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2011 Supreme(Guj) 588
2012 (2) GCD 989 (Guj)
Hon’ble Mr. Justice M.D. Shah
Dilubhai Mansinh Jethwa
Versus
State of Gujarat
Criminal Appeal No. 218 of 1998—Decided on 18/11/2011
Appearance :
M/s. Thakkar Assoc., for the Appellant No. 1.
Mr. V.H. Kanara, for the Appellant No. 1
Mr. L.R. Pujari, APP, for the Opponent No. 1.
Point in Issue :
Whether in the facts and circumstances of the case conviction of accused appellant in the case under the Act sustainable.
Headnote:Head Note :
Prevention of Corruption Act — Sections 7, 13(1)(a), 13(2) and 20(2) — Demand and receipt of illegal gratification — Offence of — Conviction — Appreciation of evidence — Finding of — Sustainability — On going through the evidence of prosecution Court found that demand and acceptance of illegal gratification by accused appellant is proved — The complainant has turned hostile but from his evidence it is proved that trap was arranged and ACB Inspector and Panchas were in the truck when present appellant - accused demanded and accepted the bribe — P.W. 2 Panch witness is very natural trust worthy and inspiring confidence and proves the whole of the prosecution story — In a trap case the Panch witness is not merely a panch witness but he is a witness of the incident — Fact of acceptance of bribe amount is concerned it is totally corraborated with the evidence of raiding officer — He has stated that during the course of carrying out the experiment of ultra violet lamp powder marks were found on the hands and pocket of the accused — This evidence of raiding party officer is in conformity with the statement of Panch witness and inspire confidence in the evidence of Panch witness that it is trustworthy — In view of the said evidence Court found no reason to interfere with the conviction imposed by trial Court.
Held :
In a trap case, the panch witness is not merely a panch witness but he is a witness to the incident and his evidence is very important. Nothing has come in evidence that P.W. 2 panch witness Rajendrasinh Khodubha has any enmity with the accused and that with ulterior motive, he gave false evidence. On going through the evidence of this witness minutely, it is found that his evidence is very natural, trustworthy and inspiring confidence. From the evidence on oath before the Court, it has come out that demand of illegal gratification in the name of entry was made by the accused and he accepted the bribe amount from the driver-P.W.1 with his hands and he put the tainted currency notes in his pocket. Nothing has come out from the cross-examination of this witness which creates doubt about the evidence of this witness. As far as accepting the bribe amount is concerned, it is totally corroborated with the evidence of raiding officer Shri Sarvaiya and during the course of carrying out the experiment of ultra violet lamp, powder marks were found on the hands and pocket of the accused which also lead this Court to believe that the evidence of panch witness is trustworthy.
[Para 10]
Law Laid Down :
In a trap case Panch witness is not merely a Panch witness but he is a witness to the incidence and when Court finds that Panch witness is a witness of truth his evidence can not be discarded.
M.D. Shah, J.—This appeal is filed against the judgment and order dated 3.3.1998 passed by the learned Special Judge, Jamnagar in Special Case No. 4 of 1996, whereby the learned Judge has convicted the present appellant-original Accused No. 1 under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and ordered him to undergo sentence of simple imprisonment of six months and pay fine of Rs. 500/-, in default to undergo simple imprisonment for further fifteen days for the offence punishable under Section 7 of the Prevention of Corruption Act and ordered him to undergo sentence of simple imprisonment of one year and pay fine of Rs. 500/-, in default to undergo simple imprisonment for further fifteen days for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. The Accused Nos. 2 and 3 were acquitted of the charges levelled against them.
2. The brief facts leading to filing of this appeal are such that a complaint came to be filed by Shri G.N. Sarvaiya, Police Inspector, Anti Corruption Bureau, Rajkot (Field), Rajkot on 10.5.1996 to the effect that as per the information received by him, lot of illegal gratification under the guise of entry fees was demanded by the police and officers of R.T.O. near Jamnagar bi-pass and Khambaliya, Dwarka from the truck drivers bringing lignite coal and, therefore, he decided to lay trap and he went with his staff members and took Rajendrasinh Khodubha Vaghela and Kishorsingh Hakubha Zhala as panchas from the office of Executive Engineer, Panchayat Sub-Division, Dhrol. Thereafter, all of them went near patiya of Sarmat village via Jamnagar bi-pass road and stopped the truck No. GJ-12T-8575 and took the consent of its driver Mubarak Mamadbhai to remain as punter. Thereafter, the said punter, complainant, both the panchas and members of the A.C.B. party went in the truck towards Dwarka and on the main road towards Okha, three police personnel in civil dress were standing near motor cycle and one person out of them stopped the truck and demanded Rs. 10/- as entry fees. The truck driver gave ten rupee note from the notes tainted with anthracene powder which was accepted by the said person whose name was Dilubha Mansinh Jethwa and on signal being received, the complainant and members of A.C.B. party got down from the truck and caught hold of Dilubha and on seeing this, the other two police personnel who were standing near Motor cycle fled away on the said motor cycle and their names were told by Dilubha as Kasam Ismail and Harun Musabhai, Police Constables, Dwarka Police Station. The said incident took place on 9.5.1996 at 18.05 hours. Thereafter, the complaint came to be filed against all the three accused under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act.
3. After registering the complaint, the investigation was handed over to P.I.Shri B.B. Jadeja and he recorded the statements of witnesses, the Dy. Director, A.C.B., Ahmedabad obtained the sanction through D.S.P. Jamnagar and after completing the investigation, P.I.Shri Jadeja filed chargesheet in the Sessions Court, Jamnagar.
4. Charge was framed against the accused at Exh.13 and the accused pleaded not guilty at Exhs.14, 15 and 16 and therefore the evidence of prosecution was led wherein the prosecution examined five witnesses i.e. the punter Mubarak Mamad at Exh.20, panch Rajendrasinh Khodubha Vaghela at Exh.24, senior clerk Liladhar Bhimjibhai Sarvaiya at Exh. 26, the complainant P.I. Shri Gajendrasinh Nanbha Sarvaiya at Exh.40 and the Investigating Officer P.I. Shri Bhikhubha Balubha Jadeja at Exh.44. The prosecution also led documentary evidence including the panchanama, sanction, complaint etc.
5. Thereafter, the further statement of accused was recorded under Section 313 of Criminal Procedure Code wherein the Accused No. 1 stated that on the date and place of the incident, all the three accused were standing near bus-stand at
