BHUPENDRAKUMAR SANATKUMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 22-5-1992 passed by the learned Special Judge, Jamnagar in Special Case no.5/1985 whereby the appellant-Bhupendrakumar Sanatkumar Pathak was convicted and sentenced to suffer R.I. For one year and fine of Rs.500/-, in default, S.I. for two months in respect of offence punishable under Section 5(1)(D) of the Prevention of Corruption Act, 1947 ( for short Sthe Act ).

(2.) Briefly stated, the case of the prosecution is that the incident in question took place on 16-7-1984. On 15-7-1984 there was a quarrel between Mariamben sister of Daudbhai Kasambhai Tariya residing at Ganesh Vas, Jamnagar with her landlord in connection with which a complaint came to be filed at Jamnagar City A-Division Police Station against Mariamben, her son and her daughter. Accordingly, the police informed Mariamben and other accused to remain present in the police station on the next day i..e on 16-7-1984. On 16-7-1984, the complainant who is the brother of Mariamben residing at Kojanaka, Jamnagar, accompanied by Mariamben and her son and daughter went to Jamnagar City A-Division Police Station. The complainant went with them with a view to be a surety for bail. The present appellant-Constable Bhupendrakumar Sanatkumar Pathak produced Mariamben, her son and daughter before the Court of the Chief Judicial Magistrate, Court no.3, Jamnagar, and all these accused were released on bail. It is alleged that present appellant told the complainant that as he had remained with them all through out the day, Rs.25/- be paid to him, however, the complainant stated that they were poor persons and was not in a position to give any amount. Thereupon, the present appellant insisted that the amount be paid to him at Khambhaliya Police Chowky after 6.00 p.m. and the complainant agreed to make the payment. But as in fact the complainant was not willing to pay any amount as bribe, he approached the ACB Office, Jamnagar and lodged complaint before P.I. Raval of ACB, Jamnagar which came to be recorded at 4.30 p.m. Thereupon, Prafulchandra Ranchodbhai Parmar and Dixitbhai J. Mehta were called at ACB Office, Jamnagar. The complaint was read over to the Panchas and the Panchas had put their signatures thereon. The complainant then produced three currency notes aggregating Rs.25/- i.e. two currency notes in the denomination of Rs.10/-each and one currency note in the denomination of Rs.5/-. These currency notes were then smeared with anthracene powder. When these currency notes were viewed under ordinary light nothing significant appeared, but when observed under ultra violet lamp light blue fluorescent colour appeared. These currency notes were then put into the left pocket of the bush-shirt of the complainant.. The complainant was instructed not to touch these currency notes till the demand is made by the appellant and that when the demand is made these currency notes be given to the appellant. Panch no.1 was instructed to be in company of the complainant and to observe and hear the conversation that takes place between the appellant and the complainant during the course of passing over of the currency notes. The complainant was also instructed to give signal by placing his hands on his head as soon as the amount is received by the appellant. Thereafter, the preliminary Panchnama was drawn.. Thereupon, the complainant along with the Panchas, P.I. Raval and other members of the raiding party went to Khambaliya Gate Police Chowky. At that time, the present appellant was standing 15ft. away from Khambhaliya Police Chowky. The complainant and Panch no.1 went to the appellant and complainant asked the appellant as to his whereabouts and in turn the appellant asked the complainant as to whether he had brought the money and if so to handover the money to him. The complainant replied in the affirmative and also offered the amount , however, the appellant suggested that they may go to the Hotel at Havai Chowky. The appellant, complainant and Panch no.1 went to the said hotel and ordered for tea, however, while drinking water the appellant demanded money from the complainant. Thereupon, the complainant took out the tainted currency notes from the left pocket of his bush-shirt and gave the same to the appellant and the appellant accepted the same. When the appellant was trying to put the currency notes into his pant pocket the complainant gave the signal by placing his hands on his head. Soon the papers of the raiding party reached the spot. Head Constable Ahmedsinh Jadega caught the left hands of the appellant and P.I. Raval gave his introduction to the appellant. However, on account of heavy rush and lots of people were gathered on the spot, the appellant was taken to Khambhaliya Police Station and from there he was brought to the ACB Office, Jamnagar where experiment of ultra violet lamp was carried out on the fingers, thumb and on the palm of the left hand of the appellant and visible marks of anthracene powder were noticed. The currency notes which were recoverd by Panch no.1 from the fist of the appellant was also found to have visible marks of anthracene powder. The numbers of these currency notes tallied with the numbers mentioned in the preliminary Panchnama. On the upper part of the left pocket of the pant worn by the appellant marks of anthracene powder were noticed when viewed under ultraviolet lamp. Thereafter, Muddammal was recovered and detailed second part of the Panchnama was drawn. On completion of investigation charge-sheet was filed against the present appellant before the Special Court, Jamnagar. The learned Special Judge, Jamnagar framed charge Exh.2 against the present appellant-accused for the offence punishable under Section 161 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act. The charge was read over and explained to the present appellant-accused who pleaded not guilty to the charge and claimed to be tried.

(3.) To prove its case against the appellant-accused the prosecution has examined (i) PW1 Daudbhai Kasambhai Exh.5, (ii) PW 2 Prafulchandra Ranchodbhai Parmar Exh.7, (iii) Witness Liladhar Bhimji Sarvaiya Exh.9, (iv) Witness Head Constable Mavubha Deepsinh Jadega Exh.14, (v) Witness Police Constable Ranveersing Agarsinh Jethva Exh.18, (vi) Witness Mansukhlal Harilal Exh.19 and (vii) Police Inspector Girjashanker Keshavlal Raval Exh.20. The prosecution has also produced documentary evidence such as complaint at Exh.6, Panchnama at Exh.8, letter written by DSP, Jamnagar to the ACB Office at Exh.10, copy of the order of the first appointment of the appellant as Police Constable at Exh.11, appointment memo of appellant-accused at Exh.12, sanction to prosecute the appellant-accused at Exh.13, Yadi sent by the Jamnagar A-Division Police to the Juvenile Court in connection with the Crime Register no.164/1984 at Exh.16, Yadi to produce the accused person in connection with Crime Register no.164/84 before the Court at Exh.17 and P.I. ACB, Jamnagar's letter to DSP, Jamnagar for providing necessary papers at Exh.21. After recording of the evidence of prosecution was over, the learned Special Judge recorded the further statement of the appellant-accused under Section 313 of the Code of Criminal Procedure. The sum and substance of his further statement was to the effect that he was falsely implicated in the case, however, a detailed reference to the further statement of the appellant-accused shall be made a little later.