PETITIONER:
SALIMKHAN SARDARKHAN
Vs.
RESPONDENT:
STATE OF GUJARAT
DATE OF JUDGMENT18/09/1985
BENCH:
SEN, AMARENDRA NATH (J)
BENCH:
SEN, AMARENDRA NATH (J)
MISRA RANGNATH
CITATION:
1986 AIR 307 1985 SCR Supl. (2) 854
1985 SCC (4) 234 1985 SCALE (2)786
ACT:
Indian Penal Code 1860, Section 161 & Prevention of
Corruption Act 1947, section 5(1)(d) and 5(2).
Police constable - Acceptance of bribe - Charge of -
Demand and acceptance of bribe - Denial of - Claim of bribe
amount being inserted in pocket - Defence plea accepted by
Trial Court and acquitted - Conviction by High Court -
Whether valid.
HEADNOTE:
The appellant who was a Police Constable was charged
under section 161 IPC and section 5(1)(d) read with section
5(2) of the Prevention of Corruption Act, 1947. The
prosecution case was that the appellant demanded a sum of
Rs. 50 from PW 1 who was a taxi driver and in the habit of
parking the taxi where parking was prohibited. PW 1 informed
the Anti-Corruption staff, a trap was laid and five Rs. 10
currency notes were treated with phenolphthalien powder,
made over to PW 1 to be paid as bribe. PW 9 the Inspector
supervised the trap. After the currency notes were received
by the appellant PW 9 and others recovered the money from
him. The currency notes were dipped into the mixture of
sodium Carbonate and the same turned rosy in colour.
Similarly the pocket of one shirt of the appellant and his
fingers were put to test and these too turned rosy.
The defence of the appellant was a total denial of the
bribe having been demanded and taken and he stated in the
statement under sec. 313 Cr. P.C. that the amount was
inserted into his left hand side pocket by PW 1.
In the Trial Court it was contended on behalf of the
appellant that PWs. 3 and 8 the Panch witnesses were
interested in PW 1 and that PW 1 was previously working in
the Police and had been removed from service. The Trial
Judge disbelieved the prosecution evidence regarding
acceptance of Rs. 50/- by the appellant, and accepted the
defence stand that the currency notes had been inserted by
PW 1 into the pocket of the appellant, and acquitted the
appellant.
855
In appeal by the State, the High Court held that the
appellant was a policeman who was about to retire in a short
time, that he had been in service for more than 30 years and
that it is not possible to believe that a policeman would
not come to know if someone inserts currency notes in his
left hand side pocket, and reversed the order of acquittal
passed by the Trial Court and convicted the appellant.
Allowing the appeal,
^
HELD: 1. The Trial Court had accepted the defence plea
of possibility of insertion of the currency notes without
the appellant knowing about it. The High Court reversed the
trial court in this regard by merely drawing a presumption
on the basis of the appellant having been a policeman. The
appellant was already nearing the age of superannuation and
had been more than 30 years in service. The High Court lost
sight of the fact that the appellant may have lost his
agility and that the currency notes could have been inserted
without the appellant knowing about it. [857 G-858 A]
2. Very clever people who are young and agile are often
victimised by pick-pockets and only when their valuables
have been lost the fact is noticed by them. The process in
the instant case, is the reverse one. Instead of the pocket
being picked, currency notes have been inserted into it.
[858 B]
3. The allegation that PWs. 3 and 8 were interested in
PW 1 has not been carefully examined by the High Court yet
the conclusion of the trial court has been disturbed. PW 7
was admittedly present at the spot and he has categorically
spoken that when the appellant's fingers were put into the
mixture they did not turn rosy. The trial court had referred
to this fact and relied upon it. That evidence which had
been accepted probabilities the defence plea that the
currency notes had not been received by the appellant in his
left hand and, therefore, the insertion of the notes into
the pocket of the appellant by some other person was more
probable. This is the defence plea which has been accepted
by the trial court, and reversal by the High Court was
therefore not warranted. [858 D-E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
117 of 1977.
From the Judgment and Order dated 8.7.1976 of the
Gujarat High Court in Criminal Appeal No. 11 of 1975.
856
Mrs. Sheil Sethi for the Appellant.
S.K. Dholakia and R.N. Poddar for the Respondent.
The order of the Court was delivered by
A.N. SEN, J. This appeal by special leave is directed
against the judgment of the Gujarat High Court reversing the
acquittal of the appellant. The appellant was tried for
offences punishable under section 161 of the Indian Penal
Code and section 5(1)(d) read with s. 5(2) of Act. No. 2 of
1947, on the allegation of having received Rs. 50 as bribe.
The appellant was a police constable and at the
relevant time, on 29.11.73, he was posted at S.T. Bus Stand
at Bhaber. PW 1, the informant was plying a taxi and was in
the habit of parking the taxi by the side of the bus stand
where such parking was prohibited. It is the prosecution
case that PW 1 used by pay Rs. 5 per month to the appellant
as a consideration for not prosecuting him for such illegal
parking. It is the further case of the prosecution that a
few days before 29.11.73, the appellant told the informant
that he should pay him (appellant) a sum of Rs. 60
representing the payment for a whole year @ Rs. 5 per month,
as he was in need of money, and it was finally settled that
if the amount was paid in lump the informant would get a
rebate of Rs. 10 and he would have to pay Rs. 50 only. On
the information given by PW. 1 to the Anti-Corruption staff,
a trap was laid. Five 10 currency notes were treated with
phinolphthalein powder and made over to PW 1 to be paid as
bribe. PW. 9, the Inspector supervised the trap. PWs. 3 and
8 were called as Panches. At about 8 in the morning on
29.11.73, PW. 1 met the appellant near Jalaram hotel. PW. 9
and his companions remained at a distance of about 150 feet.
PWs. 1 and 3 went into the hotel along with the appellant.
According to PW. 1 he took out the five 10 rupees currency
notes and paid them to the appellant who received the notes
in his left hand and put them into the side pocket of his
khaki shirt. Thereupon as previously arranged, PW. 3 placed
orders in loud voice for pondas. At this state PW. 9 and
others came up to the appellant and recovered the money. It
is said that the currency notes were dipped into the mixture
of Sodium Carbonate and same turned rosy in colour.
Similarly the pocket of the shirt and the fingers of the
appellant were put to test and these too turned rosy.
The defence was a total denial of the bribe having been
demanded and taken. The appellant stated under s. 313,
Crl.P.C.
857
that “at about 9.30 A.M. when I was writing my diary in the
hotel, Ramji (PW. 1) came in the hotel and sat by my side.
Ramji then asked whether I knew the death of one woman. I
told him that I do not know any thing about it though I had
gone to the hospital to bring the medicine. Then he took tea
and got up. The Mankadia Saheb, Patel Saheb and Morarji came
there, when I was standing up to go to the bus stand then on
Ramjibhai making some sign, Mankadia Saheb asked me to take
out those notes but I refused to do so and, therefore, Mr.
Patel took out those notes and counted….”
On behalf of the appellant, it had been contended
before the trial Court that PWs. 3 and 8 the Panch witnesses
were interested in PW. 1 and PW. 1 was previously working in
the police and had been removed from service. It is on
account of this interestedness that these Panches were not
reliable. The learned trial Judge did not believe the
prosecution evidence regarding acceptance of Rs. 50 by the
appellant and accepted the defence stand that the currency
notes had been inserted by PW. 1 into the pocket of the
appellant. The entire evidence had been taken into account
by the learned trial Judge in reaching his conclusion and he
acquitted the appellant of both the charges levelled against
him.
This judgment of acquittal was assailed by the State in
appeal before the High Court. Dealing with the question as
to whether the currency notes could have been inserted into
the appellant’s pocket, the High Court observed:
“On our part we find it extremely difficult to accept this
version. The respondent was a policeman who was about to
retire in a short time. He had been in service for more than
30 years. Even if one is extremely credulous, it is not
possible to believe that a policeman would not come to know
if some one sitting at a distance of 6” inserts currency
notes in his left hand side pocket. To us it appears that
such a feat cannot be achieved. Even if attempted, the
respondent would have come to know about it.
The trial Court had accepted the defence plea of
possibility of insertion of the currency notes without the
appellant knowing about it. The High Court reversed the
trial Court in this regard by merely drawing a presumption
on the basis of the appellant having been a policeman. The
appellant was already nearing the age of superannuation as
found by the High Court and had been for more than 30 years
in service. The High Court obviously lost sight of the fact
that the appellant may have lost his agility
858
and in the peculiar circumstances indicated above the notes
could have been inserted without the appellant knowing it.
Very clever people who are young and agile are often
victimised by pick-pockets and only when their valuables
have been lost the fact is noticed by them. The process here
is the reverse one. Instead of the pocket being picked,
currency notes have been inserted into it. The view of the
trial Court should not have been discarded merely on the
basis of what has been extracted by us above from the
judgment of the High Court.
The allegation that PWs. 3 and 8 were interested in PW.
1 has not been carefully examined by the High Court yet the
conclusion of the trial Court has been disturbed. PW. 7 was
admittedly present at the spot and he has categorically
spoken that when the appellant’s fingers were put into the
mixture they did not turn rosy. The trial Court had referred
to this fact and relied upon it. That evidence which had
been accepted, probabilities the defence plea that the
currency notes had not been received by the appellant in his
left hand and, therefore, the insertion of the notes into
the pocket of the appellant by some other person was more
probable. This is the defence plea which had been accepted
by the trial Court. We are inclined to think that reversal
by the High Court was not warranted.
We accordingly allow this appeal, set aside the
judgment of the High Court and restore the judgment of
acquittal passed by the Trial Court. The bail bonds of the
appellant are discharged.
The appellant was serving as a constable and was due to
superannuate on 10.9.1979. There is nothing on record to
show as to what happened to him when the judgment of
acquittal was set aside. We, however, hope and believe that
the reversal of the judgment of the High Court by us will be
taken due note of and such relief as the appellant is
entitled to in regard to his service benefits, would be
extended to him without any delay.
N.V.K. Appeal allowed.
859
