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PETITIONER: STATE  OF GUJARAT

       Vs.

RESPONDENT: RAGHUNATH VAMANRAO BAXI

DATE OF JUDGMENT06/04/1985

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) VENKATARAMIAH, E.S. (J)

CITATION:  1985 AIR 1092            1985 SCR  (3) 733  1985 SCC  (3)  45        1985 SCALE  (1)697

ACT:          Evidence-Appreciation of oral evidence Of different witnesses ,   explained-where the oral evidence supported by circumstantial evidence  lead only  to one  possible view of guilt and  no two  views were  reasonably   possible ,   the accused must  be held  guilty of  the  offence  charged-Trap witnesses ,   evidentiary value of-Sentence-When the statute prescribes a  minimum sentence  ,  the fact that offence was committed long back or that the accused retired from service will be of no avail.

HEADNOTE:              The Respondent was an Income Tax Officer He was tried a-d  convicted of the offence under section 161 Indian Penal Code  read and section 5(2) read with section 5(1) (d) of the Prevention of Corruption Act The prosecution produced among other  ,   PWs the managing partner of a firm known as M/s Hind  Fertilizer ,   Bhavnagar  an assessee  before  the accused from  whom a  bribe of Rs. 12 , 500 was demanded and accepted  on  14.3.1972  Sri  Parikh  Manager  Postal  Store Department witness  to the trap laid against the accused and Mr Judeja (PW 9) the Dy. Supdt. of Police The defence of the accused  was  that  the  prosecutions  version  of  how  the currency notes were seized from him was false and that PWs 2 JUDGMENT: gone to  the toilet  The Additional  Special Judge Ahmedabad accepted the prosecution version convicted the respondent of the offences with which he was charged and sentenced hi n 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. Hence the State appeal by special leave of the Court          Allowing the appeal ,  the Court. ^      HELD 1 1 From the evidence of PWs 2 3 and 9 it is clear beyond doubt  that a  sum of  R- 12  500  Was  paid  to  and received by  the  accused  as  a  bribe  and  therefore  his conviction by  the Trial  Court was wrongly set aside by the High  Court  This  is  not  a  case  where  the  views  were reasonably possible  The only  possible view  was  that  the accused was  guilty of  both the  offences under section 161 Indian Penal code and section 5(2) read with section 5(1)(d)

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of the Prevention of Corruption Act ,  1947 [741G-H] 734            1.2 In the instant case ,  both Parikh (PW 3) and Panchal (not  examined) arc certainly independent witnesses. Both  of   them  are  government  servants  belonging  to  a different department ,  and if Inspector Sharma thought that they could  be called  as independent  panch witnesses ,  no motive can  be imputed  to the  investigating agency  and no aspersions can  be cast  on the said witnesses. The evidence of Parikh  was  truthful.  His  evidence  substantiates  the evidence of PW 2 ,  about the acceptance of the bribe by the accused and  his keeping  the money  in a  folded newspaper. From the  circumstances that  the accused  did not keep open the doors  of his  house expecting  PW 2  ,   that he was in conversation with  PW 2  for more than 40 minutes instead of sending him  away after  taking the  alleged bribe  ,    the colour of  the solution  had  changed  to  yellow  when  the Chemical Examiner  ,   examined it  and that  the failure to examine Sharma  the inspector  no adverse  inference can  be drawn against  the prosecution.  In fact  ,  the prosecution offered Sharma  for cross-examination  and kept him ready in court. The  counsel for  the accused  stated that  since 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 to take advantage  of the  offer made  by the prosecution it is not open  to the  accuses in  the appeal by special leave to comment upon  the so-called  failure of  the prosecution  to examine Inspector Sharma as a witness.                                   [740B-D ,  F; 741B ,  B-E]            2.1 In appreciating oral evidence ,  the question in each  case is  whether the  witness is a truthful witness and whether  there is  anything to doubt his veracity in any particular matter  about which he deposes. Where the witness is found  to be  untruthful on material facts that is an end of the  matter. Where  the witness  is found  to  be  partly truthful or  spring from  tainted sources  ,   the court may take  the   precaution  of   seeking  some  corroboration  , adequate and  reason.  able  to  meet  the  demands  of  the situation. [738F-G]              2.2  But a  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 investigating officers  and  who  might  have  been  requested  to  assist investigating  agencies.   If  their  association  with  the investigating agencies  is unusual  ,   frequent designed  , there may be occasion to view their evidence with suspicion. But  merely   because  they   are  called  in  to  associate themselves with  the investigation  as they  happened to  be available 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 investigation  agencies ,  there is no need to  view their  evidence h  suspicion as  an invariable rule. For  example ,    in  rural  areas  ,    investigating officers 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

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ground that  they are  interested  in  the  success  of  the prosecution. [708H; 739A-D] 735              2.3  The court may be justified in looking with suspicion upon  the  evidence  of  officers  who  have  been demonstrated 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 ,  ii going far too far. It is extremely unfair to a  witness to  reject his evidence by merely giving him a label. [739D-E]              3.  Under section  5(2) of  the  Prevention  of Corruption Act  ,   1947 ,  the minimum sentence that can be imposed  is  imprisonment  for  One  year  and  the  maximum sentence is  seven years.  However ,   the  Court ,  for any special reasons  to be  recorded in  writing. may  impose  a sentence of  imprisonment of less than one year. There is no special circumstance  in this  case justifying  the court to take a lenient view. Corruption has become so rampant in the country and  the offence  in this  particular case cannot be considered trivial  at all.  This is  not a  case of a petty clerk or  a peon  accepting a  small amount  as a  bribe for doing some  little favour.  The Court can lot take a lenient view of  the conduct of an Income tax officer ,  who accepts a large  amount as  a  bribe  for  causing  loss  to  public revenue. [742A-C]

&             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.180  of 1976. D            From the Judgment and Order dt. 17.10.1974 of the Gujarat High Court in Crl. Appeal No. 750 of 1973.          N. L. Kakar ,  and R.N. Poddar for the Appellant.          S.K. Dholakia ,  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  convicted  by  the  Additional Special Judge  ,   Ahmedabad of  offence under Section 161 , Indian Penal  Code and  Section 5(2)  read with Section 5(1) (d) of the Prevention of Corruption 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.          The case of the prosecution briefly was as follows:          One Shashi Kant Mansukh Lal Sheth (P.W. 2) was the 736 Managing partner  of a  firm known as M/s Hind Fertilizers , Bhavnagar. The  assessments for the years 1968-69 ,  1969-70 ,   1970-71 and  1971-72 were  pending before  the  accused- income-tax Officer.  Between June  and October 1971 ,  there were nine hearings of the case. On 3.5.72 ,  Laxmikant 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 books  of account and to show cause why sums totaling Rs. 1,94,378  should not be added to their returns of income for the years in 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

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their books  of account on 13th itself. On 10.3.72 ,  Shashi Kant Sheth  (P.W. 2) contacted the income-tax officer on the telephone and  the latter  asked him  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 and 7 went to the office and submitted the reply to the show cause notice. 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.  12,500 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 a 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  to his  house on  the evening  of 14th  March  , 1973. There  after ,   Shashi  Kant contacted  Shri Judeja , Deputy Superintendent  of police  ,   CBI who was camping at Bhavnayar Shashi  Kant complained to him about the demand of bribe of  Rs. 12,500  by the  accused. Shri Judeja then took the necessary  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 stationed  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 were treated with  phenol-phethelen powder.  Shashi Kant  put the notes in his pocket. He was instructed to go to the house of the accused accompanied by Parikh and to tender 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 come.A panchnama 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 introduces 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 him. The  currency   notes  were  received  by  the  accused  who carefully put  them in a newspaper and folded the newspaper. Parikh then  went out  and signalled  to the  police  party. Judeja ,   Dy.  Supdt. Of  Police P.W. 9 ,  the other panch- witness Panchal  and the  rest of  the police  party  rushed inside. The  notes were seized. The accused was asked to dip his fingers  in a  solution  of  bicarbonate.  The  solution turned pink  Thereafter ,  the panchnama was prepared. After the investigation  was duly  completed ,  the respondent was charge-sheeted  for   the  two  offences  of  which  he  was ultimately convicted.      The defence  of the  accused was  that the  prosecution case was  false. Shashi  Kant  came  to  his  house  with  a stranger on  the night  of 14.3.72.  He was surprised at his visit ,  but for the sake Of courtesy ,  he asked him to sit down and  asked him  the purpose  of his  visit. Instead  of replying him ,  Shashi Kant 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

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stranger stood  up 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. It is also 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 738 police party  entered the  house of the accused and currency notes of  the value of Rs. 12,500 were seized from in a fold of a  newspaper 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 dipped in some solution is not disputed. The only question is 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  the brief visit  of the  accused  to  the  toilet.  The  learned Sessions Judge  accepted  the  evidence  of  Shashi  Kant  , Parikh and  Judeja and  convicted the  accused as aforesaid. The High  Court ,  however ,  took are markably curious view of the  evidence and  acquitted the  accused. The High Court narrated several  circumstances ,  one after an other ,  why the  prosecution  case  should  not  be  accepted.  We  have considered every  one of  the circumstances and we find that there is  not a  single satisfactory circumstance reasonably justifying the  acquittal. On  the other  hand we  find that everyone of the circumstances is overstated and fanciful.          The most important circumstance which seems to have weighed heavily  with the  High Court ,  almost to the point of obsession  ,   was  that  Parikh  and  Panchal  were  not independent witnesses  as they were both government servants and as  they had  some previous  acquaintance with Inspector Sharma who  was assisting Judeja in the investigation ,  The High Court  was of  the view  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 itself in appreciating the evidence.  In their approach to the evidence ,  the High Court has  done injustice  to the  witnesses  and  this  has resulted in  a grave miscarriage of justice. In appreciating oral evidence  ,   the question  in each case is whether the witness is  a truthful witness and whether there is anything to doubt  his veracity  in any particular matter about which he deposes  Where the  witness is  found to be untruthful on material facts  that is  an 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  to meet the  demands of  the situation  ,   but a  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- 739 tigating 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 called  in to associate themselves with the investigation as they happened to be available or it is convenient to call them ,  it is no

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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 officers 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 ground 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  , demonstrated 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 that 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 deposition  of Parikh  and we  find nothing  whatever to doubt his  veracity. Nothing  was suggested to him as to why he should  give false evidence to implicate the accused. All that was  elicited from  him  was  that  he  had  worked  as departmental inquiry  officer and also to defend delinquents in  such   inquiries  in   his  department.  He  had  become acquainted with  Inspector Sharma  fifteen days before March 14 ,   1972 as he was defending a delinquent at Bhavnagar in a case  in which  Shri Sharma  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 740 with the investigating agency in this case. It is impossible to  subscribe   to  this   view.  When   Judeja  ,    Deputy Superintendent of  Police asked  Inspector Sharma to get two independent panch  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  Government  Servants  belonging  to  a different department  ,   if Inspector  Sharma thought  that they could  be called  as independent  punch witnesses ,  we are unable to impute any motives to the investigating agency or to  cast aspersions  on the witnesses Parikh and Panchal. We do not have any doubt in accepting the evidence of Parikh as that  of an  independent  witness.  Having  examined  his evidence in  detail ,   we find his evidence to be truthful. His evidence  substantiates the  evidence of PWs-2 about the acceptance of  the bribe  by the accused and his keeping the money in  a folded  newspaper. If  we accept the evidence of PWs 2 and 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 Court  are very  trivial and  it  is  unnecessary  to burden this  judgment with  a seriatim  discussion of  those circumstances. For  example ,   one of the circumstances was that if  the accused  had arranged  that PW-2 should come to

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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 so that the bribe-giver may walk in straight and he was not likely to have kept the doors closed and wait for the  bribe-giver to  knock at  the door.  We consider it needless even  to comment  upon this  circumstance.  Another circumstance upon  which the  High Court relied was that the accused was  not likely  to have talked with PWs 2 and 3 for as long  as 40 minutes if he was accepting a bribe. He would 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  consider that  this is  a  strong  circumstance against the  accused. The  accused knew  that  PW-2  was  an assessee who  had a pending case before him. If the assessee paid him a visit after 8.00 PM at his residence ,  one would expect the  accused to  immediately suspect   the reason for the visit and to turn him away at once or at least 741 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 the panch witness turned pink when the accused was asked to dip  his fingers  in it  ,  had become 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.      A point  was sought  to be  made in  this court  of the failure of  the prosecution to examine Inspector Sharma 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 witnesses 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 course  of the trial about the failure of  the prosecution  to examine  Inspector Sharma  , the prosecution  offered him  for cross-examination and kept Inspector Sharma ready in court. The counsel for the accused stated that  since 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  to 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.           From the evidence of PWs 2 ,  3 and 9 ,  we do not have the  slightest doubt  that a sum of Rs. 12,500 was paid to and  received by  the accused  as a  bribe.  The  learned Sessions Judge  was clearly  right in convicting the accused and the  High Court  was wronging acquitting the accused. We do not  think that  this is  a case  where  two  views  were reasonably possible.  The only  possible view was J that the accused was  guilty and  we hold  him  guilty  of  both  the offences under  section 161  IPC and section 5 (2) read with section 5  (1) (d)  of the  Prevention of  Corruption Act  , 1947. The  learned counsel  for the  accused argued  that 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 , 742 we may  take a  lenient view and not sentence the accused to

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any term  of imprisonment.  13th under  sec  5  (2)  of  the Prevention of Corruption Act ,  1947 ,  the minimum sentence that can  be imposed  is imprisonment  for one  year and the maximum sentence is seven years. However ,  the court ,  for any special  reasons to be recorded in writing ,  may impose a sentence 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 has become so rampant in the country and the offence in this particular case cannot be considered trivial at all. This is not a  case 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 view 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 set aside and that of the learned Special Judge is restored. The accused will surrender to his bail. S.R.                                          Appeal allowed 743