GULABSING PRATAPSINH PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this appeal, the appellants have challenged the judgment and order of conviction and sentence dated 26.7.1988 passed in Special Case No.3 of 1988 by the learned Special Judge, Kheda at Nadiad whereby the accused No.1 was convicted under section 161 and 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act and was sentenced to suffer Rigorous Imprisonment for 1 year and pay a fine of Rs. 1,000/ -, in default, to undergo further R.I. for three months. Accused No.2 was convicted under section 161 [c] of Indian Penal Code and was sentenced to suffer Rigorous Imprisonment for 1 year and to pay a fine of Rs. 1,000/ -, in default, to undergo R.I. for three months. The accused have paid up the fine.

(2.) DURING the pendency of this appeal, both the appellants died and in pursuance of the order passed by this court, legal heirs of the appellants No.1 and 2 were allowed to continue with the proceedings of this Appeal.

(3.) A complaint, Exh.10 was given by one Chandaben against the present complainant and other three persons namely Desaibhai Nanjibhai, Bai Dhuliben and Kantibhai Mangalbhai in Umreth Police Station. Kantibhai Mangalbhai is the real brother of the present complainant whereas Desaibhai Nanjibhai is the uncle of the present complainant. The complaint was given under section 324 read with section 114 of IPC. The investigation of the complaint was given to the present accused No.1 who was, at the relevant time, serving as police head constable in Umreth police station. The complaint was filed on 13.6.1986. On 14.6.86, the accused no.1 went to the village Thamna where the complainant and other three persons were residing. Accused no.1 went to the village in auto rickshaw and took the Manubhai Mangalbhai (complainant and PW 1 in the present appeal) to the police station in the same rickshaw. It is alleged that he had beaten the complainant and locked him up in the police lock up. As a result of this, father of the complainant went there with Kantibhai and other persons of the village where Desaibhai Nanjibhai was also kept in police lock up. Thereafter, the three accused were released on bail at 6 p.m. After the release of the present complainant on bail, it is alleged that accused no.1 called on the present complainant and his brother Kantibhai and asked them to pay Rs.400/ -. Though at that time they did not have any money with them, the accused no.1 insisted the present complainant to manage it anyhow. Thereupon, from the father of the present complainant Rs.110/ - was taken and it was given to accused no.1. Accused No.1 asked the complainant to pay the remaining amount of Rs.290/ - on the next day but the next day being a Sunday, the complainant told accused no.1 that he will not be able to manage the fund on Sunday and on Monday, he will pay the remaining amount to accused no.1. On saying so, accused no.1 told the complainant to come at 5 p.m. on Monday, i.e. on 16.6.1986. As the complainant did not want to pay any bribe amount to accused no.1, on 16.6.86, he went to the Anti Corruption Office, Nadiad (for short, 'ACB' office) and lodged a complaint. After the complaint was recorded, Mr Maurya, P.I. wrote yadi to the RTO office which is also situated in the same compound and asked to send two employees to act as panchas. One Ashwin Jayantilal Bhavsar and Maganbhai Nathalal Prajapti both were sent by the RTO office. Mr Maurya introduced the complainant to the panchas and read over the complaint to them. Upon tendering the currency notes of Rs. 290/ -, (denomination of 100 x 2, 50 x 1, 20 x 2) which was to be given as bribe to accused no.1, the P.I. carried out the usual experiment i.e. anthracene powder was smeared on the currency notes and instruction for experiment of ultra violet light was given. When the said currency notes were exposed to normal light, nothing appeared but when the same was observed under ultra violet lamp, shining colours appeared. The tainted currency notes were placed in the pocket of the bush shirt worn by the complainant. Necessary instructions were given to panch no.1 to observe and hear the conversation that might take place between the accused no.1 and the complainant. On acceptance of the money, the complainant was instructed to signal by rubbing his hand on his head. Thereafter, the members of the raiding party including the father of the complainant, proceeded in a jeep to Umreth and stopped near the court building. Complainant and panch no.1 went to the Umreth police station where the accused no.1 was sitting in one room. Accused no.2 was also present. Then the complainant informed accused no.1 that he has brought Rs. 290/ - as agreed by him on 14.6.86. Thereupon, accused No.1 told him that he does not accept money with his hand but he can hand it over to accused no.2. Thereupon, accused no.2 left the room and stood outside the office. The complainant went outside the office to the accused no.2 who asked for the money and the complainant took out the money with his left hand from the left pocket of his bush shirt and handed over it to accused no.2. It is alleged that accused no.2 accepted the same with his left hand and counted all the money and remarked that there is a shortage of Rs. 10/ -. The complainant replied that only that much amount had remained to be paid. Thereafter, according to the complainant, accused no.2 kept the amount with his left hand in the left pocket of his pant. Thereafter, as instructed, he signalled the ACB raiding team. So P.I., Mr Maurya and the members of the raiding party rushed there. He asked accused no.1 his name and introduced himself to him. Then the accused no.2 was taken to the room of accused no.1 and they carried out the usual experiment of anthracene powder with the help of ultra violet lamp and shining colour was found in the hands, on the border of the bush shirt, inside the trouser pocket of the accused as also in the hands of the complainant and on the currency notes recovered from the left pocket of the pant worn by the accused no.2. On search, some papers concerning Umreth police station were found from the pocket of the bush shirt of accused no.2. No marks of anthracene powder was detected from the clothes of accused no.1. Thereafter, second part of panchnama was prepared. The P.I. registered the offence on the next day and both the accused were arrested and sent to the concerned court. The investigation was completed and after taking the statements of the concerned witnesses the records were sent to the sanctioning authority and on receipt of the sanction order, the accused persons were charge sheeted in the court of Special Judge, Kheda at Nadiad. Pursuant to that, the learned Special Judge framed charge -Exh.7 against the accused persons. Both the accused persons have not pleaded guilty to the charge and claimed to be tried. The trial, thereafter proceeded and the prosecution, in order to prove its case, had examined 10 witnesses namely;