Shantilal
Kashibhai Patel Vs. State of Gujarat [1992] INSC 222 (2 November 1992)
[KULDIP
SINGH AND YOGESHWAR DAYAL, JJ.]
ACT:
Indian
Penal Code: Section 161. Prevention of Corruption Act, 1947. Sections 5(1) (d)
and 5(2).
Demand
for illegal gratification-Statement of complainant- Not coroborated-Not
supported by panch witnesses- Complainant-Admitting that he wanted to teach
accused a lesson for harassing businessmen-Held accused entitled to acquittal.
HEAD NOTE:
The
prosecution case was that the complainant was running a shop and dealing in Kimam
and that on 7th January, 1984, the Chief Inspector in the Health Department
(accused No.1) and accused No. 2 (appellant in the appeal), accused No. 3 and
accused No. 4 who were working as Food Inspectors had approached the
complainant at his shop and stated that a they had been inspecting food
articles for adulteration, and took a bottle of Kimam and opened it for sample
and when the complainant told them that it may be taken in sealed condition,
they refused to do so and stated that the sample would not be passed and the
complainant would be put to difficulties, unless he paid Rs. 5,000. The
complainant was not wiling to make such payment but he was pressurised.
On the
next day, 8th January,
1984 accused No. 4 came
to the shop to enquire whether the money had been arranged.
He was
given Rs. 500 and the balance was promised to be given on 30th January, 1984.
On 30th January, 1984 the complainant approaehed the
office of the Anti Corruption Bureau and gave his complaint.
Two Panchas
were called by the A.C.B., the number of 40 currency notes of Rs. 100 each were
noted done in two batches of 20 each, the currency notes were treated with anthracene
powder, a demonstration was made and shown to the complainant and the Panchas. Panch
No.1 was to remain with the complainant and Panch No. 2 was to remain with the
raiding party.
The
complainant and Panch No.1 went to the stop at about 6.00 p.m. and when accused No. 2 demanded the money, the complainant
gave it to him, when he was apprehended by the raiding party. The hands of
accused No. 2 (appellant) were seen in the ultra violet light and the four
fingers and thumb of the right hand showed the light blue colour and white
sparkle. The currency notes also showed the anthracene powder in the ultra
violet light.
Thereafter,
the complainant and Panchas went to the residence of accused No. 1. The
complainant offered money to accused No. 1. He, however, refused to accept the
same, and, therefore no raid was made.
All
the four accused were tried by the Special Judge for offences under section 161
of the Indian Penal Code read with Sections 5(1) (d) and 5(2) of the Prevention
of Corruption Act. Accused Nos. 1, 3 and 4 were acquitted while accused No. 2
was convicted and sentenced by the Special Judge.
The
State filed an appeal against the acquittal of the three accused whereas
accused No. 2 filed an appeal against his conviction and sentence.
The
High Court dismissed both the appeals. It noticed that: the Panchas did not recognise
any of the accused persons; there is no corroboration as to what had happened
in the meetings preceding the raid on 30th January, 1984;
the
evidence of the complainant was disinterested and did not require any
corroboration; and the hands of accused No.
2 when
seen in ultra violet light the four fingers and thumb of the right hand showed
the light blue colour and white sparkle.
Allowing
the appeal, and setting aside the conviction and sentence, this Court,
HELD:
1. The High Court had acquitted the accused No. 3 and did not find it safe to
convict him on the sole testimony of the complainant supported by the test of
seeing anthracene powder on the hands and fingers of accused No. 3 in ultra
violet light, but on the same evidence upheld the conviction of accused No. 2
relying on the same evidence which was rejected vis-a-vis accused No. 3.
[272-G]
2.
When the High Court could not find it safe to rely on the uncorroborated
statement of the complainant while upholding the acquittal of accused No.3 it
is unsafe to rely on the ipse dixit of the complainant which is unsupported by
both the Panch witnesses and the police officials who formed the raiding party
for upholding the conviction of accused No. 2, appellant. [273-E]
3. Not
only the two Panchas could not recognise any of the accused persons but there
is no corroboration to the various statements of the complainant vis-a-vis
accused Nos.
1 to 4
by the police officials who constituted the raiding party either. The raiding
party including the police officials reached the spot at a time when they could
neither hear the talk, if any, between the accused No. 2 and the complainant
nor could see the alleged acceptance of money by accused No. 2 and passing it
on to accused No. 3. [272-E]
4. The
High Court totally ignored the statement of the 2complainant made during
cross-examination on behalf of accused No. 2, that he had thought of teaching
accused No. 2 a lesson for harassing businessmen selling Pan and Masalas.
[273-A]
5. It
is clear that this is not a case merely of a complainant from whom bribe was
demanded and he was forced to pay the same but the complainant had thought of
teaching a lesson to accused No. 2 for harassing the businessmen selling Pan Masalas
and therefore, it could not be said that the complainant was not interested in
success or otherwise of the raid. [273-D]
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 646 of 1992.
From
the Judgment and Order dated 3.4.92 of the Gujarat High Court in Crl. A. No.
161 of 1992.
T.U.Mehta,
N.N. Keshwani, Ashok D. Shah, R.N. Keshwani and S.K. Gupta for the Appellant.
Anip Sachthey
and Badri Nath for the Respondent.
The
Judgment of the Court was delivered by YOGESHWAR DAYAL, J. On 4th September, 1992 this Court had directed issue of
notice on the Special Leave Petition as well as on application for bail
returnable in four weeks and it was indicated that the matter will be heard and
finally decided on that date. However, there is no appearance on behalf of the
State today.
Leave
granted. The matter is being disposed of.
This
is an appeal by Special Leave against the judgment of the Division Bench of the
Gujarat High Court dated 3rd
April, 1992.
Four
accused persons were tried by Special Judge, Ahmedabad. Out of the said four
accused only one of the accused person, namely - accused No. 2, a Food
Inspector has been convicted of offences punishable under Section 161 of the
Indian Penal Code and Sections 5(1) (d) and 5(2) of the Prevention of
Corruption Act, 1947.
The
three other accused were acquitted by the learned Special Judge. The State
tiled the appeal against the acquittal of the three acquitted accused whereas
accused No.
2
filed an appeal against his conviction and sentence.
The
High Court dismissed the appeal of the State against the acquittal of accused
No.1, 3 and 4 and at the same time dismissed the appeal of accused No. 2. Accused
No.
2 has
come up to this Court by way of a Special Leave Petition against the aforesaid
decision of the Division Bench.
The
prosecution case is that the complainant Mohanlal Chhatramal Samnani is running
a shop and inter alia dealing in Kimam opposite Maninagar Railway Station, Ahmedabad.
On 7th January, 1984, the Chief Inspector in the Health Department (accused
No.1) and accused No. 2 (appellant herein) and accused No. 4, who were working
under him as Food Inspectors, had approached the complainant at his shop and
stated that they had been inspecting the food articles for adulteration and
took a bottle of Kimam and opened it for sample and the complainant told them
that it may be taken in sealed condition but they refused to do so and stated
that the sample would not be passed and the complainant would be put to
difficulties. This was stated by accused No. 1 who further stated that the
complainant should be practical. The complainant enquired as to what was meant
by being practical and the accused No. 2 (appellant) replied that "being
practical" means "money". The complainant then enquired as to
the amount and he was told Rs. 5,000.00. The complainant was not willing to
make such payment. However, he was pressurised. The complainant stated that he
did not have that much money and, therefore, he was asked to pay whatever the
amount he could pay immediately and the complainant opened his `galla' and gave
Rs. 600.00 to accused No. 1.
The
next day, on 8th
January, 1984, accused
No. 4 had come to his shop and enquired whether the money had been arranged but
the complainant replied that it could not be done. However, under pressure he
gave Rs. 500.00 to accused No. 4 and asked for more time for making arrangement
for more amount. Thereafter, after about 15 days accused Nos. 2 & 4 had
come to his shop demanding illegal gratification and the complainant requested
for four days time. After four days again the accused Nos. 2 & 4 came to
his shop and the complainant again stated that the money could not be arranged
and he may be given two days time. After great difficulties, on complainant
making a promise that he would pay the amount with 100% certainty, and on this
final promise, accused Nos. 2 & 4 asked the complainant to keep the money
ready on 30th January,
1984 at 3.00 p.m.
On 30th January, 1984 the complainant approached the
office of the Anti Corruption Bureau and gave his complainant. Two Panchas were
called by the A.C.B. In the presence of those two Panchas, the numbers of 40
currency notes of Rs. 100.00 each were noted done in two batchs of 20 each.
Each of these currency notes was treated with anthracene powder and a
demonstration was made and shown to thc complainant and the Panchas. One bundle
of Rs. 2000.00 was to be given to accused No. I and another bundle was to be
given to accused Nos. 2 & 4. Panch No. 1 was to remain with the complainant
and Panch No. 2 was to remain with the raiding party.
After
making this preliminary panchnama raided party went to Maninagar and the
complainant and Panch No. 1 went to the shop at about 6.30 p.m. and the others waited outside a little away. After
about an hour accused No. 2 came to the shop and the complainant-asked accused
No. 2 to come and sit but the accused No. 2 replied that he was in a hurry and
asked the complainant to come with him where another Inspector was waiting near
the Post Office. Therefore, the complainant went with accused No. 2 and Panch
No. 1 followed them. Accused No. 3 and Jinto (absconding accused) were waiting
and accused No. 2 introduced them to the complainant and asked the complainant
as to what he had done about the money which was earlier talked about. The
complainant replied that he had brought the money. The accused No. 2 demanded
the same and the complainant took out the bundle of currency notes from one of
his pockets and gave it to accused No. 2 who accepted it by his right hand and
asked the complainant as to how much it was and the complainant replied that it
was Rs. 2,000.00 and accused No. 2 asked as to for how many persons it was and
the complainant replied that it was for three persons. The accused No. 2 asked
accused No. 3 to count the same and while Modi, accused No.3, was counting the
same, the complainant gave the signal and the raiding party which had followed
them immediately came there alongwith Panch No. 2. All of them wont to the shop
of the complainant where Modi was asked to give currency notes to the Panchas
and exercise of ultra violet Iamp was undertaken and in the ordinary light,
hands of each of the three Food Inspectors did not indicate any light change.
Thereafter, under ultra violet light, hands of all were seen and the hands of Panch
No. 2 and the members of the raiding party did not show any change on their
hands.
The
hands of accused No.2 (appellant) were seen in the ultra violet light and the
four fingers and thumb of the right hand showed the light blue colour and white
sparkle.
So
also was the position with regard to the right hand fingers and thumb of Jinto
and his clothes, namely - the right hand pocket of the pant, so also the
fingers and thumb of both the hands of accused No.3, Modi, and the left hand
pocket and the woollen cap of Modi showed white sparkle and the light blue colour.
The numbers of currency notes were compared with the numbers which were
recorded in the preliminary panchnama and they were found to tally. The
currency notes also showed the anthracene powder in the ultra violet light. The
complainant's hands were also seen and they also showed the anthracene powder
in ultra violet light so also both his inside pockets of the coat.
Thereafter,
the complainant and the Panchas went to the residence of accused No.1. The
complainant alongwith Panch No.1 went to the first floor of the flat of accused
No.1.
Accused
No.1 opened the door and asked these people to come inside and made them sit.
The complainant offered money to accused No.1. He, however, refused to accept
the same and, therefore, they came Out and no raid was made.
As
stated earlier all the accused were tried by the learned Special Judge and
accused Nos. 1, 3, & 4 were acquitted and ultimately the appeal of the
State against their acquittal was dismissed by the High Court. The High Court
dismissed the appeal of accused No.2 also after noticing - (i) that the Panchas
did not recognize any of the accused persons;
(ii) that
there is no corroboration to what had happened in the meetings preceding the
raid on 30th January,
1984;
(iii) that
the evidence of the complainant was disinterested and did not require any
corroboration;
and
(iv) that the hands of accused No.2 were seen in ultra violet light and four
fingers and thumb of the right hand showed the light blue colour and white
sparkle.
The High
Court had acquitted accused Nos. 3 & 4 in spite of the fact that their
fingers have also showed light blue colour and white sparkle in ultra violet
light but the High Court was not prepared to rely on that circumstance alone
with the uncorroborated testimony of the complainant.
Since
according to the High Court no demand had been made by accused Nos. 3 and 4
from the complainant for any bribe.
It
will be noticed that not only the two Panchas could not recognize any of the
accused persons but there is no corroboration to the various statements of the
complainant vis-a-vis accused Nos. 1 to 4 by the police officials who
constituted the raiding party either. The raiding party including the police
officials reached the spot at a time when they could neither hear the talk, if
any, between the accused No. 2 and the complainant nor could see the alleged
acceptance of money by accused No.2 and passing it on to accused No.3. We are
thus left with the sole testimony of the complainant and the test of seeing anthracene
powder on the hands and fingers of accused No.2. The High Court had acquitted
accused No.3 and did not find it safe to convict him on the sole testimony of
the complainant supported by the test of seeing anthracene powder on the hands
and fingers of accused No.3. in ultra violet light. But on the same evidence
the High Court upheld the conviction of accused No.2 relying on the same
evidence which was rejected vis-a-vis accused No.3.
The
High Court felt that the complainant was totally dis-interested in the success
of the raid and could not be called interested person and thus felt no need for
corroboration of his statement.
The
fact remains that the High Court totally ignored the statement of the
complainant made during cross- examination on behalf of accused No.2. In his
cross- examination the complainant stated;
"It
is true that accused No.2 used to carry out raids on and often on Pan gallas.
It is true that I had felt that he is harassing businessmen selling Pan and Masalas.
It is true that is why we thought of teaching him a lesson.
It is
true that in my statement before police, I have not stated that when accused
No.1 asked as to why have you come, then I told that I am Kimamwala of Maninagar
and according to talk with Shantilal, I have come to give money." It is
clear that it is not a case merely of a complainant from whom bribe was
demanded and he was forced to pay the same but the complainant had thought of
teaching a lesson to accused No.2 for harassing the businessmen selling Pan Masalas
and, therefore, it could not be said that the complainant was not interested in
success or otherwise of the raid. In fact the High Court acquitted accused
No.3, though the evidence against him was the same as it was against accused
No.2. When the High Court could not find it safe to rely on the uncorroborated
statement of the complainant while upholding the acquittal of accused No.3 we
also find it unsafe to rely on the pise dixit of the complainant which is
unsupported by both the Panch witnesses and the police officials who formed the
raiding party for upholding the conviction of accused No.2, appellant before
us.
The
result is that the appeal succeeds, the conviction and sentence of the
appellant is set aside and the appellant is acquitted.
N.V.K.
Appeal allowed.
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