GOPALLA GHISULAL CHHIPA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant (now deceased) was placed on trial before the Special Judge for the District of Bhavnagar at Bhavnagar to answer the charge of the offence punishable under Sec. 161 of the Indian Penal Code and Sec. 5(1)(d) of the Prevention of Corruption Act. 1947 in Special Case No. 1 of 1984 on the file of the Court. The trial ended in conviction and the deceased appellant came to be sentenced to three months simple imprisonment and fine of Rs. 500.00, in default, simple imprisonment for one moth more. The case of the prosecution in short is as under.

(2.) Dahyabhai, Bhutabhai is serving as Keyman in Railways. He resides at Nari in Bhavnagar District. Damji aged about 18 years and Ramesh aged about 17 years are his sons. Both the sons go to the factories for labour work. and during leisure hours they also take their cattle to the grazing ground for the purpose of grazing. The deceased-appellant was serving as Mounted Armed Police Constable. His duty was to move around the area allotted to him along with his fellow brother and have close surveillance over the theft or other crimes being committed or likelihood thereof and not the criminals. Few days before the incident the deceased appellant told Damji that his cattle were entering into the fields of others and causing damage to the crop. It was also told to him that he was committing theft and therefore, he would see that he was put behind the bars. but he would be let off if he was paid Rs. 1000.00. Damji went home and informed Dahyabhai Bhutabhai. his father about the threat given to him by deceased appellant. He was pacified. Thereafter, on 12/09/1983 after 5-00 p.m.. the deceased-appellant met Dahyabhai Bhutabhai and demanded Rs. l.000.00 the amount of illegal gratification saying that if the payment was not made he would see that his son was sent behind the bars involving in any case. Dahyabhai Bhutabhai supplicated and urged not to talk through his hat and be reckless as his son was not engaged in criminal activities. However, the appellant paid heed and insisted for Rs. l.000.00 failing which it was made clear that his son would be sent behind the bars. Dahyabhai Bhutabhai was having no option. He made it clear that because of the financial stringencies it was not possible for him to manage for Rs. l.000.00. but the deceased-appellant persisted for the same. Hence Dahyabhai Bhutabhai in order to save his son Damji feeling helpless agreed to pay the amount of Rs. 1,000.00. but by two equal instalments each of Rs. 500.00. On the next day the payment was to be made. The place was then fixed. It was a place in G.I.D.C. area where there is a tree near the milestone of 161 Kms., near the railway track. At 5-00 p.m., Dahyabhai Bhutabhai had to go there and make the payment of Rs. 500.00 the sum of first instalment. After the deceased appellant went away. during night time Dahyabhai Bhutabhai cogitated and decided to lodge a complaint. On the next day, i.e., on 13-9-1.983 in the morning at 11-00 a.m. he went to the office of A.C.B. at Bhavnagar. Mr. Janakrai Mahashankar Vyas was serving as P.S.I, in A.C.B. office. Dahyabhai Bhutabhai apprised him about coercive measures adopted by the appellant-accused for the purpose of extorting illegal gratification. The complaint was then reduced into writing. The permission from the Judicial Magistrate (F.C.) was obtained, and panchas were called. Both the panchas were explained about the purpose of the mission. They were also explained what role the complainant and both the panchas were to play. The currency notes given by Dahyabhai were shown to the panchas and, thereafter, anthracene powder was applied on both the sides of currency notes and then necessary demonstration with the aid of ultra-violet lamp was carried out and both the panchas were apprised how the limbs of the person touching the notes would be found glittering with light blue fluorescent marks. In the shirt pocket put on by Dahyabhai Bhutabhai, the notes were put up with the instruction that he would pay the notes only when demand was made by the deceased appellant, till then he would not touch the same. It was also decided that after the notes were accepted. Dahyabhai would move his hand over his head and thereby would give a signal to the other members of the raiding party who would be watching remaining nearby. A first part of the panchnama was then drawn and thereafter the members of the raiding party left for the place which was the meeting place for the purpose of giving the gratification other than legal remuneration. There is a reason (sic.) at a little distance from railway track. It was decided that Dahyabhai would not go under that tree which was near the milestone but would sit near the room. call him under the pretext that as he was pricked with a thorn in the sole of a foot it was not possible for him to walk so that deceased appellant would go to him and the members of the raiding party hidden in the room would be able to see and hear. Accordingly, Dahyabhai Bhutabhai took his seat very close to the room while the other members of the raiding party hid themselves into the room keeping the door of the room slightly open. Neither of the panchas was asked to remain with the complainant-Dahyabhai so that deceased appellant might not suspect about the raid. On that day, i.e., on 13/09/1983 at 5-00 p.m., the deceased appellant came there riding over his cycle. He parked his cycle near the railway track where the tree was. The complainant Dahyabhai called him mentioning about his inability to walk because he was pricked with a thorn. The deceased-appellant went nearer to him and questioned whether he had brought the amount and what amount he had brought. Dahyabhai Bhutabhai replied in the affirmative saying that he had brought Rs. 500.00. Immediately thereafter, the deceased-appellant demanded the amount of Rs. 500.00 and therefore, taking out the amounts from the pocket by right hand Dayabhai paid the same to the deceased-appellant who accepted the same by right hand and put the same in the handkerchief he was having in the left hand, and thereafter he closed the left fist. Immediately thereafter the signal was given as agreed upon. The members of the raiding party who were in the room immediately rushed to the complainant and deceased- appellant. The deceased-appellant was then informed who they were and was also directed not to move. Thereafter, the currency notes were taken from him. The numbers of those currency notes tallied with the numbers mentioned in the first part of the panchnama before leaving for the raid. Then the hands of the deceased-appellant were checked with the ultra-violet lamp rays. Everyone could see that the appellant's fingers of both the hands were glittering with light blue fluorescent marks. The currency notes were seized. The handkerchief and,the ring put on by the deceased were also seized. A purse was found in the pocket of the deceased-appellant from where one piece of paper was bought out on which name of deceased-appellant was written. The cycle parked near the railway track was also seized and thereafter another part of the panchnama was completed. Mr. Vyas then registered the complaint and took the investigation of the case in his hand. He then recorded the statements of the concerned. At the conclusion of the investigation he filed the charge-sheet before the Special Court for the District of Bhavnagar which came to be registered as Special Case No. I of 1984. Hearing both. the learned Special Judge framed charge to which the deceased-appellant pleaded not guilty and claimed to be tried. The prosecution adduced necessary evidence. Considering the evidence on record the learned Special Judge found that the prosecution had succeeded in establishing the charge levelled against the deceased appellant. He, therefore, held him guilty and convicted and sentenced aforesaid. It is against that order of conviction the present appeal has been filed. After the appeal was filed the appellant died, and therefore, the heirs of the deceased appellant were brought on record and that is how the present appeal has been persuaded.

(3.) The deceased appellant before the lower Court submitted that at the relevant time Shri Gehlot was serving as D. S. P. in the District, while Mr. Simpi was serving as Home Inspector. Mr. Vora was serving as Office Superintendent. For one or the another reason the malpractices they adopted in connection with horse fodder came to light, and A.C.B.. Rajkot raided their places. Mr. Gehlot, Mr. Simpi and others then assumed that deceased-appellant had played pivotal role in getting their places raided. They were, therefore, not happy and were planning to involve him in one or the another case and ruin his career. At that time in the Mounted police force Ganubha was also serving as Head Constable who is considered to be a man of confidence of Mr. Gehlot and others. Mr. Gehlot and others paid Rs. 500.00 to Head Constable Ganubha and the case was engineered against him through Dahyabhai Bhutabhai. The day of 13/09/1983 was fixed for the purpose of raid because on that day he was required to go to the headquarters and report about the need of the horse fodder. He was then to go back in the evening to his place by the road near to the place where the raid was carried out. Dahyabhai Bhutabhai was asked to sit near the room where the members of the raiding party had hidden themselves under the pretext that he was not in a position to walk as he was pricked with a thorn in the sole and was waiting for the help of someone. When he was passing on the cycle by that road Dahyabhai Bhutabhai called him for help so as to extract the thorn. When he went there just to help him, Dahyabhai Bhutabhai along with the handkerchief threw the currency notes on the ground near to him and the members of the raiding party rushed there. Seeing the members the deceased appellant being shocked questioned why they were ? He was then slapped and the police officer asked to lift the currency notes lying on the ground. As there was no option left he lifted the amount and gave the same to the members of the raiding party. Thereafter, undergoing necessary formalities he was unduly involved in the bribe case.