Gujarat High CourtRanchhodbhai Bhikhabhai Sengma vs State Of ... on 30 January, 2015Author:Z.K.SaiyedBench:Z.K.SaiyedR/CR.A/836/1997                                   JUDGMENT



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       CRIMINAL APPEAL NO. 836 of 1997
                                     With
                       CRIMINAL APPEAL NO. 933 of 1997


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE Z.K.SAIYED
================================================================

1     Whether Reporters of Local Papers may be allowed to see
      the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law as
      to the interpretation of the Constitution of India, 1950 or any
      order made thereunder ?

5     Whether it is to be circulated to the civil judge ?

================================================================
            RANCHHODBHAI BHIKHABHAI SENGMA....Appellant(s)
                               Versus
              STATE OF GUJARAT....Opponent(s)/Respondent(s)
================================================================
Appearance:
MR KB ANANDJIWALA, ADVOCATE for the Appellant(s) No. 1
MR. HARDIK SONI, APP, for the Opponent(s)/Respondent(s) No. 1
================================================================
          CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED

                               Date : 30/01/2015
                              ORAL JUDGMENT[1]        The conviction Appeal No.836 of 1997 has been
filed by the appellant-original accused, under Section 374Page 1 of 17R/CR.A/836/1997                                        JUDGMENT



of the Cr. P.C., against the Judgment and order dated
27.08.1997 passed by the learned Special Judge, City Civil
Court No.10, Ahmedabad, in Special Case No. 1 of 1994,
whereby the appellant-accused was convicted for the
offence punishable underSection 7of the Prevention of
Corruption Act and sentenced to undergo 6 months
rigorous imprisonment with fine of Rs.3,00/-, in default of
payment of fine, further rigorous imprisonment of 15 days
and for the offence punishable underSections 13(1)(d)and13(2)of the Prevention of Corruption Act and
sentenced to undergo 1 year rigorous imprisonment with
fine of Rs.300/-, in default of payment of fine, further
rigorous imprisonment of 15 days. Against the judgment
and order of conviction as aforesaid, Criminal Appeal
No.933 of 1997 is filed by the State underSection-377of
the Code of Criminal Procedure for enhancement of
sentence awarded by the learned trial Judge.[2]     According to the prosecution case, on 31.07.1993,
one Ramanlal Purushotam Patel gave a complaint to ACB
office alleging that when he was coming in his Jeep
bearing No.GRN 1106 and going to old Shahalam Toll Naka
from Bhulabhai cross road, his vehicle was stopped by
ACB officer and told him that in the Ahmedabad city area
and on the highway touching to Ahmedabad City, local
police and traffic police stopped the passenger vehicle and
were collecting illegal gratification from the said driver by
demanding        Rs.5/-   to   50/-as          bribe.   The    complainant
confirmed the said information given by ACB Officer toPage 2 of 17R/CR.A/836/1997                                          JUDGMENT



him. The ACB Officer also informed the complainant that
to verify the said fact as they arranged a trap and he
shown his willingness to act as a panch in the said raid.
Thereafter, his search was carried out and pocket of left
side of his shirt kept open. ACB officer produced Rs.45/-of
different      currency        notes      in    different     denominations.
Number of the said notes were noted down in the
panchnama.             Experiment          of       ultraviolet     lamp     and
Anthracene powder was carried out and notes were put in
the left side pocket of the complainant. Panchas were
called and required instructions were given to members of
raiding party. Thereafter, the preliminary panchnama was
drawn. Thereafter, two panchas and certain ACB Officers
sat in the jeep of the complainant and other persons sat in
the Government vehicle of ACB Department. They started
from Shahalam, Toll Naka and through Maskati Market,
Sarangpur bridge, Gomtipur, CTM, Narol Circle, Piranal Toll
Naka, Vishala circle and they came near Vasna Toll Naka.
At the entrance, there was a tent on left side of the road
and there was a traffic post. One Police Constable in
Khakhi      dress          stopped     his      vehicle     and     asked    the
complainant to go near the table and chair. Thereafter,
traffic Head Constable asked certain information like
name, address and whereabouts and taken Rs.30/-from
his in presence of panch No.1 as entry fee.                         Thereafter,
raid was carried out and Rs.30/- was recovered from the
traffic Head Constable whose name was Ranchhodbhai
Bhikhabhai-appellant-accused                    herein.     The     anthracenePage 3 of 17R/CR.A/836/1997                                        JUDGMENT



powder mark was found on the boarder of pocket of the
shirt put up by the appellant-accused and also found the
currency notes which were in the pocket of the appellant-
accused. Said notes were taken out consisting bunch of 20
and 10 rupees currency notes. On both currency notes,
ultraviolet         lamp        experiment            was    carried    out    and
anthrecene powder was found. Numbers of currency notes
were       tallied       with    the     numbers            mentioned     in   the
preliminary           panchnama.           Muddamal           were     recovered.
Offence was registered after due investigation and charge-
sheet was filed against the appellant-accused for the
offences punishable under Sections-7, 13(1)(d) and 13(2)
of thePrevention of Corruption Actbefore the learned
Special Judge, Ahmedabad, which was numbered as
Special Case No.01 of 1994.[3]         On the basis of above allegations, charge was
framed against the appellant-accused vide Exh.2 and
read-over and explained to the appellant-accused for the
offences punishable under Sections-7, 13(1)(d) and 13(2)
of thePrevention of Corruption Act. Then plea was
recorded, wherein, appellant-accused pleaded not guilty
to the charge and claimed to be tried.[4]         In support of the prosecution case, prosecution
has examined following oral evidences :-Sr.    Exh. Name of Witness
No.
1      7         Ramanbhai Parottambhai PatelPage 4 of 17R/CR.A/836/1997                                              JUDGMENT



2     10     Pirkhan Afzalkhan Pathan
3     16     Manubhai Gulabhai Chavda
[5]     In support of the prosecution case, the prosecution
has   produced           several      documentary             evidences        likesanction order of appointing authority of Ranchhodbhai
Bhikhabhai        at     Exh.18,        complaint            (not      exhibited),
panchnama of trap at Exh.12 and receipt regarding the
recovery from the appellant-accused at Exh.11.[6]     Thereafter,         after     filing       closing    pursis by the
prosecution, further statement of appellant-accused underSection 313of the Code of Criminal Procedure, 1973 was
recorded, wherein, it is explained by the appellant-
accused that he has not made any demand to the driver of
vehicle and driver tried to thrust the trap amount in his
pocket and it was restrained by him. He admitted that he
was innocent and he has not committed any offence and
was wrongly charge-sheeted. The appellant-accused has
denied the case of the prosecution and submitted that a
false case is filed against him.[7]     After considering the oral as well as documentary
evidence and after hearing the parties, learned Special
Judge, City Civil Court No.10, Ahmedabad impugned
judgment and order dated 27.08.1997 held the appellant-
accused guilty to the charges levelled against him underSections 7,13(1)(d)and13(2)of the Prevention of
Corruption       Act,     and      convicted         and      sentenced        the
appellant-accused, as stated above.Page 5 of 17R/CR.A/836/1997                                    JUDGMENT



[8] Being aggrieved by and dissatisfied with the impugned
judgment and order of conviction and sentence passed by
the    learned         Special    Judge,      City   Civil   Court      No.10,
Ahmedabad, the present appellant-accused has preferred
this appeal.[9] Heard Mr.K.B.Ananjiwala, learned advocate for the
appellant-accused and Mr.Hardik Soni, learned Additional
Public Prosecutor for the respondent-State.[10]    Mr.K.B.Ananjiwala,            learned        advocate     for      the
appellant-accused submitted that in case of corruption,
there must be some cogent evidence to establish that
demand of illegal gratification was made by person and in
result of that demand, the same was accepted by him. He
further submitted that if prior explanation is made by the
appellant-accused regarding the recovery of the trap
amount from his possession, then probable defence is
required to be considered by the learned trial Judge. It is
already disclosed by the               appellant-accused before the
learned trial Judge that when he was on duty with his
colleague at Toll Naka and making search and verification
of the vehicles by stopping them, at that time, the vehicle
of the complainant was stopped by his colleague and he
was produced before him and his name, address and
whereabouts were asked by him and during that period,
driver of the vehicle-complainant tried to thrust the trap
amount in his pocket, which he was refrained and
therefore, he was wrongly caught by the members of
raiding       party.        Mr.Anandjiwala,       contended      that      thePage 6 of 17R/CR.A/836/1997                                           JUDGMENT



aforesaid explanation made by the appellant-accused in
further statement recorded underSection-313of Code of
Criminal Procedure therefore, it was not afterthought. He
further contended that as perSection-20of the Prevention
of Corruption Act, presumption is already rebutted by the
present appellant-accused, but learned trial Judge has
wrongly considered the evidence of PW-1-driver of the
vehicle, who was not mentally fit and he was also declared
as    hostile.      Mr.Anandjiwala,                    further   contended     that
through the evidence of PW-1-driver, prosecution could
not    establish           that    present         appellant-accused          made
demand of illegal gratification and in absence of demand,
when the trap amount is recovered from the possession of
the present appellant-accused, then it cannot be said that
the prosecution has proved its case beyond reasonable
doubt. He argued that as perSection-7of the Act, there
must be of specific evidence of PW-1 and PW-2 panch and
in absence of the said evidence, the learned trial Judge
cannot         convict            the       present          appellant-accused.
Mr.Anandjiwala, further read the evidence of PW-1-driver
and contended that he was suffering from some ailment
(mentally not fit), which creates doubt against the case of
the prosecution. He then contended that the prosecution
has examined PW-2-panch, who was known to one of the
members of raiding party Police Inspector-Khan. He
contended that leader of the trap Police Inspector-Chavda
with the collusion of members of raiding party and with
Mr.Pathan, Panch No.2 was selected. He further submittedPage 7 of 17R/CR.A/836/1997                                     JUDGMENT



that panch witness are from Gujarat State Road Transport
Corporation        and   from       the        Vigilance   Department.
Mr.Ananjdiwala, further submitted that PW-2-panch is an
interested witness and he known to members of raiding
party, creates probable doubt. He submitted that evidence
of PW-2 panch is not supported by evidence of PW-1
driver. Mr.Anandjiwala, read the evidence of PW-2-panch
and submitted that he disclosed reality of the trap made
by ACB Officers at the place of trap. It is further disclosed
by him that the place of trap was not the specific place,
from where, he could see and hear the talk between the
driver and the appellant-accused. He further submitted
that as per the evidence of PW-3-Trapping Officer, Mr
Chavda, who was present in the vehicle, he could not hear
anything between the driver and panch No.1. He argued
that when Trapping Officer Mr.Chavda could not hear
anything, then, it could be possible that panch No.2 also
could not hear anything, who was nearer to him. He
further argued that in such circumstances, benefit of
doubt is required to be given to the appellant-accused. He
contended that the defence tried to establish probable
defence before the learned trial Judge, but learned trial
Judge has not considered the said defence version and by
simply considering the evidence of hostile witness PW-1-
driver and PW-2, who used to support the evidence of PW-
1, wrongly convicted the appellant-accused for the alleged
offence of corruption. He further argued that as far as the
recovery made from the possession of the appellant-Page 8 of 17R/CR.A/836/1997                              JUDGMENT



accused is concerned, it was explained by by him before
the learned trial Judge that presence of anthracene
powder was found from his fingers, tips etc because
Trapping Officer tried to thrust the trap amount in his
pocket. In the evidence of PW-2 panch, it is disclosed that
anthracene powder was not found from the thumb of the
appellant-accused. He argued that a one who receives
some amount from one hand, thumb is the important part
of the hand which plays vital role and without use of the
thumb, no one can accept any amount. Therefore,
absence of anthrecene powder on the thumb of the
appellant-accused creates sufficient doubt and probable
defence       taken        by the appellant-accused    before    the
learned trial Judge that amount was thrust in his pocket,
has substance and force.[10.1]    Mr. Anandjiwala, further contended that in the trap,
Mr.Chavda, was leader of the trap alongwith other colleagues and
through Mr.Khan panchas were selected, who were not selected at
random, but were the persons already selected in advance to
falsely implicate the appellant-accused. He further submitted that
contents of the panchnama is not proved beyond reasonable doubt
through oral evidence of PW-1 and PW-2. He argued that conduct
of witness PW-3-Police Inspector, in the cross-examination, was
bias. He deposed only to support the version of the complainant
with a view to achieve his goal to falsely convict the appellant-
accused. Mr. Anandjiwala, further submitted that contents of
panchnama was not dictated by PW-1 or PW-2 and therefore, the
same fatal to the case of the prosecution and therefore, contentsPage 9 of 17R/CR.A/836/1997                                    JUDGMENT



of panchnama cannot be considered as a legal piece of evidence.
He contended that complaint of the complainant lodged by PW-3,
is not exhibited. At the last, Mr. Ananjiwala, learned
advocate, prayed to set aside the judgment and order of
conviction prayed to allow the appeal.[11] Per contra, Mr.Hardik Soni, learned APP, has read the
charge and contended that as per the charge framed,
appellant-accused was present at the time of trap, and the
vehicle was stopped by PI-Ravjibhai Bhikhaji and the driver
i.e. the complainant was directed to meet the appellant-
accused, who sat on the chair near Tent. As per the
direction of that Police Inspector, the complainant went to
the place alongwith Panch No.1 and Trapping Officer
followed him.            He fairly submitted that no doubt it is
established by Mr.Anandjiwala, learned counsel, that PW-
1-driver was declared as hostile and his evidence cannot
be considered, but he was declared as hostile prior to
made disclosure regarding the contents                   of panchnana
and the complaint. He read the evidence of PW-1 and
contended that when he reached to the place of trap,
appellant-accused            asked     his       name,   address     and
whereabouts and             told that your Jeep was containing
passengers more than the prescribed limit and thereby,
the appellant-accused made a demand of Rs.50/- and after
some negotiation, it was reduced to Rs.30/-, which
accepted by the appellant-accused as bribe from the
complainant PW-1. Mr.Soni, further submitted that as PW-
1-driver of the vehicle was totally unknown person andPage 10 of 17R/CR.A/836/1997                                         JUDGMENT



therefore, usually there was no animus with the appellant-
accused and he was in Traffic Department. Even in
explanation, appellant-accused did not disclose the fact
that due to some past incidents, PW-1 filed concocted
complaint with the help of Trapping Officer Mr.Chavda and
Mr.Khan, PI and other members of raiding party. He
further argued that as per the evidence of PW-1, the trap
amount was given to the appellant-accused in respect of
demand      made         by   him,      and       the     appellant-accused
accepted it by one hand and inserted in his pocket by
second hand. He argued that                        explanation made by
appellant-accused in statement recorded underSection-
313of the Code of Criminal Procedure, was a got up and
concocted       story     and    clearly          an    afterthought.      It   is
explained by the appellant-accused that at the time of
arrest, his hands were inside the pocket. He submitted
that if the story of the appellant-accused is believed, then
anthrecene powder would not have been found from the
pocket.    He      further      argued       that      PW-2-panch         in    an
independent witness and specific question was asked to
him that whether he known to Mr.Khan, PI, and he denied
the same. Mr. Soni, read the evidence of PW-2 and
contended that in presence of him, vehicle of complainant
was stopped by colleague of appellant-accused and he
was directed to meet the appellant-accused, who sat on
the chair near the Tent. When the complainant went to
meet him, the appellant-accused alongwith PW-2 and PW-
3 Mr. Chavda. In their presence, demand of Rs.50/-wasPage 11 of 17R/CR.A/836/1997                               JUDGMENT



made    by       the     appellant-accused     and   then,      some
communication took place between the complainant and
the appellant-accused and the complainant gave the trap
amount to the appellant-accused, which was inserted by
the appellant-accused in his pocket. The aforesaid story
narrated by PW-2 gets substantiated through contents of
panchnama. Mr. Soni, further argued that as per the
evidence of PW-3-Chavda, Trapping Officer, to prosecute
against the appellant-accused, sanction was obtained by
him from the competent authority and it is not challenged
by the appellant-accused and therefore, Mr.Soni, has
argued this issue on merits. Mr. Soni, read the judgment
and order of conviction and contended that learned trial
Judge has rightly observed that demand, acceptance and
recovery are proved beyond reasonable doubt. He further
contended that no doubt in the evidence of PW-2, he did
not disclose that whether anthrecene powder was found
from the thumb of the appellant-accused or not, but it is
established through evidence of PW-3 that anthrecene
powder was also found from the thumb of the appellant-
accused. He submitted that this is a minor contradiction or
omission and does not fatal to the case of the prosecution
and thus judgment and order of conviction is required to
be confirmed. He read the judgment and order of
conviction and submitted that as per the Provisions of
Sections-7 and 13 of Act, learned trial Judge awarded
lesser punishment to the appellant-accused. He contended
that the Apex Court in plethora of decisions, held thatPage 12 of 17R/CR.A/836/1997                                      JUDGMENT



maximum punishment is required to be given to be given
to the     appellant-accused           in cases       of   corruption    to
eradicate the menace of corruption and to deterrent public
servant. He submitted that against the judgment and
order of conviction, State preferred an appeal No.933 of
1997 for enhancement of sentence. He prayed that this
appeal is required to be allowed and further requested the
Court that sentence imposed by the learned trial Judge is
required to be enhanced. As against the this submission,
Mr.Anandjiwala, learned counsel fairly argued that looking
to the date of trap, judgment and hearing of these
appeals,      sufficient       mental       punishment       is    already
undergone        by      the    present          appellant-accused      and
therefore, appeal preferred by the State for enhancement
cannot be entertained.[12]     I have perused the documentary as well as oral
evidence produced on record. First of all, I have read the
charge framed against the appellant-accused for the
offence under Sections-7 and 13 of Act. The trap is carried
out by the Trapping Officer with the help of decoy and in
decoy trap, it is the duty of the Court to peruse the
evidence minutely. I have perused the evidence of PW-1
decoyer, who was driver of the vehicle and as per his
evidence, he was present at Narol circle and his vehicle
was hired by the members of raiding party and cause of
hiring vehicle was explained to him and for which he was
ready to join with the trap as a decoyer/complainant.
Then, in presence of panchas, experiment of ultravioletPage 13 of 17R/CR.A/836/1997                                          JUDGMENT



lamp and anthrecene powder was made. These are the
formal facts of the prosecution case, but actual fact is
required to be considered by the Court is that what was
happened at the place of trap when they went there after
inserting    the         trap   amount          in    left   pocket    of   the
complainant. I have minutely perused the evidence of PW-
1 who disclosed that he was called by ACB Officer and he
went to the place of trap with panchas and members of
raiding party, is also supported by contents of panchnama
and complaint and evidence of PW-2 and that was not
minutely cross-examined by the defence. Now, the Court
is not entered into the said issue, but material issue for
the Court to decide is that whether trap amount was
accepted and recovered from the possession of the
appellant-accused or not. In that case, PW-1 in his
evidence disclosed that when police personnel conveyed
him to meet to appellant-accused, who was sitting on the
chair near the Tent, he went there and PW-2 panch
followed    him.         Specific    words           were    uttered   by   the
appellant-accused were regarding his name, address and
whereabouts and further regarding the overloading of the
passengers in his Jeep without permit. Thereafter, the
appellant-accused demanded bribe under the guise of
entry fee of Rs.50/-. For the demand made by the
appellant-accused, I have minutely perused the version of
PW-2 panch witness, who was examined at Exh.12. It
appears from the evidence of PW-1 that specific demand
under the guise of entry fee was made by the appellant-Page 14 of 17R/CR.A/836/1997                                  JUDGMENT



accused to the driver-PW-1 and after some negotiation, it
was reduced to Rs.30/-. Then, the driver gave currency
notes to the appellant-accused, which were accepted by
him with one hand and inserted by himself in his pocket
with other hand. PW-2, who is an independent witness also
narrated the same story as narrated above. I have
minutely perused the said facts with the contents of
panchnama and it is crystal clear that evidence of PW-1,
PW-2, contents of panchnama and complaint are fully
supported in connection of the demand and acceptance
made by the appellant-accused. I have verified that
whether trap amount was recovered from the possession
of   the   appellant-accused    or        not.   In   that   case,   on
verification made from the evidence of PW-1 and PW-2, it
is come on face of the record that when the amount was
accepted and inserted in the pocket by the appellant-
accused, members of raiding party rushed to the place of
trap and search was carried out and in light of ultraviolet
lamp, anthrencene powder was found from the fingers,
palm, tips, cover pocket and corner and inside of the
pocket of the appellant-accused. Further, the recovered
trap amount from the pocket of the appellant-accused was
tallied with the contents of panchnama and numbers of
the trap amount shown in panchnama was found from the
possession of the appellant-accused. Now, looking to
Sections-7 and 13 of the Act, whether presumption can be
drawn against the appellant-accused or not. As far as
Provision of Section-20 of the Act is concerned, appellant-Page 15 of 17R/CR.A/836/1997                                   JUDGMENT



accused in statement recorded underSection-313of the
Cr.P.C., disclosed that he has not made any demand and
PW-1-complainant forcefully tried to thrust the trap
amount into his pocket. I have minutely verified the said
event and found that when a person tries to thrust any
amount in the pocket of some other person, then the said
amount could not enter inside the pocket and presence of
anthrecene powder could not found from inside the pocket
and it can be found only from the hands, tips, thumb of
the hand. This shows that the explanation made by the
appellant-accused was an afterthought and in the cross-
examination of the witnesses, no defence was taken by
the appellant-accused that PW-1-complainant tried to
thrust the trap amount in his pocket. In view of the above
observation, I am of the opinion that prosecution has
proved that illegal gratification was made by the present
appellant-accused in presence of PW-2-panch and the trap
amount was accepted by him, is also supported by
evidence of PW-3-Mr. Chavda. In result, learned trial Judge
has rightly considered the evidence of witnesses and he
has rightly convicted the appellant-accused for the alleged
offences of corruption.[12.1] Though, Mr.Soni, learned APP argued in support of
his Criminal Appeal No.933 of 2007 for enhancement of
sentence, but as per the submissions made by learned
advocate Mr.Anandjiwala that appellant-accused is already
retired and dismissed from the services. I have verified the
date   of     trap,      panchnama,           arrest   and   judgment.Page 16 of 17R/CR.A/836/1997                    JUDGMENT



Considering the long period between the conviction and
hearing of this appeal, I am of the opinion that the
appellant-accused, who has already suffered mentally and
looking to the age of the appellant-accused, appeal
preferred by the State for enhancement of sentence, is not
required to be allowed. In view of the above observation,
learned trial Judge has rightly convicted the present
appellant-accused for the said alleged offences. In the
result, I am in full agreement with the judgment and order
of conviction of the learned Trial Court.[13]         In the result, these appeal are dismissed. The
impugned judgment and order of conviction and sentence
dated 27.08.1997 passed by the learned Special Judge,
City Civil Court No.10, Ahmedabad in Special Case No.1 of
1994 is hereby confirmed. Bail bond, if any, stands
cancelled. R & P to be sent back to the trial Court,
forthwith. The appellant-accused is hereby directed to
surrender within a period of eight weeks from today.(Z.K.SAIYED, J.)


siddharthPage 17 of 17