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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

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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,

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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

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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