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CR.A/975/1996 1/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 975 of 1996
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
HIMATSINH
BADJIBHAI PARGI - Opponent(s)
=========================================================
Appearance
:
MR
RC KODEKAR, LD. ADDL. PUBLIC PROSECUTOR
for
Appellant(s) : 1,
MR JB PARDIWALA for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 03/03/2010
ORAL
JUDGMENT
The
appellant-State has preferred this Appeal under Section 377 of the
Code of Criminal Procedure, 1973 for enhancement of sentence against
the judgment and order of conviction dated 19th August
1996 passed by the learned Special Judge, Panchmahal at Godhra in
Special (Corruption) Case No.08 of 1993, whereby the learned Judge
has convicted the respondent-accused of the charges levelled against
him.
The
Short facts of the case are as under:
2.1 The
original complainant had some disputes with regard to taking water
from the well. It is the case of the original complainant that he was
beaten by his brother and his sons at the time of doing agricultural
work. Because of intervention of the neighbours, the original
complainant was saved. The original complainant had lodged a
complaint with Santrampur Police Station for the said assault of his
brother and sons of his brother. After filing the complaint, the
original complainant was admitted in the hospital for treatment.
2.2 The
investigation was carried out by the present respondent-accused in
respect of the complaint filed by the original complainant. It is
also the say of the complainant that when the original complainant
went to the respondent-accused with his treatment certificate, the
respondent-accused told the original complainant that his brother had
also filed a complaint against him, therefore, the original
complainant should come along with his wife at Gothib Outpost on
Monday. On 16th November 1992 the complainant along with
his wife and witnesses went to Gothib Outpost where their statements
were recorded. It is also the case of the original complainant that
after recording statements, the respondent-accused told the original
complainant that he will be taken on remand. The respondent-accused
further added that if the original complainant wants to escape from
the remand, he will have to give an amount of Rs.500/- to the
respondent-accused. It is also the case of the original complainant
that as he was not having money, the respondent-accused arrested the
original complainant and was produced before the Santrampur Police
Station, from where the original complainant got himself released on
bail. At that time also the respondent-accused demanded an amount of
Rs.500/- from the original complainant. It is also the case of the
original complainant that he stated the respondent-accused that he
would give the respondent-accused an amount of Rs.500/- on the next
day.
2.3 The
original complainant therefore, approached the Anti Corruption Bureau
on 17th
November 1992 at about 11:00 a.m. and filed the complaint against the
respondent-accused. Thereafter, the Investigating Officer called two
panchas and after completing necessary procedure, the raid was
carried out.
2.4 It
is also the case of the original complainant that when he reached to
Gothib Outpost, the respondent-accused asked the original complainant
that whether the original complainant had brought Rs.500/- as
demanded or not and told him to handover Rs.500/-. At that time the
original complainant had handed over the powdered currency notes,
which were given to him by the Anti-Corruption Bureau, to the
respondent-accused. Thereafter, the respondent-accused went to the
adjacent room and placed the said currency notes in one of the books
lying in that room. Thereafter, the original complainant went outside
the room and gave signal to Police Inspector Shri Pathan. Police
Inspector Shri Pathan along with his staff members and panch witness
no.2 immediately rushed inside the room. Thereafter, procedure of
examining under ultra-violet lamp was carried out and search of the
accused was also carried out. Thereafter, panch witness no.1 brought
the said diary from the adjacent room, from wherein the currency
notes of Rs.500/- were traced out. The said notes were also examined
in the light of ultra-violet lamp. It is found that the notes were
shining blue. The fingers of the respondent-accused and original
complainant were also shining blue and the pages of the diary, in
which the currency notes were placed, were also shining blue.
Thereafter, panchnama was prepared and the currency notes were
seized. The statements were recorded and thereafter, the offence was
registered against the respondent-accused.
2.5 After
investigation was over, the Deputy Superintendent of Police had given
sanction for filing the charge-sheet against the respondent-accused
and accordingly, the accused was charge-sheeted for the offences
punishable under Sections 7 and 13(1)(d) read with Section 13(2) of
the Prevention of Corruption Act (hereinafter referred to as ‘the
Act’).
Thereafter
the trial was conducted before the learned Magistrate. To prove the
case of the prosecution, prosecution has produced oral as well as
documentary evidence. The prosecution has examined complainant at
Exh. 10 as a Prosecution Witness No.1, Panch Witness No.2 was
examined at Exh.12, Police Inspector Pathan has been examined at
Exh.14 and also produced documentary evidence in support of the
prosecution case.
After
hearing both the sides, the learned Special Judge, Panchmahal at
Godhra, has been pleased to convict the respondent-accused by his
judgment and order dated 19th
August 1996 in Special (Corruption) Case No.08 of 1993 and sentenced
the respondent-accused to suffer Rigorous Imprisonment for one year
and to pay fine of Rs.1,000/- (Rupees One Thousand Only) for each
offence and in default, to suffer Rigorous Imprisonment for three
months for each offence. It was ordered that substantive sentence
shall run concurrently.
Being
aggrieved by and dissatisfied with the said judgment and order dated
19th
August 1996 passed by the learned Special Judge, Panchmahal at
Godhra in Special (Corruption) Case No.08 of 1993, the
appellant-State has preferred the above-mentioned Criminal Appeal
for enhancement of sentence before this Hon’ble Court.
I
have heard Mr. R.C. Kodekar, learned Additional Public Prosecutor,
appearing on behalf of the Respondent-State and Mr. Rushabh Shah for
Mr. Pardiwala, learned counsel for the respondent-accused. I have
also gone through the papers and the judgment and order passed by
the Trial Court.
Mr.
R.C. Kodekar, learned Additional Public Prosecutor, appearing on
behalf of the Respondent-State, has taken me through the documentary
evidence and has contended that demand and acceptance of illegal
gratification is proved beyond reasonable doubt against the
respondent-accused. He has also contended that accused deserves no
sympathy.
Mr.
Rushabh Shah, learned counsel for the
respondent-accused, has contended that the respondent-accused is now
a retired person. He has two sons and both are dependent upon the
respondent-accused. If the sentence is enhanced as prayed for,
family of the respondent-accused will be ruined. So, some mercy is
required to be shown to the respondent-accused.
I
have
gone through the judgment and order passed by the Trial Court. I
have also perused the oral as well as documentary evidence led
before the Trial Court and also considered the submissions made by
learned advocate for the appellant and the respondent-accused.
The
Trial Court, has after appreciating the facts and evidence on
record, found the respondent-accused guilty of offences punishable
under Sections 7 and 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, 1947. Therefore, by the judgment and
order dated 19th
August 1996, the learned Judge has been pleased to convict the
respondent-accused to
suffer Rigorous Imprisonment for one year and to pay fine of
Rs.1,000/- for each offence and in default, to suffer Rigorous
Imprisonment for three months for each offence and substantive
sentence will run concurrently.
It
is pertinent to note that against the very same judgment, the
accused viz. Himmatsinh Badjibhai Pargi has filed Criminal Appeal
No.818 of 1996 for quashing and setting aside the same. This Court
simultaneously vide detailed judgment dated 03rd
March 2010 dismissed the said Appeal holding that the impugned
judgment is legal, just and proper and no interference is called
for. In view of the same, no case is made out for enhancement of
the sentence awarded to the respondent-accused.
I
am in complete agreement with the findings, ultimate conclusion and
the resultant order of conviction recorded by the court below and
hence find no reasons to interfere with the same. Hence, the present
appeal is required to be dismissed and is hereby dismissed. The
judgment and order dated 19th
August 1996 passed by the learned Special Judge, Godhra in Special
(Corruption) Case No.08 of 1993, holding the respondent-accused
guilty of offences punishable under Sections 7 and 13(1)(d) read
with Section 13(2) of the Prevention of Corruption Act, 1988
sentencing the respondent-accused to suffer Rigorous Imprisonment
for one year and to pay fine of Rs.1,000/- and in default, to suffer
Rigorous Imprisonment for three months for each offence, is hereby
confirmed. Bail bond, if any, shall stand cancelled. Record and
Proceedings to be sent back to the concerned Trial Court. Record and
Proceedings to be sent back to the Trial Court.
(Z.
K. Saiyed, J)
Anup
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