1996 Supreme(Guj) 292

Gujarat High Court
Judgename :D.G.Karia, K.J.VAIDYA
STATE OF GUJARAT - Appellant
Versus
MANSURBHAI MOTIBHAI DAMOR - Respondent
CRIMINAL APPEAL 803 of 1995
Decided On : 07/05/1996

Headnote:(a) Jurisprudence - Judgment by High Court - Objective of - Stated.Court does believe that as far as possible the appellate judgment should be commendably precise and not unduly prolix, however, at the sametime the observations made herein and such other type of observations once a while made, which are emninently and inevitably necessary to make as we are of the view that the objective of giving a judgment is not merely to appreciate the evidence and thereby to settle the rival contentions and give fair and substantive justice to the parties before it, but it is also equally imperative to enlighten, educate and tone-up the subordinate courts and statutory functionaries to live-up to their expectations and to give the better account of their efficiency and accountability to the people the real customers of justice. The High Court judgment thus has many fold purposes. The paramount one of them being the transparent, efficient, accountable and substantive justice oriented Administration of Justice. For this purpose, the length of judgment when occasion so warrants should never worry the duty conscious Court for that purpose.[Para 2](b) Criminal Trial - Corruption case - Complainant & first panch witness not supporting prosecution case - Acquittal is not the necessary consequential result thereof - Proper appreciation of evidence in the light of settled legal position indicated.Court want to make it clear that merely because PW-1 complainant and PW-2 (first panch) did not support the prosecution (unless of course the complainant is the type of the person as we found in case of Ajit Kumar (1993) 1 GLR 753) that fact standing by itself is indeed not sufficient to discard the entire prosecution case, if indeed there is another, quite dependable circumstantial evidence regarding demand, offer and acceptance of the bribe amount. This we say so because these days to defeat the prosecution case witnesses are won-over by devices of threats, promises and inducements. Further, after the date of offence, by the time the evidence is recorded before the trial Court, three to five years easily and unfortunately pass by, making the witnesses committing some honest mistakes because of memory lapse.[Para 6]The trial court while appreciating the evidence has totally misconceived the settled legal position to the effect viz., firstly that when the complainant and the panch witness give go- bye to the prosecution case, the prosecution case comes to a dead-end and is required to be buried and nothing further is required to be considered or done, secondly, to prove the principal ingredients of offence of bribe, viz., demand, offer and acceptance, there should be only and only direct evidence and that the same could not be held to be proved by the circumstantial evidence, thirdly, if panchas are taken from the Government office, they being `selected panch loses all credibility as an independent witness, and fourthly, the investigating officer being interested in success of the Investigation, his evidence can never be straighway accepted and relied upon for basing the order of conviction and sentence. It is this patent, factually and legally perverse approach, which has constrained us to reverse the order of acquittal on the grounds exhaustively set out hereafter at appropriates place.[Para 7](c) Criminal Trial - Approach and appreciation of the overall credibility of prosecution case - Guidelines in that regard - Indicated.When a Judge is called upon to decide a case, he has to first of all steer clear of the prejudices as well as fixed mind approach. He has to further steer clear of the straight-jacket formulas. He has also to steer clear of being unnecessarily mechanically obsessed and influenced by judgments of some High Courts or for that purpose even the Supreme Court which are indeed good in their respective ways in the facts and circumstances of that particular case, unless the points at issue are directly covered by the facts. In substance, when a Judge is called upon to decide case, he has to decide the same without being in any way swayed by the rhetoric arguments of the learned advocates or some mechanical reference to judgments, rather the court has to apply its mind afresh to the facts situation emerging from the record before it ! It has to first of all ask its conscience whether the evidence of the particular witness is dependable ? It has to further vouch-safe its conclusion by asking yet another important question whether the overall prosecution case is probable ? And further still, whether it would be risky and hazardous to rely upon the evidence of particular witness to base the order of conviction and sentence !! If after satisfying the conscience on these three counts, if the court feels that the case on hand is one that of acquittal, the accused must be declared acquitted forthwith and as against this, if the case was found to be one that of the conviction, the accused must be convicted. A Judge would be giving reasons for whatever conclusion he is reaching thereby the transparency of the Judge and the judgment would be ex-facie clear on the record. A Judge has an accountability to his own conscience and also to society for the social justice. Accordingly, at the cost of repetition it may be once again stated that whenever any matter comes up before it, the court should not lose its objectivity and dispassionate approach and must address itself directly to the evidence on the record whether it satisfies its conscience or not !! Once this test of accountability and self-satisfaction is satisfied, then giving the reasons without resorting to any straight-jacket formulae, the pure and simple justice can be delivered.[Para 8](d) Precedents - Judgments of High Courts & Apex Court - They are light houses which guide us like polestar to go in the right direction but no further - Ultimately nevigator has to adjust his sailing direction to reach his destination.Many a times in some cases judgments on both sides are available and accordingly the trial Judge feels himself on cross-roads rather embarassed and on the horns of dilemma, as to which judgment should be followed and which one not, what is to be done and what is not to be done ! Infact, this is not to say that the judgment of the High Courts and/or for that purpose of the Apex Court are of no help to any court. They do render valuable assistance. They are the light-houses which guide us like the polestar to go in the right direction. Polestar only points out that a particular direction from where it is shining is North and on the basis of that, nevigator ultimately adjusts his sailing direction to reach his destination. To this extent, on facts the judgments are useful, must be made use of, but it is thus far and no further. What has been prefaced here is prefaced only with a view to see that while appreciating the evidence in the light of the various decisions, we also do not wander away on the cross-roads, cross-authorities available on both the sides.[Para 8](e) Prevention of Corruption Act - Sec. 17(c) - Investigation permissible only by authorised officer of the rank of Dy. S. P. or a Police Officer - No evidence to that effect brought on record but held that but for such an authorisation PW. 5 PI ACB ordinarily would not have arranged trap & investigated the case - Still however by way of abundant caution to set at rest the controversy raised APP allowed to lead additional evidence - Contention that it shall amount to permit prosecution to fill up the lacuna rejected having no force - Direction for future little extra case indicated.In the instant case the prosecution has not brought on record the said authorization by the State Government by Special or General Order. However, it appears to us that but for such an authorisation, PW-5 PI, ACB ordinarily would not have arranged trap and investigated the case, and accordingly, he must has been so authorized as warrnated under Sec. 17 (c). Still however, by way of abundant caution, to set at rest the controversy that is raised, we immediately asked the learned APP to meet with the point raised on behalf of the accused. To this, the learned APP was frank enough to admit that there was nothing in the evidence of PW-5 PI-ACB to indicate that he was so authorized as PI to investigate the case. However, on oral request made by the learned APP we in overall interest of justice permitted him to lead additional evidence. This was seriously objected to on the ground that the prosecution cannot be permitted to fill-up lacuna. Now whether there was any official Notification authorizing PI, ACB to investigate the corruption cases or not and produce the same on record cannot be said to permit prosecuiton to fill up the lacuna. The reason is this Notification was already in existence and Court was not permitting the prosecution to have some fresh notification to be issued to fill-up the gap. [Para 9]In this view of the matter, in the first instance, we would be indeed too happy if the Director General of ACB directs all the raiding officers to be careful enough while giving the evidence by stating the authority under which he is investigating the case by bringing on record relevant authorization. As a matter of fact, in the second instance, it is also the duty of the learned PP in charge of the case when taking examination-in-chief to see to it that on this material part of authorization also necessary evidence is led. And in the third instance, failing the Raiding Officer and learned PP in this regard the learned Trial Judge cannot afford to sit on back-seat doing nothing. He too, in the event of I.O. & P.P. failing to bring on record the relevant necessary material authorizing the police officer investigating the case so on to be brought within legal bounds of Sec. 17 of the Corruption Act must immediately intervene and act to avoid scope for any unnecessary technical points to be raised !. This little but necessary awareness on the part of all concern will save precious public-time and accordingly all should invariably bear in mind.

       [Para 9](f) Criminal Trial - Sanction for prosecution in corruption case - Application of mind - No such point was raised before the trial Court and Exh. 15 dt. 15.6.91 document containing sanction was admitted by trial court without any objection by advocate for accused - No formal proof is needed to prove the said document in view of Sec. 294(iii) of Criminal Procedure Code, 1973 - Defence can not be allowed to raise such objection at the appellate stage and can not also be allowed to plead that sanction was mechanically granted because investigation agency has forwarded the prepared sanctioned draft.First of all, it may be stated that no such point was taken before the trial court. Not only that but as per the list of documents produced at Exh. 9 referring to various documents it also contained the reference to sanction Exh. 15 dated 15-6-1991. Since the learned advocate appearing for the accused had not objected to the same being exhibited, the learned trial Judge by his order dated 25-1-1991 (Ex-9) has ordered the same to be exhibited. Under such circumstances, when the learned advocate for the accused did not object to the document being exhibited, it was indeed not necessary for the prosecution to still get it exhibited by examining the concerned witness. In this regard Sec. 294 of the Code of Criminal Procedure, 1973 is very clear. The said sanction pertains to provision regarding-`No formal proof of certain documents. In sub-clause (iii) of the said section, it is provided that- when the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or proceeding. . . . . . In this view of the specific provision in the Code, in our opinion, when genuineness of sanction Exh. 15 was not disputed it can be read in evidence and accordingly, the defence can not be permitted to take-up technical contention at this stage which has indeed no substance otherwise.[Para 10]Further, we would like to make it clear that merely because the Investigating Agency had forwarded the prepared sanction draft that by itself is not sufficient to infer and brand it as having been granted mechanically unless it is shown that while sanctioning the prosecution, the concerned authority had no relevant papers before him to apply mind to it to grant sanction. No such point was raised either before the trial Court and even before us.[Para 10](g) Criminal Trial - Conviction in corruption case - Even if direct evidence is not supporting the prosecution case then even on basis of circumstantial evidence court can safely accept demand, offer & acceptance of bribe money & record order of conviction & sentence.Merely because PW-1 complainant and PW-2 (first panch) have turned hostile, that can not be permitted to give a red signal to this court not to proceed ahead in finding out the truth. In corruption case, the trial Court even if direct evidence is not supporting the prosecution then even on the basis of the circumstantial evidence, can safely accept, demand, offer and acceptance of bribe money and record order of conviction and sentence.[Para 11](h) Gujarat Police Manual Vol. III Rule 180(2)(a), (b) - Selection of Panchas - Rule mandates police officer to be quite discreet & selective - Failure of police officer in that regard would not only fail him in discharge of his duty as an honest, efficient I.O. but cause great damage to police investigation resulting in miscarriage of justice.Bearing in mind the Rule, 180 (2)(a), (b) of Gujarat Police Manual III the police officer is mandated to be quite discreet and selective because if he does not take that much care and selects any Tom. Dick and Herry to act as panch then not only he fails to discharge his duty as an honest, efficient Investigating Officer but it was very likely that that said panch witness in the course of time may succumb to any threat, promise or inducement and ultimately won-over by the accused causing great damage to the police investigation ultimately resulting into serious miscarriage of justice.[Para 12](i) Criminal Trial - Witnesses - Selected witnesses - Plea of selected witnesses has no force unless there is some thing to show that these witnesses dubbed as selected witnesses have any axe to grind in falsely implicating the accused & securing conviction at any cost.Court is of the view that henceforth whenever on behalf of the accused, plea of `selected panchas is raised it shall be the endeavour of the trial Court, in the first instance, to find out whether witnesses dubbed as selected witnesses have any axe to grind in falsely implicating the accused and securing conviction at any cost. If the trial Court comes to the conclusion that panchas were not selected as a witness to be at the back and call of the police officers and complainant to give false evidence at any cost before it, than such mischieveous label of selected panch should not deter the Court from accepting and relying upon his evidence.

       [Para 12.1](j) Criminal Trial - Witnesses - Police Officer - Testimony should not be repeated mechanically - Principles to be born in mind for appreciation of his testimony - Stated.Whenever court is called upon to appreciate the evidence of the Investigating Officer, it is not supposed to look to its right or left ie., to say either to proceed on assumption that because he is a Police Officer and interested witness, therefore, reject his evidence or accept his evidence because he has stated something in his examination-in-chief making out a case against the accused. The court has to steer clear from the mechanical approach and test the credibility of the Police Officer on touch stone of probabilities and other material brought out in the cross-examination impairing or otherwise sustaining his credibility, satisfy its conscience and reach just conclusion on the basis thereof acquittal or conviction.

       [Para 13]If we are to lightly accept such wild, mechanical, fanciful allegations against the Investigating Officer, then let there not be any power vested by the Criminal Procedure Code in the Investigating Officer because what is fun of vesting the powers in the Investigating Officer meaning to say when they are examined, they do not command any credit, respect at the hands of the Court. Further to reject the evidence of the Investigating Officer arbitrarily affixing the lable of interestedness in success of the investigation, it would indeed be quite harsh and unjust to the concerned police officer also who in a given case has invested his honest, best of efforts in public interest to book the criminal and bring about the justice.[Para 13]The court is required to be on extreme caution while appreciating the evidence of the Police Officer. Further, assuming for the time being for sake of argument that the Police officers are interested in the success of the investigations than that at the most warrants his evidence to be closely scrutinized before placing the implicit reliance upon his evidence but that does not and indeed can never be a ground to straightway declare them not reliable, unworthy of credit, if they are found to be dependable enough without there being anything brought on the record to impair their otherwise credibility as a witness of truth. Accordingly, at the cost of repetition, it may be stated that unless a case is made out highlighting the attending circumstances and something in the cross-examination disentitling him to the credibility, the evidence of the police officer should not be machanically rejected on the ground of being interested in success of the investigation.

       [Para 13](k) Criminal Trial - Witnesses - Hostile witness - Cross examination wherein he admits to have given police statement confronted - Evaluation of with consequential effect and duty of the Court.In cases wherein the witness is declared hostile and when he is confronted with his previous police statement and thereto when he denies to have stated, so, then that circumstances stands entirely on a different footing than the statement wherein he admits that he had given a statement. Now if a witness admits to have given a statement, at the relevant point of time and voluntarily states so, then in that case, it is a case where the witness has been won-over with an understanding to give evidence in such a manner where it may create some doubt. Such trickeries and playing with the court proceedings are required to be dealt with quite strictly and we are going to issue notices against PW-1 complainat and PW-2 (first panch). We cannot be a passive spectator to such an unholy alliance between PW-1 Complainant and PW-2 (first panch) first laying the foundation of the prosecution case at the investigation stage, and thereafter conveniently sabotage the same at trial. In fact, looking to the increasing tendencies these days of Panch witnesses turning hostile. Time has indeed come when the trial Court shall have to relentlessly excert and issue notices to plyable witnesses for giving false evidence, and in appropriate case to prosecute them. In case if ultimately it is found that the investigating officer has drawn false panchnama, the trial Court should not feel hesitant to take appropriate action against him also for his gross abuse of power ! Prevention of Corruption Act - Sec. 13(1)(d) & (2) - Corruption case - Circumstantial evidence - Success depends on proof of demand, offer & acceptance depending on answers of facts - In the case prosecution has proved circumstantial evidence beyond doubt - There is nothing to discredit selected Panch in cross examination & IO had also fairly & honestly investigated the case - No reason on that basis accused can not be convicted - Finding of acquittal is reversed & accused is convicted for offence under Sec. 13(1)(d) & Sec. 13(2).In this case, demand, offer and acceptance three principal ingredients of the offence of bribe can be believed ie., reasonable inference can be drawn from the proved circumstances brought on the record. In other words, even if complainant and the first panch witness do not support the prosecution, yet purely on circumstantial evidence of PI, ACB and second panch witness prosecution case of demand, offer and acceptance can be reasonably inferred and safely accepted. Similarly, the evidence of the raiding officer can be accepted and relied upon and is not to be discarded, branding him as interested in the success of Investigation, if there is nothing in his cross-examination to disentitle him to create doubt againwst his credibility.[Para 20.1]In view of the discussion, on the basis of circumstantial evidence on the record consisting that of PW-3 (second panch) and PW-5 PI-ACB, the prosecution having brought home the charge against the accused, we have indeed no alternative left but to reverse the perverse order of acquittal passed by the trial court converting it into the order of conviction under Sec. 13 (1) (d) read with Sec. 13 (2) of the Act.

       [Para 21](m) Prevention of Corruption Act - Secs. 13(1)(d) & 13(2) - Sentence - Accused police officer entrusted with the task of maintaining law & order & protect society from crime & harassment - On the other hand accused plea of lenient view on ground of lone bread winner, large family, old parents & losing service - Considering arguments advanced on both sides held sentence to undergo RI for 18 months & a fine of Rs. 5000/- & in default of payment of fine to further undergo RI for three months shall meet the ends of justice.The corruption has become cancer in the society which is eating away its vitals and therefore such cases are required to be sternly dealt with by imposing deterrent sentence. When the public servant and that too a police personnel who is expected to serve the public becomes corrupt, abusing his position, then in that case, to take a lenient view of the matter and to impose only minimum sentence would not meet with the ends of justice. In the instant case, over and above the detected case for which the trap came to be arrnaged, the accused ordinarily must have abused his position demanding and accepting bribe amount otherwise this dare-devil quality to demand bribe and that too the day light robbery in police station itself would not come to him and he will not muster the courage very immediately. As against this ground pleaded by accused to take a lenient view of the matter while awarding sentence has no substance. The grounds such as lone bread-winner of the family, large family, old parents, losing service are quite ordinary which in our poor country is quite common. In absence of special and adequate reasons other than above, it is not possible to take lenient view of the matter. At the same time, while bearing in mind the impending absolute necessity of eradicating corruption, the court has also to take into consideration some such circumstances where permissible charitable view is possible and can be taken in the instant case, the offence took place on 18-7-1990 that is to say, by today, six years would be over after about 13 days. The accused has already undergone the suffering as an under-trial prisoner, he has also undergone hanging-sword of acquittal appeal pending over his head and further since in between 6 years have elapsed, we feel that taking into consideration all these facts and circumstances along with the gravity of offence, the ends of justice would quite meet if he is ordered to undergo RI for 18 months and a fine of Rs. 5000/- and in default, to undergo further RI for three months.[Para 22.2]