SOMABHAI GOPALBHAI PATEL Vs STATE OF GUJARAT
Bench: MADAN B. LOKUR,C. NAGAPPAN
Case number: Crl.A. No.-001864-001864 / 2011
Diary number: 9190 / 2011
Advocates: APARNA BHAT Vs
HEMANTIKA WAHI
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1864 OF 2011
Somabhai Gopalbhai Patel … Appellant
versus
State of Gujarat … Respondent
J U D G M E N T
C. NAGAPPAN, J.
1. This appeal is preferred against the judgment dated
14.2.2011 passed by the learned single Judge of the
High Court of Gujarat at Ahmedabad whereby it has
confirmed the judgment of conviction and sentence
dated 21.3.1997 passed by the learned Special Judge,
Banaskandha at Palampur in Special Case No.215 of
1992, wherein the Special Judge had convicted the
appellant-accused for the offence punishable under
Section 7 of the Prevention of Corruption Act, 1988, and
sentenced him to undergo Rigorous Imprisonment of
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one year and to pay a fine of Rs.1000, in default to
undergo simple imprisonment for six months and further
convicted him under Section 13(d)(i)(ii)(iii) read with
Section 13(2) of the said Act and sentenced him to
undergo Rigorous Imprisonment for a period of two
years and to pay a fine of Rs.1500, in default to undergo
simple imprisonment for six months with stipulation that
the sentences would run concurrently.
2. Briefly the facts are stated thus: PW1 Girishbhai is
the son of PW2 Ranchhodbhai and they owned 28
bighas of agricultural land in village Ratanpur. There
was a borewell in the said land fitted with 10 HP motor
and it was not bailing out sufficient water and hence
they planned to replace it with 15 HP motor. In order to
submit an application for the said purpose to the
Electricity Board, they needed documents like village
form No.7, 12, 8-A, map from revenue record and
certificate regarding sufficiency of the water in the
borewell, and therefore, PW1 Girishbhai approached the
appellant/accused Somabhai Gopalbhai Patel who was
Talati-cum-Mantri at Ratanpur village and requested for
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issuance of documents and the accused asked PW1
Girishbhai to come with money and meet him in his
office at Ratanpur. When PW1 inquired the accused as
to how much money he has to bring, the accused told
him to pay the amount as per his desire. PW1 Girishbhai
lodged Exh.12 complaint in the office of Anti-Corruption
Bureau at Palanpur against the accused. The
Investigation Officer on receiving the complaint on
20.11.1991 sought assistance of two Panch witnesses
who were government servants and made them to
understand the case and thereafter experiment of U.V.
lamp was carried out with the help of anthrecene
powder. Thereafter the complainant produced currency
notes of Rs.300 comprising of two notes of Rs.100
denomination and two notes of Rs.50 deomination and a
preliminary part of Panchnama was drawn and signature
of Panchas were taken and anthracene powder was
applied to the said notes in the presence of Panch
witnesses. PW1 Girishbhai took the said currency notes
in his shirt pocket and alongwith PW3 Ismailbhai went in
his scooter to the office of the Ratanpur Panchayat. The
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accused was sitting in his chair in the office and both of
them occupied chairs in front of the accused. PW1
Girishbhai told the accused that as per the earlier talk
he had come to take the documents and the accused
handed over the documents and PW1 Girishbhai asked
the accused as to what is the amount he should give for
it and the accused told him to pay whatever he wants to
give. PW1 Girishbhai gave Rs.250/- and the accused
put the same in his left side shirt pocket. On giving
signal, the raiding party came there and the experiment
of U.V. lamp was carried out on the hands and shirt
pocket of the accused and light blue fluorescent marks
of anthrecene were found on the right hand thumb and
the pocket also. Pancha No.2 took out the currency
notes from the left side pocket of the accused and on
those currency notes light blue florescent marks of
anthrecene powder were found and the numbers tallied
with the numbers mentioned on the first part of the
Panchnama. The second copy of the panchnama was
prepared and the Investigation Officer carried out
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further investigation and after obtaining requisite
sanction, laid the chargesheet against the accused.
3. The learned trial judge framed the charges in
respect of the offences mentioned hereinbefore. The
accused pleaded not guilty and sought to be tried. The
prosecution examined six witnesses and produced
documentary evidence. The accused was examined
under Section 313 of the Code of Criminal Procedure
and answers were recorded. Exh. 50 is the statement
given by him. The trial court found the accused guilty
of the charges and convicted and sentenced him as
stated supra. The accused preferred appeal and the
High Court dismissed the same by impugned judgment.
That is under challenge before us. 4. The learned counsel appearing for the appellant has
raised challenge to the impugned judgment, inter alia,
but primarily on the following grounds:
a) There is no evidence to prove demand and voluntary acceptance of illegal gratification
b) The recovery of the currency notes from the accused had also not been proved inasmuch as panchas are not independent witnesses
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and their evidence did not merit any acceptance.
c) Without prejudice to the above contentions it is also urged that the sentence awarded to the appellant is unreasonably excessive and deserves reduction.
Reliance was placed on the following decisions of this
Court : 1. A. Subair vs. State of Kerala (2009) 6 SCC
587; 2. State of Kerala and another vs. C.P. Rao
(2011) 6 SCC 450; 3. Banarsi Dass vs. State of
Haryana (2010) 4 SCC 450 and 4. B.Jayaraj vs. State
of A.P. 2014 (4) SCALE 81. 5. Per contra the learned counsel appearing for the
State contended that the judgment of conviction and
sentence is duly supported by the oral and documentary
evidence produced by the prosecution and does not call
for any interference. Emphasis was made to the
version of panch witnesses, the scientific proof and the
testimony of the Investigation Officer and the principle
of presumption was pressed into service to bring home
the charges leveled against the accused. In support of
the submission reliance was placed on the decision of
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this Court in Narendra Champaklal Trivedi vs. State
of Gujarat (2012) 7 SCC 80. 6. The primary requisite of an offence under Section
13(1)(d) of the Act is proof of demand or request of a
valuable thing or pecuniary advantage from the public
servant. In the first two decisions relied on by the
learned counsel for the appellant cited supra, on facts,
the complainant in the case was not examined and this
Court held that there is no substantive evidence to
prove the factum of demand. The complainant in the
present case has been examined and hence those
decisions would not be of any help to the appellant
herein. In the remaining two decisions relied on by the
learned counsel for the appellant referred to supra, on
facts, the complainant did not support the prosecution
case insofar as demand made by the accused is
concerned and disowned his complaint and declared
hostile by the prosecution and in such circumstances,
this Court held that in the absence of any proof of
demand for illegal gratification the use of corrupt or
illegal means or abuse of position as a public servant to
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obtain any valuable thing or pecuniary advantage
cannot be held to be established.
7. The core question in this appeal is as to whether
there is sufficient legal evidence on record to bring
home the guilt of the appellant for the offence under
Sections 7 and 13(1)(d) read with Section 13(2) of the
Act. The prosecution examined the complainant
Girishbhai as PW1 in the case and in his examination-in-
chief he has testified that he met the Talati namely the
accused and asked him to issue the documents he has
applied for and the Talati asked him to come with money
and meet him in his office at Ratanpur and the Talati
had not told him as to how much money he has to bring
and since Talati was asking for bribe from him, he went
to the office of ACB and informed the demand of bribe
made by accused to the police inspector and also gave
Exh. 12 complaint which bears his signature. It is his
further testimony that the police inspector on receiving
the complaint sought assistance of two panch-witnesses
who were made to understand the case and he gave
two currency notes of Rs.100 in denomination and two
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currency notes of Rs.50 in denomination and the
Investigation Officer noted the numbers of the said
currency notes and a powder was applied to the said
notes and as per instruction he had put the notes in his
left side pocket of the shirt and along with one panch
witness went to the office of Talati at Ratanpur in his
scooter. According to the complainant, Talati was sitting
in his chair in the office and they also took their seats in
front of him and he demanded the documents and the
accused handed over the same in the presence of panch
witness and at that time he asked the accused as to
what amount he has to give to him and thereafter he
put Rs.250 on his table and the accused told him that
he has to take about Rs.100 but he went from there and
gave signal upon which the raiding party came in and
the Investigation Officer took the currency notes from
the accused. At this point of time during the chief
examination, public prosecutor asked permission of the
Court to put questions in the nature of cross-
examination to PW1 and permission was granted. It is
relevant to point out that PW1 was not declared hostile
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but the prosecution sought permission to cross examine
him and that was granted. As seen above in the
examination-in-chief itself PW1 Girishbhai has supported
the prosecution case by testifying about the demand of
money made by the accused and the giving of Rs.250
by him to the accused. There is also corroboration in
the form of testimony of shadow witness. PW 3
Ismailbhai was summoned by the Investigation Officer
to act as Panch witness and made to understand the
case as well as the experiment of U.V. lamp and he has
testified that he went along with the complainant PW1
Girishbhai in his scooter to the office of Ratanpur
panchayat and they went in and found the Talati namely
the accused sitting in his chair and they sat opposite to
him. It is his further testimony that PW1 Girishbhai told
the accused that as per the earlier talk he had come to
take the documents and the accused handed over the
same to him and PW1 Girishbhai asked him as to how
much amount he should give him for it and the accused
told him to pay whatever he wants to give and PW1
further asked him as to whether Rs.250 would be proper
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and the accused said it would be o.k. and thereupon
PW1 Girishbhai took Rs.250 from his shirt pocket and
gave it to the accused and the accused put the same in
his left pocket by his right hand and PW1 Girishbhai
went out and gave signal while he was sitting there.
PW3 Ismailbhai has further testified that the raiding
party rushed in and in the light of U.V. Lamp, light blue
colour was shining on the right thumb of the accused
and also inside his shirt pocket and the other panch
witness took the currency notes from the pocket of the
accused and the light blue fluorescent marks were
found in the light of U.V. Lamp on the currency notes
and the numbers of the said notes were tallied with the
numbers of the notes mentioned in the first part of the
panchnama and the documents namely Exh. 6 to 9 were
seized along with other articles by the Investigation
Officer. 8. The shadow witness has clearly stated in his
testimony about the demand of bribe and giving of the
same to the accused. Nothing has been brought on
record to doubt the presence of the shadow witness.
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His testimony fully corroborates the testimony of the
complainant namely PW1 Girishbhai. Though the
prosecution was permitted to put questions in the
nature of cross-examination to PW1, he was never
declared hostile. In fact, as already seen, PW1
Girishbhai has fully supported the case of the
prosecution by testifying about the demand of illegal
gratification made by the accused to him and
acceptance of the same. In our view the prosecution has
established the demand and the acceptance of the
amount by the accused as illegal gratification.
9. In the same way the recovery of the currency notes
from the possession of the accused stood proved by the
testimonies of PW3 Ismailbhai PW6 Madarsing and the
Investigation Officer PW7. The serial number of the
currency notes recovered tallied with the serial numbers
written in the first part of the panchanama and on the
experiment of U.V. Lamp anthracene powder was found
on the toe of right thumb of the accused and the pocket
of his shirt. The accused in his statement given under
Section 313 Cr.P.C. has stated that a sum of Rs.100 was
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due towards land revenue tax from the complainant
and he had only taken the said amount from him
towards the tax. The accused has not substantiated the
said plea by producing any document relating to tax due
and it appears to be only an afterthought. The Courts
below have rightly not accepted the said explanation
offered by him. We have no hesitation in stating that
the accused miserably failed to dislodge the
presumption under Section 20 of the Act. Thus
analysed and understood, there remains no shadow of
doubt that the appellant-accused had demanded the
bribe and accepted the same to provide the documents
sought for by the complainant. Therefore, the
conviction recorded by the learned trial judge which has
been affirmed by the learned single Judge of the High
Court does not warrant any interference.
10. What remains is the plea made on behalf of the
appellant for reduction of sentence. The appellant is
said to be 60 years old and suffering from heart disease,
facial nerve palsy and speech disorder. Copies of
medical reports have been filed in this regard. We are
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of the view that the imposition of minimum sentence
prescribed for the offences for which the conviction is
made would meet the ends of justice.
11. In the result the sentence of one year rigorous
imprisonment imposed on the appellant-accused for the
conviction under Section 7 of the Act is set aside and
instead he is sentenced to undergo rigorous
imprisonment for a period of six months and the
sentence of fine and default sentence imposed on him
for the said conviction is retained. Sentence of two
years rigorous imprisonment imposed on the appellant-
accused for the conviction under Section 13(1)(d) read
with Section 13(2) of the Act is set aside and instead he
is sentenced to undergo rigorous imprisonment for a
period of one year and the sentence of fine and default
sentence imposed on him for the said conviction is
retained. The sentences are to run concurrently. The
Criminal appeal is allowed to the extent indicated
above.
…….…………………...J.
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(Madan B. Lokur)
.…………………………J. (C. Nagappan)
New Delhi; September 24, 2014.
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