STATE OF GUJARAT Vs. MANSURBHAI MOTIBHAI DAMOR

JUDGEMENT

(1.) The three most important questions in focus arising for our consideration in this Acquittal Appeal are : (i) Whether in a Corruption Case, warranting proof of three principal ingredients of offence of bribe, viz., Demand, Offer and Acceptance, and in that case even if the direct evidence consisting of the complainant and first panch witness (directed to hear and see the bribe transaction) turn hostile to the prosecution then even merely relying upon the circumstantial evidence on the point comprising of the second panch and the Investigating Officer, Court can still record order of conviction and sentence ? (ii) Whether by merely mechanically affixing the label of the 'Selected panch' to panch witnesses when in fact there is indeed no material brought on the record to indicate that they were so selected by the Investigating Officer in conspiracy with the complainant or for some oblique motive by himself alone with a view to falsely implicate and secure conviction of the accused at any cost, his evidence can be discarded as malicious and interested witness ? and further ? (iii) Whether the Investigating Officer in a trap case also merely because he is police officer can he be straightaway mechanically branded as a witness ultimately interested in success of the investigation and therefore, on that ground alone without there being anything brought on the record to show that his evidence was otherwise tainted, personally maliciously interested in falsely implicating the accused, his evidence must be discarded and that no order of conviction and sentence can ever be passed on the basis of the sole testimony of such Investigating Officer ?

(2.) Before the Parliament specially enacted the Prevention of Corruption Act, 1955 and thereafter the later Prevention of Corruption Act, 1988, Sec. 161 was already there in I. P. Code dealing with the bribery cases. But then taking into consideration the rampant rising and unabated tide of corruption, Parliament in its anxiety realising that Sec. 161 of I. P. Code was little too inadequate to meet with the problem, enacted special Corruption Act - incorporating a special deeming fiction by virtue of which the statutory presumption was raised against the accused which of course was made rebuttable on preponderance of probability shown by the accused. Now, despite this special deeming fiction virtually new Corruption Act appears to have failed to bring about the desired result rather the deterrent effect because of little, liberal and sometimes even quite unjust, indiscreet appreciation of evidence. We not for a moment suggest and even entitled to take away judicial discretion in matter of appreciation of evidence directing the trial Courts to convict accused in all Corruption cases irrespective of its judicial satisfaction to record conviction. No. To such arbitrariness and arrogance we cannot dream even to be a party to impose the same on trial Courts. But at the same time, we would be just failing in our duty if we do not guide the concerned Courts how to mind their ways of appreciating evidence in Corruption cases, more particularly in the light of the observations made on the pages of this judgments. In substance, what we say, we intend to say is that we are quite opposed to casual, slip-shod, scratching the surface way of the appreciation of evidence and record rough and ready cheap acquittal. This is improper, illegal and quite unjust. In our opinion, the matter of fact and real appreciation of evidence is the test of judicial wisdom and sound common sense of the trial Court. This indeed requires basic judicial awareness, vision and wisdom which comes from the experience only, that great teacher of life and or by learning from such experienced persons when the one is just on way gathering the same . For this, one has to grow in experience and till the time that experience does not grow and/or blossom into its fullness one has to draw and share light of the experience from such experienced one. But while drawing and sharing experience from the reported judgments, the basic requirement is to closely marshal and scrutinize the facts and circumstances of the each case at hand and one in the reported judgments and then to find out whether the decision of High Court and/or for that purpose of Supreme Court fits in or not to be applied. This requires total application of mind which comes out only from the composed intelligence and total awareness of the concerned judicial officers. In substance, the appreciation of evidence is always a matter of honest and sincere toil and sweating as a result thereof and not an easy arm-chair exercise to reach just first hand handy conclusion and stop there and then only scratching a surface of the prosecution evidence and deliver the judgment acquitting accused. We do believe that as far as possible the appellate judgment should be commendably precise and not unduly prolix, however, at the same time the observations made herein and such other type of observations once a while made, which are eminently and inevitably necessary to make as we are of the view that the objective of giving a judgment is not merely to appreciate the evidence and thereby to settle the rival contentions and give fair and substantive justice to the parties before it, but it is also equally imperative to enlighten, educate and tone-up the subordinate Courts and statutory functionaries to live-up to their expectations and to give the better account of their efficiency and accountability to the people, the real customers of justice. The High Court judgment thus has manifold purposes. The paramount one of them being the transperent, efficient, accountable and substantive justice-oriented Administration of Justice. For this purpose, the length of judgment when occasion so warrants should never worry the duty-conscious Court for that purpose.

(3.) To briefly narrate the prosecution case, according to PW-5, Kalsinh Vijabhai Baria, on 17-9-1990 when he was on duty as P.I., A.C.B., Godhra, PW-1 Nathabhai Lembabhai came to him and gave a complaint (Ex-11) alleging therein that Mansurbhai Motibhai Damor, Head Constable at Ranakpur Outpost had demanded Rs. 1,000/- to settle the complaint filed against him regarding offences registered against him under the Forest Act and for that purpose, he had already paid Rs. 200/- to him and the balance amount of Rs. 800.00 was to be paid to him, next day, i.e., to say on 18/09/1990. On the basis of this complaint, PW- 5 P.I., A.C.B. requisitioned the services of two panch witnesses, viz., PW-2 Kamlesh Mohanlal Shah and PW-3 Revsinh Ramsing Talar who were later on introduced to the PW-1 complainant and were posted with the facts regarding the bribe demanded by the accused from him. Thereafter, PW-1 produced currency notes of Rs. 800/- regarding which the usual pre-raid anthracene powder test was carried out in presence of the PW-1, PW-2 and PW-3, i.e., complainant and two panchas respectively. The number of muddamal currency notes were noted down in the Panchnama Exh. 13. Thereafter, the PW-2 (first panch) was instructed to accompany PW-1 and witness whatever transpired in between PW-1 and the accused. PW-1 was further instructed to give the bribe amount only as and when so demanded by the accused. After this preliminary part of the Panchnama Exh. 13 was over, PW- 5 P.I., A.C.B. along with PW-1, PW-2 and PW-3 proceeded towards Ranakpur Outpost in a jeep which was stopped at some distance near Chokdi of village Amthani from where PW-1 and PW-2 (first panch) went walking to Ranakpur Outpost, and rest of the members of the raiding party lied around secretly in wait. At 8.45 AM, on PW-1 giving the pre-arranged signal, PW-5 P.I., A.C.B. with PW- 3 (second panch) entered the outpost where accused was found sitting in the chair. He was asked not to move. Thereafter, PW-5 introduced himself as P.I., A.C.B. and on making inquiry, PW-2 (first panch) in presence of PW-3 (second panch) and others narrated the whole incident which was transcribed in the Panchnama Exh. 13.Thereafter, usual post-anthracene powder test was carried out and in turn when the hands of the accused were examined in the light of the ultra-violate lamp, the fingers, thumbs and some portion of the palm of both the hands were found smeared with the anthracene powder. Thereafter, when the accused who had put on lungi and banian having no pockets was searched, nothing incriminating was found. Thereafter, however, just on the right side near his chair on which accused was sitting, a leather wallet was found and on opening of the same, a bunch of currency notes was recovered by the PW-2 (first panch). The numbers of these notes when compared, tallied with numbers noted down in earlier part of the Panchnama Exh. 13.Not only that but the said notes were also found bearing the anthracene powder marks. This was seized, in presence of PW-1, 2, 3 and 5 present at the scene of the incident regarding which the second part of Panchnama (Ex-13) was made, which was over at about 12.15 hours, and ultimately came to be duly signed by both the Panchas and PW-5 P.I., A.C.B. On the basis of this trap-proceedings, after the investigation was over, obtaining sanction, the respondent-accused came to be chargesheeted to stand trial for the alleged offences punishable under Secs. 7, 13(1)(d) and Sec. 13(2) of the Prevention of Corruption Act, 1988, which came to be registered as a Special Case No. 8 of 1991, before the Special Court, Panchmahals at Godhra.