STATE OF GUJARAT v. RAGHUNATH VAMANRAO BAXI

High Court in Cr!. Appeal No. 750 of 1973. N. L. Kakar, and R.N. Poddar for the Appellant. S.K; Dho/akia, R.C. Bhatia and P.C. Kapur for the Respondent.. The Judgment of the ·court was delivered by \~ CHINNAPPA REDDY.J The Respondent was an Income-tax, \ Officer. He was tried and C)nvicted by the Additi0nal Special Judge, Ahmedabad of offence under Section 161, Indian Penal Code and Section 5(2) read with s,ction 5(1) (d) of the Prevention of Corrup tion Act. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs, 2,000 on each of the two counts. On appeal, the High Court of Gujarat acquitted the accused of both the 'offences. The State of Gujarat has preferred this appeal by special leave of this Court under Article 136 of the Constitution. A B c 0 E F G The case of the prosecution briefly was as follows : One Shashi Kant Mansukh Lal Sheth (P.W. 2) was the H 736 SUPREY:E COURf REPORTS (1985) 3 S.C.R. firm known as M/s Hind Fertilizers, Managing partner of a Bhavnagar. The assessments for the years 1968-69, 1969-70, 19\J.71 and 1971-72 were ponding before the accused-Incom~-tax Officer. Between June and October 1971, there were nine hearings of the case. On3 .5.72, Laxmilrnnt Sheth (p.W. 7) the Income-tax practioner who was representing the firm, received a notice directing the firm's representative to attend his office on 14.3.72 with the firm's book! of account and to show cause why sums tot&lling Rs. 1,94,378 should not be added to their returns of income for the years b question. The firm felt that the notice was not justified. As P. W. 7 would be busy on 14.3. 72, it was decided that they would go to the income-tax office with their books of account on: 13th .....i.·' itself. On 10.3.72, Shashi Kant Sheth (P.W. 2) contacted the.~- · "'-: income- tax officer on tbe telephone and the latter asked liim to meet him at his residence at 2.00 P.M. Shashi Kant went to the house of accused at Bhavnagar that afternoon. He was told to come again on the evening of 13th. On the 13th, P.Ws 2 !Ind 7 went to the office and submitted the reply to the show cause uotice. The accused wanted them to meet him again on 14th. P.W.7 said he was busy on 14th. The accused then asked P.W. 2 to come· alone. As previously agreed on 10th, Shashi Kant went to the house of the accused on the night of 13th when the accused told him that the clarification given by the firm was not satisfactory and that they would have to pay a sum of about Rs 12500 by way of tax unless a sum of Rs. 40,000 was given to him as a bribe. On P.W. 2 pleading his inability to pay such a large sum, it was settled that ff sum of Rs. 12,500 should be paid . . P.W. 2 wanted to consult his partner. He was told by the accused that he should bring the amount t0 his house on the evening of 14th March, 1973. · There after, Shashi Kant contacted Shri. Judeja, Deputy Superint~nde~f:-j" of police, CBI who was campmg · at Bhavna&ar Shasht Kant f complained to him about the demand of bribe of Rs. 12,500 by the accused. Shri Judeja then took the neces5ary steps for laying a trap. Two officers of the postal department Shri Parikh, Manager, Postal Store Depot, Ahmedabad (P.W. 3) who was staying in the guest- house, and Shri Panchal, an officer of the Postal Department statio- ned at Bhavnagar itself were requested to serve as panch-witnesses. · Shashi Kant was asked to bring currency notes of the value of Rs. 12,500. The notes ll'ere treated with phenol-phethelen powder. to go Shashi Kant put the notes in his pocket. He was instructed ten<.ler to the house of the accused accompanied by Parikh and to ' A B c D E F G H GiJJARAt v. R. YAMAN RAO (Chinnappa ~eddy, j,) 737 the amount to the accused. On the accused receiving the amount Shri Parikh was tO' come out of the house and signal the police party to como. A panchn 1m' stating all these facts was duly prepared at the guest-house. Thereafter, as arranged, the raiding party proceeded towards the house of the accused. Shahsi Kant and Parikh, P. Ws 2 and 3, went inside. Shahsi Kant introduced Parikh to him as a member of his staff. They chatted generally for some time. The accused then mentioned about the amount to be paid to him whereupon Shashi Kant handed over the bundle of currency notes to him. The currency notes were received by the accused who carefully put them in a newspaper and folded the newspaper. the police party. Judeja, Parikh then went out and signalled to ...... --Py. Supdt. of Police P.W. 9, tho other panch-witness Panchal and the rest of tho polic• party ruslo.ed i1uide. The notes wen seized. The accused was asked to dip his fin1ers in a solution of bicarbonate. The solution turned pink. Thereafter, the pauchnama was prepared. After the investigation was duly completed, the respoudent was charge-sheeted for the two offences of which he was ultimately convicted. . ......_ The defence of the accused wa> that the prosecution case was false. Shashi Kant came to his house with a stranger on the ni~ht of 14.3.72. He was surprised at his visit, but for the sake of courtsey, he asked him to sit down and asked him the purpose of his visit. Instead of replying him, Shashi l(ant and the stranger started talking about politics to him. He told him that he was a public servant and he was not interested in politics. He also told them that he wanted to go to bed. He went to the toilet for a few minutes and when he returned, Shahsi Kant and the stranger stood ~lip and went away after shaking hands with him. A few moments \later they returned with the police party. They must have planted the notes in the newspaper which was lying on the table when he had gone to the toilet. It is seen from the facts narrated above that meeting of Shashi Kant and Parikh with the accused on the night of 14.3.72 at 8.00P.M. is not disputed. a.lso not disputed that Shashi Kant and Parikh talked to the a accused for quite considerable time, nearly 40 minutes. It is further not disputed that within a few moments after Shashi Kant and Parikh left the accused, Judeja, Panchal and rest of It is A c D F E G H • 138 StlPREMB CotiRT REPORTS (1985] J s;C.R. the brief visit of police party entered the house of the accused and currency not~s of the valne of Rs. 12, 500 were seized from in a fold of a news paper laying on the table. The accused was present all the time and there was no protest by him. That the fingers of the accused were;, also in some solution is not disputed. The only question is dipped whether the amount of Rs. 12,500 was received by the accused as a bribe or whether the amount was planted by Shashi Kant and Parikh during toilet. the evidence of Shashi The learned Sessions Judge accepted Kant, Parikh and Judeja and convicted the accused as aforesaid. The High Court, however, took are markably curious view of the evi,dencc and acquitted the accused. The High Court narrated several cifcum- stances, one after an other, why the prosecution case should iiot be,...-~ accepted. We have considered every one of the circumstances and we find that there is not a single satisfactory circumstance resosnably justifying the acquittal. On the other hand we find that everyone of the circumstances is overstated and fanciful. the accused to the ' ' ~· The most important circumstance which to have weighed heavily with the High Court, almost to the point of obsession, was that Parikh and Panchal were not independent wit nesses as·they were both governmont servants and as they had some previous acquaintmce with Inspector Sharma who was as~isting Judeja in the investigation. The High Court was of the vie.Y that some other respectable residents of Bhavnagar should have, been called as Panch-witnesses to be associated with the raid. We are afraid the High Court has entirely misdirected itsolf in appreciating In their approach to the evidence, the High Court the evidence. has done injustice to the witnesses and this has resulted in a· grave ~iscarriage o~ justice', m each case JS whetner the witness is a whether, there is anything to doubt his veracity in any pariicular the witness matter end of the matter. Where the witness is found to be partly truthful or to spring from tainted sources, the Court may take the precaution of seeking some corroboration, adequate and reasonable a the demands of the court is not entitled to reject the evidence of a witness merely because they are government servants, who, in the course of their duties or even otherwise, might have come into contact with inves- deposes. Where to be untruthful on m1terial facts about which .situation, to meet In appreciating _oral evidence, the qtjestioii~ truthful witness and ( A B c D E J.1 G H - GUJARAT v. R. VAMAN RAO (Chinnappa Reddy, J.) 739 ligating officers and who might have been requested to assist the investigating agencies. If their association 'with the investigating agencies is unusual, frequent or designed, there may. be occasion to view their evidence with suspicion. But merely because they are the investigation as they called in to associate themseleves with happened to be avilable or it is convenient to call them, it is no ground to view their evidence with suspicion. Even in cases where officers who, in the course of their duties, generally assist the investigating agencies, there is no need to view their evidence with suspicion as an invariable rule. For example, in rural areas, investigating offic;rs would ordinarily think of calling in the village officers, such as, the Headman,· the Patel or Patwari to act as punch witnesses, as they are expected to be respectable persons of the locality. It does not mean that their evidence should be viewed with suspicion because they are government servants or because they are generally associated with investigating agencies whenever there is a crime in the village. · For that matter. it would be wrong to reject the evidence of police Officers either. on the mere gronnd that they are interested in the success of the prosecution. The court may be justified in looking with suspicion upon the evidence of officers who have been tdemonstrated to have displayed excess of zeal in the conduct and success of the prosecution. But to reject the evidence of all official witnesses as the High Court has done in the present case, is going far too far. We think tha.t it is extremely unfair to a witness to reject his evidence by merely giving him a label. There were two panch witnesses Parikh and Panchal of whom Parikh has been examined as PW .3 while Panchal has not been examined. We have been taken through the Whole of the -'f'~ deposition of Parikh and . we find nothing whatever to doubt \ his veracity. Nothing was ·suggested to him as .to why he sh~uld give false evidence to implicate the accused. All that was elicited from him was that he had worked as departmeotal inquiry officer and also to defend delinquents in such inquiries in his department. He had become acquainted with Inspector Sharma fifte,en days before March 14, 1972 as he was defending a delinquent at Bhavnagar in a case in which ·Shri Sha.rtna was the prosecuting officer. Shri ·Panchal, who was Assistant Superintendent of Post Offices, Bhavnagar was the Inquiry Officer in that case. This is stated to be the "close association" of the two panch witnesses A c D E F H '140 SUPREME COURT REPORTS (!985) 3 S.C.R. .A • ,..,..(_ A B c D E F G H thought that they could be called as It is impossible to with the investigating· agency in this case. subscribe to this view. When Judeja, Deputy Superintendent ·of Police asked Inspector Sharma \o get two independent pan~h witnesses, Parikh was readily available in the guest house and he had known Panchal as the Inquiry Officer in a departmental inquiry in the Postal Department. Both of them being Govern ment Servants belonging to a different department, if Inspector Sharma independent to the punch witnesses, we are unable to impute any motives investigating agency or to cast aspersions on the witnesses Parikh and Panchal. We do not have any doubt in accepting the evi- dence of Parikh as that of an independent witness. Having exa- mined his evidence in detail, we find his evidence to he truthful. Hi• evidence 1ubstantiates the evidenc• of P\11-2 about the acceptance of the bribe by the accused and his keeping the money If we accept the evidence of PWs 2 a.nd in a folded newspaper. 4, the prosecution case that the. money was given as a bribe must be accepted and the defence version that the money was planted must be rejected. The other circumstances upon which the High Court relied are very trivial and it is unnecessary to burden this judgment with a seriatim discussion of those ciscumstances. For example, one that if the accused bad arranged that of the circumstances was PW-2 should come to him on the evening .of 14th with the bribe, he would have been waiting in his house to receive him with the doors of the house open iO the bribe-giver may walk in straight and he was not likely to have kept the doors closed and the bribe-giver to knock at the door. We consider it wait for needless even to comment upon this circumstance. Another the High Court relied was that ihe circumstance npon which to have talked with PWs 2 and 3 for accused was not likely if he was accepting a bribe. He would long as 40 minutes have merely received the money and sent them away. The very fact that he was talking to them for nearly 40 minutes indicated that no bribe was given or taken. On the other hand, we cbn sider that this is a strong circumstance against the accused. The that PW-2 was an assessee who had a ·pending <;ase accused knew If the assessee paid him a visit after 8.00 PM at·his before him. the accused to immediately suspect residence, one would expect the reason for the visit and to turn him away at once or at least GUJARATV. R. VAMAN RAO (Chinliappa fl.eddy,!,) 74J within a few minutes after his coming to his house. Instead of that, he takes them inside the house, talks to them for nearly 40 minutes. This conduct of the accused is clearly against his innocence. Some question was raised that the solution which according to the investigating officer and tile panch witness turned pink when to dip his fingers in it, bad become the accused was asked yellowish when the chemical examiner examined the solution. Nothing really turns on this in view of the evidence of PWs 2, 4 and that of the investigating officer PW-9. the failure _of A point was sought to be made in this court of the failure of the prosecution to examine Inspector Sliarma as a witness. ......._~ All that Inspector Sharma did in the case was to assist Judeja, Deputy Superintendent of Police and to fetch the two panch wit nesses when he was asked to do so. He could not by any means be called a material witness .. As some comment was made during the prosecution the course of the trial about to examine Inspector Sharma, the prosecution offered him for cross-examination and kept Inspector Sharma court. The the witness had already been dropped by the prosecution, he did not want to examine him unless the court directed him to do so. After the failure of the counsel of the accused take advantage of the offer made by the prosecution, we do not think that it is open to the accused to comment upon the so-called failure' of the prosecution to examine Inspector Sharma as a witness. Nor can we draw any adverse inference against the prosecution. On this question, the High Court took the same view as we do. counsel for the accused stated ready in slightest doubt From the evidence of PWs 2, 3 and 9, we do not have the that a sum of Rs, 12,500 was paid to and received · by the accused as a bribe. The \e,1rned Sessions Judge was clearly right in convicting the accused and the High Court was wrong in acquitting the accused. We do not think that this is a case where two views were resonably possible. The only possible view was that the accused was guilty and we hold him guilty of both the offences under section 161 !PC and section S (2) read with section S (!) (d) of the Prevention of Corruption Act, !947. The learned counsel for the accused argued in view of the long time that has elapsed since the commission of the offence and in view of the circumstance that the accused has also retired from service, • :>. A c D G H 742 SUPREME COURT REPORTS [1985] j S.(1.1\.. A B c D we may take a lenient view and .not sentence the accused to ~ny term of imprisonment. But under sec. 5 (2) of the Prevention' of Corruption Act, 1947, the minimum sentence tlut can be impos:ed is imprisonment for one year and the nnximum sentence is seven years. However, the court, for any special reasons to be recorded in writing, may impose a s·entence of imprisonment of less than one year. We are unable to find any special circumstance in this case justifying our taking a lenient view. Corruption become so rampant in the country and the offence in this patti· ular case cannot be considered trivial at all. This is not a dse of a petty clerk or a peon accepting a small amount as a bribe for doing some little favour. We cannot possibly take a lenient vi~w of the conduct of an income tax officer, who accepts a large amount as a bribe for causing loss to public revenue. We think that the sentences imposed by the learned Session Judge were the right sentences to be imposed on the accused .. The judgment of the High Court is se.t aside and that of the learned Special Judge is restored. The accused will surrender to his bail. _ _- E S.R. t1 pp ea I 1!1/0 well '