,,:;l-"ite-,. c ::'B l'- iB<fe^§^' y^ HIGH COURT OF CHHATTISGARHAT^JL^PUR (SB: Hon'ble Mr. T.P.SHARMA, Jl ^Y ^ Criminal Appeal No.748of 1983 Baharata Ram and anothar Vs. The State of Madhya Pradesh (now Chhattisgsrh) POST FOR PROUNCEMENT OF THE JUOGMENT ON 4/W201CI Sd/- , . T. P. Sharma Judge .'•'^ t/1.A? Respondent HIGH COURT OF CHHATTiSGARH AT BILASPUR Crimsnal Appeai Mo.748 of 1993 1. Baharata Ram son of Chamruram Rathor, aged 35 yea(S, Resident of Viltage : Bhorkadih, Police Station Baradwar, Tehsil: Champa, Districf: Bilaspur (MP) (Now CG) 2. Raghunath Prasad Rathor son of Bandeshwar Prasad Rathor agea 40 years, Resident of Viliage: Saragaon, Police Station Chapa, District : Bilaspur (EX Revsnue Inspector, Chapa Distrlct; Bilaspur). Versus The State of Madhya Pradesh (Now Chhattisgarh), (Criminal Appeai under Seetion 374 (2) of Cr.P.C.; (SB: Hon'bte Mr. T.P. Sharma, J.) Present:- Mr.R.P.Tripaihi, counsei for appeliant No.1 . Mr.Vim!esh Bajpsi, counsel for appellant No.2. Mr.R.R.Sinha, Pane! Lawyerforthe Sterte. ith 1. Chalfenge in this appeai is to the judgment of convtetion & order of sentence dated 28.7.1993 passed by the Special Judge/Fourth Additionat Sesssons Judge, Bilaspur, in Speciat Case No.3/1988, whereby & whereunder tearned Speciat Judge/Fourth Additional Sessions Judge after hoiding the appellante/pubiic servants guilty for habituat of demanding and accepting bribe, demanded and aocepted illegal gratification other than iegal remuneration by abusing theiroffica for himself and for any other person convicled the appeliants under Section 161 of the indian Penal Code and Section 5 (i) (d) read wlth Section 5 (2) of the Prevention of Corruption Act, 1 947 (in short 'the Act, 1947') and ssntenced them to undergo rigorous imprisonment for one year & to pay fine of Rs.500/-, in ctefault of payment for fine to further undergo rigorous imprisonment for six months. ^- 2. Conviciion is impugned on the ground that without there being any fot®of evidence of demanding and accepting iilegstf gratiTication other than iega! remuneration by the public servants by abusing their offfce, the Special Judge/Fourth Additional Sesstons Judge hasconvicted & sentenced the appeliants as aforementioned and thereby committed illegality. 3. Case of the prosecution, in brief, is that on account of death of wife of Narayan Prasad, cousin of comptainant Dhanraj Lawnan (PW-6), compiainant contacted appeitant No.1 Baharata Ram who was posted as Patwari for mutation of names of tegat rspresentathfes of Narayan Prasad. Both the appeilants demanded Rs.lOW- for mutation from the compiainant. Negotiations were going on between the parties for last two months. Meanwhiie, the comptainant spent Rs.300/- in the yaar 1985 for breakfast of the appeiiants. On 7.2.1985, the comptainant v/hc (fvas not ready to give bribe made comptaint to Vne Vigilance Department, Biiaspur vide Ex.P/1. Trsp was consfiiufed. Panch wftness R.N.Singh, Naib-Tahsitdar and B.R.Dhruv, Deputy Coltector were cailed. Complainant produced two currency notes of Rs.100/- denomination and four currency notes of Rs.50/- denomination. Numbers of the currencv.' notes were recordsd in the panchnama. Notes were tainted with phenoiphthatein powder. Reaction of phenotphthaiein powder and sodium carbonate were demonstrated. Currency note was kept in pocket of the comptainant and was directed not to touch the currency notes before giving it to the appeiiants on demand. Primary psnchnama was prepared. Trap party proceeded for the spot. The ccmpiajnant went to the appeiiants, the appeilants were sitting in their office aiong with another Patwari Panchram. After sometime, Patwari Psnchram oame out from the room. Appeilant No.2 Raghunath demanded bribe from the complainant which he gave after taking tainted notes, appeiiant Raghunath gave the currerrcy notes to appellant Baharata Ram, the complainant gave signal, then trap party entered inte the offlGe of the appellants, after introducing themsetves, hands of bcrth the accused persons were caught hoid by the trap party. Sdution of sodium carbonate was prepared. When Srap party errtered in the office of the appetlants, appellant Bahsu-ata Ram who was keeping currency notes of bribe in his pocket of ful! paint took out and thrown on the floor. Hands of both the appeliants were washed with solution of sotiium carbonate 3 which tumed into pink coiour. Pocket of fuil paint of appeilant Baharata Ram was also washed into solution of sodium carbonate which aiso turned into pink colour. Currency notes thrown on the ftoor were took out by the trap party. Numbere of currency notes were tainted with primary panchnama, they were found con-ect. Same was ^aled andseizeci vide Ex.P/3, Final panchnama was prepared vide Ex.P/4. Rs.204/- were also seized from accused Raghunath vide Ex.P/5. Other currency notes and Rs.224.20 were seized from accused Baharata Ram vide Ex.P/6. Documents were seized from appellant Baharata Ram vide Ex.P/7. Other documents were coiisctsd vide Ex.P/9. Oehati nalisW wss recorded on the spot. F.1.R. was lodged. Solution was sent for ehemicai examination. Materia! coilected during the course of investigation v/as sent for obtaining sanctton for prosecution agafnst the appeiiante. Sanction was accorded bythe State Govemment vide Ex.P/10. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after compietion of investigation, charge sheet was fiteci before the Special Judge, Bilaspur. 5. in ordsr to prove the guiit of the accused/appeliants, the prosecution has examined as many as eight witnesses. The accused/appeltants were examined under Sectlon 313 of the Cr.P.C. where they denied the circumstances appearing against them and pieadsd false Impiication in the crime in question. The appellants have examinad the defenc® witness Ramrao Wamankar (DW-1) and have proved Ex.PM A work distribution order ofthethen Sub Divisional Officer, Janjgir. 6. After providing opportunity of hearing to the parties, iearned Speciat Judge/Fourth Additionai Sessions Judge, Bilaspur aonvicted & sentenced the appellants as aforementioned. 7. I have heard Mr.R.P.Tripathi, counset for appellant No.1, Mr.Vimlesh Bsgpai, counsei for appellant No.2, Mr.R.R.Sinha, Panel Lawyer for the State, perused the judgment impugned ar.d recerd ofthetrial Court. 8. Learned counsel for appetlant No.1 vehemently argued in the pr^wit case, ths prosecution has not proved the faetum of demsnd and aeceptance of bribe against appeltant No.1. The aiieged bribe amount has nof been recovered from the possession of appeiiant No.1 Baharata /"A ^- sehalf tne the Ram. Learned counsel further argued that evidence adduced on ber of the prosecution is not natural and acceptable, espedally on She ground of demand and acceptance of bribe in presence of other persons in the office. As per evidenre of panch Witness R.N.Singh (PW-1) they entered into the room of the appeilants, currency notes were !R hands of shadow witness Shri Dhruv, thereafter, currency notes tailed wfth the primary panchnama titl washing of hands of the Currency notes were in the hands of Dhruv. But evidence of prosecution reveats that when hands of appettant No.1 werewashed solution of sodium carbonate then it tumed into pink colour which falsifiss the story offheprosecution. Leamed counsei for appeiiant No.2 vehemently argued iat in the present case, the prosecutton has not proved the factum of tiemaRd and acceptanee of bribe against the appeilants. As per the case of the prosecution, present appellant No.2 Ragfwnath has never demanded any bribe from the complainant, he was not found in possession of currency notes. Shadow witness Dhruv was in posssssion of tainted currency notss in his hands and has made search of pocket of thfe witness with tainted hands, as a resuit of such searoh, pocket wash solution tumed into pink coiour. Learned counsel further argued that in the present case, the prosecution has utteriy failed tp prove demand and acceptance of bribe and possession of tainted currancy notes agasnst the ts. lO.Leamed counsel ptaced reiianee in the matter of Banarsi Dass v.State of Haryana in which the Apex Court has held that demand and acceptance of bribe is essentiat ingredient ofthe offence. Mere proof of rscovery of bribe money from accused fs not sufficient to prave tiTe offence. Leamed counsel further ptaced retiance in the matter of Rain Kumar Va-ma v. State of M.P. in whfeh this Court has held that mere recovery of money from She accused without any proye of demand and acceptance is not sufficient to convici ths appeltants for the offense punishabie under Section 5 (i) (d) read with Ssction 5 (2) cf the Act, 1947. 12010AIRSCW2282 '2010(1)C.G.L.J.S8 rS- '"-"""^^^ w -^ 11.0n the other hand, ieaned State counsel supported the judgment impugned and argued that in the present case, evidences of complainant Dhanraj Laxman (PV\/-6) and panch witness R.N.Singh (PW-1) are sufficient for proving the offenee against both the appellants and the triat Court has rightly convicted & sentenced them as aforsmentloned. 12.tn orderto appreciate the arguments advanced on behatfofthe parties, have examined the evidence adduced on behalfoftheparties. 13.1n the present case, it is not disputed that both the appel!ants are pubiic servants. In order to take cognizance for the offience punishabie under Section 5 (i) (d) readwith Section 5 (2) offheAct, 1947 andSection 161 of the Indian Penal Code, sanction for prosecutien is sm®qua non. !n the present case, in order to prove such sanction, the proseoution has examined N.K.Pandey (PW-7), who has deposed in his svidence that sanction Ex.P/10 has been accorded by the State Govemmsnt. Nothing has been asked by the defence to this witne^ relating to accarding sanction. Ex.P/10 sanction order itself is speaking order whteh reveats that after application of mind, sanctioning authority has accordaJ sanction. 14.As regards the complicity of the appellants in the crime in question, ttie case of the prosecution is substentetty based on evidences of complainant Dhanraj Laxman (PW-6) and panch v/Etne^ R.N.Sir^h (RW-1). Dhanraj Laxman (PW-6) has deposed in his evidence that he was a need of new Rin Pustika, he met with the a^eltants for such need, both the appeiiants demanded Rs.1000/- as a bribe from hlm, he contacted with the Vigiiance Department and made written complaint Ex.P/1. As the dirsction of the Vigiiance Officers, he produced two currency notes of Rs.100/- and four currency notes of Rs.50/- which he were having. Notes were tainted with powder and were Rept in his pocket. Reaction was demonstrated. Panehnama was prepared vlde Ex.P/2. They proceeded for the spot. He wert inslde the ofitee of the appeliants and gave Rs.400/- to appeltant Raghun^h whteh he received and gave the same to co-appetlant patwari Baharata R^n, he gave signal, then trap party came inside the room andcurrency notes wsre recovered. Post trap proceeding was conducted. Panch witness R.N.Singh (PW-1) has sutetantially Gorroborated trap proceedings, f ;»K- ^ £.B ^ preparation of panchnama, recording of numbers of currency notss, demonstration of reaction of both chemiGals, phenoifrfithaleln powder operation and other currency notes. hte hasalso deposect in hisevtdence that they proceeded for the spot, complainant went inside the room of the appellants and after sometime he gave signal, thai they entered in the room ofthe appeltants along with D.S.P. Shri Marteim, Dqauty Collector Dhruv, D.S.P. Shri Dubey and other members of trap party, tooth ttie appellants were present inside the office, appeltant Baharata was sitting over the coat, after introduettein of trap party.handsof appellant Raghunath were washed with the soiution of sodium carbonata which tumed into pink colour, same were seized. Again soiution was prepared and hands of appeitant Baharata were washed which aiso tumai into pink colour, same were aiso seized. Thereafter, Deputy Cotiector Dhruv made search of pocket of appeilant Baharata Ram, at that (ime, Baharata Ram thrown the currency notes on the ftoor which were taxen out by Dhruv and numbers of currency notes were also dipped in sodium carbonate sotution whteh tumed into pink cotour. Backpocket of ftiil paint of appellant Baharrta Ram was also washed vnth sotution of sodium carbonate which also tumed into pink colour, same was seized. Personal search of the appellants were made and other currency notes were also seized. Finai panchnama and seteure were prepared. 15. In the present case, the prosecution has not examined the pdtoe officer who has conducted trap proceeding. The prosecution has also not examined shadow witness B.R.Dhruv, the then Deputy CoilecSor, Biiaspur. As per the case of the prosecution and final panchnama Ex.P/4, currency notes were found on the floor, which was taKenout by shadow witness B.R.Dhruv. Currency notes were washed in the soiution of sodium carbonate which turned into pink colour. Thereafter, hands of the complainant, pocket of full paint of appeliant Baharata Ram were washed with the solution of sodium carbonate which ateo tumedirrto pink colour. Panch witness Naib Tahsildar R.N.Singh (PW-1) has specificaiiy deposed in para 15 of his evidence that at the time oftrap fff^ tifne he saw the currency notes in the hands of shadow wftness B.R.Dhruv. He has further deposed that after recovery of currency notes, hands of the Deputy Coliector Dhruv were notwashed. He has ateo deposad in para 17 that fireth/. currencv notes were recovereef, thereafter, seeroh of tha ••r /- ,^^, (^ 7- pockets of the appeilants were made. in para 16, h®has deposed Deputy Collector Dhruv has made search of pocNet of appellant Raghunath Prasad and appettant Baha'ata Ram. 16. Combined reading of paras 15, 16 and 17 of the svidence of panch wstness R.N.Singh reveal that flrstiy, taintal currency notes wene taken out by Deputy Collector Dhruv In his hands and thereafter, without \s@shing his hands he had made searoh of fxwket of both the appeflants. Pocket of appellant Baharata was also washed with the soiution of sodium carbonate which tumed into pink coiour. In the absence of any other evidence reiating to taking out of the currency notes from thespet and washing of hands of Dhruv and v/ashing ofthe hands and pocksts of the appeltants, the only evidence remain for consida'ation is the evkience of R.N.Singh (PW-1) and trap panchnama Ex.P/4 whtch show that currency notes were lying on the floor. Deputy Oollector Dhruv took out these curreney notes and tailed the numbers with the primary panchnama, thereafter, without washing his hands with sedium carbonate solution or other solution he made search of pocket of the appeltants and thereafter, pockets of the appellants were washed in sodium carbonate sotution. Currency notes were tainted with phenolptithaiein powder. In case currency notes were carne Into contact of hands or pocket with a view that if same weuld be touched by the accused or wi!l come into contact with other articie inctudlng pocket of the person, then phenolphthaiein powder may also find In tha handsand pocket ofthe person concemed, but in the present case, without washine the hands, Deputy Collector Dhruv who was holding tainted currency notes has touched the hands and pockets. tn these ciroumstances, there was every possibHity of the presence of phenolphBialein powder in the pocket of the appellants, as a resuit of such search made by the Deputy Collector Dhmvwfthout washfng his hands. 17.This is a case of demand and acceptance of illegal gratlfication other than legal remuneration by misusing the office by public servants a heinous offence relating to public servants sufRcient for termirration of their services. in such circumstances, degree/standard of proof of ingredient of the offence is high and the prosecution is requsred to prove the offence by adducing cogent evidence without ieaving any room or doubt or ambiguity, but in the present case, the prosecution has not s- examined Deputy Cottastor Dhruv and investigating oflfcer. The prosecution has sent the solution fer chemical examinatfon, but has not submitted its report. The prosecution has not reeovered currenoy notes from pockets or hands of the appellants. In these circumstanees, especialty in the absence of any direct recovery of currency notes from the appetlants, absence of expert report relating to ttie presence of phenolphthalein pmvder in the hand washed and pocket w@sheda)luti<xi of the appellantsand search of pocket made by witness after hoUing tainted currency notes without washing his hanc!s,it is difflGUlt to hold that tainted notes were found in the possessien of the appellantsor the appellants have demanded and accept^l and were In possession of lllegal gratification otherthan legal remuneration. 18.As hehl by the Apex Court and this Court in the mattere of Banarsi Dass and Ram Kumar Venna (supra), mere reeovery pf anount of bribe is not sufficient to prove the factum of demand and aece^arffie. in the preserrt case, the prosecution has neither proved demand and acceptance nor recovery of bribe amount from the po^sssien ofthe present appellants. 19.While convicting the appeltants, the trial Court has not considered the aforesaid evidence and deficiency in the prosK;ution witnesses, ttiereby committed iltegality. Evidence adduced on behalf of the proswutton fe not sufficient to prove the offence against the appeilante. 20-Forthe foregoing reasons, the appeatis aiiowed. ConvicHon & sentenc^ of the appeltants under Sectlon 5 (1) (d) read with Saition 5 (2) of the Act, 1947 and Section 161 of the tndian Penal Code are hereby set aside. They be set at liberty at pnce. Fine fflnount, if paid.shati be refunded to them. —^—-- SdA , TP-Sharma Judge