1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR. JUDGMENT Naval Singh Vs. The State of Raj. S.B.CRIMINAL APPEAL NO.15/1986 Date of Judgment ::: August 8, 2008. PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. R.N.Khandelwal for the appellant. Mr. B.K. Sharma, Public Prosecutor, for the State. BY THE COURT: 1. Challenge in this appeal is to the judgment and order dated 7th December, 1985 whereby the Special Judge (Prevention of Corruption Cases), Jaipur convicted the accused-appellant Naval Singh in the offences under Section 161 of IPC and Section 5 (1) (d) read with Section 5(2) of Prevention of Corruption Act, 1947 (hereinafter referred to as the 'Act of 1947') and sentenced him as under: U/S 161 Rigorous Imprisonment for one year. U/S 5(1)(d) r/w Sec.5(2) of Act 1947. Rigorous Imprisonment for one year and a fine of Rs.50/-; in default of payment of fine to further suffer Rigorous Imprisonment for one month. Both the sentences were ordered to run concurrently. 2. The prosecution story is woven like thus: 2 That on 30th July, 1981 the complainant PW/2 Babu gave a verbal report to Dy.S.P. ACD Bharatpur stating that he was a resident of Hulasi Ka Pura, Tehsil Badi. He is an agriculturist and desired to sell some portion of the land bearing Khasra No. 663 and 664 situated in his village. The complainant approached with an application before Tehsildar Badi praying that he be provided the copy of the Khasra. The Tehsildar directed Halka Patwari Naval Singh to issue the copy to the complainant. He took the application dasti to the concerned Halka Patwari but Halka Patwari Naval Singh solicited for a bribe of Rs.60/- in lieu of that. It is further alleged that prior to this incident, he had taken Patwari and the Inspector both to his field for measurement. That time also the accused Naval Singh and Inspector solicited for a bribe of 50 rupees which he paid to him. When the accused was requested to measure another field bearing Khasra No.665, the accused again solicited for 50 rupees which he did not pay nor he got the land measured. This time also the complainant did not intent to pay the bribe amount to the accused and wanted an action to be taken against him. PW/11 Shri Mohan Singh Arya, the then Dy.S.P ACD Bharatpur recorded the verbal report of complainant EX.P/2 and formulated a scheme for entrapping the accused Naval Singh. He co-opted two independent witnesses PW/3 Ram Kumar Sharma and PW/4 Mahesh Chand Sharma. The complainant gave four currency notes each of denomination of 10/- rupees and one currency note of 5 rupees to the Dy.S.P. who initialed them and got applied phenolphthalein powder 3 thereupon and returned the same currency notes to the complainant for handing them over to the accused Naval Singh Halka Patwari. It is further alleged that the trap party proceeded to Badi and on getting the Signal of complainant, the trap party caught the accused Naval Singh red handed on Sarmathura-Basedi Road, who was taken to a school situated nearby where he underwent the entire process of recovery etc. when the accused was asked about the tainted currency notes, he declined to accept any bribe amount from the complainant. On search, no tainted money was found in the possession of the accused. The Dy.S.P. prepared the report whereupon the Anti Corruption Police Station registered the FIR Ex.P/2 and commenced investigation. 3. During investigation the statements of the witnesses were recorded, site plan was prepared, the sanction to prosecute the accused Naval Singh Ex.P/1 was obtained from District Magistrate Bharatpur and after usual investigation, he was sent for trial to the Court. 4. The accused Naval Singh was indicted for the offences under Section 161 of IPC and under Section 5(1)(d) read with Section 5(2) of 'Act, 1947' who did not plead guilty and claimed trial. 5. The prosecution has examined as many as 12 witnesses to prove its case. The accused in his explanation under Section 313 of Cr.P.C. claimed 4 innocence. On completion of trial, the accused Naval Singh was found guilty and sentenced as indicated hereinabove. 6. Heard the submissions advanced by the learned counsel for the accused appellant, learned Public Prosecution appearing for the State and with their assistance scanned the relevant material available on record. 7. The learned counsel for the appellant has submitted the following contentions: i)That the demand of bribe amount of Rs.45 is not proved as the prosecution has examined only PW/2 Babu in support thereof. ii) With regard to demand and acceptance of bribe money of Rs.45, there is solitary statement of decoy whose evidence is not of sterling worth. iii) No recovery of tainted money has been made from the possession of the accused. iv) the independent witnesses have not supported the prosecution case. v) the accused has declined to accept the bribe amount which stands supported by no recovery of tainted currency notes. vi) the learned trial Court has not properly appreciated the evidence of prosecution witnesses and convicted the accused on the basis of surmises and conjectures despite there being no evidence of recovery of tainted notes against him on record. The learned counsel for the appellant has urged to accept the appeal and set aside the conviction. 5 8. Per contra, the learned Public Prosecution has simply submitted that the impugned judgment of the lower Court is cogent, just and proper. The learned trial court has analysed the prosecution evidence critically in detail and there is no reason to disbelieve the testimony of PW/2 Babu which stands duly supported by Investigating Officer PW/11 Mohan Singh Arya as such, the criminal appeal deserves to be dismissed. 9. The only crucial question springing for consideration in the instant appeal is as to whether the accused appellant can be convicted in the offences under Section 5(1) (d) (2) of Act, 1947 despite there being no recovery of tainted currency notes from his possession? PW/4 Mahesh Chand Sharma is the independent witnesses of this case who was directed by the Investigating Officer to accompany the decoy Babu and observe all the activities and hear entire conversation taking place during handing and taking own of illegal gratification. PW/4 Mahesh Chand Sharma in his deposition has stated that he accompanied the decoy Babu and reached the residence of the said Patwari Halka Naval Singh who was not present in his house. Thereafter they went to the park where Naval Singh was found and Babu and the accused both conversed which he could not listen. On the signal of decoy, the trap party reached there immediately and caught hold the accused. The 6 Dy.S.P. asked the accused about the tainted currency notes but he denied to accept the same and no tainted currency note was recovered from his possession. The witness has not supported the prosecution case and declared hostile. PW/3 Ram Kumar Sharma is another independent witnesses who has also not supported the prosecution case and he has also been declared hostile. There is one more witness PW/7 Prem Bahadur in whose presence the search of the accused is said to have been taken by the trap party. This witness has also stated that no recovery of tainted currency notes was made from the possession of the accused. The accused was having one purse in his pocket wherein his personal currency notes of Rs.360 were lying inside. Other witnesses have also stated the same thing that the currency notes of Rs.45 which was duly initialed by Dy.S.P. Mohan Singh Arya were not recovered from the possession of the accused. 10. Albeit, the colour of plain water turned dirtied when the fingers of one hand of the accused were dipped in but it did not contain any pink colour. From the prosecution evidence, it is found that the second hand of the accused were also dipped in plane water and the colour of water turned pink but the non-recovery of tainted currency notes from the possession of the accused casts doubt about the colour being found in water. A serious question arises as to how did the plain water turned into pink when the accused had not 7 accepted any amount from the decoy? The constables caught hold both the hands of the accused and when his pocket was searched, the possibility of the hands of the accused coming into the contact of the hands of the decoy cannot be ruled out. 11. In the case of R.Venketesen Vs. State 1980 Cr.L.J it has been held that the recovery of currency notes (tainted money) from the person of the accused is a important link in proving the case of the prosecution of the offence under Section 161 of IPC and Section 5(2) of the Prevention of Corruption Act. Merely because the solution turned pink on the facts and circumstances available in this case, it cannot be held that the appellant had accepted the bribe after making the demand from PW/2 Babu. It will be hazardous to base a conviction merely on the basis of the colour of water having turned pink when the fingers of the accused got dipped in. 12. Admittedly, the prosecution has examined only one witness PW/2 Babu with regard to the demand amount of Rs.45/-. The trapping officer did not take any trouble to get the demand verified from his sources. In the absence of recovery of tainted currency notes from the possession of the accused, the statement of the decoy with regard to the demand of bribe money also becomes incredible as his evidence with regard to demand of bribe has not been corroborated by any other witness. 8 13. Admittedly, the tainted currency notes which were initialed by PW/11 Mohan Singh Arya, the then Dy.S.P. have not been recovered from the possession of the accused. To my firm view, the absence of recovery of tainted currency notes shatters the whole prosecution case as the recovery of currency notes is the most important link in proving the case of the prosecution. 14. From the evidence of PW/1 RD Gupta the then District Magistrate, Bharatpur, he is found to have accorded prosecution sanction on the ground that tainted currency notes were recovered from the accused and the accused was caught red handed with the bribe money in his possession. It appears that Mr. R.D. Gupta did not take any trouble to look into the investigation file and the sanction to prosecute the accused was accorded in a routine manner without perusing the papers. It is most shameful on the part of such a highly placed responsible officer who acted in a most casual and irresponsible manner in discharging his pions duty conferred by law. The statement of Mr. R.D. Gupta are not at all worthy of credence and they are to be jettisoned in toto. The prosecution sanction Ex.P/1 does not seem to be proper as envisaged by law. 15. The learned trial court has discussed the evidence of the prosecution witnesses at length but his finding of conviction is entirely based on 9 surmises and conjunctures. He has written the impugned judgment in the most cursory manner. The impugned judgment is laden with numerous infirmities which cannot be sustained and accordingly deserves to be set aside. 16. The prosecution has miserably failed to establish the demand and acceptance of the bribe amount against the accused as the evidence of PW-2 Babu, PW-1 Shri R.D. Gupta and PW-11 Mohan Singh Arya does not inspire confidence. The statement of the then District Magistrate PW-1 R.D. Gupta who has accorded the prosecution sanction is not at all worth- relying. PW-11 Mohan Singh Arya is the Investigating Officer but his evidence is also not found to be trustworthy. The evidence of decoy PW-2 Babu is laden with contradictions in material particulars and discrepancies which inspires no confidence. Hence, there is no shred of evidence on record which may fasten the guilt upon the accused and the accused, in the light of the aforesaid discussion is not found guilty of the alleged charges and deserves to be acquitted. 17. For these reasons criminal appeal filed by the accused Naval Singh is allowed. The conviction and the sentences awarded to him vide impugned judgment dated December 7, 1985 are set aside and he is acquitted in the offences under Section 161 of I.P.C. and Section 5 (1)(d)(2) of Prevention of Corruption Act, 1947. The appellant is on bail. His bail bonds stands discharged. (MAHESH BHAGWATI), J. PCG