STATE OF GUJARAT Vs. PRAVINBHAI VELJIBHAI JADAV

JUDGEMENT

(1.) ,

(2.) [His Lordships after stating the facts of the case, further observed :] .... .... .... .... .... .... 15. Finally Mr. Anandjiwala submitted that since the panchas in the present case have not supported the prosecution regarding acceptance of bribe, the whole prosecution case fails. The argument of Mr. Anandjiwala to the effect that the prosecution case in trap matters would rest on the evidence of 3 principal witnesses, viz., the complainant, panch witness and investigation officer. He has compared that to a stool with 3 legs. According to him, if one leg of such stool is broken or damaged or lost, the stool cannot stand: it would fall down. Mr. Anandjiwala has therefore, submitted that, when the panch witness does not support the prosecution case, one leg of the stool is missing and the stool of the prosecution cannot stand on its two legs, however, firm they might be. With respect, we do not subscribe to this submission. The reason therefor, is quite simple. It is true that panchas play a very important role in trap matters. There is however, no invariable rule that panchas have to support the prosecution in order to bring about the conviction of the accused. If such be the invariable rule, it would be easy for any accused to win over the panch witnesses and earn acquittal in every such case. We, therefore, do not accept the simile that the prosecution case would be like a three legged stool requiring all the 3 legs to stand. The Division Bench ruling of this Court in the case of State of Gujarat v. Trambaklal Fulshanker Trivedi, reported in 1979 (2) GLR 60 with respect does not lay down invariable rule that if the panchas do not support the prosecution base, it must fail only on that ground. 16. The Division Bench ruling of this Court in the case of Bharatkumar Jaimanishanker Mehta v. State of Gujarat, reported in 1982 GLH 249 : [1982 (1) GLR 605] pertains to raising of presumption under Sec. 4(1) of the Prevention of Corruption Act, 1947. It is, therefore, distinguishable on its own facts as no such presumption is sought to be raised in this case. In the present case we feel that the evidence of the complainant Keshaval is reliable and trust worthy, which is also corroborated by the Investigation Officer P.I., Shri Parmar. In the case of State of U.P. v. G. K. Ghosh (AIR 1984 SC 1453) (supra) the Supreme Court has also relied upon the evidence of the complainant as well Police Officers when key witnesses turned hostile. In the present case, the prosecution has successfully established the mark of anthracene powder on the tips as well as palm of the hand, on the left pocket of the bush shirt, inside and outside portion of the hand bag and the diary of the respondent. The respondent in his written statement has come out with a case that while he was taking out the sample from the refreshment house, and for that purpose when he has opened his hand bag, the complainant came and obstructed the proceedings of taking samples and at that time, the complainant has planted the amount in the open bag without his knowledge. Thus the respondent has denied the finding of marks of anthracene powder on his bush shirt as well as tips of his hand. Having considered the defence of the respondent, it is clear that he has not denied his presence near the refreshment house of p. 3 and his case of planting the amount without his knowledge does not appear to be probable to us in view of the positive evidence of the complainant as well as the Investigating Officer in the present case. Assuming that the amount was placed by the complainant without his knowledge in the hand bag, the Investigation Officer in that case could not have noticed the marks of anthracene powder on the tips as well as palm and on the left pocket of his bush shirt. It is to be noted that in that case only Rs. 200.00would have been found from the diary of the respondent. The fact that Investigation Officer has found Rs. 200.00 and another amount of Rs. 100.00 taken from P.W. 3 which would go to suggest that respondent had in fact demanded not only Rs. 200.00 from the complainant hut also demanded and accepted Rs. 100.00 from P.W. 3 Khemchandbhai. We think that this is the strongest circumstance which is quite consistent with the guilt of the respondent. We therefore, find no difficulty in upholding the prosecution case. In this view of the matter, we are clearly of the view that the prosecution has successfully established the charge under Sec. 5(1)(d) read with Sec. 5(2) of the Prevention of Corruption Act read with Sec. 161 I.P.C. and accordingly we hold that the respondent is required to be convicted for the aforesaid offences and accordingly we set aside the judgment and order of acquittal recorded by the learned Special Judge, Mehsana. (Rest of the Judgment is not material for the Reports.)