CR.A/879/1994 of STATE OFGUJRAT Vs GHANSHYAMSINH RANCHHODJI VAGHELA on 18 December 1996

1. Whether Reporters of Local Papers may be allowed to see the judgment ? YES

2. To be referred to the Reporter or not ? YES

3. Whether their Lordships wish to see the fair copy of the judgment ? NO

4. Whether this case involves a substantial question “of law as to the interpretation of the”

Constitution of India, 1950 or

any other order made thereunder ? NO

5. Whether it is to be circulated to the Civil Judge ? YES to all Special Courts.

Mr. J.A Shelat, learned APP for the Petitioner.

Mr. K.B Anandjiwala, learned advocate for the Respondent.

�� CORAM : K.J VAIDYA & M.H KADRI, JJ.

���� — 18-12-1996

C.A.V JUDGMENT (Per: Vaidya,J.)

This appeal by the State of Gujarat is directed againstthe impugned judgment and order dated 6-5-1994, rendered inSpecial Case No. 4/93 Passed by the learned Special Judge,Ahmedabad (Rural), wherein the respondent-GhanshyamsinhRanchhodsinh Vaghela, on his coming to be tried for the allegedoffences punishable under sections 13 (1) (d), (i), (ii), (iii)and 13 (2) of the Prevention of Corruption Act, 1988, was atthe end of the trial ordered to be acquitted.

2. According to the prosecution, PW-4 Virsinh Ambaliyar,PI, ACB, Ahmedabad, on 9-11-1989 received an information thatnear Narol Highway road, local police, traffic police, policeattached to the Mobile Court and Forest Officers were demandingand accepting the bribes on one pretext or the other from theDrivers of the vehicles passing to and fro. On the basis ofthis information, PW-4 requisitioned services of two Panchwitnesses viz. PW-2 Mahendra Naranbhai, and Sunil Manubhai(not examined) employees serving in RTO, and on their appearingbefore him on 10-1-1989 at 8-15 AM in ACB office, they wereposted with the aforesaid information and were instructed toaccompany him to Narol highway to lie in wait for passingvehicles. The first part of this proceeding were taken down inthe panchnama Exh. 14 drawn at the Shahibaug office of the ACBwhich was completed at 9-15 AM. This in turn was duly signedby the said two panchas and PW-4 PI-ACB. Thereafter theraiding party consisting of two panchas, PW-3 BhalchandraPatil, H.C., A.C.B, lead by PW-4 in a Government vehicleproceeded towards the Narol National highway No. 8. At about10-00 AM one Tempo bearing No. GRX-5314 came from Naroda sidewhich was stopped and on inquiring the name of its driver, hegave-out the same as Vasant Mangilal Patel, who is PW-1 in theinstant case. PW-4 thereafter introduced himself and othermembers of the raiding party to PW-1 and posted him with theaforesaid information regarding the demand and acceptance ofthe bribe money from drivers of the vehicle also further

inquiring from him as to whether he would like to act andco-operate as a decoy witness in the proposed raid ! On PW-1showing his willingness to act as such a witness, five currencynotes one out of which was of Rs. 20/= and other four notes ofRs. 10/= totalling Rs. 60/- were produced the number of whichwere noted down in panchnama Exh-14. Thereafter, the person ofPW-1 was searched. Usual anthracene powder test, prior to thesmearing it with currency notes and thereafter after applyingthe same, was carried out which was ultimately placed in theleft hand side pocket of bush-shirt put on by PW-1.Thereafter, PW-4 instructed firstly, PW-1 that till the timethe bribe amount was demanded, he should not touch the currencynotes kept in his pocket for the said purpose, and secondly,P-2 Panch and P-3 to sit in the driver cabin of the Tempoalongwith PW-1 and to proceed ahead, from Narol towards Vishalacircle. PW-1 in particular was further specifically instructedthat if any Government employee stopped his vehicle, then tostop it atonce and pass on the information whatever hesolicited, and on demand of bribe being made, the currency noteof Rs. 20/= smeared with Anthracene powder kept in pocket ofhis bush-shirt be given to him. Moment this bribe amount wasaccepted, he was further instructed to give signal by wavingout his hand from the cabin window three times. PW-2 and PW-3were also instructed to be by the side of the PW-1 and see andhear whatever transpired in between PW-1 and the accuseddemanding and accepting the bribe. This part of theproceedings was also taken down in the second part of PanchnamaExh-14 which was completed at 11-15 AM duly signed by the PW-2Panch, another Panch Sunil (not examined) and PW-4.Thereafter, PW-1 alongwith PW-2 and PW-3 sitting in cabin withhim drove his vehicle towards Narol Highway which was followedby PW-4 and second Panch in another vehicle. At 11-35 AM whenthis raiding party reached Vishala Circle, the Tempo wasstopped by one person clad in Khaki Vardhi who after someinquiry demanded the money from PW-1 who took out the currencynote of Rs. 20/= from his pocket which was accepted by him byhis right hand and placed in the right side pocket of Vardhipent. Immediately thereafter, as instructed on getting thepre-arranged signals, the raiding party swung into action andcaught hold of the person accepting the bribe amount. PW-4introduced himself to the person who accepted the bribe amountand on inquiring about his name he gave it as GhanshyamsinhRanchhodsinh Vaghela. Thereafter, PW-4 on inquiring from PW-2Panch as to what had happened, he narrated the entire incident.Thereafter, the post raid examination in the light of theultra-violate lamp was carried out, wherein on seeing both thehands of Ghanshyamsinh, his fingers and thumb tips were foundsmeared with Anthracene powder. Not only that but the Pant andthe Bush-shirt put on by the accused when seen in the light ofultra-violate lamp, the right hand side as well as inside ofthe pocket were found smeared with the Anthracene Powder.

Thereafter Panch-1 was directed to search Ghanshyamsinh andtake-out whatever was found from the pocket of the pant put onby him. During this search of accused, the currency notes ofRs. 562/- were taken-out from the left-hand side pocket, whilefrom the rear side pocket, some coins of Rs.7-30 PS, and fromthe right side pocket Rs.20/= were recovered. The number onthe said currency note of Rs. 20/- was tallied with the numbergiven in the Panchnama Exh-14 which was found to be the same !!Thereafter, on examining this currency note also in light ofthe Ultra-violate lamp, marks of Anthracene powder were noticedon both its side. Thereafter these currency notes in question,coins and the Memo Book were seized under the panchnama(Exh-14). Thereafter when both the hands of PW-1 were seen inthe light of ultra-violate lamp, on the tip of the right thumb,marks of Anthracene powder was noticed. After this was over,the accused was given a receipt of whatever things were seizedfrom him. All these things were noted down in the third stagePanchnama (Exh-14) at 15-00 PM drawn near Vishala Hotel,Chamunda Tea Stall. On the basis of these facts, PW-4 lodged acomplaint mark 11/1 (ought to have been given due exhibit) forthe aforesaid alleged offences under the Corruption Act,against the respondent accused on the very day. Thereafter,after the investigation was over on receipt of the sanction toprosecute, chargesheet was filed against the accused for thealleged offence to stand trial before the Sessions Court,Ahmedabad (Rural) at Ahmedabad.

3. At trial accused pleaded not guilty and claimed to betried. He also submitted his written defence at Exh.23 whereinin substance it is his case that at the relevant time, he wasserving as a police constable in traffic branch and wasattached to the mobile court. He has also admitted that on thedate of the alleged raid, he had stopped Tempo bearing No. GRX5314 coming from the Narol side, and demanded papers from itsdriver, which since the same were not given, he had startednoting down the name of the driver for issuance of the memo.It is his further case that on the said driver not complyingwith the direction and when he once again demanded papers andsince the same were not given, he asked driver of the tempo(PW-1) "what do you want to do ?? Why don't you give name ?To this - instead of giving his same the driver while sittingin the vehicle, tried to place something on memo book in thehand whereupon he moved away. Immediately thereafter personcoming from behind caught hold of him. In substance, it is hiscase that he has been falsely implicated !!

4. The trial court after duly appreciating on the one handthe prosecution evidence brought on the record and on the otherhand defence version, acquitted the accused in substance on thefollowing grounds, giving rise to the present appeal by theState.

4.1 That PW-1 the decoy witness has backed out from theprosecution case on the crucial part of the evidence regardingillegal demand and acceptance of the bribe money by the accusedfrom him, and accordingly, he having been declared hostile tothe prosecution was not dependable.

4.2 That likewise the evidence of PW-1, due to severalinfirmities enlisted in detail in the judgment, the evidence ofPW-2 (Panch) is rendered doubtful and therefore not dependable.

4.3 That so far as PW-3 is concerned, his evidence palesinto insignificance in view of the doubtful nature of theevidence of PW-1 and PW-2.

4.4 That so far as PW-4 is concerned, his evidence is foundto be not acceptable on the ground that there are certainomissions in the complaint which assumes quite great importancemore particularly in view of the infirmities in the evidence ofPW-1 and PW-2 highlighted above. According to the learnedtrial Judge firstly what is stated before the court does notfind place and reflected in the complaint. According to thelearned trial Judge, PW-4 has admitted that he has not statedthat the currency note of Rs.20/= smeared with Anthracenepowder was recovered from the right hand side pocket of thepent. It is also admitted by him that he has not stated thatAnthracene powder marks were noticed when the pant of theaccused was examined in ultra-violate lamp, and on the righthand side finger tips Anthracene powder marks were noticed.

5. Heard learned APP Mr. Shelat and Mr. Anandjiwalalearned advocate appearing for the respondent-accused.According to the learned APP, impugned order of acquittal isex-facie illegal and deserves to be quashed and set-aside onthe ground that the appreciation of evidence made by thelearned trial Judge is quite perfunctory and illegal, ignoringsome of the Supreme Court decisions wherein despite thecomplainant and Panch not at all supporting the prosecutioncase, solely accepting the evidence of the raiding officeraccused have been convicted on charge of accepting bribe. Thelearned APP further submitted that PW-4 PI-ACB had indeed noreason to falsely frame-up accused if indeed he was innocentwho was also a police constable. In fact, nothing is eitheralleged against PW-4 in his cross-examination nor anything isprobablized from the attending circumstances from which itcould be spelled out that he was a liar, interested party to afalse trap and therefore disbelieve him !! On the previoustip-off arranging raid, selecting PW-1 as a decoy witness,requisitioning the services of two panchas, going to thealleged spot, the immediate recovery of currency note of Rs.

20/= from the pocket of accused smeared with Anthracene powder,its numbers tallying with the numbers and other contents givenin panchnama Exh-14 and the complaint of PW-4 and the overallcontents of contemporaneous record viz., Panchnama Exh. 14supporting the original prosecution case - all these in quicksuccession are indeed quite strong circumstances to heldaccused guilty for the alleged offence. As against this, Mr.K.B Anandjiwala has vehemently supported the impugned judgmentand order of acquittal by vigorously defending each and everyreasons for the acquittal given by the trial Court. Mr.Anandjiwala has also raised an additional point that once it isfound that panchnama Exh-14 was not made at the time and placeas asserted by PW-4 PI, ACB - whatever is stated thereinthereafter is hit by Section 162 of the Code and hence notadmissible. According to Mr. Anandjiwala since no case ismade out on the basis of which the reasons given by the trialcourt can be said to be unreasonable, the order of acquittalcannot be lightly interfered with. Mr. Anandjiwala has alsorelied upon two decisions of the Supreme Court rendered in caseof : (i) Gulam Mohmood A. Malek versus State of Gujarat, AIR1980 Supreme Court 1558, and (2) G.V Najundiah versus State(Delhi Administration), AIR 1987 SC p-2402.

6. Now in order to properly appreciate the aforesaidsubmissions in their just and proper perspective, it is indeednecessary to once again minutely screen and scrutinize theprosecution evidence to judge it afresh.

6.1 PW-1 : Decoy-Witness : Driver Vasantbhai MangibhaiAccordingly, to start with his evidence, it indeed can not begainsaid that so far as the alleged demand and acceptance ofbribe-money is concerned, he has not supported the prosecutioncase so far as the actual wordings of 'demand and acceptance'are concerned. Thus, on casual reading and perfunctoryappreciation of evidence of this witness, one may quite feelthat he has knocked down the bottom of the prosecution case !!We are quite conscious of the fact that PW-1 is a decoy witnesswho has been declared hostile, but at the same time mere labelof 'hostility' should not and can not be permitted to preventand prejudice any court from examining the overall content ofhis evidence in its total perspective. A prosecution witnesscan be hostile in part or wholly. That is to say there can bea degree of hostility to the prosecution. In otherwords to theextent prosecution witness does not support prosecution casethat much part of his evidence can rather must be be kept outof the consideration, but at the same time to the extent itsupports the prosecution case, which in turn is not renderedimprobable or false in cross-examination by defence advocate,the same can to that extent certainly and must be accepted andrelied upon !! This is the only reasonable and prudent way ofappreciating the evidence of hostile witness in a criminal

trial - to ultimately reach at the just decision. Now itappears that merely because this witness for whatever reasonson demand and acceptance did not say anything in his evidencebefore the Court, on that ground alone he has been dubbed anddeclared hostile, as if he has taken out the entire wind out ofthe sail of prosecution, but if we otherwise with little morecomposure carefully see, the entire evidence of PW-1 right fromthe time PW-4 requested him to act as a decoy witness till thetime raid was over, more or less, he has supported theprosecution case. This is clear when he admitted that at therelevant time when he was requested to act as a decoy witness,he was driver of Tempo bearing No.GRX-5314. He has alsoadmitted that on the date of the incident, he was returningwith empty vehicle and was passing through Naroda NationalHighway going to Ahmedabad where at about 11-00 AM the officersof Anti Corruption stopped him and requested him to act as adecoy-witness. He has also further admitted that he was postedwith information regarding bribe amount demanded and acceptedfrom vehicle drivers by some police personnels, etc. etc.. Hehas also admitted about Rs. 60/= (including Rs. 20/= currencynotes) and instructed that if anybody demanded money, then onlythat was to be given. He has also admitted that the amount ofRs. 60/= comprised of the currency notes, out of which onenote was of Rs.20/= denomination. He has also admitted that inhis cabin, PW-2 Panch, PW-3 were sitting alongwith him by hisside !! He has also admitted that while driving the vehicle,when he reached near Vishala, he was stopped by one Constable(accused) demanding the papers and licence. At this stage,this witness, for the reasons best known to him, or perhaps thereason too well known to all of us that he became littlelukewarm in giving exact evidence before the court on demandand acceptance of the bribe money !!! When he said that on theaccused Constable demanding from him licence and papers alongwith licence and papers he gave Rs. 20/-. He has also statedbefore the court that the person who demanded licence andpapers was present in the court i.e. the accused and that hewas in an Uniform. It is because of this infirmity that thelearned PP was constrained to declare him as hostile.Ordinarily, when a witness is declared hostile and in turn isconfronted with his previous police statement, (for thatpurpose in the instant case his complaint) by the learned PP incharge of the matter, he always starts denying the prosecutioncase by saying to quote "It is not true that it was like thisor it was like that etc. or he has not stated so in hiscomplaint or the previous police statement as the case maybe.". Now, instead of doing this if we closely peruse theadmissions after admissions of this witness in hiscross-examination by the learned APP, he has gone on admittingmost of the prosecution case, save and except actual words ofdemand uttered by accused. To reproduce some of the admissionsmade by PW-1 in his cross-examination, it may be stated that

(i) in para-13, PW-1 has admitted to quote - "it is true thatthereafter I was instructed that I should take Panch No. 1(PW-2) and PW-3 ACB Police Inspector in my vehicle and toproceed towards Narol circle towards Vishala Hotel and in caseif the local traffic personnel or the police personnel of themobile van ask to stop the vehicle, to stop it. In para 14,PW-1 admits to quote - "I was also instructed that for onereason or the other if the bribe amount was demanded then themuddamal currency notes smeared with Anthracene powder shouldbe given to the person stopping the vehicle and moment saidcurrency note was accepted, to take out his right hand from thecabin and give signal by three times waiving the hand. (iii) Iwas also instructed that on way, if local police, trafficpolice or personnel of mobile van or officer of the forestdepartment stops the vehicle, whatever take that may take placebetween me and the said officer be heard and what thetransaction took place". This instruction was given to Panchno. 1 (PW-2). (iv) In para-16, it is admitted that Panch No.2 and other persons of the raiding party were instructed tofollow in a government vehicle and on pre-arranged signalsbeing made to run, caught hold the officer stopping the vehicleand demand and accepting the bribe. (v) It is also admitted toquote "panchnama regarding the aforesaid was drawn near NarolCircle and thereafter at 11.20, I and Panch No. 1 (PW-2) andother personnels of ACB was coming behind. At about 11.45,near Vishala Hotel Circle, Chamunda Tea Stall, a PoliceConstable gave signal to stop the vehicle and accordingly Istopped vehicle on the side of the road and thereafter G.RVaghela ie., to say the accused demanded papers of the vehicle.(iv) In para-19 it is stated, to quote - "It is therefore thatACB personnel stopped Ghanshyamsinh and introduced himself.Saheb of the ACB directed Ghanshyamsinh to stand there in thesame position (and not to move). Thereafter, ACB inquired fromPanch No. 1 (PW-2) as to where was the muddamal currency note,to which Panch gave reply. Thereafter, ACB personnel inquiredabout the name and Buckel number from Ghanshyamsinh, it wasgiven by him. (vii) It is also admitted by PW-1, to quote"that thereafter examine both the hands of Ghanshyamsinh in thelight of ultra violet lamp and at that time his right handfinger and thumb as well as mountain of the palm was foundshining white with the anthracene powder. It is also true thatthe memo book and the left hand of Ghanshyamsinh was not foundwith the marks of Anthracene powder. On throwing light of theultra violet lamp on the right hand side of the pant, itsborder and inside portion, anthracene marks were noticed.(viii) In para 20, it is further stated, to quote - "that theright hand side of Ghanshyamsinh on search being taken by PI acurrency note of Rs. 20/= was recovered, which was foundtallying with the number earlier noted in the panchnama Exh.14. (ix) In para-23, PW-1 also admits, to quote - "that overand above the muddamal currency note of Rs. 20/=, other

currency notes valuing Rs. 562/= and coins of Rs. 7-30 wererecovered. He also admits that pant put on by Ghanshyamsinhwas seized on the spot and that Ghanshyambhai was given receiptof the articles seized. (x) In para-24, PW-1 admits thatthereafter Prathvisinh has carried out an experiment of myhands in the light of the ultra violate lamp and whileexamining my right hand, fingers and top of the thumb as wellas mounted portion of palm were found to be shining with whitesmeared anthracene powder. All these aspects were noted downin the panchnama Exh. 14. Thus, it could be easily seen thatPW-1 has quite conveniently winked and turn deaf ear to hisseeing and hearing of actual transaction of demand andacceptance of the bribe money given to accused, on the rest ofthe important peripheral part of the prosecution case, PW-1 hassupported the prosecution case, rather to put it moreaffirmatively he has not at all disputed the same ! This isthe type of PW-1 complainant, who for the reasons unexplained,rather best known to all of us to reasonably infer that when hecame to be examined before the Court, he has chosen to sit onthe fence deliberately creating some doubt in favour of theaccused thereby leaning in favour of the accused. In fact, inthe background of this case it will not be unreasonable toinfer why the complainant and/or for that purpose even thePanch witness became luke-warm and turn-coats !! These days,ordinarily to give an honest and truthful evidence against anyaccused person, much more so against the dreaded criminal/s andthe accused police officer requires lot and lot of guts andcourage for quite apparent, obvious and simple reason viz.,that to do so would be to open the box of pandora. The lurkingapprehension which grips and terrorizes and thereby sub-duesand demoralize the spirit and strength of the witness in givingtruthful account to the court is that in case on the basis ofhis evidence, the accused is convicted and sentenced, he wouldnot spare any efforts retaliating against him endangering hisperson and/or his family members' limb, life and liberty. Maybe these threats ultimately prove to be quite hollow !! Butthen a person suspecting any article to be poisonous onenaturally will dare not taste it, save at the risk and cost oflife !! Why should he do it ?? This lurking fear complexconstantly haunting ordinary witness/es in telling the truestory before the court apprehending retaliation cannot be ruledout in the instant case also. This witness quite admits hispresence at the time of the incident. He admits so many otherthings, but at the same time, on the material aspect of givingmoney, he has chosen to keep his lips sealed !! Under thecircumstances, merely because PW-1 a decoy witness has notchosen to support the prosecution case on the verbal aspect ofactual demand and supply, and some other minor aspects,technically it may be quite alright to declare him hostile whenthe prosecution has thought it desirable to do so, but at thesametime on the other hand when he admits in the first instance

that muddamal currency note of Rs. 20/= was placed in hisright hand side pocket of the bush-shirt in the second place,when immediately recovery of very same Rs. 20/= rupee note ismade from the right hand side pant pocket put on by theaccused, and in the third instance, that too as a result ofpre-signalled arrangements, then in that case, it appears thatthis witness has become hostile and hostile only because he hasbeen attempted to be won-over to that extent to make him appeardoubtful to weakminded doubting court to score acquittal !!This is a matter of overall appreciation of the prosecutionevidence on the basis of other proved facts !! Had indeed theentire prosecution story been stopped at this stage only, thenperhaps, making allowance we would have been constrained toresolve doubt in favour of the accused, but unfortunately PW-1is not the only witness upon whom and whose mercy the fate ofthe prosecution case helplessly depends. In fact, there isother and further prosecution evidence coming from PW-2, PW-3and PW-4 from whose evidence it can be reasonably inferred thatPW -1 has conveniently and deliberately tried to defuse theprosecution case by giving go-bye to his earlier versionregarding actual demand and acceptance of the bribe money.While deciding such type of cases, the court is not supposed tobe waylaid like a gullible child on any tempting, tantalizing,suspicious situation created for the purpose mortgaging ratherplacing its common sense in the cold storage. In this view ofthe matter, we feel quite unpragmatic rather unjudicial tocancel the prosecution case merely because the decoy witnesswant us to defraud and cancel it altogether totallyobliterating the rest of quite convincing and dependableevidence of PW-3 and PW-4. We accordingly refuse to be a readyinstrument in the hands of such smart witness as PW-1 who inour opinion is out to sabotage the prosecution case. Judicialproceedings are not the game of chess. Nor where any witnesscould ever be allowed to be smarter enough to out-smart andover take or to make a judge his pawn and dictate the fate ofthe case as he likes !! To be simpleton, gullible judge,readily allowing to be played with at the whims, caprices anddictates of some unscrupulous witnesses abdicating pragmaticjudicial approach, ignoring altogether overall effect of otherevidence is simply a disqualifying character to be a real Judgeof issue/s. The Judge has to stand firm, refusing to be swayedby some outwardly attractive, hot-heated arguments pressing himto be subjected to live in the make believe world as dreamt andwished by the accused and record the order of acquittal !! Inthis view of the matter, we have a reason to believe that onparticular point of the demand and acceptance of bribe money bybacking out, PW-1 has deliberately tried to save the situationin favour of the accused ! This in a way indirectly supportsand proves the prosecution case. At any rate, we refuse tosubscribe to the view of the learned trial Judge that becausethe decoy witness has attempted some confusion, we should readily allow ourselves to get confused as per his wishes.Fortunately enough the prosecution case does not rest solelywith PW-1 as a terminus leaving the Court to no alternative butto get confused and confounded wandered away to deliver thejudgment of acquittal in favour of accused as there are stillas many as three other important witness to help the Court inreaching the just decision. In this view of the matter, now wewill have to go to the evidence of rest of the three witnessesviz. PW-2 Panch; PW-3 Head Constable and PW-4 who is a raidingofficer.

6.2 PW-2 : PANCH MAHENDRA NARANBHAI - Now so far as thedemand and acceptance part of the prosecution story isconcerned, this witness was very much sitting just nearby theside of the PW-1, and by and large has supported theprosecution case, when he said - to quote " at about 11-35 AMwhen we came near the circle of Vishala Hotel near Chamunda TeaStall, one person on duty stopped the vehicle. He demandedfrom PW-1 : Vasant the papers of the vehicle and the licence,whereupon PW-1 said that he was not having licence and thepapers. Thereafter the duty constable who stopped the vehicletook out the memo-book and asked him to furnish the name andaddress or to give him the driving licence and papers. The manwho demanded the papers and licence was that very personpresent in the court. Moment the memo-book was taken out, PW-1said I have no vehicle papers. Thereafter, the said dutyconstable looked at the face of PW-1 and said "What do youwant" ? Thereupon PW-1 said (patavi dyo) "settle". Thereuponthe duty constable said "well give the amount". Thereupon PW-1took out the currency note of Rs. 20/= from his pocket by hisright hand, which was accepted by the accused and kept the samein the right hand side pocket of his pant. Thereafter hewalked away with the memo-book. This story in theexamination-in-chief as it is and even in cross examinationremained unshaken ! This also stands duly corroborated by thecontemporaneous record viz., panchnama Exh-14. It is of coursequite true that PW-2 Panch has also fumbled little before thecourt when apparently he made some honest mistakes regardingfirstly, the time and place of preparing the Panchnama Exh-14and the place where the Khaki pant from which bribe amount wasrecovered was seized !! It was indeed quite desirable that thePanch witness who is even otherwise also entitled to refreshhis memory by looking at the Panchnama should have been quitecareful enough while giving evidence before the court becausemany a times much turns upon his evidence when the prosecutionhas no other dependable evidence to bank upon. Sometimes evenminor discrepancies in a given case are unnecessarily magnifiedand highlighted to mislead the court from reaching its just andproper conclusion, if in the first instance, learned PPincharge of the case and the concerned trial Judges in his turn

also not alert and on their respective guards, and mislead todecide a case divorced of its common sense pragmatic approach.In fact, if by chance even Panch witness omitted to State orcommitted some mistake which went contrary to the contents ofpanchnama, then in that case, it is the duty of the learned PPand also of the trial court to see that by inviting theattention of Panch witness to the contents of panchnama, hismemory is refreshed and thereby the same is clarified beforethe Court. Not to give this important opportunity rather theright of Panch witness to refresh his memory by doing this muchneedful is indeed quite unjust both to the Panch witness andprosecution also and accordingly improper for the learned PPand the learned trial Judge ! This sort of carelessness sadlyreflects upon the competence of the concerned learned PP andthe learned trial Judge as well !!! Further, at the same time,merely because the Panch is not proved to be that meticulous,pink of perfection, an ideal perfectionist on some point hereor there in giving evidence before the Court with desirablecare, caution, concern and circumspection, to discard hisevidence on some such small count would not be proper moreparticularly when we have indeed no reason to doubt theevidence of other two equally important witnesses of the raidviz., PW-3 and PW-4, who were very much present at the relevantpoint of time when panchnama Exh-14 was drawn and who has stoodby the prosecution case like rock. We can certainly not beoblivious to the fact that the PW-2 Panch was giving evidencebefore the court practically after about four years !! Quitelong lapse of time !! His background of law and knowledgeregarding how to give evidence before the court can not be asperfect as that of the lawyer, shrewd Investigating Officer orto the unrealistic expectation of some of the hyper technicalcourts !! He is after all a layman. Accordingly, if there isindeed nothing otherwise in the cross-examination to indicatethat he was out of falsely implicate the accused either at hisown instance because of some personal enmity with the accusedor at the instance of the complainant for some consideration towreck personal vengeance, his evidence can not be lightlybrushed aside because some obvious unavoidable possible humanerror creeps in his evidence more particularly, when it isrecorded after quite long lapse of time !! Further, assumingfor the sake of argument that because of the alleged flow inevidence given by PW-2 before the Court, he ought to have beendeclared hostile and was accordingly declared hostile then eventhe heart beats of the prosecution case cannot be said to havestopped as PW-3 and PW-4 clearly sustains and supports the lifeof the prosecution case. Out of the two kidneys, two lungs,two legs, two hands even if one of them ceases to function andtaken out then even human life does get hopefully andsuccessfully sustained on one of it !! These are the witnesseswho have personally no axe to grind in falsely implicating theaccused. Moreover, since there is nothing in the cross examination to over-shadow, cloud and doubt their overallcredibility, the same cannot be thrown over board gifting awaythe accused cheap benefit of doubt, acquittal, putting unjustpremium over the evidence of dishonest witnesses, letting downthe prosecution case.

6.3 It is true that while giving evidence before the Court,PW-2 Panch has in unmistakable terms admitted that "Khaki pant"put on at the time of the raid, which is shown to have beenseized at the time of drawing Panchnama (Exh-14) was actuallyseized at Shahibaug Police Station. This was a point which washeavily emphasized by Mr. Anandjiwala and accordingly havinganxiously considered the same, it appears to us that eitherPW-2 Panch because of passage of time, under somemisapprehension has committed some honest mistake or had becomequite luke-warm on the point to assist the accused. Be thecase as it may, but on that count alone the overall weight ofthe prosecution case cannot be thrown to winds ! At thesametime, without entering into any controversy about thecredibility or otherwise of this witness, even if we keep asidethe evidence of this witness there is still evidence of twoimportant witnesses left namely PW-3 and PW-4 which fullysupports and sustains the prosecution case against the accusedas could be seen from the appreciation of their evidence thatfollows.

6.4 PW-3 Bhalchandra Ramdas Patil, Head Constable,Anti-Corruption Bureau, Ahmedabad : This witness who was HeadConstable had accompanied PW-1 and PW-2 (Panch) and was sittingin the cabin of the vehicle. In fact, the learned Judge wasunable to find any infirmity in his evidence by way of eitherimprovement or contradiction or improbability or in any otherway. However, it appears that his evidence is discarded simplyon the ground that the evidence of the first two principalprosecution witnesses viz., PW-1 and PW-2 failed to help theprosecution to the desired extent ! Now this approach of thelearned trial Judge is simply inconceivable. Merely becausesome of the witnesses do not support the prosecution, that doesnot mean that the evidence of this witness is to be discardedcomparing the same with other witness/es. On the contrary, ifindeed this approach of the trial Court is approved, it wouldbe quite risky in reaching at the just and proper conclusion.The evidence of the Panch witness is either accepted ordiscarded on the basis of the strength and infirmity brought onthe record in his evidence. It will indeed be quite unjudicialif the evidence of a witness is mechanically rejected comparingit with evidence of hostile witness ignoring altogether overallcredibility of his evidence. In this view of the matter, wehave found PW-3 to be quite dependable, in absence of anyfinger of suspicion raised against him on the basis of somedefinite material available on record on the further basis of which he could be stamped out as unworthy of any credit.Accordingly, this Court is inclined to accept and rely upon thedependable evidence of this witness even though he is also apolice witness.

6.5 PW-4 PI V.K. Ambaliyar, P.I., ACB, Ahmedabad. He hasbeen disbelieved on some of the astounding grounds namely (1)that as a complainant he has not stated certain facts in thecomplaint ! According to the learned trial Judge, PW-4 has notstated in his complaint that the currency note of Rs. 20/=smeared with anthracene powder was taken out from the righthand side pocket of the pant put on by the accused !!Secondly, it is not stated in the complaint that inside andoutside of the pocket of pant, when seen in the light of ultraviolet lamp there were signs or marks. Thirdly, it is notstated whether on the right hand tips of the accused there waswhite shine marks seen in the ultra violet lamp. Now all thesegrounds are as baseless and as flimsy as could be. In the caseof such a nature, the complaint is never supposed to be anEncylopediac document containing minute details of A to Zprosecution case. It is ultimately meant for the purpose ofputting the criminal law in motion and for that purpose itshould discloses some nucleus, some germs constituting primafacie ingredients of the offence. Accordingly, if that primafacie ingredients are clear; then in that case merely becauseit does not describe minutely and exhaustively the allegedoffence in question, that by itself on that ground alone, theevidence of PW-4 complainant cannot be stamped as incredible.In the instant case and for that purpose in any other case likethe present one, one indeed cannot afford to overlook the mostmaterial aspect namely, as to what happened on the spot at therelevant time and place of the commission of offence and forthis there is always available a contemporaneous record quitewell-known as panchnama, which is prepared in presence of thepanchas, Investigating officer and the accused. Once thepanchnama is ex facie clear, describing the details, there isindeed no doubt whatsoever in our mind to doubt the say of PW-4complainant merely because he is a police officer. In a givencase, even panchnama through oversight may miss mentioning ofsome facts but merely on that count, the entire panchnamacannot be thrown out. In fact, in nature of such cases, thereis indeed no question whatsoever of disbelieving PW-4complainant merely on the ground that complaint does notcontain certain particulars. If the Court wants to disbelieveand discard the evidence of PW-4 from consideration, it can beso discarded provided only and only if on the basis of justreasoning and not on any excuses or pretext like the oneresorted to in the instant case.

7. As a matter of fact, how indeed the evidence ofprosecution witnesses in trap cases under the Corruption Act isrequired to be appreciated, the Supreme Court has time and again given illuminating guidelines in the following decisions:-

7.1 Hazari Lal Vs. The State (Delhi Administration) AIR,1980, SC, 873 : In this case, the accused Police Constable wastried on the charge of accepting bribe of Rs.60/- from the PW-3(informant) for the alleged offences punishable under section5(2) read with section 5(1)(d) of the Prevention of Corruptionact, 1947 and section 161 of Indian Penal Code by the learnedSpecial Judge. At this stage, it would be quite important tonote that at trial, both the complainant and the Panchwitnesses did not support the prosecution and were accordinglydeclared hostile. Despite this alarming fact, the learnedtrial Judge convicted the accused for the alleged offencesrelying upon the evidence of the Police Officer whoparticipated in trap and other attending circumstances. Thisin turn was confirmed by the High Court and ultimately by theSupreme Court also !! In appeal before the Supreme Court, itwas contended on behalf of the appellant-convict that thecourts below have made free use of the statements made by thewitnesses in the course of investigation as if such statementswere substantive evidence ! If these statements were excludedfrom consideration, there would be no evidence of any demand oracceptance of bribe by the accused. All that would be leftwould be the evidence of the Investigating Officer and PW-4 tothe effect that accused took out the currency notes from theright hand pocket and flung them across and wall in theadjoining room. This evidence as contended by the learnedcounsel for the accused would not be sufficient even ifaccepted to draw adverse inference against the accused undersection 4(1) of the Corruption Act. Now this contention wasprecisely negatived by the Supreme Court in paras 8 and 9 ofits judgment, wherein in substance, it is held that where theevidence of the police officer who laid the trap is found to betrustworthy, there is no need to seek any corroboration. Thereis no rule of prudence which has crystallized into a rule oflaw, nor indeed any rule of prudence, which requires that theevidence of such officers should be treated on the same footingas evidence of accomplices and there should be insistence oncorroboration..... Not only that, but it is further held that- " It is not necessary that the passing of money should beproved by direct evidence. It can also be proved bycircumstantial evidence. The events which followed in quicksuccession in a given case may lead to the only inference thatthe money was obtained by the accused from PW-3. Under section114 of the Evidence Act, the court may presume the existence ofany fact which it thinks likely to have happened, regard beinghad to the common course of natural events, human conduct andpublic and private business in their relation to facts of theparticular case..." Thus, it could be seen that even thoughboth - the complainant and the Panch did not support the prosecution case, yet the Supreme Court relying upon theevidence of the Police Officer convicted the accused. Thisfact-wise ratio is directly applicable to the facts andcircumstances of the present case, and in this view of thematter, the order of acquittal shall have to be altered intoconviction.

7.2 State of UP Vs. Dr.G.K.Gosh, AIR 1984, SC 1453. Inthis case, Dr.G.K.Gosh was found guilty of demanding andaccepting the illegal gratification and accordingly wasconvicted and sentenced under section 5(1)(d) of the CorruptionAct, 1947 and section 161 of IPC by the trial Court. This wasappealed against where the High Court acquitted the accusedapparently because the evidence of the Panch witness Ramsingwas found to be that of selected Panch, and therefore,interested and of doubtful nature. This order of acquittal waschallenged by the State before the Supreme Court, whereinaccepting and relying upon the evidence of the complainant andthe police officer, the accused came to be convicted quashingand setting aside the order of acquittal passed by the HighCourt. While convicting the accused, in para-11 at page-1157,the Supreme Court observed that - " It is now time to deal with the criticism urged as a matter of course in the context of the police officer leading the raiding party - namely, that he is an interested witness. This is true but only to an extent - a very limited extent. He is interested in the success of the trap to ensure that a citizen who complaints of harassment by a Government Officer making a demand for illegal gratification is protected and the role of his department in the protection of such citizen is vindicated. Perhaps, it can be contended that he is interested in the success of the trap so that his ego is satisfied or that he earns feather in his cap. At the sametime, it must be realized that it is not frequently that a police officer, himself being a Government servant, would resort to perjury and concoct evidence in order to rope-in an innocent Government servant. In the event of the government servant concerned refusing to accept the currency note offered by the complainant is it would not be reasonable to go to the land of concocting a false seizure memo for prosecuting and humiliating him merely in order to save the face of the complainant, thereby compromising his own conscience. The Court may therefore depending upon the circumstances of a case feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the police officers even if the trap witnesses turn hostile or are found not to be independent. When therefore decides such evidence, there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there shall be not difficulty in upholding the prosecution case. The present appears to be a case of that nature. If the circumstantial evidence is of such a nature that it affords adequate corroboration to the prosecution case, as held by the learned Special Judge, the appeal must succeed. If on the other hand, the circumstantial evidence is considered to be inadequate to buttress the oral testimony, the appeal necessarily but fail. "

7.3 State of Kerala Vs. K.M Mathew & Ors. AIR 1978, SC,1571. In this case, the Supreme Court holding that theevidence of the Investigating Officer can not be discardedmerely on the ground that he was interested in success of theinvestigation. In para-3 of the judgment Supreme Courtobserved that the Courts of law have to judge the evidencebefore them by applying the well recognized test of basic humanprobabilities. The evidence of the investigating officers cannot be branded as highly interested on ground that they wantthat the accused are convicted. Such a presumption runscounter to the well recognized principle that - prima faciepublic servants must be presumed to act honestly andconscientiously and their evidence has to be assessed on itsintrinsic worth and can not be discarded merely on the groundthat being public servants they are interested in the successof their case.

7.4 Prakash Chand Vs. State (Delhi Admn.), AIR 1979 SCp-400. This was also a case under the Corruption Act. TheSupreme Court dismissing the appeal of the appellant accusedobserved in para-5 of its judgement- "We are unable to agreewith the submission of Shri Anthony that no conviction can everbe based on the uncorroborated testimony of a person in theposition of PW-6 who, for the sake of felicity may be describedas a 'trap witness'. That a trap witness may perhaps beconsidered as a person interested in the success of the trapmay entitle a Court to view his evidence as that of aninterested witness. Where the circumstances justify it a courtmay refuse to act upon the uncorroborated testimony of a trapwitness. On the other hand, a court may well be justified inacting upon the uncorroborated testimony of a trap witness, ifthe court is satisfied from the facts and circumstances of thecase that the witness is a witness of truth.' The Supreme Courtultimately held that the courts below were justified inconvicting the accused placing reliance upon the evidence ofthe police officer, accordingly having regard to the facts andcircumstances of the instant case, in our opinion, the aforesaid Supreme Court decisions directly cover the aspectsinvolved.

aforesaid Supreme Court decisions directly cover the aspectsinvolved.

7.5 Nasirmiya Hasanmiya Mallik Vs. State of Gujarat XXXIV(1993)(1) GLR, 853. This was a case of the running trapprimarily based on the evidence of the decoy witness, Panchwitness and the police officer. In this case also, the decoywitness who gave money to the accused did not support theprosecution. Not only that but even the Panch witness was alsonot exact in giving out evidence before the trial court and yetthis court had confirmed the order of conviction and sentencesolely relying upon the evidence of police officer. Here it isfurther specifically required to be noted that this judgmentwas challenged before the Supreme Court and the same came to beconfirmed on 10-12-1992 dismissing the Special Leave to Appeal(Criminal) No. 2868/92 filed by the accused Nasirmiya. Nowthe facts-situation of the present case, in our opinion,squarely falls within the purview of the case of NasirmiyaHasanmiya Mallik (Supra), and in this view of the matter alsothe impugned order of the acquittal deserves to be quashed andset-aside and accordingly shall have to be reversed recordingorder of conviction.

8. It is simply unfortunate that the learned PP in chargeof the case before the trial Court does not appear to havetaken appropriate care to point out the aforesaid decisionsmore particularly the decision rendered by this court in caseof Nasirmiya Hasanmiya Mallik (Supra). This is a decisionreported only in the year 1993 and accordingly we fail tounderstand as to how it was lost sight of to be cited beforethe trial court! We feel that if the best of social welfarelegislations fail, it is only because of some publicprosecutors just fail to discharge their duties to thereasonable expectation from them and neither DSP norCommissioner of Police of the area nor the concerned Departmentin particular, viz., Anti-Corruption Bureau, Home and LegalDepartments exercise proper vigilance in the matter ofdischarge of duty by the concerned learned Public Prosecutors.In corruption cases, it shall be the duty of the Director ofAnti-Corruption and the raiding authorities to see that PP incharge of the case places all material decisions in favour ofthe prosecution before the Court.

9. Before we conclude on the Supreme Court decisions citedby the learned APP, it must also be stated that Mr.Anandjiwala also in his turn has relied upon two decisions ofthe Supreme Court as stated above. However for these reasonsas discussed above at length and more particularly in view ofthe recent decision of this Court rendered in case of NasirmiyaHasanmiya Malik (Supra) which came to be confirmed by theSupreme Court, in our opinion, the same are indeed of no assistance to Mr. Anandjiwala. In the last resort, Mr.Anandjiwala submitted that even if other view of conviction waspossible, this being an acquittal appeal and the accused wasmerely a constable and accepted only Rs. 20/=, this Courtshould not interfere with this appeal. Now it is indeed notpossible to accept this submission of Mr. Anandjiwala becausein such type of corruption cases which harrass the societysqueezing away its vital, mercy cannot be allowed to lay downwrong law, and ultimately temper with justice.

10. We are indeed quite conscious of the fact that we areappreciating the evidence and that too in an acquittal appealand accordingly therefore ordinarily the reasons for acquittalshould not be lightly interfered with but for the convincingreasons ! Accordingly, the circumstances under which we havebeen constrained to reverse the impugned judgment and order ofacquittal is that when on an identical facts-situation there isa decision of this court and the Supreme Court and yet totallyunmindful of the same, if ultimate conclusion of acquittal isreached, that decision can not be said to be a reasonable oneas no subordinate court and for that purpose even the HighCourt can ignore the reported decision unless thefact-situation is diametrically opposed to the satisfaction ofthe concerned court. In fact, we are quite sure that hadindeed the aforesaid decisions been pointed out to the learnedtrial Judge, the scale of justice would have surely tilted infavour of the prosecution as it can not run away from the factthat the same were squarely and with all force applicable tothe facts and circumstances of the case at hand. Not only thisbut incidentally, it may also be pointed out that the SupremeCourt has also in case of the State of U.P versus Dr. G.K Gosh(Supra) where accused came to be acquitted by the High Courtreversed, the said order and convicted and sentenced accusedfor the alleged offence under the Prevention of Corruption Act.

11. In view of the aforesaid discussion, it is indeed notpossible to uphold the view taken by the learned trial Judgeacquitting the accused and accordingly the impugned judgmentand order of acquittal requires to be reversed quashing andsetting aside the same. In our opinion, the evidence on recordof the PW-3 and PW-4 PI Ambaliar is found to be quitesatisfactory and dependable. Accordingly, we hold that thecharge against the accused having been brought home, he needsto be convicted atonce.

12. In the result, this appeal by the State of Gujarat isallowed. Impugned judgment and order of acquittal recorded bythe learned Special Judge, Ahmedabad is hereby quashed andset-aside. Accused, accordingly, is convicted for the allegedoffences under Section 13 (1) (d) (i), (ii), (iii) and 13 (2)of the Prevention of Corruption Act, 1988.

13. SENTENCE :- This takes now to the next importantquestion of sentence. Since we have reversed the order ofacquittal, it is indeed necessary to hear the accused on thepoint of sentence. At this stage, Mr. K.B Anandjiwala, thelearned counsel appearing for the respondent-accused hasrequested that as the accused is unable to remain presentbefore the Court, his Affidavit highlighting the circumstancesfor taking a lenient view of the matter while awarding thesentence be taken on record. This request of Mr. Anandjiwalais accepted. The said affidavit, in substance, reads as under:-

"That I am police constable serving in police department since 16 years. I have wife, two sons and 2 daughters, who are dependant on me. The eldest one is daughter aged about 14 years by name Ramila, second daughter is aged 9 years by name Bhagwatiben. I have two sons, namely Ravubha and Anirudhsinh, aged 8 years and 5 years respectively. All my children are studying in school. I am the only son of my parents. My father is aged 60 years and mother is aged about 58 years. All are dependant on me. My father owns one land admeasuring 4 vighas at village Vasna (Iyava), Taluka-Sanand. There is no sufficient income from the said land, and therefore, they are dependant on me. So far as savings aspect is concerned, except G.P Fund, there is no other savings, though I have put-in 16 years of service. My bank balance is hardly Rs. 1,500/=. As all my children and wife and old parents are dependent on me and if I am sent to jail, all these members of my family would starve. Even the children will have to abandon their study though they are not at fault at all, and they will suffer a lot. Their future will be in dark. Therefore, I pray for mercy from this Hon'ble Court."

14. Further, in support of the aforesaid affidavit, Mr.Anandjiwala has also relied upon a decision of this Courtrendered in the case of Sanjaykumar Jayantilal Gandhi versusState of Gujarat, reported in 1993 (1) GLH (U.J-33) whereinaccepting the plea of guilty, this Court has modified the orderof sentence from that of r.i for one year to a fine of Rs.20,000/= only, and in default to undergo further r.i for sixmonths. Now, taking into consideration the overall facts andcircumstances of the case, the aforesaid decision is notapplicable at all. This is not the case wherein a lenient viewcan be taken more particularly when the offence committed bythe respondent is in the capacity as a police constable, who isexpected to maintain the law and order and not to commit offence of such a nature. To take a lighter and lenient viewof the matter by granting less than the minimum prescribedunder the Act would be at the hazard of the greatest publicinterest, where corruption despite the special Act with thedeeming fiction and presumption against the accused isspreading with leaps and bounds !! Apart this in matter ofawarding sentence, there can not be any precedence, asultimately everything depends upon the facts and circumstncesof that particular case.

15. In the result, this appeal is allowed. The impugnedjudgment and order of acquittal passed by the trial Court isquashed and set-aside. The respondent-accused is convicted forthe alleged offence under Section 13 (1) (d) (i), (ii), (iii)and 13 (2) of the Prevention of Corruption Act, 1988 and issentenced to undergo r.i. for 18 months and fine of Rs.1,000/and in default, to undergo further r.i. for 3 months.

15.1 At this stage, the learned advocate for therespondent-accused has prayed for 10 weeks' time to surrender,in order to enable the accused to make appropriate arrangementsfor his family members and also for collecting funds for goingto the Supreme Court. Time to surrender is grantedaccordingly.

16. While parting, taking into consideration the evidenceof Vasant Mangilal Patel, decoy witness who has been declaredhostile and the panch-witness No.2 Mahendra Naranbhai, who hasnot supported the prosecution, this Court would be failing inits duty if we do not issue notices to the said two witnessesfor their prima facie giving false evidence before the Court.Accordingly, Office is directed to issue notices against VasantMangilal Patel and Mahendra Naranbhai, making it returnable on24th January, 1997, by giving it separate misc. criminalapplication number, calling upon them as to why action shouldnot be taken against them for giving false evidence.

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Prakash*