Bechaarbhai
S. Prajapati Vs. State of Gujarat [2008]
Insc 315 (29 February
2008)
Dr.
Arijit Pasayat & J.M. Panchal
CRIMINAL
APPEAL NO 408 OF 2008 (Arising out of SLP (Crl.) No.6213 of 2007) Dr. ARIJIT
PASAYAT, J.
1.
Leave granted.
2.
Challenge in this appeal is to the order passed by a learned Single Judge of
the Gujarat High Court dismissing the appeal filed by the appellant.
3.
Challenge before the High Court was to the judgment and order dated 5.11.1993
passed by learned Sub-Judge, Bhavnagar, in Special Case No.9 of 1991 whereby
the appellant was convicted and sentenced to suffer rigorous imprisonment for
one year in respect of offence under Section 161 of the Indian Penal Code, 1860
(in short the 'IPC') and for offence punishable under Section 7(2) of the
Prevention of Corruption Act, 1988 (in short the 'Act'), he was sentenced to
undergo rigorous imprisonment for one year in respect of each of the offence
and fine with default stipulation.
4.
Background facts in a nutshell are as follows:
On
12.12.1990, one Luxury Bus bearing No. GTS-9919 was hired by Ramnikdas Hargovindas
from Bharat Travels Company for carrying a marriage party from Mahuva to Selana.
According to the complainant-Ghelabhai Jasabhai, the Mehtaji of Bharat Travels
who was present in the bus, at around 6.00 or 6.15 a.m. of that day when the bus reached Aasarana Chokadi, the
appellant-accused stopped the luxury bus and demanded the documents relating to
the luxury bus whereupon the complainant had shown the permit and other papers.
However, the police staff kept these papers with them.
The
appellant-accused, then demanded Rs.250/-in the name of entry fee. The
complainant, then requested the appellant - accused who was P.S.I. at the
relevant time to let them go as the bus was carrying a marriage party. However,
the appellant accused demanded Rs.250/- to which the complainant refused as
instructed by the owner of the bus. It is further the case of the prosecution
that the appellant-accused then told the complainant that Rs.225/- be paid and
the papers be collected from that spot where the bus was intercepted by 10.00
O'clock, and in case the complainant is late, the amount be paid at Khuntvada
Police Station. So saying, the appellant accused issued a receipt in token of
having taken away the permit and other papers which was received by Bhagwanbhai
Ranchhodbhai, the driver of the luxury bus. The driver was then allowed to run
the bus towards village Selana. The complainant thereafter, returned to Mahuva
and narrated the incident to the owner/proprietor of the luxury bus. On hearing
this, the owner of the luxury bus was against giving any illegal gratification
as all the documents relating to the luxury bus were genuine. Therefore, the
owner decided to approach the Anti Corruption Bureau, Bhavnagar. Accordingly, the complainant, the
owner of the luxury bus and one Ramjibhai who happens to be the elder brother
of the owner of the luxury bus went to the Office of the Anti Corruption
Bureau, Bhavnagar, met Mr. Bhatt, P.I, of Anti Corruption Bureau, Bhavnagar,
apprised him of the matter and lodged the complaint. It is further the case of
the prosecution that two Panchas were called and they were told the purpose for
which they have been called, the complaint was read over to them and they
agreed to be Panch Witnesess. They were also explained the purpose and use of anthracene
powder.
Thereafter,
the complainant gave two currency notes in the denomination of Rs.100/-each and
one currency note in the denomination of Rs.50/- aggregating Rs.250/-. These
currency notes as also the hands of the complainant, Panchas and other staff
were observed in ordinary light and nothing significant appeared. Thereafter, a
bottle containing anthracene powder was taken from the cupboard, some anthracene
powder was put in a blank paper, these currency notes were smeared with anthracene
powder and when they were again observed in ordinary light no visible marks
were seen. These currency notes were again tested under ultra- violet lamp and
glowing marks of bluish powder were seen.
These
currency notes were then put into the shirt pocket of the complainant after
ensuring that the shirt pocket was empty. It was explained to the complainant
that in ordinary light the marks of anthracene powder will not appear but only
under ultra violet lamp the bluish powder marks of anthracene powder can be
seen. The anthracene powder that remained in the blank paper was then put back
into the bottle; the bottle was placed in the cupboard and locked. The blank
paper was burnt and destroyed. The complainant was instructed not to touch the
currency notes put in his pocket except for the purpose of giving them to the
appellant-accused and that these currency notes should be given to none other
than the appellant-accused. With these instructions the constable washed his
hands and made sure that there were no marks of anthracene powder by viewing
under ultra violet lamp.
The
preliminary Panchnama Exh. 14 was drawn. The raiding party then left for Khuntvada
- some persons went by Ambassador Car while the others went by Jeep. The
complainant was instructed to give signal as soon as the amount is demanded and
accepted by putting his hands on his head and Panch No.1-Hemantkumar Jayantilal
Bharu was instructed to remain in the company of the complainant. In this
manner, with a view to apprehend the appellant-accused red handed while
demanding and accepting the illegal gratification from the complainant, the
trap was arranged. It is further the case of the prosecution that they reached Khuntvada
at 5.30 p.m. and on instructions by P.I. Mr. Bhatt, Ramjibhai Ukabhai, the
elder brother of the owner of the luxury bus went to Khuntvada Police Station
to inquire whether the P.S.I. was present or not, however, since the P.S.I. was
not available at the Police Station, they decided to wait for an hour. It is
alleged that within an hour the Police Jeep went towards the Police Station,
and therefore, Panch No. 1 along with the complainant was sent to the Police
Station. They went to the Police Station on foot and so did the others who
followed. The complainant went up the first floor where he met the
appellant-accused (P.S.I.) who was sitting in the Chamber while Panch No. 1 who
accompanied the complainant waited at the door of the P.S.I's Chamber. The
complainant requested to handover the papers of the luxury bus, but the
appellant- accused asked whether he (complainant) had brought the money i.e.
the illegal gratification. The complainant suggested that some lesser amount
than Rs.250/- be accepted to which the appellant-accused replied that Rs.200/-
be given.
Accordingly,
the complainant handed over the tainted currency notes of Rs.200/- to the
appellant-accused who accepted the same by his left hand, put it in his right
hand and then into his right hand trouser pocket. The appellant- accused then
gave the portfolio that was in the cupboard. In the meanwhile, the complainant
had kept the remaining currency note of Rs.50/- in his pocket. The
appellant-accused then demanded the receipt which was given at the time of interception
at the spot, but the complainant told that the receipt was with the driver. It
is alleged that, at that time, Panch No.1 was at a distance of five feet from
the Chamber of the appellant-accused and heard the conversation between the
complainant and the appellant-accused. It is also alleged that the complainant,
thereafter, came out near the staircase and gave the preplanned signal to the
ACB personnel who rushed to the Chamber of the appellant-accused in the company
of Panch No.2 Ishwarlal Girdharlal Chauhan. The ACB Inspector revealed his
identity by showing his card, took away the revolver from the appellant-accused
(P.S.I.). At that time, the appellant-accused got frightened and took out the
said tainted currency notes from his trouser pocket and kept them in his fist.
The P.I. ACB, Bhavnagar then apprehended the appellant for having demanded and
accepted a sum of Rs.200/- from the complainant for showing him favour by
allowing the luxury bus to go to the destination and the appellant-accused was
asked to place his hands on the table and the tainted currency notes were
recovered from the appellant-accused. Thereafter, the test of anthracene powder
was carried out on the hands of the raiding party by viewing their hands under
ultra violet lamp and no marks of anthracene powder was found. Similar test was
carried out of the hands of the complainant, the appellant-accused and trousers
of appellant-accused and presence of anthracene powder was noticed. It is
further alleged that the recovered currency notes of Rs.200/- were compared
with the numbers and denominations of the currency notes mentioned in the
pre-trap Panchnama and the same having tallied in toto were seized. The
appellant-accused was taken into custody. The tainted currency note of Rs.50/-
that remained in the pocket of the complainant was also compared with the
number and denomination mentioned in the pre-trap Panchnama and the same also
tallied. Thereafter, a detailed second part of the Panchnama was drawn in
presence of the Panchas, muddammal currency notes, trouser worn by the
appellant-accused etc. were attached. It is further the case of the prosecution
that on the next day, further statement of complainant was recorded and at that
time he produced the receipt issued by the appellant-accused. The statements of
witnesses were recorded and the sanction for prosecution in respect of the
appellant-accused was obtained from Mr. Brar, Junagadh.
After
completion of investigation a charge sheet was filed undertaking alleged
commission of offence punishable under Sections 7, 12 and 13(1)(d) of the Act.
Learned Special Judge framed charges for offence punishable under Sections 7,
12 and 13 (1)(d) read with Section 13(2) of the Act and Section 161 of IPC.
As
noted above, the appellant was convicted for offence punishable under Section
7(2) of the Act and Section 161 IPC.
The
appeal before the High Court was dismissed on the ground that there was
sufficient evidence on record to hold that the appellant did demand and accept
the bribe money from the complainant.
5. The
learned counsel for the appellant submitted that the evidence is inadequate and
does not establish demand and acceptance of illegal gratification. The
appellant all through has taken the stand that he was falsely implicated.
Alternatively,
it was submitted that the sentence as imposed is heavy considering the amount
of bribe alleged to have been received.
6.
Learned counsel for the respondent-State on the other hand supported the order.
7. It
is to be noted that both the trial Court and the High Court have analysed the
evidence in great detail and have found that the appellant had demanded and
accepted a sum of Rs.200/- from the complainant for allowing the luxury bus to
go to the destination. The tainted currency notes were recovered from the
appellant. The test of anthrecene powder was carried out of the hands of the
raiding party under ultra violet lamp but no marks of anthracene powder was
found.
Similar
test was carried out on the hands of the complainant.
On the
accused-appellant's trouser presence of anthracene powder was noticed. It has
also been established that the numbers of the currency notes were matched with
the denominations mentioned in the pre-trap panchnama.
8.
Looked at from these angles, it cannot be said that the conclusions of, either
the trial Court or the High Court, suffer from any infirmity.
9. The
alternative submission relates to the harshness of sentence. The occurrence
took place nearly seven years back.
It is
stated that the appellant has suffered custody for more than six months. Taking
into account all these aspects, we feel interest of justice would be best
served if the sentence is reduced to the period undergone, while maintaining
the conviction. It is to be noted that the minimum sentence prescribed under
Section 7(2) of the Act is six months.
10.
The appeal is dismissed subject to modification of the sentence as noted above.
Back
Pages: 1 2
