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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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