Salimkhan Sardarkhan v. Stare of Gujarat

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(l)(d) read with s. 5(2) of Act. No. 2 of 1947, on the allega-tion of having received Rs. 50 as bribe.

The appellant was a police constable and at the rel~vant time, on 29.11.73, he was posted at S.T. Bus Stand at Hhaber. 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. lt is the prosecution case that PW 1 used by pay Rs. 5 per month to . the appellant as a consideration for not prosecuUng 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 infonuant 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 phinolphtha-lein 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. !'vis. 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 Soditml 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 bt'ibe having been demanded and taken. The appellant stated under s. 313, Crl.P.C. 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 mtes 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 possibie 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 possi-bility 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 appel-lant 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 Hi~ Court obviously lost sight of the fact that the appellant may have lost his agility 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 notice<! 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, probabilises 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 appelllant 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. Appeal allowed.

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.

Mrs. Sheil Sethi for the Appellant.

S.K. Dholakia and R.N. Poddar for the Respondent.