Ratnabhai Hirabhai Solanki vs State of Gujarat

R.P. Dholaria, J. (Oral) - The appellants have preferred the present appeal under section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 20.7.2004 rendered by learned Additional Sessions Judge, Ahmedabad (Rural) in Special ACB Case No.2 of 1995.

The short facts giving rise to the present appeal are that Mr. K.M. Rathod who is serving as Police Inspector in ACB, Ahmedabad has received information on 27.6.1994 that the traffic police and other police who are posted on duty on various roads in Ahmedabad city are taking illegal gratification from the vehicle owners who are passing from there. Therefore, the trap was arranged on 28.6.1994. After carrying out necessary formalities, the trap was carried out, the accused were caught red handed and accordingly, the complaint came to be filed against the appellants accused.

In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the appellants accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried.

3.1 In order to bring home the guilt, the prosecution has examined witnesses and also produced documentary evidences.

3.2 At the end of the trial, after recording the statements of the accused under section 313 of the Code of Criminal Procedure 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above.

Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court.

By way of preferring the present appeal, the appellants have mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such.

Ms. Bhavini Jani, learned advocate for the appellant Nos. 1, 2, 3 and 5 has argued that trap in question is a running trap and there was neither any written complaint nor any secret information was recorded by the police official before proceeding on trap. She submitted that in the alleged trap, six persons were found to be present at the relevant time, out of which, as per the prosecution case, one police official demanded illegal gratification and another has accepted it. She submitted that there is no uniformity in the evidence of the trap witnesses i.e. decoy as well as panch No.1 who was required to hear and see the actual incident of demand and acceptance as regards to bribe and if the evidence of decoy is examined, he is involving accused No. 4 - Nandubhai Mangabhai Patel being the demander of bribe and the actual recovery was taken place from the accused No.1, whereas from the evidence of Panch No. 1 - Punamchand Danabhai who accompanied throughout in the running trap has attributed the fact that the demand was made by accused No. 2 - Jagdish chandra Narsinhbhai Jadav and that recovery came to be effected from accused No. 3 - Vishnubhai Mohanbhai Patel. She, therefore, submitted that since decoy and panch were having no acquaintance with the accused, the investigating agency could have recorded their further statement in light of their oral evidence on record in order to establish the identity as well as respective individual role of each of the accused in the crime in question. She submitted that there appears no evidence as regards to abetement, if any, and therefore the prosecution has miserably failed to establish identity of the accused as well as their individual role in the crime in question. She submitted that even if the evidence of the decoy is to be accepted, then taking into consideration conjoint reading of the evidence of decoy as well as Panch No.1, both are mutually excluding the accused and hence there is no uniformity in the evidence so far as the role of the accused is concerned. She submitted that there is no iota of evidence to link each of the accused in the crime in question. She submitted that PW 1 - Kirankumar Manubhai Rathod who on receiving certain information that police official are indulging in corrupt practise and therefore, he himself has arranged for trap, conducted entire raid and has become the complainant, thereafter, he himself carried out entire investigation and has filed the charge sheet. She, therefore, submitted that PW 1 has assumed all the roles and therefore entire investigation is tainted and relying upon such investigation, no conviction can be recorded as such. She has also argued that since there were two independent witnesses i.e. Prahladbhai Shivram Panchal and Mohanbhai Prabhudas Suthar who were found present at the time of trap and there was also allegation against them as regards to demand of illegal gratification and that they have viewed the present incident, but they have not been examined as prosecution witnesses. In support of her submissions, Ms.Jani has relied upon the decisions reported in AIR 1976 SC 985 (Bhagwan Singh v. State of Rajasthan) and 1998 (1) GLH 924 (Kanubhai Kantibhai Patel v. State of Gujarat). Lastly, she submitted that the impugned judgment and order of conviction is required to be set aside so far as the present appellants are concerned.

Mr. Ashok Purohit, learned advocate for accused No.4 has submitted that neither in the complaint nor in the panchnama, any active role is revealing against accused No.4. He submitted that during the course of trial, accused No.4 has been wrongly ascribed as accused and therefore, learned trial Court has committed grave error in relying upon the oral evidence which is not getting any corroboration from the panchnama as well as complaint itself.

On the other-hand, Ms.Monali Bhatt, learned APP has supported the judgment rendered by learned trial Court. She has taken this Court through the entire Record and Proceedings and evidence of material witnesses on record and argued that since it was running trap and there was no previous acquittance with the accused, due to which, some sort of variation may be there in the depositions of decoy as well as panch No.1, but that may not be seriously viewed while examining the said evidence. She submitted that demand as well as acceptance were proved and, therefore, learned trial Court has rightly appreciated the evidence on record. She further submitted that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellants and ingredients as regards to demand, acceptance and recovery are proved in accordance with law. She submitted that in view of the evidence of PW 1 - Kirankumar Manubhai Rathod wherein the role of each of the accused is described and that is also getting corroboration from the evidence of PW 2 and PW 3 and therefore, this Court should not disturb the finding recorded by learned trial Court, as such.

This Court has heard Ms.Bhavini Jani, learned advocate for the accused Nos.1, 2, 3 and 5, Mr. Ashok Purohit, learned advocate for accused No.4 and Ms.Bhatt, learned APP for the respondent State.

This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. As per the prosecution version, upon secret information, running trap came to be arranged on 28.6.1994 within the vicinity of Ranip Police Station, at that time, when the decoy as well as Panch No.1 were proceeding upon the rickshaw, accused No.1 stopped the rickshaw, accused No.2 demanded Rs.10/- as illegal gratification and accused No.3 accepted and other accused were found present at the place of incident and, thereby the appellants committed the offence, as alleged.

PW 1 - Kirankumar Manubhai Rathod has been examined at Exh.13. The witness has deposed that he was discharging his duties as Police Inspector in ACB, Ahmedabad city on 28.6.1994 and during the said period, he received the information that police officials are indulging in corrupt practise and therefore he arranged for the trap. The witness has deposed that after following the necessary procedure, the raid was conducted, the accused were caught red handed, tainted currency note of Rs.10/- was recovered from accused No.3, the number of the tainted currency note was tallied with the preliminary panchnama. The witness has deposed that thereafter the hands of the rickshaw driver Ranchhodbhai Ratnabhai were seen under ultra violate lamp and marks of anthracene powder on his hands were found positive. In the cross examination, the witness has admitted that he has not received the information or message from any informant, but he himself has seen the same and that he has not noted the said information in the station diary. The witness has admitted that he has not informed to any subordinate officer regarding the said information. The witness has admitted that the witness has carried out further investigation after lodging the complaint and also recorded the statements of both the witnesses. The witness has admitted that he recorded the statements of Prahlad Shivram Panchal and Mohan Prabhudas and both these witnesses were found at the place of incident and their statements were recorded for the reason whether the same will be beneficial for the trap or not. The witness has deposed that after lodging the complaint, statements of rickshaw driver - Ranchhodbhai Ratnabhai Vanzara, Panch No. 1 - Punambhai Patni, Panch No. 2 - Ashwinbhai Dantani and members of the raiding party were recorded. The witness has also admitted that he himself is the complainant, arranged the trap, drawn the panchnama in his presence, lodged the complaint and carried out further investigation in the matter.

PW 2 - Punamchand Danabhai has been examined at Exh.21. The witness has deposed that he was requisitioned as official panch and he was instructed to act as panch. The witness has deposed that he was to view and hear the conversation between the decoy and the accused at the time of running trap. The witness has identified Ratnabhai Hirabhai Solanki - Head Constable who is present in the Court and also identified Jagdishbhai Operator and on being asked, he states the name of the accused as Nandubhai. The witness also identified accused Vishnu Patel from whom currency note of Rs.10/- was recovered. The witness also identified accused Babubhai.

PW 3 - Ranchhodbhai Ratnabhai Vanzara has been examined at Exh.23. The witness has deposed that he is plying loading rickshaw and he was made to understand entire procedure of trap. The witness has identified accused No.4 - Nandubhai Mangabhai in whose pocket, the witness has placed the currency note of Rs.10/- and thereafter he raised alarm and hence, the members of the raiding party arrived there. The witness has stated that the members of the raiding party recovered the said currency note of Rs.10/- from the said accused. The witness has also identified the accused who was present in the Court and on being asked, accused No.1 stated his name to be Ratnabhai Hirabhai.

At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in A. Subair v. State of Kerala, (2009) 6 SCC 587 : (2009 AIR SCW 3994), while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.

In State of Kerala and another v. C.P.Rao (2011) 6 SCC 450 : (AIR 2012 SC (Supp) 393), the Honourable Apex Court reiterating its earlier dictum, vis-a-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

In a recent enunciation by the Honourable Apex Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B.Jayraj (AIR 2014 SC (Supp) 1837) (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.

In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court. If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt.

In the backdrop of the aforesaid factual as well as legal position and on overall analysis of the evidence of the complainant on record, it is the case of the prosecution that the accused No.1 intercepted and stopped the rickshaw, accused No.2 demanded illegal gratification of Rs.10/- and accused No.3 accepted the amount. However, as per the oral evidence of decoy - trap witness i.e. PW 3 - Ranchhodbhai Ratnabhai Vanzara, demand was raised by accused No.4 and recovery was made from accused No.1, whereas from the evidence of PW 2 who accompanied the decoy, in fact, accused No.2 demanded and accused No.3 accepted the amount of illegal gratification. However, as regards to identity of the accused, PW 3 is in dark. This Court has also taken into consideration the examination-in-chief as well as cross examination of PW 3. In view of the aforesaid nature of evidence, evidence of both the prime witnesses are mutually excluding the set of the accused vis-a-vis and, therefore, nothing turns up involving any of the accused in the crime in question.

On evaluation of the evidence on record, it can be noticed that the prosecution has miserably failed to link the accused with the crime in question. Not only that, since it was running trap upon the secret information received by the complainant - PW 1, he has managed all the affairs from arranging the trap till the filing of the charge sheet. However, it appears that PW 1 has not kept in his mind that since six persons were caught at the place, then he was required to record the details as regards to role of each of the accused in the crime in question. Admittedly, such exercise has not been undertaken by the Investigating Officer - PW 1 and, therefore, even as regards to identity of the accused also, no concrete evidence has come on record.

In the present case, it is the contention of Ms.Jani that PW 1 has assumed all the roles right from arranging the trap till filing of the charge sheet. On analysis of the evidence on record, there is some force in the contention raised by Ms.Jani. Admittedly, on receiving secret information that the police officials are indulging in corrupt practise, PW 1 has arranged for running trap, carried out the raid, lodged the complaint, carried out the investigation and then filed the charge sheet. This course of action on the part of PW 1 goes against the basic tenets of criminal jurisprudence and fair investigation. The credibility of the case of the prosecution becomes suspicious on this count only. In the facts of the present case, the status of investigating officer could not be placed on any pedestal higher than of a complainant and the complainant himself cannot be the sole agency of investigation. There should be no occasion to suspect fair and impartial investigation. Therefore, the case of the prosecution suffers from the basic infirmity which itself is sufficient to vitiate the whole investigation.

Since this was running trap upon the information received by PW 1 that police officials who are on duty are indulging in corrupt practise by taking bribe from the passing vehicles and, therefore, names of the accused have not been mentioned in the body of the complaint. The trap was arranged by using decoy and during the course of trap, six persons were found and hence, the investigating agency was required to ascertain and establish identity of each of the accused by recording the statements of the decoy as well as Panch No.1 under section 161 of the Code of Criminal Procedure 1973 for describing the names and identity of each of the accused as well as their specific role. Unless the aforesaid exercise is done, the prosecution cannot establish identity as well as role of each of the act. Admittedly, the said exercise has not been done in the present case. Further, even if the prosecution story may be believed to be true in its entirety, then also, one person has intercepted and stopped the vehicle, one person has demanded illegal gratification and one person has accepted the same. An overact on the part of three persons reveals, but it is mutually excluding. In this view of the matter, role of none is established so far as rest of three persons is concerned. There is no evidence on record as to how abetement is done and mere presence of the accused at the place of incident cannot be believed that they have played role as abettor. In this view of the matter, the prosecution has miserably failed to prove vital ingredients as regards to demand and acceptance and therefore, the judgment and order of conviction calls for interference by this Court. Therefore, as stated above, in absence of specific and clinching evidence to prove all such acts by the accused, conviction recorded by learned trial Judge is not sustainable.

For the reasons recorded above, the appeal succeeds. The impugned judgment and order dated 20.7.2004 passed by learned Additional Sessions Judge, Ahmedabad (Rural) in Special ACB Case No.2 of 1995 is quashed and set aside. The appellants are acquitted from the charges levelled against them. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith.