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CR.A/435/1990 29/ 29 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 435 of 1990
For
Approval and Signature:
HONOURABLE
MR.JUSTICE C.K.BUCH
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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 ?
=========================================================
JAYESH
GOVINDBHAI CHAVDA - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
KJ SHETHNA for
Appellant(s) : 1,
MR AJ DESAI, ADDL. PUBLIC PROSECUTOR for
Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE C.K.BUCH
Date
: 13/11/2006
ORAL
JUDGMENT
1. The
present Criminal Appeal under section 374(2) of the Code of Criminal
Procedure, 1973 has been preferred by the appellant Govindbhai
Nathubhai Chavda- original convict accused against the judgment and
order of conviction and sentence dated 04.05.1990 passed by the ld.
Special Judge, Junagadh in Special Case No.3/1985 whereby the ld.
Trial Judge has convicted the appellant accused for the offence
punishable under section 5(2) of the Prevention of Corruption Act
(hereinafter referred to as the PC Act) and also under section 161 of
the Indian Penal Code and sentenced him to undergo R/I for 1 Year and
to pay a fine of Rs.2000/- I/d to undergo further R/I for 3 months.
However, the ld. Trial Judge, though convicted the appellant accused
for the offence punishable under section 161 of the Indian Penal
Code, has not awarded any separate sentence for the said offence.
After preferring the present appeal, the appellant-original accused
had expired on 20.09.1999 on his committing suicide along with his
wife. In the aforesaid unfortunate incident, wife of the appellant
accused had also expired. By filing Cri.Misc.Application
No.7341/1999, son of the deceased accused brought these facts to the
notice of the Court and also prayed to permit him to continue with
the criminal appeal as he has shown his inclination to have final
outcome of the appeal preferred by his deceased father. The death of
the original accused was registered under the relevant Registration
Rules on 01.12.1999 and thereafter the aforesaid Criminal Misc.
Application came to be allowed by this Court vide order dated
08.12.1999 and Jayeshbhai- son of the deceased appellant accused was
permitted to continue the criminal appeal. Thus, this Court is
supposed to appreciate the legality and validity of the conviction
recorded by the ld. Trial Judge only and no formal finding with
regard to the legality and validity of the sentence imposed by the
trial Court is required to be recorded because there is nobody to
serve out the sentence in the event this Court upholds the sentence
awarded or reduces the same. So, at present, this Court is to
consider the propriety, legality and validity of the order of
conviction passed by the trial Judge only.
2. The
ld. Sr.Counsel Mr. Shethna has taken this court through the main
grounds of challenge mentioned in the memo of the appeal and it is
argued that the ld. Trial Judge has grossly erred in holding the
appellant accused guilty of the charges levelled against him.
Firstly, it is argued that the version of the original complainant is
not acceptable and is not trustworthy because he has attempted to
implicate the accused forcibly into the crime, otherwise, there was
no motive for the accused to accept the amount of bribe for mutation
of entry in the revenue record maintained by the government. The
second argument advanced by Mr. Shethna is that there is no evidence
on record to show that the amount of bribe was ever demanded by the
accused so far as the alleged demand made on 23.05.1985 is concerned
and thereafter on the date of incident in presence of panch No.1
Sharad Hathi at the instance of the original accused. The third
argument advanced by Mr. Shethna is that there are ample
circumstances to infer that the muddamal currency notes were forcibly
given in the hands of the accused by the complainant when he realized
that his attempt to book the accused is likely to fail. Undisputedly,
on second visit, the accused was found in the residence. On first
occasion when the complainant along with panch Mr. Hathi visited the
residence of the accused, the accused was not there at 8.30 p.m. and,
therefore, the second attempt was made at 9.00 p.m. after about half
an hour. It is argued that Mr. Sarvaiya, ACB Inspector, ought to have
drawn the ?Snil?? panchanama and could have closed the trap
arranged by him. It appears that this was the joint effort of Mr.
Sarvaiya and the complainant to see that the accused is trapped and,
therefore, the accused was forcibly given muddamal currency notes of
Rs.400/ i.e. four notes of the denomination of Rs.100/ each as
mentioned in the panchanama. One more argument advanced by Mr.
Shethna is that the present case is stained by one more infirmity
i.e. infirmity in selecting the panch. It was the duty of Mr.
Sarvaiya to ascertain from panch Mr. Hathi whether he has ever
appeared as a panch in such or similar cases or any other similar
antecedents are there against him. No such inquiry was made by Mr.
Sarvaiya is the admission of Mr. Sarvaiya i.e. the Raiding Officer
and the accused has brought on record that on relevant date the panch
Mr. Hathi was facing two criminal prosecution viz. one for the
offences punishable under section 420 R/w 114 of IPC and other one
for the offences punishable under the provisions of the Gujarat
Essential Services Maintenance Act,1976 as he was found involved in
joining the strike against the Reservation Policy of the government
in the year 1985. Normally, a person of the repute of having no
stigmatic character requires to be selected in such or similar cases
and this inadvertence or negligence on the part of the IO has
resulted into serious infirmity and this infirmity would go to the
root of the evidence led by the prosecution. No credit can be given
to the deposition /evidence of panch No.1 and other evidence ought
not to have been read as a corroborative piece of evidence qua the
evidence led by the complainant. The next point argued by Mr. Shethna
is that the ld. Trial Judge has failed in considering the documents
produced by the accused with his explanation and plausibility of the
explanation given by the accused under section 313 of CrPC. On the
contrary, the work of the original accused was appreciated on more
than one occasion. He was considering to be reliable person and,
therefore, he was kept in charge of ambulance and the ambulance was
also kept at his residence and was maintaining the accounts in this
regard. He was also given a letter of appreciation for his duties
that he had performed in family welfare activities by the Asstt.
Collector. The accused had denied the evidence given by the
complainant and panch No.1 and he has satisfactorily explained as to
why some delay has been caused in entering the name of the
complainant along with his brother and sister in the government
record after the death of his father Jivrajbhai. The conduct of the
accused goes contrary to the allegations made against him. The case
of the prosecution ought not to have been accepted by the Court
observing that normally no accused would retain or keep the muddamal
currency notes in his hands and would catch hold the same even after
the entry of raiding officer Mr. Sarvaiya and others. Mostly, he
could have thrown the muddamal currency notes any where when after
listening the shouts in the nature of a signal. Therefore, the
panchanama of recovery of muddamal currency notes from the right hand
of the accused should not be accepted as reliable piece of evidence
and the oral evidence of the complainant as well as of Mr. Sarvaiya
also should not be accepted.
3. It
is next argued by Mr. Shethna that ACB Inspector Mr. Sarvaiya has
shown unwarranted enthusiasm in the present case and it goes against
the credibility and objective approach which should be the paramount
consideration in such cases because he is the officer who had
provided special set of cloths to panch No.1 which are being
traditionally put on by the persons residing of the community known
as ?SPatel?? of Saurashtra area in the area where the raid is
carried out. Panch No.1 was provided ?SCholi?? and ?SBandiya??.
He was to be introduced as first cousin of the maternal uncle’s son
of the complainant. Though district Junagadh has its own ACB Office,
surprisingly, Rajkot ACB Office was selected and both the panchas
were also selected from Rajkot by Mr. Sarvaiya. In this situation,
the investigation carried out by and the panchanama drawn by this
officer should not be accepted as a reliable piece of evidence and
his oral evidence should be discarded as evidence of a person who is
interested in a particular result.
4. It
has been further argued by ld. Sr. Counsel Mr. Shethna that the
government servants have a tendency to support the prosecution in ACB
case so that they can avoid departmental proceedings. By showing
relevant documents i.e. certified copy of the village form No.6, 8/A
and Rojnama drawn in presence of the reputed persons of the village
wherein the names of the legal heirs of the deceased Shivrajbhai have
been mentioned, it is submitted that the entry in the revenue record
in village form No.6 was already entered and nothing further was
required to be done by the village secretary i.e. the accused and
only the higher officers i.e. first revenue Karkun or the Mamlatdar
is authorized to certify the entry entered in village form No.6 and
unless any change is made or entry is certified in village form No.6,
obviously in village form No.8/A, the name of the original occupant
would remain there. When it is the case of the prosecution that when
the first demand of bribe was made by the accused on 23.05.1985, then
it was possible for the prosecution to examine the witnesses to prove
that allegation because on that day, other three persons were very
well there in the office of the Panchayat and other servants of
panchayat were also there to prove the presence of those three
persons including the one Kurjibhai Bhesania whose name is reflected
in the document because he had also paid revenue in the panchayat
office on 23.05.1985. Complainant has accepted that he is the
cousin- distant relative of said political worker Kurjibhai Bhesania
and, therefore, under his political motivation, the complainant has
agreed to file the complaint and a party in a forged trap case. In
those days i.e. in the year 1984-85, the society at grass-root level
was divided into groups of persons and persons from SC & ST
community were treated differently especially when such person is
in a government or semi-government service and the accused being a
person from SC Community, he was targeted by Kurjibhai Bhesania and
the complainant.
5. Mr.
Shethna has taken this Court through the entire set of evidence,
mainly the oral evidence of the complainant, panch No.1 Sharad Hathi
and trapping officer Mr. Sarvaiya along with other documentary
evidence. To appreciate the say of Mr. Shethna, firstly I would like
to state the basic case of the prosecution in brief which is
reflected in para-2 of the memo of the appeal. For the sake of
brevity and convenience, I would like to reproduce the facts stated
by the appellant himself in the memo which are mostly similar to the
facts reflected in the first para of the judgment under challenge.
Para-2 of the appeal memo reads thus:-
?S2. On
22.01.1984, Jivraj Gangdas Bhesania, father of the complainant
approached the accused who was the Revenue Talati-cum-Mantri
(Secretary) of village Bhesan for the mutation of the entries in the
Records in the names of the heirs of his deceased father Jivrajbhai.
He gave an application to him for that. He approached asked the
Accused after about 6 months and thereafter on more than one occasion
to know what was done. The Accused told him that work of mutation of
entries of others also remained to be done and along with their work
his (the complainant’s) work would also be done. The complainant
wanted to obtain loan from Co.Operative Society, for that to become a
member was ?Sa must?? and for that purpose one must be the ?Sthe
Khatedar??. On 23.05.85, he went to pay the revenue amount in the
office of the accused. He paid it, for that receipts exh.21 & 22
were given to him. At that point of time, he told him about the
mutation of entries. The accused demanded the bribe amount of
Rs.500/. The complainant told him that his work was legal and in
summer season Rs.500/ was a big amount which he could not afford.
?SBefore the work could be done, pay Rs.400/. After it is done pay
Rs.100/?? was the accused’s demand. And he asked the complainant to
pay Rs.400/- at 8.00 P.M. on the next date i.e. to say on 24.05.1985
at his (the accused’s) residence. The complainant approached P.W.4 &
P.I. Bharatsinh Sarvaiya Exh.33 A.C.B. Rajkot on 24.05.1985 at 2.15
P.M. at Rajkot. He gave his F.I.R. Exh.24. (1) P.W.3 Sharad Dinkarrai
Hathi Exh.31 and (2) Mansukhbhai Tapubhai Parmar, Dy. Mamlatdar,
Rajkot and employee in the District Panchayat, Rajkot respectively
were called as ?Sthe Panchas?? and the first part of the panchanama
Exh.32 was drawn between 3.30 p.m. and 5-15 P.M. on 24.05.1985. The
raiding party went to Bhesan, on the first occasion, the complainant
and the Panch No.1 went to the house of the accused. He was not
there. They went to P.I. Sarvaiya. They were instructed to go again.
At 9.10 P.M., they again went to his house. The accused demanded and
accepted the bribe amount of Rs.400/ from the complainant. Second
part of the panchanama exh.31 was completed at 11.00 P.M.??
6. Mr.
AJ Desai, ld. APP appearing for the State has argued that the
findings recorded by the ld. Trial Judge are absolutely legal and no
material error can be said to have been committed in appreciating the
oral as well as documentary evidence led during the course of the
trial. It is argued that there are no material contradiction or
omission in the deposition of the complainant and as per the settled
legal position, ignoring all other evidence if the version of the
complainant in a trap case is found reliable, the accused can be
linked with the crime. It is not necessary to reproduce the comments
made by the Apex Court as to what should be the approach of the Court
in corruption cases where the case rests either on the deposition of
the complainant only and/or panch No.1 and accused has been held
guilty on the deposition of trapping officer only when he himself
has witnessed any material part of the offence that has occurred at
the time of passing of bribe amount from the hands of the complainant
to the hands of the accused. In this background, if the impugned
judgment of the ld. Trial Judge is read, there is no need to comment
on the evidence of the raiding party i.e. panch No.1 Sharad Hathi
and/or Mr. Sarvaiya, PI of ACB. However, according to Mr. Desai, the
evidence of Mr. Hathi should not be discarded merely because he was
an accused in two other criminal cases. Of course, his discharge
application was rejected by the ld. Magistrate, but on the date of
his selection as a panch, no such discharge application was rejected.
It was probably was not even filed. Mr. Desai has taken this Court
through the allegations made in the chargesheet produced by the
accused along with his statement under section 313 of CrPC and it is
alleged that Mr. Hathi is accused No.3 in the first criminal case
registered against him for the offences punishable under section 420
R/w section 114 of the Indian Penal Code. As pointed out by Mr.
Desai, this case is in relation to 141 cement bags. The cement was
essential commodity at that point of time and was regularized by the
State and only authorized persons were entitled to withdraw the
cement from the government godown. Accused Nos. 1 & 2, as per the
case of the prosecution, were responsible in siphoning those cement
bags. Accused No.2 was the person responsible and he has posed him
as a person in whose name the permit was granted. Accused No.3 i.e.
panch No.1 Mr. Hathi was in charge of the godown. On seeing permit
and the person, he must have handed over 141 bags of cement. So, he
was the person responsible for the delivery of the cement. This Court
is not supposed to comment on the merit of the criminal case because
the Court is not aware about the out come of the said criminal case,
if decided, but if the allegations made in the criminal case are
seen, it would not be proper for the Court to discard the evidence
of panch No.1 Mr. Hathi merely because he is an accused in a criminal
case. The allegations in the complaint filed against him can not be
said to be the allegations against the character or his involvement
in an offence against the public morality. In the same way, the
second prosecution, according to Mr. Desai, is a technical
prosecution and in 100s of such or similar cases, ultimately such
cases were subsequently withdrawn by the State. Mr. Desai, however,
has shown his ignorance as to what had happened to the prosecution
lodged against panch No.1 Mr. Hathi along with other persons named in
the second complaint. It is true that panch No.1 was actively
involved in the agitation against the reservation policy and,
therefore, his involvement or activism as panch No.1 in a trapping
case and that too against an accused being number of SC community
requires to be viewed strictly. As per the settled legal position and
as observed by this Court in the case of Ambalal Motibhai Patel
v/s State, Vol.-I 1960 GLR 113, the panch witness is not a
trap witness. Panchas have nothing to do with the raid or the
operation of the raid. They are not participators in the act of
raiding. It can not be said that the evidence of every panch witness
who takes part in the laying of a trap in cases of bribery can be
regarded as evidence of partisan witness. This would always depend
upon the circumstances of each case. If it is found that the witness
is otherwise reliable and there is an element of independence, his
association in a pre-arranged raid should not be viewed with doubt.
It is true that in the present case, the conviction could not have
been made on the sole evidence of panch witness, but the ratio of
the decision in the case of Lachman Dass v/s State of Punjab,
AIR, 1970 SC 405 would help the prosecution. I do not find
any grave fact to dube the panch witness as interested witness in
absence of any adverse material justifying the interference in the
finding recorded by the ld. Trial Judge. ( Maha Singh v/s
State, AIR 1976 SC 449 ). In these particular facts
situation, it would be the duty of the Court to scan the evidence of
this witness closely. The complainant is the person aggrieved by the
illegal demand made by the accused and Mr. Sarvaiya has no reason to
implicate the accused in such a serious offence merely because he
belongs to SC or ST community. According to Mr. Desai, when evidence
of Mr. Hathi gets corroboration from these two persons viz. one
person aggrieved and other who has investigated the crime and drawn
the panchanama, the say of Mr. Hathi should not be rejected in toto.
It is true that if the complainant would not have supported the case
of the prosecution in the present case, the accused could have been
given some benefit because Mr. Hathi was found active in agitation
against reservation policy, but this is a case where three persons
have deposed that accused when was caught by PI Mr. Sarvaiya, was
possessing muddamal currency notes in the closed fist of his right
hand. As such, there is no detailed cross-examination of any of these
three witnesses as to the anthracene powder marks that were found on
both the hands of the accused. The accused had attempted to explain
that the complainant forcibly handed over the muddamal currency
notes to him. The question would be that why he continued and caught
hold of those notes even for a while? Any act against the will or
wish of a person would automatically get some reaction and it appears
from the deposition of the complainant and panch NO.1 Mr. Hathi that
no such reaction was there from the accused. During the
cross-examination, no such suggestions even were made. When Mr.
Sarvaiya had entered the house, it was about 9.15 P.M. It being dark,
the complainant was asked to give a signal by raising a particular
shout and he was asked to utter a particular set of words. Those
words were uttered. There is no parrot-like similarity in the
depositions of the complainant as well as panch No.1 as to the
conversation that has taken place at the residence of the accused.
The material part of the conversation corroborates the prosecution
case and when the complainant gets corroboration from the deposition
of panch No.1 and when the accused was found in possession of the
muddamal currency notes when he was caught hold by PI Mr. Sarvaiya,
the ld. Trial Judge was entitled to raise presumption against the
accused. Of course, there is no cogent evidence as to the demand made
by the accused of illegal gratification on 23.05.1985, but trap was
arranged on the demand made on 23.05.1985 and the trap was arranged
on 24.05.1985. The efforts to get the entries certified had failed
till 23.05.2006 and there is sufficient evidence to show that on the
date of trap, the accused did demand the amount of bribe. The demand
was for Rs.500/ and it was decided that initially the complainant
should pay Rs.400/ and the remaining amount of Rs.100/ was to be paid
on certification of the entry in village form No.6.
7. The
Court finds some strength in the arguments of ld. APP Mr. Desai that
the evidence of the prosecution witness namely the complainant should
be appreciated in the background of the scheme of section 135(c) and
section 135(d) of the Bombay Land Revenue Code ( BLRC for short).
Since February-1985, the complainant and his family members were
trying to get the names mutated after the death of the original owner
of the agricultural land i.e. Jivrajbhai. The names of three brothers
and sister Rambhaben were to be entered in the record of rights i.e.
village form No.6. Notice required to be served to all concerned was
served to the complainant. Signature of the complainant in the
notice under section 135(d) of BLRC is shown to the Court by Mr.
Shethna, ld. Senior Counsel appearing for the appellant accused,
would not help the accused. This signature would simply show that the
procedure of entering the name has started and if any of the family
members has any objection as to the mutation of entry, can approach
the Panchayat and register his resistance. The scheme provides that
if any resistance is received by the panchayat, then that entry
would be transferred and mutated to the register maintained for the
purpose of recording the disputed entry and the revenue authority is
supposed to resolve the dispute raised against the details given in
the notice served under section section 135(d) of BLRC. The dates are
relevant. The notice under section 135 BLRC was served to the
complainant in the month of March-1985. This Court has reason to
believe that the notice must have been affixed on the conspicuous
place in the village including the village panchayat and there is no
evidence to show that anybody had formally objected the mutation. The
reputed person of village has certified the names of the heirs and
it was available with the village secretary. It was the duty of the
secretary to get the entry certified at the earliest because it has
remained only a formality in absence of any resistance or dispute.
This work was prolonged and it is argued that this was done with an
ulterior motive to extract some more amount from the family of the
complainant. It is, therefore, stated in the deposition by the
complainant that as the entry was to be mutated in accordance with
law, why family of the complainant should pay any illegal
gratification to the secretary of the village panchayat and that had
taken the complainant to the office of the ACB, Rajkot. There is no
conflict in evidence as to the amount demanded and the sequence
stated by the complainant and panch No.1 as to the transfer of that
amount from the hands of the complainant to the accused. So, it is
not possible for the Court to accept the arguments of Mr. Shethna
that the ld. Trial Judge has wrongly held that the presumption can
be raised against the accused under section 4 of the PC Act.
8. The
alternative argument advanced by Mr. Shethna that the presumption
raised by the trial Court has been successfully rebutted by the
accused, is not found acceptable. On the contrary, it appears that
the accused had tried to explain and justify the delay caused in
certification of the entry made prior to the month of March-1985,
though there were no objections to the mutation of the entry. The
first entry made by the village secretary in the village form itself
is popularly known as ?Spencil entry?? i.e. ?Skachcha entry??. It
is subject to the addition, alteration, rejection including the
resolution of the dispute by the competent authority. Thereafter
only the final entry is being made and entry gets finality on its
certification either by first revenue karkun popularly known as ?SAval
Karkun?? and/or Mamlatdar. Certified copy taken by the officer Mr.
Sarvaiya clearly shows that there is no remarks in the remark column
of village form No.6 even on the date on which the trap was carried
out. Obviously therefore, the name of the original owner i.e. the
name of the deceased Jivrajbhai is reflected in village form No.8/A.
The family of the deceased Jivrajbhai normally would not get any
advance of loan by any Bank or Co.Op.Society unless the name of the
loanee is reflected in the village form No.8/A which is popularly
known as ?SKhata??. Agriculturists would be anxious to get the loan
at least before monsoon or in the midst of monsoon so that they can
utilize the amount for the development of the crop. In the present
case, entire things were prolonged and dragged from February 1985 to
August 1985 for no reason. So, it is difficult for the Court to
accept that this is a case of no motive on the part of the village
secretary. It is true that the village secretary has no authority to
certify the entry, but he is the key revenue officer who can take
the register to the office of the Mamlatdar or can arrange for visit
of a responsible officer to the village so that all entries either
can be certified or any other order in accordance with rules under
the Code can be passed.
9. I
have carefully gone through the reasons assigned by the ld. Trial
Judge for holding the accused guilty. It is true that the
accused-village secretary has committed suicide with his wife and it
is alleged that because of the financial crunch and hardship, the
accused had committed suicide after the lapse of 9 years of filing of
the appeal. The Court feels some unrest for the out-come of the delay
that has taken place in hearing and disposing of the appeal well in
time. But that by itself would not be sufficient to say that the
finding recorded by the ld. Trial Judge is illegal or perverse. Even
after taking out the deposition of Mr. Sharad Hathi when it is not
possible for the Court to say that the accused could have been given
benefit of doubt by the trial Court, it is difficult for the Court to
accept the appeal.
10. It
is true that this Court as well as the Apex Court has made
observations and made comments as to the use of anthracene powder
while laying the trap in ACB cases. The use of phenolphthalein powder
is considered as more reliable, but the cases in which the deposition
of the complainant and/or panch witness as to passing of the
muddamal currency notes to the accused is reliable, then tallying of
the numbers of the muddamal currency notes with the numbers mentioned
in the first part of the panchanama becomes very relevant. In the
present case, it is true that when the accused was caught by PI Mr.
Sarvaiya, the muddamal currency notes were in the closed fist of
right hand and more than one witnesses have consistently said that
the anthracene powder marks were visible on both the hands i.e. on
the fingers of both the hands. So, it is difficult for the Court to
accept the submission of Mr. Shethna that the defence placed by the
accused of forcibly handing over the muddamal currency notes is
either good or sustainable. It is argued by Mr. Shethna that even
after the entry of ACB Inspector in the room and acceptance of the
muddamal currency notes, would be different than alleged and the
accused would not have kept the muddamal currency notes in his
closed fist. He could have thrown the same. This argument is not
found convincing because there is evidence as to willful acceptance
of the amount and an individual accused may react in a different
way. A confused person may not react at all. One is likely to become
a statue. This aspect needs consideration. So, it will be difficult
for the Court to say that the recovery of muddamal currency notes
from the closed fist is improbable.
11. The
time period in reference to the initiation of the entry proceedings
from January 1985 when Pedhinama was prepared for the first time on
08.01.1985, if considered vis-a-vis the actual date of complaint in
the background of the explanation given by the accused under section
313 of CrPC, hidden motive to extract the money can be said to be
emerging and, therefore, the oral evidence of the complainant as to
the demand of money gets some corroboration from this aspect. In the
same way, the evidence given time-wise by the complainant, panch No.1
Mr. Hathi and PI Mr. Sarvaiya after the entry second time in the
house of the accused corroborates each other substantially. There was
no need to have any evidence of peon of the Panchayat because he is
found to be in picture only in reference to the service of notice
under section 135(d) of BLRC and it would be difficult to presume
that merely because four or five persons have paid revenue to the
Sate on 23.05.1985, all of them had entered the office simultaneously
on that day. In the same way, it is not suggested directly or
indirectly to the complainant that on 23.05.1985 when demand of bribe
was made for the first time, other servants of Panchayat were there
in Panchayat office. This aspect could have been brought on record
by some detailed cross-examination of the complainant in this
regard. It is true that the government servant unless it is otherwise
proved, are presumed to be available in the office, but considering
the nature of the duty of village panchayat servants, such inference
can not be drawn and for that purpose, some cogent facts require to
be brought on record that other panchayat servants were also present
at the time when the complainant had entered the Panchayat office for
paying land revenue on 23.05.1985. In number of cases, when the
accused is not available at the place suggested for accepting the
bribe amount, than the raiding officer decides to make one more
attempt and this by itself would not make the raiding officer
interested in false implication of the accused. He may be interested
in drawing the successful panchanama, but not in implicating the
accused falsely.
12. The
statement of the accused made before the Investigating Officer is
inadmissible but in ACB case, the immediate explanation of the
accused to the raiding officer is if consistent to the defence taken
by him or in other words the defence taken by the accused is
consistent to the immediate first explanation given to the raiding
officer, than such a statement of the accused positively can be used
by the Court with a view to appreciate the case of the prosecution
and its strength. Here in the present case, it has come on record
that a pointed question was asked to the accused by Mr. Sarvaiya, but
the accused had not responded to that question. The accused being
authorized to recover the village revenue, such question was required
to be asked by the IO and when it is impliedly on record to show that
the revenue of the deceased land owner, father of the complainant was
paid earlier, there was no scope to accept any amount from the
complainant so far as the accused is concerned and that too Rs.400/
which can be said to be a big amount in those days. Totality,
therefore, in my view, has been correctly appreciated by the ld.
Trial Judge and, therefore, the arguments advanced by ld. Senior
Counsel Mr. Shethna, are not found acceptable. The reasonings given
and findings arrived at by the ld. Trial Judge are absolutely just,
legal and based on sound and proper appreciation of the oral as well
as documentary evidence and hence no interference is required. Hence,
there is no merit in the present Criminal Appeal and the same
requires to be dismissed.
13. In
the result, present Criminal Appeal is hereby dismissed. The impugned
judgment and order of conviction and sentence passed by the trial
Court is hereby confirmed. Since, the appellant accused has expired,
no orders as to granting time to him to surrender for serving out the
sentence is required to be passed.
[
C.K. BUCH, J ]
*rawal
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