HIGH COURT OF MADHYA PRADESH : JABALPUR ---------------------------------------------------------------------------------------------------------------------------------------- Present : Hon'ble Shri Justice R.C. Mishra Hon'ble Smt. Justice Vimla Jain ---------------------------------------------------------------------------------------------------------------------------------------- CRIMINAL APPEAL No.688/1999 Suryabali Dixit, aged about 48 years, son of Shri Amritlal Dixit, Forest Guard, Forest Range, Mautola, Bamhani, District Mandla (M.P.) …. APPELLANT vs. State of M.P., through Special Police Establishment (Lokayukta), Jabalpur ….RESPONDENT ---------------------------------------------------------------------------------------- Shri Amit Dubey, Advocate, for the appellant. Shri Aditya Adhikari, Special Public Prosecutor, for the respondent/SPE (Lokayukta). Date of Hearing : 23.11.2010 Date of Judgment: 02.02.2011 J U D G M E N T Per Smt. Vimla Jain, J. :- This appeal has been preferred against the judgment-dated 24.02.1999 passed by Special Judge, Mandla in Special Case No.4/86, whereby the appellant was convicted and sentenced as under :- Convicted under Section Sentenced to 161 of the IPC undergo R.I. for 2 years and to pay a fine of Rs.1,000/- and in default, to suffer R.I. for 6 months. 5(2) read with 5(1)(d) of the Prevention of Corruption Act, 1947. undergo R.I. for 2 years and to pay a fine of Rs.1,000/- and in default, to suffer R.I. for 6 months. SPECIAL LEAVE PETITION PREFERRED AGAINST THE JUDGMENT AND REGISTERED AS SLP(CRI.) NO.3447/11 HAS BEEN DISMISSED BY THE APEX COURT ON 09.05.2011. with the direction that the jail sentences shall run concurrently 2. Undisputed facts of the case are that the appellant, at the relevant point of time, was working as a Forest Guard at Beat Mautola and Forest Guard in-charge of Kakaiya Beat as its Forest Guard Hari Datt Armo (PW1) was on leave from 21.05.1983 to 27.05.1983. On 28.05.1983 at about 2.40 p.m., at Sanjay Chowk in Bamhani, three currency notes, two in the denomination of Rs.20/- and one note in the denomination of Rs.10/-, treated with phenolphthalein, were recovered from the right pocket of the appellant’s bush shirt. 3. Briefly stated, prosecution case is that in the evening of 24.05.1983, the appellant had apprehended complainant Jagat (PW4), a resident of Village Silgi, while transporting forest timber in a bullock cart but, after seizing the wood, entrusted the same to the complainant on Supurdginama. He also demanded a sum of Rs.50/- for not taking any further action in the matter. The appellant repeated the demand on 27.05.1983 with a threat that if the amount was not paid till the evening of the following day in Bamhani Market, he would register a theft case. Not willing to pay the bribe, the complainant submitted a complaint (Ex.P-5) before the Superintendent of Police (Lokayukta). After observing necessary formalities in the presence of Deputy Collector Mansa Ram Thakur (PW9), a trap was arranged by Inspector Ravi Mishra (PW7) with the assistance of Inspector Hanumant Singh (PW6). On 28.05.1983 at about 2.40 p.m., at Sanjay Chowk in Bamhani, the complainant, after handing over the chemically treated currency notes to the appellant, gave the agreed signal by moving his hands over his head and immediately thereupon, the members of the trap party apprehended the appellant, who had kept the bribe money in the right pocket of his bush shirt. Numbers of currency :: 2 :: Criminal Appeal No.688/1999 notes recovered from the pocket tallied with the particulars recorded in the pre-trap panchnama (Ex.P-6). Appellant’s hands and pocket of the bush shirt were washed with sodium carbonate solution and the same turned pink. After investigation and upon obtaining sanction for prosecution (Ex.P-21), charge sheet was submitted before the Special Judge, Mandla. 4. The appellant abjured the guilt. Defence was a total denial of bribe having been demanded or taken. In the examination, under Section 313 of Code of Criminal Procedure (for short ‘the Code’), he further pleaded that he had received the amount of Rs.50/- from the complainant Jagat not as a bribe but as the compensation determined by Assistant Conservator of Forest vide order-dated 27.05.1983 (Ex.D-8). According to him, he was authorized under a notice (Ex.D-6) to recover the amount from the complainant, who had compounded the offence registered by him only. 5. Legality and propriety of the convictions have been challenged inter alia on the following grounds : - (i) Demand of bribe was not proved. (ii) In absence of evidence of any shadow witness, the uncorroborated statement of the complainant as to acceptance of bribe could not be relied upon. (iii) Mere recovery of money divorced from the relevant circumstances was not sufficient to attract statutory presumption under Section 4(1) of the Act. (iv) Defence was duly established from the evidence on record. 6. Contending that recovery of the money given by the complainant from the appellant’s bush shirt pocket was sufficient to :: 3 :: Criminal Appeal No.688/1999 attract the presumption; learned Special Public Prosecutor has submitted that the convictions are justified. To substantiate the contention, he has placed reliance on the following observations made by Supreme Court in B. Noha v. State of Kerala, (2006) 12 SCC 277 - “when it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case”. Making reference to paragraph no.57 of the impugned judgment, learned Prosecutor has further contended that it contains cogent reasons for rejecting the explanation that the amount received was not an illegal gratification in view of the following facts : – (i) The complainant Jagat (PW4) did not accept that he had compounded the offence registered by the appellant as POR No.5883/4. (ii) The POR (Ex.D-5) did not contain signatures of the complainant even as the Supurdgidar of the seized timber. (iii) Immediately after being caught, the appellant did not say that the amount received by him was as a compensation and the documents (Ex.D-1, D-2, D-4 to D-9) in support of his defence were produced before the Investigating Officer on 08.08.1983. (iv) Immediately after the trap, neither POR (Ex.D-5) nor any document relating to Kakaiya Beat was found in appellant’s possession. :: 4 :: Criminal Appeal No.688/1999 7. In order to fortify the contention that the explanation given by the appellant in the statement under Section 313 of the Code and not immediately to the Investigating Officer, could not be accepted as probable, learned Prosecutor has invited our attention to a decision of the Apex Court in State of Maharashtra v. Rashid B. Mulani, (2006) 1 SCC 407 wherein it was held - “Section 4 of the Act, inter alia, provided that where in any trial of an offence punishable under Section 161 IPC or Section 5(1)(a) or (b) punishable under section 5(2) of the Act, it is proved that an accused person has accepted any gratification (other than legal remuneration), it shall be presumed, unless the contrary is proved, that he accepted that gratification as a motive or reward, such as is mentioned in the said Section 161. This would mean that a mere explanation in the statement under Section 313 that the amount was received towards a loan will not be sufficient. The contrary position should be established by the accused either from inferences legally drawn from the evidence on record let in by the prosecution or by letting in direct evidence in regard to the explanation. The statutory presumption raised under Section 4 will not stand rebutted merely by offering an explanation under Section 313 if such explanation does not find support from the evidence let in by the prosecution”. 8. In the light of the factual position, the crucial question that arises for consideration is, as to whether the appellant was able to rebut the statutory presumption under Section 4(1) of the Act ? 9. At the outset, it may be observed that testimony of the complainant Jagat (PW4) regarding demand and acceptance of bribe did not inspire confidence for the under-mentioned reasons : – (a) His statement that the appellant had demanded a sum of Rs.100/- as bribe for dropping action already initiated :: 5 :: Criminal Appeal No.688/1999 against him regarding theft of forest produce, did not find place in his written complaint (Ex.P-5). (b) His assertion that he had handed over currency notes worth Rs.50/- while saying that he would pay the remaining amount of Rs.50/- at the later point of time, was also contradictory to the corresponding part of his case diary statement (Ex.D-3). (c) He had also not explained as to why instead of Rs.100/- as demanded by the appellant, he had produced currency notes worth Rs.50/- before the Investigating Officer for the purpose of trap. (d) Neither the complaint nor his police statement contained the fact, as stated by him on oath, that Rajendra was present at the time of seizure of the timber by the appellant. 10. Ordinarily, proper conduct of a trap is to be secured by at least two panch witnesses to avoid fabrication of evidence. However, in the instant case, only one witness namely Mansaram Thakur (PW9) was employed for the purpose. He was also not able to give a definite answer to the question as to whether passing of the tainted money was preceded by the conversation between the complainant and the appellant. According to him, the currency notes were given by the complainant to the appellant outside a house but the trap panchnama (Ex.P-20) clearly suggested that the amount was paid at the Square known as Sanjay Chowk. Although, he claimed to have taken out the bribe money from the pocket of the appellant yet, admittedly, his hands were not washed with the solution of sodium carbonate. Thus, the evidence of the sole panch witness also suffered from material discrepancies with reference to the version recorded in the trap panchnama. :: 6 :: Criminal Appeal No.688/1999 11. The prosecution was further bound by the evidence of Bharatlal Tiwari (PW10), posted as Assistant Forest Ranger at Forest Range Bamhni as he was not declared hostile by the public prosecutor inspite of the fact that he had fully corroborated the defence version (See. Raja Ram v. State of Rajasthan (2005) 5 SCC 272). As per his statement, - (i) On 24.5.1983, the appellant, as in-charge Forest Guard of Kakaiya Beat, had registered a case against the complainant regarding theft of timber as POR no.5883/4, a copy of which (Ex.D-5) was forwarded to him for enquiry on 25.5.1983. (ii) the corresponding proceedings were written by him on the sheet (Ex.D-9). (iii) statement of the complainant (Ex.D-1) was recorded at his instance only and was signed by the complainant in his presence. (iv) He had forwarded the record comprising the statement, Supurdginama (Ex.D-4), POR (Ex.D-5) and proceedings sheet (Ex.D-9) to the Assistant Conservator of Forest, who accorded the consent, vide order-dated 27.5.1983, to compound the case on payment of Rs.50/- as compensation. (v) On 28.5.1983 only, notice (Ex.D-6) was given in duplicate to the appellant for service with a direction to recover the amount of compensation from the complainant and to deposit the same with the office. 12. Moreover, Saulal (PW5), named as a witness in the POR (Ex.D-5), clearly admitted that it was prepared by the appellant, who had also handed over the seized bullock cart loaded with the timber :: 7 :: Criminal Appeal No.688/1999 to the complainant after getting the Supurginama (Ex.D-4) executed. This apart, Chhabilal (PW3), who is none other than the younger brother of complainant’s brother-in-law, corroborated the evidence of Bharatlal by deposing that the confessional statement (Ex.D-1) was given and signed by the complainant voluntarily. 13. The accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability (T. Subramanian v. State of Tamil Nadu AIR 2006 SC 836 relied on). Since the appellant introduced the defence by way of cross- examination of the complainant and other prosecution witnesses, the fact that he did not offer any explanation at the time of seizure of the amount, by itself, was not sufficient to throw away the explanation offered by him in his examination under Section 313 of the Code. Conduct of the complainant Jagat (PW4) in denying his signatures on the Supurdginama (Ex.D-4) even after admitting in the complaint (Ex.P-5) that the seized timber as well as the bullock cart used for fetching it from the forest were given to him on the basis of such a Supurdginama, was of much relevance. In such a situation, it was more probable that in order to put the appellant into trouble in his service the trap case was initiated at the instance of the complainant because of the fact that a case was already initiated against him for theft of forest produce. 14. For these reasons, on one hand, neither demand of bribe nor acceptance of it was established from the evidence on record and on the other; the evidence adduced on behalf of the prosecution could be relied upon by the accused for rebutting the presumption. Probability of the explanation given by the appellant in his examination that he was deputed by the Range Assistant to collect :: 8 :: Criminal Appeal No.688/1999 the amount of compensation was duly established from the testimonies of above-named prosecution witnesses. In this view of the matter, it was not possible to hold that the appellant had received the money as a motive or reward (See. Trilok Chand Jain v. State of Delhi AIR 1977 SC 666). 15. In these circumstances, when money paid was not proved to be for personal satisfaction or pleasure of the recipient, learned trial Judge committed a serious illegality in raising the presumption under Section 4(1) of the Act (Mahmoodkhan Mahboobkhan Pathan v. State of Maharashtra AIR 1998 SC 2360 referred to). 16. The question posed above is, therefore, answered in the affirmative. Accordingly, the convictions based upon a mis- appreciation of the relevant evidence are not sustainable on facts as well as in law. 17. In the result, the appeal stands allowed. The impugned convictions and sentences are hereby set aside. Instead, the appellant is acquitted of the offences. Fine amounts, if deposited, be refunded. (R.C. MISHRA) (SMT. VIMLA JAIN) JUDGE JUDGE 02.02.2011 02.02.2011 :: 9 :: Criminal Appeal No.688/1999 :: 10 :: Criminal Appeal No.688/1999