HI6H COURT OF CHHATTISGARH, BILASPUR CRIMINAL APPEAL 0. 2210 OF 19^ Upendra Kumar Pradhan VESiSUS State ofMadhya Pradesh (Now Chhattisgarh} JUDGMENT A POST 0»^<MARCH. 2008 "\ HIOH COURT OF CHHATnSGARH, BILASPUR CRIMINAL APPEAL MO. 2210 OT 1999 Present: Appellant in person. Mr.Sushil Dubey, Govt Advocate for tlie State. JUDGMBHT (Dcilv^rcdd on.?S^4arch 2008) UOJ Dhirendra Mishra, J This crtminal appeal is directed agatnst the judgment of conviction and order of sentence dated 13th August 1999 passed in Special Case No. 40/91 whereby leamed Special Judge, Raipur, has convicted the appellant under Section 161 of Indian Penal Code and Sections 5( IMdl read with Section 5(2) of fhe Prevention of Corruption Act, 1947 and sentenced him. with R.I. for one year, fine of Rs.1,000/, on each count and in defaiitt of payment of fine, additional 81 for fhree monfhs on each count. Both fhe sentences have been directed to run concurrently. 2. Allegations against the appeUant is that he beine Patwari, a public servant, of Village Sii^hanpur at the relevant period on 13.4.1987, had demanded and obtained a sum ofRs.450/- as lUegal gratification fi-om the complainant Manthir Kolta for obtatning the signature of Nalb Tehsildar on his Rin Pustika and fherebv committed a criminal misconduct APFESLLANT Upendra Kumar Pradhan, y/o Gourishankar Pradhan, Aged 38 years, Occupation Patwari, H.No.12, Sighanpur, P.S, Basiia, DisU. Raipui' (M.P.) i VEaiSUS\ RESPONDENT State ofMadhva Pradesh Throu^i : Special Police EstabUshment, Lokayukta Office, Bhopal Unit, Raipur, Madhva Pradesh. pi-uiishable under Section 161 of Indian Penal Code (for brevity 'fhe IPC) and Section 5(lj(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (in short 'the Act, 1947'). 3. Case ofthe prosecu.tion, in brief, is fhat as per mutati.on order passed by the Naib Tehsildar prior to the date of incident 13.4.1987, Rin Pustika ofthe maternal grand-niother of fhe complainant namely Damotibai was prepared and duly singed by the then Patwari and fhe revenue inspector. In the meanwhile, on transfer of the erstflrhile Paiwaxi, 'SAUage Singhanpur, fhe appellant was posted as Patwari of the said village. Rin Pustfka (Ex.P/4) remained to be signed by fhe TehsUdar. The complainant contacted the appellant in fhls connection, however, he postponed obtaintng signature on one pretext or the ofher and ultimately, demanded Rs.450/- for the above purpose. Since the complainant was not willtni to oblige him, he contacted the of&ce of Lokayukta, Raipur and submitted a written complaint (Ex.P/9), whereupon a trap partywas constituted. Inspector A.P. Dubey (PW-14) was entrusted wifh the investigation by the Superintendent of Police, Special PoUce Establishment, Lokayukta Madan Qopal Pandey(PW-ll) on 13.4.1987. 4. Mr. R.K. Maifhani (PW-12), Mining OBicer, Raipur, was deputed as Panchwitness. The complatnt, given by tiie complamant, was read over to the complainant by Maithaiii, who after getting himself satisfled witli the facts meiitioned in fhe coinplaint, endorsed fhe sanie and appended his signature. Thereafter, fhe complainant eave four currency notes of 100 denomination and one currency note of denomination 50. Numbers of aU fliese currency notes were noted in fhe panchanama. Constable Pofhiram (PW-8) appUed thin coat of pliinaphathelene powder over fhe currenQ? notes, ttie complainant was searched and nofhing was allowed to remain wifh hini. The cui-rency notes were put in the left (^. packet of Ms bush-shirt by the constable and he was insta'ucted fhat "he should not touch fhe ciirrency notes until and unless it is to be handed over on demand bv ttie accused/appeUant, he should not shake hand wifh the accused and the currency notes should be handed over to the accused in his hand and he should observe as to where fhe accused is pladng the currency notes. After fhe accused accepts ftie notes, he should signal to the trap party." Panchwitness Maithani was also mstructed to closelv foUoiv fhe coniplamant and try to see the transaction of bribe and hear ftie conversation between fhe coinplatnant and fhe accused. Clean water was called in a glass, Sodiuin Carbonate was dissolved tn the water, constable Pothiram dipped his fingers in the said water and it turned pink. This exercise was dulv explamed to the accused and other nieinbers offhe trap party. 5. The water m. the glass was kept in a bottle and duly sealed. Two samples of Sodium Carbonate arid phinaphfhalene powder were taken and the botUes and ftie saine were duly sealed. Sauiples were left in fhe office and thereafter, the trap party consistmg ofA.P. Dubey- Inspector, R.B.Laxmawa-fhe constable, R.K. Maifhan-Mmlng Offlcer and Manfhu' - complauiant, proceeded to Village Singhanpiu- by the ofGcial jeep after preparing preliminary trap panchanama (Ex.P/10). 6. After reachinp near Sinehanpur at about 9.00 a.m. the jeep was stopped at some distance from. fhe house of fhe accused, complainant Manttur and Panchwitness Maithani were asked to proceed. fhe inspector and fhe constable Laxmaiya followed fhem at a distance. The complalnant entered into fhe room of the appeUant whereas Maifhani staved back at a distance from where he could see Manthir and hear the conversation, After the complainant gave signal, fhe trap party along with tlie mspector entered the .-^ room. of flie appellant and iiabbed fhe appellant red handed. The complainant infoniied that on demand of the appellant, he gave Rs.450/- to him., which he has kept in his left pocket of fhe bush-shirt , The inspector tntroduced hlruself and fhe inembers of fhe trap party to the appellant and caught hold of his bofh fhe hands, caUed a glass of clean water fhrough constable Laxmaiya, prepared colourless solution of Sodium Carbonate, dipped fhe flngers of both the hands of tlie appellant in fhe above solution and the solution tumed pink. Thls solution was kept in a bottle and duly sealed. Thereafter, anofher solution of Sodium. Carbonate was prepared in a glass of water and Panchwitness Maithani was asked to dip his flngers, however, the colour did not change. Thls solution was also kept in a separate duly sealal bottle. The panchwitaess took out the currency notes from the upper left packet of fhe bush-shirt of fhe appellant, numbers of tfie notes were tallied with the numbera inentioned in the preliminary panchanama and fhe notes were foiind to be the same. The notes were also dipped in the colourless solution of Sodium Carbonate and the solution tumed ptnk. This solution was also kept in a sealed bottle. After drying the currency notes, the saine were seized fhrough seizure ineino and kept in a sealed envelope, whlch was duly signed by fhe appellant and the panchwltness. The fingers of the appellant were agatn dipped in fhe colourless Sodiiim Carbonate solution, which tumed pink. This was also kept in a sealed bottle. The upper packet of the bush-shirt belonging to fhe appellant, in which the currency notes were kept, were also dipped in fhe colourless solution of Sodium Carbonate and the same turned ptnk. The above solution was also kept m a sealed bottle. Tlie bush-shtrt was also seized and kept in a sealed packet. The revenue records, khasra and mutation register ofviUaee Baigandeeh were taken into possession from the appellant. Thereafter, trap panchanama of Ex.P/' 11 was .'.S'SSfa;- 5 prepared, read over to and signed by fhe appellant, complainant, 1,0. and the panchwitaess. 7. Rin Pustika ofEx.P/4 ofDamotibai was seized froru fhe complainant Manfhir vide Ex.P/7. Copy of appointraent oider of fhe appeUant (Ex.P/3) along with first page of his senrice book (Ex.P/2), were obtatned from the Tahsildar, Saraipali vide Ex.P/1. The relevant pennission for prosecutir^ tlie appellant under gection 19 of fhe Act was obtauied vide Ex.P/3A. Spot map was got prepared by Halka Pahvari vide Ex.P/5 The bottles of solutions and other articles seized during investieation, as per list, were sent for chemical examtnation to F.S.L. Sagar vide Ex.P/8. Dehati First Information Reportwas recorded on 13.4.1987 itself at ViUage Singlianpur vide Ex.P/18 and on fhe basis of above report, First Infonnation Report of Ex.P19 was registered at PoUce Station - Special Police Establishment, Bhopal, The report of theF.S.L.isEx.P/20. 8. After com.plettng uivestlgation charge sheet was filed before the Court of Special Court on 20th September 1990 aeainst the appellant and chare.es under Section 161 of IPC and Section 5(l)(d) read wifh Section 5(2) of fhe Act, 1947 were franied. The appeUant abjured his giiilt. 9. The prosecution in order to prove its case examtned 14 witnesses. Thereafter, stateraent ofthe accused was recorded in which he denied the evidence appeariiig agam.st hun aiid pleaded fhat the complamant Manfhir and hls yoLm.aer brofher Babulal are co-brothers, Manthu- came to hini aiid said that "he owes Rs.450/- to brother of 1-ds co-brother Babulal. keeo fliis monev aiid retum it to him. At that ttme, hotel owner Bilas Sahu was also present there. The money. which was given by Manfhir, was not Ulegal gratification (bribe) and he is innocent." The appellant also exammed Babulal Pradhan (DW-1L Mohanlal (DW-2) and Rasik Sahu (DW-3) in his defence. 10. Learned trial Court after hearing counsel for the respective parties, convicted and sentenced fhe appellant as nientioned in paraeraph one of fhis iudement. 11. Earlier the appeHant was represented thoueh counsel. However, fhis Court on being informed by fhe counsel engaged by fhe appeflant that the appellant has wiflidrawn hls ffle froru him and intends to argue fhe appeal in person, has allowed the appellant to argue fhis appeal in person. 12. It has been submitted bv fhe complainant Manfhir and one Gaffar Sairani were leaders of fhe fhen party in power, they tried to pressurize fhe appellant for some iUegal favour and stnce the appellant did not oblige fhem, fhey have got him trapped. They were engaged in such type of activities wifh ofher goveminent ofiicers also. It is evident from fhe Rin Pusttka of Ex.P/4, that it was duly singed by fhe previous Patwari and the revenue inspector. The Rin Pustika has not been seized from the custody of fhe appeUant as the same was subsequently seized from fhe complainant hlmself. The document was to be singed by fhe TehsUdar as per aBegations and the appellant had no role whatsoever in the aUes.ed official work. There is no evldence that the appellant demanded any illegal gratiflcation as Divya Kishore (PW-5) tn whose presence it is aUeeed that fhe demand was made by the appeUant, has not supported the case of fhe prosecution. As per procedure, fhe Rm Pustika is inltially prepared by fhe Hatka Patwari on the basis of revenue record, fhe same is countersigned by fhe revenue inspector and thereafter, after obtainlng the signatiire of Naib Tehsildar, it 1s given to tlie recorded owner, Smce the fhen Halka Patwari Punito-am prepared the Rin Pustika, which was countersigned by the revenue inspector, it was his duty to obtain signature of fhe Naib Tehsildar and only fhereafter, aive it to fhe appellant. The appellaat took charge of the Patwari after the Rin Pustika was ateeady given to tlie coniplainant. On fhe date of inrident fhe complainant caine to htm and said fhat he has settted fhe above work for Rs.450/- wifh fhe Tehsildar, who has directed hlm to hand over thls amount to the appellant and accordingly, he kept fhe nioney in his pocket and at thatjuncture, the ofilcers of fhe Speclal PoUce Establishraent, Lokayukta caught hira red handed. 13. The appeUant has also subniitted written aigument in support ofhls appeal, which is taken on record. 14. On fhe ofher hand, leamed counsel for the State has supported unpugnedjudginent offhe ta-ial Court. 15. I have heard fhe appellant in person, perused fhe written a%unients subraitted by htm and fhe argunients advanced by learned counsel for fhe State and fhe materlal avaUable on record. 16. PW-11 Madan Gopal Pandey, S.P., Lokayakuta, has deposed that the coruplamant came to his ofBce at Raipnr on 13.4.1987 and gave an application of Ex.P/9. After due enqmry and after getting satisfied he deputed Inspector Dubey and authorized him to proceed in accordaace with law wifh fhe coinplaint. 17. PW-1 S.R.Diwa, is the Tahsfldar of Saraipali where the appellant was Patwari of S^hanpi.ir under hnn. He has proved the order of appointm.ent of the appellant as also ihe first page of his service book. He has admitted in the cross- examination that tlie records were dufy corrected by fhe fhen Patwari as per order dated 6,6.1986. Rin Pustika of Ex.P/4 was given by fhe Kanungo. Rin Pi-istika is given only after fhe orders offheTahsildar. 18. PW-2 D.N.BUe, a Upper DMsion Clerk, Law and Legislative Department, State of MP, has proved fhe document of Ex.P/3A whereby the Under Secretan/,, Department of Law 85 Legislative Afiairs, Govt. of MP, has accorded sanction under Section 19 of the Act, 1947 to prosecute fhe appeUant under fhe aforesaid offences. 19. PW-3 Punita~ara Sahu, was Patwari of the Halka before postine of fhe appellant. He singed fhe Rtn Pustika (Ex.P/4) after preparing fhe same on 7.4.1986 and gave it to Demotibal for obtaining fhe signature of revenue inspector and Nalb Tehsildar. In the cross-examination he has adniitted that Dem.otlbai herself obtained sienature of the revenue inspector in fhe above document. He had asked her to obtain fhe signature ofNaib Tehsildar. 20. PW-5 Diwa Kishore has stated that he never went wifh Manthtr to the appeUant in corm.ecti.on with his Rui Pustika. Upendra never demanded Rs.450/- for Rin Pustika before him fi-om. fhe coniplainant. He has turned hostile and resiled froin his dlaiy stateraent ofEx.P/6. 21. PW-8 Pofhiram has proved fhe uiock trial of trap proceedings held in fhe residence of S.P., Special Police EstabUshment, Loteyiikta, He has also proved the document of Ex.P/8, fhrough wlTich the articles seized during investigation, were sent for cheniical anafysis to F.S.L. 22. PW-10 Manthir Bari, the complainant, has proved the report ofEx.P/9 dated 13.4.1987 given by hun to the S.P. He has proved flie details of the proceedings held in fhe bi-ingalow of fhe SP before proceedine to the house of fhe appellant, which was recorded in fhe prelim.inary m.emo of Ex.P/10, He has stated that he accompamed fhe trap party wifh Inspector Dubey, panchwltness Maithani and one person from Lokayukta. He went to the house of the appellant and ^G ^y told hini fhat "I have niade arrangement ofnioney", on whlch fhe accused reptied that "he would do his work if he has brought inoney". The accused asked Iriin to sit down. He took out the nioney from his shirt and gave it in the hands of tfae appellant, who put the same in fhe left pocket of his shirt. Thereafter, fhe accused asked about fhe Rin Pustika and when he answered in negative, he asked hira to send the Rin Pustika. At fhat tiine he signaled fhe to'ap party, who were present in tlie vicinily and were visible. The members of fhe trap party entered Uie house of fhe appeUant and inta~oduced fheiaselves. At that tirae the appeUant took out fhe currency notes frora hls pocket and fhrew it on fhe front table. Thereafter, fhe trap proceedm.gs were held. When fingers of fhe appeUant were dipped in fhe solution, it tumed pink and when his fineers were also dipped in fhe solution, it turned ptnk. When pocket of fhe shirt of the appellant was dipped in fhe solution, it tumed pink. Wuinbers offhe notes seized fi'om fhe appellant tallied wifh fhe numbers mentioned in the preMminary memo. The liquid used during trap were kept in fhe botUes and sealed. Sxibsequenfly, fhe Rin Pustika of Ex.P/4 was also seized froin htm. vide Ex.P/7, In fhe cross- examination; he has admitted fhat brofher of the appellant Babulal is hls co-brother. However, he has denied fhe sueeestion fhat when he went to meet Babulal, he had eiven him Rs.450/- for giving it to fhe appellant and he produced fhe sarae raoney before fhe Lokayukta and fhat he had given fhe said monev to fhe accused saytng fhat Babulal has returned it to you. 23. PW-12 Ratnakar Maitham, panchwitaiess, who acconiparuned the trap party, has corroborated the statenient of complainant Manthir. He has stated that he read over &e complaint of Ex.P/ 9 to the complainant, who adimtted fhat the above complaint was made by him. After getting hlmself satisfled, he made endorsement in the above complalnt and ^?5^ ff.tf"'"^ i ^ -t^y-a- fe thereafter, trap proceedings were held aiid preUminaiy laem.o was prepared of fhe above proceedines. He acconipanied ttie trap party to the house of fhe appells.nt. He reraauied outside fhe rooni of fhe appellant whereas the com.platnant went uito the ofiice of fhe appellant. He saw from. outside fhe appellant taktng ruoney froni flie com.plainant and keepine fhe same in his shirt pocket. Thereafter, fhe coinplainant signaled after coniing out of the room and trap party entered in his house. Thereafter, he has narrated the detaUs, the manner in wMch the money was taken out froni the pocket of fhe appeBant and tliat when fhe hands of the appeUant was dipped in flie solution, it turned ptnk and when the hand of fhe com.plainant was also dipped in the solution, it tumed pink. The seizure aienio of Ex.P/ 12, by which fhe currency notes were seized, bears his sienature, However, he has adinitted fhat he could not hear fhe conversation between fhe appellant and the complatnaiit. He has denied the suggestion that the complamant had given him Rs.450/- saying tliat his brother- in-law has given it for retuming it to you. 24. PW-14 Inspector A.P Dubey, has deposed about aU (he steps taken dm-ing tlie proceedinas of trap right from receiving flie couiplalnant for action, conducting mock trap proceedmgs before going to fhe house of appellant to the trap proceedings in flie house of the appellant. Thus, he has fuUy supported the case offhe prosecution. 25. Learned Special Judge considering the entire evidence, docunients avaflable on record, recorded a findmg tfaat fh.e appellant demanded and obtained Rs.450/- for obtainmg signature of fhe Naib Tehsildar or Tehsildar in tlie Rin Pustika of fhe complalnant. Section 4 of fhe Act. 1947 pro-vldes for presumption against the accused that tl-ie nioney so recovered froni flie accused, was, in fact, obtained as iUegal gratification. The explanation ofiered by fhe appellant that the above money accepted by him, was, in tact, given by II fhe complainant to him. on tfae pretext that fhe same has been sent by his brofher Babulal to return him, was not accepted as fhe version of the appellant ia his statement of accused under Section 313 of Cr.PC. differs froca fhe stateraent of Babulal (PW-1) and all the fhree defence witnesses have given three different versions. The presence of defence witness Rasik Sahu at fhe tune of ta~ap is also doubtful as none of the witnesses including (he appeUant in his statem.ent under Sectlon 313 ofCr.P.C., has stated about his presence. On the contraiy, he inentioned fhe narae of one BUas Sahu, who has not been exaniined as defence wtoiess. Accordingly, fee explanation offered by the appellant for acceptu'is the inoney in questlon, has been disbelieved. 26. From fhe evidence offhe com.plainant, whose version is dulv corroborated from the evidence of panchwitness Maithani (PW-12) and Inspector Dubey(PW-14), it is established that on his complaint, trap was laid, prelim.inaty ineino of Ex.P/10 was prepared and during trap proceedings Rs.450/- which was handed over bv fhe coiriplainant to fhe appellant, was recovered from fhe appellant. From. the evidence of flie above witnesses, recovery of illegal eratification ofRs.450/- stands established. 27. The onlv question to be considered is - whether fhe money recovered from the possession offhe appeUant was, in fact, given by the complainant as illegal gratification demanded by fhe appeUant for getting signatm'e of Tehsildar in his Rin Pustika or whether tlie explanation offered by fhe appellant durtng trial m his exanmiation ijnder Section 313 of Cr.P.C. and by leading defence witiiesses that fhe said nioney was, in fact, sent bv his brothei' Babulal sayine flie complam.aiit to return it to the appeUant, is a reasonable aiid probable explanation? The Court below considering the apparent inconslstencles present in fhe statements of fhe accused/appellant under Section 313 of Cr.P.C. and she^ / ^..^-. ~'.s ;1» ( ywy 12 statement of Babulal (DW-1) as also doubting fhe presence of defence witness Rasik Sahu (DW-3) at the time of trap proceedings, has disbelieved the explanation ofthe appellant. 28. It is true that mere proof of receipt of money by fhe accused, in the absence of proof of demand and acceptance of money as illegal gratification, is not sufilcient to estabUsh fhe ;uflt of accused, who ofie.rs reasonable and probable explanation based on the evidence that fhe nioney was accepted by him, other fhan as an iUegal gratification and in that case, fhe accused would be entitled to acquittal. 29. Ifwe examine fhe facts of the present case in the light of above prindple of law, we have atready held that so far as recoveiy of the bribe money from fhe appeUant is concemed, the same has been established bevond reasonable doubt. The sanie has not been seriously questioned by the appellant either durine trial or during fhe course of argucnents before this Court. The onlv argunient advanced by the appellant was that fhe purpose, for which fhe demand aUegedly raade by (he appeUant, was to obtain signature from the concerned Tehsfldar in hls Rin Pustika, however, since ttie Rin Pustika (Ex.P/4) after signature of the then Patwari aiid Revenue Inspector, was handed over to fhe coinplainant, fherefore, the question of complainant contactmg the appellant for obtatning signature of fhe TehsUdar in the Rtn Pusttka, does not arise. Even fhe Rin Pustika has not been seized from the appellant but it has been seized fi-oni fhe complainant after fhe date of incident. He has oGered explanation for acceptint raonev in his stateraent under Section 313 of Cr.P.C. and by examtnine flie defence witness. However, after going fhrough the statement of fhe appellant iinder Section 313 of Cr.P.C. and the evidence of fhe defendce witnesses Babulal Pradhan, Mohanlal and Rasik Sahu, this Court is of the considered opinion fhat there is glaring discrepancy in their statemaits regarding the purpose for which fhe money in question was < ;:A A / K>,^ 13 allegedty given by Babulal to fhe com.plainant and as such, fhe reasons assigned by fhe trial Court for disbelieving the explanation of fhe appellaiit, are based on fhe proper appreciation of evidence of the defence witnesses and version ofthe appeUant in his statenient under Section 313 ofCr.P.C. The trial Court has rightty rejected the explanation of fhe appellant in fhis regard. 30. The appeUaiit has failed to prove his case eiflier by dtrect evidence or on the basis of inferences legally drawn from flie evidence on record, his possession contt'ary to tfae statutory presumption under 8. 4 of the Act, 1947 of fhe acceptance of gratification by him as a motive or reward. The statutoiy presuruption raised under Section 4 wUl not stand rebutted merely by offering an explanation under Section 313 ofCr.P.C. ifsuch explanation does not find support froni the evidence let in by fhe prosecution or from. the direct evidence in fhis regai-d adduced in defence. The burden on fhe accused is to discharge by briiiging on record evidence, circumstantial or direct, which establishes wifh reasonable probability fhat fhe inoney was accepted by fhe accused, other fhaii as a motive or reward such as is referred to in Section 161 ofIPC. The complainant has deposed fhat he contacted fhe TehsUdar for his signature tn fhe Rin. Pustika, who asked liiin to contact the appellant. The appeUant, his relative, was making him raove arorm.d for four months arid ultiniately, asked hun for bribe of Rs.450/- in the name of superior ofElcer. Thereafter, he lodged a report and successful trap was laid. 31. For ftie foregoine reasons, I am of fhe considered opinioii that fhe trial Court was justified in convicting the appellant under Section 161 of IPC and Section 5(l)(d) read with Section 5(2) ofthe Act, 1947. 32. However, taking into consideration tliat U-ie incident occurred some 21 years aeo. fhe ruatter was pendiiig before '"? (<> the Special Judge for about 12 years