STATE OF GUJARAT Vs. DAHYABHAI SOMABHAI ROHIT

JUDGEMENT

(1.) THE State of Gujarat has preferred this appeal to challenge the judgment and order passed by learned Special Judge, Ahmedabad (Rural), at Mirzapur, Ahmedabad, on 16th July, 1992 in Special Case No. 11 of 1989, acquitting the respondents of charges levelled against them under Sections 161 and 165 (3) (A) of the Indian Penal Code and Sections 7 and 12 of the Prevention of Corruption Act.

(2.) THE brief facts of the case are that, at the relevant time, respondent No. 1 was working as Constable at Kaligam Police Outpost of Sabarmati Police Staiton and respondent No. 2 was working as Police Sub-Inspector at Sabarmati Police Station. Kaligam Police Outpost falls under the jurisdiction of Sabarmati Police Station. One Valjibhai Odharbhai Rabari approached the Anti-Corruption Bureau, Ahmedabad City, on 11. 11. 1988 alleging that about eight days prior thereto, upon a call from Police, when he had gone to Kaligam Police Outpost, respondent No. 2 told him that there are some complaints against him and some other persons and then told him that they all are goons and head strong persons. He, therefore, appeased respondent No. 2 and requested that necessary statements may be recorded. Respondent No. 2, therefore, asked him to meet his Writer, i. e. respondent No. 1. Respondent No. 1 told him that there were serious allegations against him and it was better that he got it settled or else, he might have to regret and, ultimately, demanded Rs. 650/-, out of which Rs. 150/- were to go to respondent No. 1 and Rs. 500/- were to go to respondent No. 2. The complainant parted with Rs. 400/- on that day and agreed to pay rest of the amount at a later point of time. Again, on 9. 11. 1988, some persons were called at Kaligam Police Outpost and, therefore, the complainant also went there and, at that time, respondent No. 1 demanded the remaining amount of Rs. 250/ -. But as the complainant had only Rs. 50/- with him, he parted with that amount. Since the complainant did not want to pay the remaining amount of Rs. 200/-, he approached the ACB and lodged a complaint, which was reduced into writing and action initiated. 2. 1 On the basis of the complaint, the staff of ACB called two Panch witnesses, namely, Bhupendrakumar Mangaldas Patel and Laxmikant Prabhudas Patel and a preliminary Panchnama was drawn, where two currency notes of Rs. 100/- denomination were treated with anthracene powder and placed into the pocket of Kurta of the complainant. He was told not to touch the said notes till the trap is arranged and money is demanded by either of the respondents. Panch No. 1 was asked to remain in company of the complainant at the time of the trap and the second Panch was to remain in company of the raiding party. The entire group went to Kaligam Police Outpost. The complainant and Panch No. 1 went into the premises, where they found respondent No. 1. On inquiry, it was found that respondent No. 2 had gone on investigation duty and was not available. It is further the case of the prosecution that respondent No. 1 demanded the remaining amount from the complainant and the complainant, therefore, tendered the two currency notes treated with enthracene powder lying in his pocket to respondent No. 1, who accepted the same with his right hand and put it into the left hand side pocket of the shirt, which he was wearing. Thereafter, the complainant went outside the premises to give signal to the remaining members of the raiding party. When the raiding party came, it is the case of the prosecution that respondent No. 1 took out the currency notes of Rs. 200/- given to him by the complainant from his pocket and put them on the table. The raiding party introduced themselves. Panch witness No. 2 was asked to verify the currency notes. The notes were verified by number as well as under ultra violet lamps and shining stains of enthracene powder were found on the currency notes. Respondent No. 1 was asked to remain still till further directions. His hand was inspected under the ultra violet lamps and was found to have been stained with enthracene powder. The shirt was also inspected and stains of enthracene powder were found on the edge of the left hand side pocket of the shirt as well as on the left chest portion of the shirt. Panchnama to that effect was drawn and, ultimately, the offence was registered. After obtaining sanction, charge sheet was filed and Special Case No. 11 of 1989 cam to be registered. 2. 3 The Trial Court, after considering the evidence on record, found that the evidence led by the prosecution was not consistent and reliable up to the hilt and, therefore, recorded acquittal of both the respondents and, hence, this appeal.

(3.) LEARNED Additional Public Prosecutor, Ms. Chetana Shah, submitted that the character of the complainant is sought to be assailed by the defence during the trial. But, merely because complaints were lodged against the complainant and he also lodged complaints against others would not mean that he is not a truthful witness. The complainant is involved in social activities and such instances are bound to occur. Ms. Shah submitted that the evidence of the complainant and the Investigating Officer proves the case of the prosecution and much weightage may not be given to the evidence of the Panch witness, who has not supported the prosecution case. Ms. Shah submitted that the Trial Court appears to have been impressed by the fact that the ultra violet lamp treatment was not given to the inner side of the pocket and there is no evidence to know whether there were stains of enthracene powder or not. Ms. Shah submitted that, if the edge of the pocket was found to have been stained with enthracene powder, that would prove that he had accepted the bribe money. The Trial Court has overlooked this aspect and, therefore, this appeal may be allowed. In support of her contentions, she relied upon the decisions of the Apex Court in the cases of Rai Mohan Mazumdar v. Ram Krishna Dass, AIR 1980 SC 872 and State of U. P. v. Dr. G. K. Ghosh, AIR 1984 SC 1453.