B.S.KAPADIA - (1.) Criminal Appeal No. 236 of 1983 is filed by Prafulchandra Somalal Vasani original accused No. 1 against the order of conviction for the offence punishable under sec. 161 of the Indian Penal Code and the sentence to undergo simple imprisonment for a period of three months and further for the conviction for the offence punishable under sec. 5(1)(d) read with sec. 5(2) of the Prevention of Corruption Act and the sentence of simple imprisonment for a period of 6 months and a fine of Rs. 500.00 in default to undergo simple imprisonment for a period of 2 months passed by the learned Special Judge Bhavnagar District on 9/02/1983 in Special Case No. 1 of 1982. The State has filed Criminal Appeal No. 343 of 1983 against appellant Prafulchandra Somalal Vasani under sec. 377 of the Criminal Procedure Code for enhancement of the sentence on the ground that on Special reason is made out by the learned Special Judge for awarding lesser sentence. In Special Case No. 1 of 1982 original accused No. 2 was one Purshottam Sukha. He was also charged for the offence punishable under sec. 5(2) read with sec. 5(1)(d) of the Prevention of Corruption Act and also for the offence punishable under secs. 161 and 165A of the Indian Penal Code. However the learned Special Judge has found him not guilty and therefore acquitted him of the said charges levelled against him. The State has filed Criminal Appeal No 344 of 1983 against the acquittal or original accused No. 2 Purshottam Sukha. ... . ... ... ... ...................... ................. ..................................
(2.) Mr. N. N. Gandhi the learned advocate appearing for the appellant - (accused No. 1) submits that the evidence led by the prosecution in the case for the purpose of proving the technique of the anthracene powder alleged to have been applied on the currency notes and thereafter alleged to have been found from the person of the accused and the complainant cannot be accepted in view of the decisions of this Court. Mr. Gandhi further submits that the Panch witnesses are not independent and therefore their evidence cannot be relied upon. Mr. Gandhi submits that the evidence of the complainant also cannot be relied upon particularly when it is not corroborated by other substantive evidence. Mr. Gandhi also submits that the evidence of P. I. Chauhan is the evidence of an interested witness and therefore that evidence also cannot be relied upon without corroboration. According to Mr. Gandhi the material witnesses are not examined and they are dropped by purshis exh. 24 are according to him witnesses Mohan and Dharamshi were material witnesses and as the material witnesses are not examined according to him an adverse inference should be drawn against the prosecution. For the purpose of the aforesaid submission Mr. Gandhi has relied upon certain authorities.
(3.) It may be stated at the outset that Mr. Gandhi the learned advocate for the appellant (original accused No. 1) has first submitted on the point of the appreciation of evidence particularly that of the complainant bribe giver that his evidence is that of an accomplice and in support of his submission he has relied on the decision of the Supreme Court in the case of Panalal Damodar Rathi V. State of Maharashtra reported in AIR 1979 Supreme Court page 1191. In the said case in paragraph 8 it has been observed as under: There could be no doubt that the evidence of the complainant should be corroborated in material particulars. after introduction of sec. 165-A of the I. P. C. making the person who other bribe guilty of abetment of bribery the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon. When the aforesaid observations are to be considered they are to be considered in the light of the facts of that case. The complainant of the said case was being tried for an offence under Bombay Prohibition Act. The appellant before the Supreme Court worked as Police Prosecutor whereas the second accused was on duty as Court orderly. According to the prosecution the appellant advised the compliant to plead guilty 60 that he would be let on on nominal sentence and on his part promised not to bring to the notice of the Court the previous conviction. He demanded Rs. 50.00 as gratification Again after some days the appellant contacted the complainant and repeated his demand. The complainant promised to make payment on 21/11/1969 In the meanwhile on 19/11/1969 the complainant wrote to the Police Sub- Inspector attached to the Anti-Corruption Branch complaining of the illegal demand and requesting the officer to meet him at his village on the evening of 28/11/1969 as the case was posted for the next day and thereafter trap was arranged and the complainants version was that at about 1 P. M. he and the Panchas stood near the eastern side of the varandah of the Court building the appellant came near him and inquired if he had come. The complainant told him to relieve him from the case and to see he was given a lesser sentence. The appellant asked him if he had brought the money and the complainant told him that be had. The second accused Dalvi was standing there. Complainant was told to pay tine money to constable Dalvi. Appellant asked Dalvi to receive the money from him and then went inside the Court. When this conversation took place between him and the appellant the panchas were standing at a distance of 2 to 3 feet from him. However in the said case there was no hesitation or non-inclination of the complainant to give bribe. He wanted to take undue advantage from the Public Prosecutor. Under the circumstances he was willing to give bribe and when a man offers the bribe willingly naturally he would be guilty for the offence punishable under sec. 165-A of the Indian Penal Code and therefore he would be an abettor and therefore his evidence can be treated as that of an accomplice. In the said case there was inconsistency between his version and prosecution witness No. 3 with regard to conversation and therefore the benefit of doubt was given to them. Thus it is clear that the aforesaid observations are made in respect of the complainant who had willingly offered the bribe.;