visiting the Office of the ACB where he meets Merunjay Saheb, who had asked him for what purpose he had come to Office? Thus ACB Officers know the Complainant from long back and call him by name. Merunjay Saheb is head of Four Districts and Deputy Director. The Complainant directly reaches to cabin Merunjay Saheb calls him by name, but the Complainant has stated that as per the instructions of Sharma Saheb, Sunilbhai and Ketanbhai were called as Panch Persons and whenever Sharma Saheb needs he calls for Panch. The Complainant further stated that he was sitting or four hours in the chamber of Sharma Saheb during which Sharma Saheb did not move from his chamber. Also, the Complainant further stated at his Cross examination that the signature in the Complaint was made with an Ink Pen and on showing the Complaint, the Complaint was signed by another pen. Also, has further admitted that the Complaint made at the office of Sharma Saheb is not the same Complaint. The statements made in respect of Exhibit-36, the Complaint and Exhibit-15, the statement for Complaint are appears to be completely contradictory. Also, the Complainant at Para-27 of his Deposition has admitted that he had good relations with all Staff of Police Station including Kantibhai. After resuming at police Station Rathod Saheb made complaint against Kantibhai and Kantibhai was transferred. He was transferred outside for about an year and there were no goods terms between Rathod and Kantibhai. Thus, Kantibhai who is having good terms with Complainant raised a cause for filing a Complaint against present Accused. Also, as discussed earlier, the Complainant filed a Complaint against present Accused for perishable Joggery a Charge Sheet was filed copy produced at Exhibit-25 and considering the said facts, the Accused may have displeasure and that may be the reason for filing this Complaint. Thus considering all the facts and circumstances of the case of Complainant the Case is very doubtful.
14. In this case, the main support is of Panchnama at Exhibit-31, but, the same is not reliable, why, because the Complainant in his statement at Para-18 of his deposition has admitted that “The write came in and informed Sharma Saheb that as per your instructions I have fetched Sunilbhai and Ketanbhai. Panch Peson No. 1 Sunilbhai Naginbhai Upadhyay under his deposition at Exhibit-26 has admitted that “We, Sunilbhai Naginbhai and Ketan Hasmukhbhai both having the same name and address were called by ACB Inspector Sharma and on 18/03/2005 came at 14.00 hours.” Looking to this fact, it appears that Panch Persons were selected persons and they were called by names. Also, when the Panchnama was being prepared Panch Person No. 1 was not present. The Panch Person No. 1 has not said any material fact pertaining to this case. This fact is confirmed by the Complainant under his deposition Para-23 and he had admitted that during the whole process, Panch No. 1 was sitting on the Platform and was with Panch No.1 till next day 10.00 o’ clock. Sharma Saheb has not asked anything to Panch No. 1 and nothing such happened. Also Panch No. 1 Sunilbhai stated in his deposition at Para-10 that in morning Sharma Saheb went telling the pretext of tea. Thus, as it appears that the Panchnama is made while asking any questions and therefore, the panchnama is doubtful. The Complainant has stated in his Complaint that he went to Police Station where he inquired about Rathod Saheb with the Staff he was informed that Rathod Saheb has gone to his Residence, while Panch Person Sunilbhai, at Exhibit-26 has stated that on inquiry about Rathod Saheb he was told of coming of Rathod Saheb in few moments. After waiting in open, he again inquired and he was told that Rathod Saheb shall be available at his Residence just now. Thereafter, he contacted Sharma Saheb and it was instructed to take action after reaching the residence of accused and they went at the residence which is situated just opposite the Police Station at that time as stated at Exhibit-41 he has further states that no such fact was found in the inquiry and it is stated that they had reached at the residence of Accused Opposite the Entrance Gate of Rajgadh Police Station and knocked the door. Thus the facts stated at the deposition of witnesses of Panch Persons are contradictory with statements of each other.
15. The presence of Powder is an important in the case of ACB. Presence of Phenolphthalein or anthracene are essential for placing reliance on evidence. At the Panchnama, the presence Phenolphthalein is referred to as liquid of Sodium Carbonate is prepared and in hands of the Accused were washed in Big beaker, whereupon the color of liquid was changed as Pink. There is no confirmation available from the facts evident by Panchanama. Panch Person No. 1 Sunilbhai has stated at Para-16 of his Cross Examination that if we rub the strips of filter paper at any place, the powder shall be available and when water is sprinkled on the strip would be of Pink color. But he do not remember that how many drops were poured on the filter paper. This witness on showing the filter strip No. 6 from the Aricles has stated there was no Pink Drop available. On the upper under garment (Sadara) there were no marks available at which place the presence of Powder is found. Therefore, it cannot be said that at which the Powder was available on Sadara. This evidence of acceptance of amount of money creates doubt. Also Panch No. 1 has stated that he is not aware what was done to water of hand wash by Complainant. In this respect, the Complainant has stated at Para-23 of his deposition that total hands of three persons were put into the beaker. At first Gamsingh, then Rathod Saheb and in the same water, which became pink after putting hands of Complainant. Further he has admitted that water filled in the bottle was hand wash. Thus demand, acceptance and recovery all three factors are not in conformity of statements made by Complainant, Panch Person No. 1 and Complaint. The Complainant admits that at Cross Examination of his deposition that after reaching at Police Station he had seen Sharma Saheb and Rathod Saheb together for about 10 to 12 minutes. They were haggling with each other and Sharma Saheb forcibly taken Rathod Saheb at Police Station. Thus, aforesaid facts of the Complainant and Panch persons who sent at Quarter and knocked the door, the accused came and there was signal made after transaction of money and arrival of raiding party. They took search and made an experiment and also the same are not in conformity of Panchnama. Also the Complainant his deposition at Page-15 states that when he saw both the time Rathod Saheb he was in Uniform. Thus, the accused both times while going at Quarter and while going to Police Station and haggling with Sharma Saheb the Accused was in uniform. Therefore, under these circumstances, when one is in uniform how he can put the money in his upper under garment (Sadara), is not believable. The Complainant has admitted this fact in his deposition at Para-28 and has stated that there were Trousers and other clothes lying the Compound of Rathod Saheb and considering the fact the it can be said that with a bad intention the money are put up into the Sadara of Accused and also it is confirmed by Panch Person No. 1 Sunilbhai at his cross examination that he do not remember any thing. Also at many a time he had told I do not know and thus for the most of the facts or details, the Panch Persons are not aware. They are not aware that how many pages were therein in the Panchnama, though they have signed it, for which one can definitely have estimate. From which place he Currency Notes were seized, the Panch Persons are not aware. There are no markings with respect to Powder on the Sadara. And also the Panch Persons are not in position say anything except of signing the Panchnama. It can be believed that they selected Panch Persons and thus the Panchnama and statements of Complainants are not trustworthy.
16. The evidence of Trapping Officer Rakesh Baldevkrishna Sharma at Exhibit-35 wherein he states that first Panchnama was made at ACB Office and Complainant as well the Panch Persons were given to understand the whole process, but, the same are not confirmed by the Complainant nor through the depositions of Panch Persons. This witness in his deposition at Exhibit-36 states that process of Panchnama was not stopped at any stage and further has stated that it was stopped for half an hour for calling the Gold Smith. This witness is silent on the issue of when and where the witnesses of ACB Godhra were called. This witness has admitted at his cross examination that under the changed circumstances, the witnesses were called along with Complainant and they were given fresh instructions after hearing them and has not made any note thereof in the Panchnama. This witness has stated in his deposition that the Complaint is not taken any place other than his chamber and under Exhibit-36 a place of writing of Complaint is admitted as Room of his office. Further this witness states that during the whole process all Complainant, and Panch Persons did not go for toilets for tea or water, but the Panch Persons are not confirming the same.
17. Vijay Kumar Tuljaram Navle is examined under Exhibit No. 41, who is an Investigation Officer in this case. On finding all the proofs and completion of Investigation he filed a charge sheet against the Accused. This Investigation Officer is not in position to reply to the question with respect to seeing of any thing and further he has stated to the question that whether currency notes were received in seal bundle? He had replied that for that he requires to look at the Panchnama, just now I do not remember. He has stated that the Articles Mudda Mall is received in sealed condition. Also he has stated that there are no noting made for send the Articles to FSl and pasting Slips on the Mudda Mall Articles was also not done. He had not taken a test of Sadara after it is worn by accused or have not checked it in any way. Looking to the Investigation Process carried out by this Officer, and statements deposed at Cross Examination, it appears that the work carried out by this Officer is not beyond doubt.
18. The Report of FSL produced under Exhibit-43 is a very supportive document, while all the substantive Evidences of Complainant, Panch and Trapping Officer are not reliable, trust worthy and upto the mark and in absence of important evidence only on the basis of FSL Report, this Court believe that no Accused can be convicted. Thus, considering all the oral and documentary evidences produced by the Complainant, this Court believe that the theory of Demand, Acceptance and Recovery, all three factors are not proved beyond doubt.
19. The Complainant has produced various authorities in support of Complaint and having considered the principles of law given therein, which are not coming to the help of Complainant, while the Defence has also submitted various authorities and it is imperative to prove through an experiment the theory of anthracene and Phenolphthalein scientifically, the evidences of Complainant and Panch persons should be trust worthy and admissible and there should be no doubt with respect to the evidence of Complainant, etc., which are already discussed in the aforesaid and authorities submitted before this Court, it can be said that the Complainant, panch persons and Trapping Officer are not reliable and believable, also the Panchnama is doubtful and therefore, the authorities submitted by the Defence are helping them to their favor.
20. Under the Special Statement filed by accused under the provisions of Section 313 of Criminal Procedure Code, it is explained by him that PSO Kantibhai had person grievances and so in concurrence with Complainant, a false Complaint is made against him and he is deceived falsely him.
21. Thus, considering all the circumstances the Complainant has not been able to prove beyond doubt that the accused during the year of 2005 when he was posted as PSI Rajgadh Police Station, as Government Servant and had misused his authority, power and designation and had obtained the money except than salary, allowances and other admissible remuneration to him and Complainant had 2 jeeps which he was using for illegal transportation of passengers on the road route of Chelawada to Halol and Halol to Chelawada and on 27/03/2005 demand for bribe towards the installment of month of March, 2005 Rs. 800/- and during the trap at 18.15 o’ clock on 28/03/2005 at Rajgadh Police Station, in the Government premises and was arrested while accepting the bribe and with Mudda Mall Articles. Thus, considering the evidence and proof submitted by the Complainant, the Complainant has totally failed to prove the case beyond doubt and therefore accepting the arguments made by Learned Advocate Shri D. H. Thakkar for Complainant, and also the arguments adduced by Learned Advocate Shri B. R. Trivedi for Defence, I agree with the Issue No. 3 and I give answer to it negative and pass following final order:
O R D E R
Dilipsinh Laxmansinh Rathod, the accused of this case, under provisions of Section 235(2) of Criminal Procedure Code and provisions of Section 7, 13(1)(gh) and for committing an offence under Section 13 (2) of Prevention of Corruption Act, 1988, I declare him innocent and set him free.
The Bonds of Accused are cancelled.
Cash of Mudda Mall Article No. 1, Currency Notes should be returned to ACB Office Vadodara, while other articles of Mudda Mall Mall Sr. No. 2 to 5 should be destroyed.
Today, this 08th day of August, 2008 pronounced in open Court.
Date: 08/08/2008
Godhra. (seal) sd/- Illegible.
(D. N. MAISURIYA)
Additional Sessions Judge,
2nd
Panchmahal, Godhra.
