DALSUKHBHAI SAVJIBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant of Criminal Appeal No. 2197 of 2001, who is the orig.accused no. 1; and appellant of Criminal Appeal No. 2199 of 2001, who is the orig accused no. 2 (hereinafter referred to as 'the accused') have filed these appeals respectively against the judgment and order of conviction and sentence dated 18th December. 2004, passed by the learned Special Judge (Prevention of Corruption Act) and Additional Sessions Judge, Fast Track Court No.5, Veraval, in Special (ACB) Case No. 1 of 2001 (Old Case No. 11 of 1999). The accused have assailed the legality and validity of the judgment and order of conviction and sentence under challenge whereby the accused persons have been held guilty for the charge of offence punishable under Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act') and they have been sentenced to undergo rigorous imprisonment for 3 years on each count and also ordered to pay a fine of Rs. 5000/- for each offence; and in default of making payment of fine, further imprisonment of nine months for each offence.

(2.) The accused no. 1 was the Police Sub-Inspector of Talala Police Station and the accused no.2 was the Police Constable in the same Police Station. As both these appeals are arising out of the same judgment and order of conviction and sentence, the same are decided by present common CAV judgment. According to Shri Mangukiya. learned counsel appearing for the both the accused, there is no conflict of interest or even conflict of defence, and even both the accused were defended by the separate advocates before the trial court. According to Shri Mangukiya. no prejudice is likely to be caused to any of the accused persons and, therefore, he may be heard on behalf of both the accused persons. Shri A. J. Desai. learned Additional Public Prosecutor, appearing on behalf of the respondent-State, after some deliberations had agreed and he has also submitted that both the appeals can be disposed of by a common judgment. Therefore, the present appeals are being decided by the present common CAV judgment.

(3.) The brief facts placed by the prosecution before the trial court reveal that the accused allegedly demanded an amount of Rs.200/- as regular instalment for plying a three wheeler motor vehicle which is normally used for carrying goods and popularly known as "Chhakdo Rickshaw" (hereinafter referred to as 'the rickshaw'). Though this rickshaw is basically a goods' carrier, it was being plied to transport the passengers. The accused being the Police personnel were recovering the amount of Rs.200)/- per month as regular instalment from the orig.complainant-Devendra Naranbhai Parmar, resident of Chitrod, for permitting him to ply the rickshaw as passenger vehicle. That on 12th April, 1999. the accused no. 1 had directed the orig.complainant to make payment of instalment for the month of April, 1999. which was not paid by him, to any Police Constable on duty standing on the road on the next day. i.e. 13th April. 1999. if at the relevant point of time the accused no. 1 is not available at Talala or otherwise. The FIR Ex.25 is the narration of the first part of the facts of the case placed by the prosecution; and it is alleged that on 12th April, 1999, the orig.complainant-Devendra Naranbhai Parmar, resident of village Chitrod (Gir), Taluka Talala, was proceeding towards Talala from his village Chitrod. The Police Jeep Car of the accused no. 1 was also moving in the same direction and it was behind the rickshaw of the orig.complainant. When the complainant was about five kilometres away from the town Talala. the Police Jeep Car intercepted the rickshaw of the complainant and the complainant was given a signal to stop his rickshaw and therefore, the complainant stopped his rickshaw. The accused no. 1 came out of the Jeep Car and started abusing the complainant and also pulled out the complainant from the driver seat and asked him whether he has paid the instalment of Rs.200/- of that very month. The complainant responded that as he had spent some amount in getting the engine of his rickshaw repaired, he could not pay the same. The accused no. 1 in response to that told him that such an excuse svould not do and the complainant will have to pay the instalment timely. The complainant thereafter requested to grant him two to lour days time, so that he can make arrangement. At that time, the accused no. 1 had turned wild and the complainant was beaten with kick and fist blows by the accused no. 1; and he was asked to pay the instalment of that very month on the next day, i.e. on 13th April. 1999. at the place near J.B. Guest House. The complainant was usually parking his rickshaw near J.B. Guest House of town Talala. So the complainant was asked to pay the said amount at that place, and it was also directed by the accused no. 1 to the complainant that if any Police Constable of Talala Police Station may come there, then the complainant should pay the amount of Rs.200/- to that Police Constable, otherwise the complainant would not be able to ply his rickshaw. The complainant was -also informed by the accused no. 1 that on 13th April, 1999, at any time between 09-00 a.m. and 12-00 p.m., the Police Constable would come to collect the amount of instalment and he should pay the same. At that time, one Police Constable who was in the Jeep Car had come there and a signature of the complainant was obtained on one form. Thereafter, the accused no. 1 had proceeded towards Talala. It is the say of the complainant that from that spot, he had returned to his village Chitrod and by putting his rickshaw at his residence, he had reached to Rajkot for filing a complaint. According to the complainant, though he is 2 not willing to pay the said amount, he is being compelled to pay the same. This complaint was registered by Anti-Corruption Bureau (ACB), Rajkot at about 21-00 hrs. on 12th April, 1999. Thereafter, the ACB trap was arranged on 13th April, 1999 and according to the prosecution, on 13th April, 1999, the raiding party personnel along with the complainant and the panchas had reached to Talala from Rajkot. The complainant and the panch- witnesses were waiting, keeping rickshaw on stand, for arrival of Police Constable as asked by the accused no. 1. They were on rickshaw stand since 10-00 a.m. in the morning but at about 10-20 a.m., one Police Constable (accused no.2), who was standing near the shop of Jalaram Cold Drink, had blown the whistle and by raising his hand called the complainant. The complainant thereafter in the company of Panch no. 1 proceeded towards the accused no. 2 in the rickshaw. He was addressed as 'Giribapu' by the complainant. There was some conversation between the accused no. 2 and the complainant about the ill-treatment given by the accused no.l to the complainant on previous day. At that time, the said person, meaning thereby, the accused no. 2 asked him whether he has brought the instalment money and if he has brought then he should pay the same. At that time, the complainant took out the muddamal currency notes smeared with anthracene powder and handed over to the accused no. 2. The accused no. 2 accepted the same and put the said amount in his right side pant pocket. On acceptance of the bribe amount by the accused no. 2. a signal was given and the accused no. 2 was caught in presence of both the panchas at about 10-30 a.m. Thereafter, the Police Inspector Shri Mahida took the accused no. 2-Police Constable after knowing his name and buckle number to the Guest House. According to the prosecution, as it was a public place and people had started gathering there at the spot, the accused no. 2 was taken to District Panchayat Guest House in the Government vehicle namely the Jeep Car of ACB Police Inspector Shri Mahida. In the District Panchayat Guest House, the experiment under the ultraviolet lamp on the various articles and hands of the accused no. 2 was made and a detailed panchnama was drawn. The muddamal currency notes were also recovered from the accused no. 2.