^s^ fjs^d ^'iO'" 12 ^NrS- '^s MI6H COURT OF CHHATn:S6ARH AT BILASPUR Cnminal Abpeal No.342of 1992 Ram Kumar Verma Vs. State of M.P. JUt)6MENT BE POSTED FOR PRONOUNCEMENTON 2.4.8.2009 Sd/- . ' T. P. Sharma Judge APPELLANT HI6H COURT OF CHH/\m:S6ARH AT BILASPUR Criminal ADpeal No.342 of 1992 Ram Kumar Verma S/o Ram Vishal Verma Aged-about 45 years Patwari (Under suspension) Resident of village- Shorbhatti Halka No.117 P.S. Arang Distt.-Raipur. RESPONDENT Versus State of M.P. Through-Special Police Establishment Lok Ayukta Office, Raipur. (APPEAL UNDER SECtrON 374(2) OF COOE OF CRIMINAL PROCEDURE, 1973) (SB: Hon'ble Mr. T.P. Sharma, J.) Present: Shri Janak Ram Verma, counsel for the appellant. Shri Rajendra Ti-ipathi, Panel lawyer- for the State/respondent. JU&6MENT (belivered on 24th August, 2009) 1. By this appeal, the appellant has challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 28.2,1992 passed by the Fourth Additional Sessions Judge and Special Judge, Raipur, in Special Criminal Case No.5/86 whereby and whereunder learned Fourth Additional Sessions Judge & Special Judge after holding theappellant guilty for commission of offenee punishable under Section 161 of the Indian Panel Code and Section 5 (i) (d) read with Section 5(2) of the Prevention of Corruptioh Act, 1947 (in short 'the Act, 1947'), sentenced him to undergo rigorous impr-isonment for 2 years and to pay a fine of Rs.500/-, in default of payment of finetofurther undergorigorous imprisonment for 3 months on each count. W?K ^ 2. Judgment of conviction and order of sentence ischallenged on the ground that without there being an iota of evidence, learned Four-th Additional Sessions Judge and Special Judge has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. Case of the proseGution in brief is thdt the present appellant was Patwar'i and was public servant. Complainant Ratnu (PW-4)was need of Rin Pustika. He contacted the appellant and requested for Rin Pustika. The appellant demanded Rs.700/-. The complainant was not interested to pay bribe. He went to the Vigilance Department, Raipur and filed written complaint (Ex.P/1) on 16.4.85. After preliminary inquiry about the truth of the complaint by Lokayukt Madan 6opal (PW-1), Super'intendent Of Police,SpecialPolice Establishment. Madan 6opal has authorized S.S.Thakur (PW-8) Deputy Superintendent of Police for conducting the roid. He called two independent witnesses Mehbood Ali Khan and MotiramBhardwaj on 16.4.85. He handed over the complaint made by Ratnu (PW-4) to them. They read over and also made inquiry from the complainant. Investigating Officer directed the complainant to produce Rs.700/-. He produced 14 eurrency notes of Rs.50/-. Numbers of nptes were recorded in preliminary panchnama. Notes were tainted with phenolphthalein powder and after search they were kept in the pocket of the complainant after covering the same in a paper. Reaction of sodium carbonate and phenolphthalein chemical were demonstrated. The complainant was directed to pay the said.moneyQn demand to the aceused and givesignal. Preliminary Panchnama (Ex.P/3) was prepared. Trqp party proceeded for the spot.At about 5 p.m. trap party reached village Auradabhari where the appellant was residing. Complainant Ratny (PW-4) went to the house of the accused where the accused demanded Rs.700/-as bribe. The complainant gave Rs.700/- which was kept in his pocket. After taking the money,the accused kept the same into his pocket of full pant and hanged pant on the wall. After receiving signal, trap party entered into the house of the accused and after introducing themselves inquired into the matter. His hands were washedwith solutjon ofsodium carbonate which turned into pink colour. Same was sealed and seized. 14 currency notes of Rs.50/-, total Rs.700/- was recovered from the pant of the accused vide Ex.P/4. Numbers were tallied with the pr-eliminary panchnama (Ex.P/3) and were recor-ded in seizure (Ex.P/4). Pant of the appellant was also seized vide Ex.P/5. Revenue document relating to Form B-l was also seized from the complainant vide Ex.P/6. Revenue document relating to the complainant wias also seized from the accused vide Ex,P/7. Pocket of pant and currency notes were washed in sodium carbonate solution which turned into pink colour. Same was sealed and seized. Final panchnama was prepared vide Ex.P/9. Dehati Nalishiwas recorded on the spot vide Ex.P/10. Seized articles were sent forchemical analysis and presenceof sodium carbonate and phenolphthalein were confirmed in the pocket washed solution of the accused, hands washed solution of the accused by For'ensic Science Laboratory, Sagar vide Exs.P/11 and P/ll-A. F.I.R. was lodged vide Ex.P/12. 4. Statements of the witnesses were recorded under Section 161 of the Code of Cr'iminal Procedure, 1973 (in short 'the Code') and documents were sent for getting sanction. After application of mind, competent authority has accprded sanction for pr'osecution for the offence against the accused/appeltant vide Ex.P/2. After completion of investigation, charge sheetwas filed before the Special Judge, Raipur. 5. In order to prove the gujlt of the accused/appellant, the prosecution has examined as many as 8 witnesses. Statement of the accused/appellantWas recordedunder Section 313 of the Code where he denied the cir'cumstances appearing against him and innoncency and false implication is pleaded. The accused has taken specific defence that he has neither demanded nor received bribe from the complainant. He has been falsely implicated in the crime in question. Money has not K ^ 4 beenrecovered from him andsame was recovered from pant which was inserted by the complainant. He has examined defence witnesses Rampyare Thakur (DW-1), Pyarelal (bW-2) and Niyajuddin (DW-3) who have deposed that some dispute relating to ciling was pendin9 relating to the land of Yakub Ali and Babbu. Babbu has abusedand used filthy language to the accused at the time of measurement of the land and at the instance of Babbu, he has been falsely implicated the appellant in the crime in question. 6. Learned Special Judge after affording an opportunity of hearing to the parties,convicted and sentenced the appellant as aforementioned. 7. I have heard Shri J.R.Verma,counsel for the appellant and Shri Rajendra Tripathi, Panel lawyer for the State/respondent and perused the record of the Court below. 8. Learned counsel for the appellant argued that the appellant who was public servant at the time of incident has neither demanded gratification other than legal remuneration from the complainant before 16.4.85 or on 16.4.85. No any work was pending before him relating to the complainant. Thecomplainant is a member of the Scheduled Tribes and without any permission from the Collector he was not competent to sale the land to the member belonging to other caste. Even there was nooccasion to demand illegal gratification from the complainant. Learned counsel further argued that complainant Rdtnu (PW-4) has specifically deposed that the accusedhas not demgnded any money. He has also not given any gratification to the aceused at the instance of one Babbu. He went to Raipur where Babbu prepared some documents and application against the accused andafter getting thumb impression, he took him to other office and at the instance of Babbu and other officers he went to the house of the present accused where he inserted one paper in the packet of pant which washangingon the wall but he did not know what was inside the © paper shows that the accused has not received any moneyat time of alleged raid. 9. Learned counsel placed reliance in the matter of Sanga Kumar Shrivastava v. State of Bihar in which the Apex Cour-t has held that if defence of the accused is more probable, then it should be accepted. Learned counsel fuFther placed reliance in the matter of T.Subramanian v. State of T.N. in which the Apex Court has held that reasonable and probable explanation based on evidence that the money was accepted by him, other than as an illegal gratification, dGcused would be entitled to acquittal. 10. On the other hand, learned counsel for the State/respondent supported the judgment impugned and argued that the appellant was public servant has demanded and accepted illegal gratification of Rs.700/- other thanle9al remuneration. The evidence adduced on behalf of the prosecuti'Qn issufficient to convict the appellant for the aforesaid offences. 11. In order to appr'eeiate the contentions of the parties, I have examined the material available on recor'd. On the date of incident, the accused was a public servant and sanction to prosecute the appellant was accorded by S.R.Mishra (PW-2), the then Special Secretary, Revenue vide order dated 28.4.1986 after application of mind which is sine quo nonfor prosecution of a public servant under Section 5 (i) (d) read with Section 5 (2) pf the Act, 1947 and it is not disputed by The appellant, otherwise, also proved by S.R.Mishra (PW-2), the then Secretary. 12.As regards the demand and acceptance of money by the appellant as illegal gratification other than legal remuneration is concerned, according to undisputed faets of the case, Rs.700/- tainted with phenolphthalein powder was kept in the pocket of the 1(2005) 6SCC 211 2C2006) 1 SGC 401 ^-^) accused/appellant by frap party for giving to the accused on his demand. Numbers recorded in preliminary panchanama (Ex.P/3) were found in the pocket of pant of the appellant which was hanging on the wall of the room of the appellant is not disputed, otherwise established by the defenceof panch witness Abdul Hai Khan (PW-3), Ratnu (PW-4), ttotiram Bhardwaj (PW-7), trap laying officer S.S.Thakur (PW-8) and the defence of the accused. 13.As regards the demand and receipt of gratification of money is concerned, Rathu (PW-4) whom the prosecution has declared hostile has not supported the case of the prosecution. He has not deposed anything against the present appellant relating to initial demand for initiating constitution of trap party and laying of trap against the appellant. Complainant Ratnu (PW-4) has deposed that at the instance of Babbu he went to some office where Babbu prepared some application against the appellant (Ex.P/1), then they went to other office and went to vjllage of the appellant. When he went to other office he was having Rs.700/- whom he has given to Babbu. They went to rest house Lakhouli and from rest house, they went to village Auradabhari where he went to the house of the appellarit. He was directed by theofficers to give some paper to the accused but he was not having knowledge what was containing inside the paper. He entered into the house of the appellant and inserted the paper in the pocket of pant of the accused which was hanging on thewall, then officers came and caught hold the appellant and they prepared documents. The prosecution has cross-examined the complainant in detail. In para-11 of his cross-examination he has deposed that Babbu was directed him to keep the paper and give to the accused. If herefused, then insert the pdper in his pant. He went to the house of the accused and demanded water and when the accused directed him to go inside the room and take water then hewent inside the room and inserted the paperin the pocketof pant of the accused which was hanging on the wall. In his ss 1 './ detail cross-examination, he has not supported the case of prosecution though he travelled with two panch witnesses i.e. Abdul Hai Khan (PW-3), the then Additional Collector and Motiram Bhar-dwaj (PW-7), Assistant Land Measurement Officer- and trap laying officer S.S.Thakur who were d&posed in their evidence that aftersatisfying about the genuineness of the application of the complainant (Ex.P/1), they constituted trap party and preliminary proceeding was recorded. Numbers of currency notes were tainted with phenolphthalein power and kept the same in the pocket of the complainant. They went to village Auradabhari wherethe accused was r'esiding. They caught hold fhe accused. His hands were washed with sodium carbonate solution which turned into pink colour. Tainted currency notes of Rs.700/-were recovered fromthe pocket of pant of the accused which was hanging on the wall. Their statements may be considered for corroborationof the statementsof the complainant. 14.In the absence of any evidence relating to initial demand, it is difficult to hold that initially the accused has demanded money but sameis not sufficient to discredit entire statement or the caseof the prosecution and if the evidence relating to demand of moneyon the spot is found to be proved even in the absence of anyevidence of the complainant, then same would be sufficient for drawing inference that the accused has demanded and accepted illegal gratification other than legal remuneration. tS.According to Abdul Hai Khan (PW-3), they hidden behind some shrub and the complainant alone went to the house of the accused. He entered into the house of the accused and after sometime he went out and gave signa], then they immediately rushed to the house of the aecused and caught hold the hands of the accused. The complainant told them that the accused has kept money in his pocket. They conducted proceeding of recovery, washing of hands and recovery of currency notes. In his cross-examination, he has specifically admitted in para-8 that 150 to 200 feet away from the house of the accused, they themselves have hidden. He has not deposed that he has seen giving and taking of amount. Motiram Bhardwaj (PW-7) other paneh witness has also deposed in para 4 of his evidence that he himself along with trap laying officer Thakur and other witnesses have stayed beside the room. The complainant alone to the house of the accused and after half an hour he came out from the house of the accused and gave signal, then they rushed to the spot. Trap laying officer S.S.Thakur (PW-8) who wasconducted trap has deposed in para 6 of his evidence thdt they sent the complainant to the house of the accused and they werefollowed.In para-15 of his eross-examination he has admitted that he was stgnding 80 yards away from the house of the accused. Accused was wearing baniyan and dhoti. In para-13 of his cross- examination he has admitted that he knows Babbu Munshi. He was his classmate but he was not in a position to say that at the time of preparation for trap, Babbu was with him or not. Evidence of these witnesses clearly show that except theGomplainant no witnesses were presentwithin a short distance or close distance from the house of the accused and they have not Seen theincident of demand and giving and taking of money, but after receiving the signal, they rushed and entered into the house of the accused which was wearing baniyan and dhoti. When his hands were washed with sodium carbonate solution which turned pink colour. Money was recovered from pocket of full pant hanging on the wall inside the room. The only witness remained for proving the fact of demand of illegal gratification and giving and taking of gratification is complainant Ratnu who has not deposed anythingin supportof the case of the prosecution, inter alia, he has specifically deposed that without knowledge of the accused he has kept or inserted paper in the pocket of pant of the accused which washanging on the wall and gave signal. He was acting pn the direction of Babbu who was known to the trap laying officer. Hewas his classmate but was not in a ^s^', position to say that whether Babbu was present during preliminary preparation of trap and at the time of conduction of raid. 16.The only material against the appellant is result of hand washed of the appellant whichreveals the presence of phenolphthalein powder in the hands o-f the appellant which has been confirmed by the Forensic Science Laboratory, Sagar vide its reports (Exs.P/11 and P/ll-A). In theabsence of evidence of demand and acceptance of illegal gratification, it isdifficult to hold that the present appellant has demanded and accepted illegal gratification other than legal remuneration as a motive or reward. Hands of the accused were caught hold by the police officers and whenit was washed with sodium carbonate solution it was turned into pink colour which proves the presence of phenolphthalein powder and use of tainted upon currency notes. Pretiminary panchnama (Ex.P/3) reveals that 14 currency notes were tainted with phenolphthalein powder and after minute search of pocket of the accused, notes were kept in one plain paper and kept in the left pocket of shirt of the complainant. Keeping of currency notes in white paper of same size was also supported by Motiram Bhardwqj (PW-7) in para-3 of this evidence. Trap laying officer S.S.Thakur (PW-8) has also deposed in para 4 of his evidence that currency notes we.re. kept in one paper and finally kept in the pocket of shirt of the complainant. The contents relating to keeping currency notes in paper mentioned in Ex.P/3 are as under:- "<d4'0chi ^ft^r Tr sTNgrai ^i^ci^ clitDiqic) ^fg ^ gKT f^'TppSfe'iN W3^T «lr1c||t)| TpTT HTsff c|?t rtoll^ ^t TT^ -g^Tc^ trRT Sptf 3ITqfeluFTc|i -cR^ ^fr ^g^ -^t ^ d4^|cW ''lt^f cpt T?d? ^rT^ cpPTuT "^ ^3c{r? •HTsff c^ 'q?^ ^q ^p ^?T 'SI^ c^ Rj^cii ifpif 3TR '(?cR 'OT'? Tr t ^srar 7raT i nrsff cpr (^c;iy^ q?r TI^ •f^? ari^t^f ^ TTTIT^ ^? €t'•'rt^r ^ cmTT3T ^r Plcblrictiy; -g^ •^" ^^ 10 If hands washed solution of the accused containing the presence of phenolphthalein powder is taken into consideration then same is not sufficient to establish the factum of demand and acceptance of the eurrency notes of Rs.700/-. 17.The prosecution is required to prove ingredientsof the offence beyond all shadow of doubt by adducing clinching and credible evidence. In the present case, it is clear from the record that trap laying officer has not sent any shadow witness with the complainant tosee and watch the activities and incident between the complainant and the accused and all the members of trap/raidwent to the house of the accused after all conversation and discussion relating to demand and acceptance of the currency notes was over. They have notseen anyincident of demand and acceptance of money. The only evidence of the complainant reveals that he himself has inserted the paper in the pocket of the accused Without his knowledge which is not sufficient for drawing inference that the accused has demanded and accepted illegal gratification from thecomplainant as a motive or reward. IS.Leqrned Special Judge has not considered theevidence of Abdul Hai Khan (PW-3), AAotilal Bhardwaj (PW-7), S.S.thakur (PW-8) and statement of complainant Ratnu (PW-4) and arrived at a finding that the prosecution has proved its case beyond all shadow of doubt, but in case of hostility of the complainant, he has not scrutinized the evidence of panch witnesseS, traplaying officer and the complainanl-, The evidence adduced on behalf of the prosecutipn against the appellant for demand and acceptance of illegal gratification is not sufficient to prove demand and acceptance of illegal gratification against the appellant. 19.As heid by theApex Court in the matter of Sanga (supra), if the evidence of the accused found more probable and reasonable, then it 11 should be accepted. The defence of the accused that he has been falsely implicated at the instance of Babbu appears more probable. ZO.Consequently, conviction and senfence of the appellant for the offence punishable under Section 5 (i) (d) read withSection 5(2) of the Act, 19'47and Section 161 of the Indian PenalCode are not sustainable. 21. For the foregoing reasons, the appeal deserves to be allowed and it is hereby allowed. Conviction and sentenee of the appellant under Section 5 (i) (d) readwith Section 5(2) of the Act, 1947 and Section 161 of the Indian Penal Code are hereby set aside, The appellant is acquitted of the charges of Section 5 (i) (d) re.ad with Section 5(2) of the Act, 1947 and Section 161 of the Indian Penal Code. He is on bail. His bail bonds ape discharged and he need not surrender before the Court. Fine amount if deposited, shall be refunded to him. T.P.Sharma Judge B/-