CRIMINAL APPEAL No. 298 of 1992 (S.J.) (Against the judgment and order of conviction dated 23.11.1992 passed by Special Judge, C.B.I. South Bihar, Patna in Special case no.7/85(R.C.1/85) ****** Dr. Balgovind Prasad, S/O Late Gopal Prasad, Resident of 4 H/54 Bahadurpur Housing Colony, Police Station-Agamkuan, Town and District Patna, Retired Divisional Medical Officer (D.M.O.Eastern Railway, Health Unit, Patna. ---- (Appellant) -:Versus:- State of Bihar ---- (Respondent) For the appellant : Mr. Uma Shankar Prasad, Senior Advocate & Mr. K.K. Tiwary,Advocate. For the C.B.I. : Mr. Bipin Kumar Sinha, SC/CBI **** P R E S E N T THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL *** Kishore K.Mandal, J. The present appeal arises out of and is directed against the judgment and order of conviction dated 23.11.1992 passed by the Special Judge, C.B.I, South Bihar, Patna in Special Case no. 7/85 (R.C.1/85) where by the sole appellant was found guilty and convicted under Section 161 of the Indian Penal Code and sentenced to undergo R.I. for one year. The trial court also found him guilty under Section 5(2) read with 5(1)(d) of the Prevention of Corruption Act, 1947 whereunder he has been sentenced to undergo R.I. for one year, besides the imposition of fine of Rs. 1,000/- ( one thousand) in default whereof, to undergo further period of three months R.I. 2. The present case is an enation of R.C. No.01/85 which was lodged and recorded on the basis of complaint lodged by one Ramesh Ram (P.W.6). 3. The background facts in nutshell giving rise to the present appeal are as 2 follows:- P.W.6, Ramesh Ram during the relevant time was working as „Safaiwala‟ under North Eastern Railway and was posted at Mahendurghat, Patna. He became sick and was under treatment which is afforded to the Railway Employees free of cost. The appellant, Dr. Balgovind Prasad ( hereinafter referred to as appellant) during the relevant time, was posted as the Divisional Medical Officer, Eastern Railway, Health Unit, Patna. P.W.6 Ramesh Ram, in course of his treatment, contacted the appellant on 08.01.1985, on the strength of sick memo and the appellant prescribed him certain medicines. P.W.6 remained under his treatment till 21.01.1985. On 22.01.1985 a need was felt by P.W.6 that his trouble had aggravated, and, therefore, he obtained sick memo on that day and contacted the appellant. Obviously, the P.W.6 wanted a sick certificate (unfit/fit certificate) from the appellant which was on that day not issued/granted to him. It is further alleged that the appellant demanded a sum of Rs. 25/-(twenty five) as illegal gratification for issuing sick certificate to P.W.6. P.W.6 Ramesh Ram, a „safaiwala‟, was reluctant to dispense with the said amount as illegal gratification to the appellant as he thought that his case was genuine and he was entitled to free medical assistance and thus sick certificate. This punctuated/propelled P.W.6 to visit the office of Superintendent of Police, Special Police Establishment, C.B.I. Patna, on 22.01.1985, and, submit his written report (Exhibit-7), in which it was alleged that a demand of Rs. 25/- ( twenty five) as illegal gratification was being made by the appellant for issuing sick certificate. The C.B.I. authorities, in order to verify, prima-facie, the allegations so incorporated in the written report (Exhibit-7), directed P.W.8 Ashok Babu an Inspector posted in the said office for making enquiry and submit verification report regarding the veracity of the allegation. This appears to have been done on the same day. P.W.8 on getting 3 such instruction accompanied with the complainant (P.W.6) visited the dispensary- cum- residence of the appellant situated close to Chiraiyatanr bridge ( in the township of Patna) and after making due enquiry, submitted his verification report (Exhibit-9). As the verification report did find substance in the allegation an F.I.R. (Exhibit8) was drawn.Thereafter a team of officials was constituted and materials for laying trap were arranged for the purpose of grabbing the appellant red handed. On 23.01.1985 at about 9.30 hours, the members of the trap team assembled in the C.B.I. office. Two independent witnesses in the shape of one Shri C.P.K.Pillai, a clerk in the State Bank of India (Vigilance Department of Patna) and Sri S.S.Agrawal, Inspector of Income Tax, Assessment Range, Patna were requisioned as independent observers. They also assembled in the office of Shri A.Prasad, Dy.S.P. (P.W.17). A demonstration regarding the entire process to be adopted in laying the trap was made. The G.C. notes brought by the complainant (P.W.6) were treated in presence of the witnesses and the members of the trap team. The members of the trap team as well as the independent witness were also explained the use of phenolphthalein powder and its chemical reaction in the solution of Sodium Carbonate. This was done by a practical demonstration by picking up a piece of paper treating with the said powder and thereafter the said paper was touched by one of the witnesses (Sri C.P.K. Pillai) with his left hand finger. His finger thereafter was dipped in the solution of Sodium carbonate which was prepared in the separate glass of water and on his dipping of his left hand finger in the whitish solution it turned pink. The said pink solution was collected in a bottle and sealed under the signature of the witnesses and members of the trap team. The piece of the paper used in the demonstration was also put in a separate cover but in the same manner. As per prosecution case, the numbers and denominations of the G.C. Notes carried and produced by the complainant (P.W.6) 4 were noted down in a memorandum and later on Notes (three in numbers) were also treated with Phenolphthalein powder and thereafter returned back to the complainant (P.W.6) with a clear instruction that he should tender the amount to the appellant/accused only on making a demand for illegal gratification by the appellant and not otherwise. All these proceedings were incorporated in a memorandum dated 23.01.1985 (Exhibit-6) which was read over and explained to all the members of the trap team including the two witnesses so procured by the C.B.I. officials. They signed the memorandum. Thereafter both the witnesses, the members of the trap team including the complainant who were involved in the demonstration washed their hands with soap and water just to ensure that no particle of the powder remained stuck to their hands. They were, thereafter, made to give a personal search. Such search of the person of all the members of the trap team including the complainant (P.W.6) was made. Now, the trap team was ready to visit the dispensary to catch the appellant/accused red handed, if bribe was demanded, tendered and received. At about 11.15 hours on that day ( 23.01.1985) the members of the trap team ( about 12 in numbers) including the witnesses reached the dispensary ( health unit), Eastern Railway, Patna. Members of the trap team were directed to take their positions around the chamber of the appellant as explained to them earlier by the leader of the trap team (P.W.17). The informant, thereafter queued up on the door and entered into the chamber of the appellant/accused when his turn came, produced sick memo and the prescription to the appellant. Further the prosecution case is that on looking to the same the appellant enquired as to whether the complainant had brought the money to which he replied in affirmative. On such demand being made by the appellant the complainant took out the G.C. Notes kept in his pocket and tendered those G.C. Notes of Rs. 25/-(Material Exhibit XI- XI/2) to the appellant/accused who 5 accepted the same with alacrity with his right hand, counted them with the fingers of his both hands and then kept them in the right hand side lower pocket of the prince coat which he was wearing on that particular day. It is further the prosecution case that thereafter the appellant enquired from the complainant as to whether he desires sick certificate (Exhibit-2) from that very day or from the previous day, upon which the complainant (P.W.6) replied that he would be satisfied if sick certificate is granted from that very day ( 23.01.1985). The appellant thereafter made changes in the date appearing on the certificate so prepared by him by overwriting and making „22‟ to „23‟in the date. The remaining part of the sick memo was filled up and the L.T.I. of the complainant was obtained thereon. This was done on all the three copies of the said certificate. The appellant thereafter made corresponding entries in the sick register (Exhibit-5) and handed over the sick certificate (Exhibit-2) to the complainant which certified that the complainant required rest/sick leave from 23.01.1985. 4. As a demand for illegal gratification was made, tendered and accepted the complainant gave pre-determined signal which prompted the trap team, some of whom were waiting on the Veranda of the room and watching transaction and business inside, barged into the chamber of the accused along with two independent witnesses. On seeing them the appellant took out the tainted G.C. Notes from the right pocket of his prince coat and delivered them in the left hand side upper drawer of his table and closed the same. The leader of the trap team (P.W.17) disclosed his identity and challenged the accused to have demanded and accepted illegal gratification from the Railway employee (P.W.6). The appellant turned pale and kept mum. The tainted G.C. Notes (Material Exhibits XI- XI/2) were recovered from the drawer of the appellant and he was accordingly taken into custody. As a trap was laid 6 and as such a procedure thereafter was bound to follow in order to show/demonstrate that he did accept the tainted Notes as illegal gratification. For this purpose solution of sodium carbonate were prepared in four glasses the fingers of both hands of the appellant, the lower pocket of his prince coat and the pen used by him were dipped in solution of Sodium Carbonate which turned the solution(s) pink. The solutions, glasses and other material exhibits such as the pen, the prescription register and the prince coat were thereafter sealed as material exhibits. While carrying personal search of the appellant by the P.W.17 a sum of Rs. 43/- (forty three) from his right hand and Rs. 41.50/- (forty one and fifty paise) from the left hand side inner pocket of his coat along with some other articles were also recovered and a seizure memo incorporating details thereof was prepared in presence of the independent witnesses. The appellant and other members of the trap team/ party put their signatures over the same and thereafter the accused was released on P.R. Bond by the Investigating Officer (P.W.17). 5. The investigation thereafter ensued in course whereof, the Investigating Officer found a prima-facie case having been made out under Sections 161 of the Indian Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act,1947. On conclusion of investigation and after obtaining the valid sanction for prosecution of the appellant charge sheet was submitted in the court giving rise to the present trial. 6. On the basis of the materials submitted before the court particularly, the charge sheet and the sanction so granted by the competent authority, the trial court took cognizance of the offence on 10.01.1986. Subsequently, charges were framed under Sections 161 of the Indian Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act. 7 7. The appellant pleaded not guilty and claimed to be tried. A plea was taken that he was falsely implicated in a concocted case in a pre planned manner at the behest of other doctors who eyed the post, the appellant was holding during the relevant time. As usual a plea was also taken that the tainted G.C. Notes which were found and recovered out of the drawer of the table were planted by his enemies and as such he is innocent in the eye of law. 8. The prosecution has brought on record certain documents/materials as Exhibits/ materials Exhibits: Exhibit-1 to 1/1 are the writings and signatures of P.W.1, R.B.Pasi , Exhibit ½ to 1/3 ( signature of the appellant on Exhibits 1 and 1/1, Exhibit 2 is sick certificate, Exhibit 3 to 3/1 are the two prescriptions, Exhibit-4 is the register seized at the dispensary, Exhibit 4/1 is the certificate no. 573641 on Exhibit-4, Exhibit-5 is seek register, Exhibit 5/1 is serial no.59 bearing on the sick register, Exhibit-6 is memorandum dated 23.01.1985, Exhibit 6/1 is seizure memo dated 23.01.1985, Exhibit 6/2 is signature of appellant on seizure memorandum dated 23.01.1985, Exhibit 6/3 is seizure memo dated 23.01.1985, Exhibit-7 is complaint filed by P.W.6, Exhibit 7/1 signature of complainant on Exhibit-7, Exhibit-7/2 is endorsement and signature of superintendent of police, C.B.I.S.P.E. on Exhibit 7,Exhibit -8 is formal F.I.R., Exhibit-9 is the verification report prepared prior to laying trap, Exhibit-10 is sanction order received from the competent authority, Exhibits 11 and 11/1 are the two Government notifications ,Exhibit-12/1 is the opinion of the experts received in court, Exhibit 12/2 is reasons for opinion Exhibit ½ is the signature of Shri D.C. Sinha on Exhibit-9,Exhibit-13 is a letter. Materials Exhibits:- Material Exhibit-I is solution in a sealed bottle, Material Exhibit-II is sealed envelop 8 containing a piece of paper, Material Exhibit-III is Phenolphthalein powder in a sealed bottle, Material Exhibit-IV is solution in a sealed bottle, Material Exhibit-V is solution in a sealed bottle, Material Exhibit-VI solution in a sealed bottle, Material Exhibit VII is solution in a sealed bottle, Material Exhibit VIII is pen of the accused in a sealed envelop, Material Exhibit-IX is the coat of the accused/appellant, Material Exhibit X is envelope, Material Exhibit XI is one G.C. Note bearing no. N/39, 512208 of Rs. 10/- (ten) only, Material Exhibit XI/1 is one G.C. Note bearing no. D/6 832253 of Rs. 10/-(ten) only, Material Exhibit XI/2 is another G.C. Note bearing no. 77L 649274 of Rs. 5/- (five) only, Material Exhibit XII is a bunch of keys, Material Exhibit XIII is one identity card, Material Exhibit XIV is enlarged photographs, Material Exhibit XV is one ballet of negatives, Material Exhibit X/1 is identification on letter. 9. Altogether 19 prosecution witnesses examined at the trial. 10. P.W.1 is Sri R.B. Pasi is an Employee of the Railway and during the relevant time was posted as the Reservation Clerk at Patna. The complainant was also working with him. This witness has set out in detail the practice and procedure prevalent in the Railways so far as medical assistance is/are concerned. This witness has proved the sick memo (Exhibit-1) and certificate (Exhibit 1/1). From his evidence this court can gather as to who sick memo and fitness certificate (sick certificate) are obtained by the Railway employees from the Divisional Medical Officer. The evidence of this P.W. further indicates that the appellant during the relevant time was holding the post of D.H.O. Eastern Railway, Patna and was competent to issue such sick certificate(s) to the employees of the Eastern Railway seeking medical aid/assistance. 9 11. P.W.2 Lilu Pandey is another witness. During the relevant time he was posted as the Hospital Attendant at the Railway dispensary/Health Unit. From his evidence it transpires that on the relevant date and time of occurrence he heard about the incident that the appellant had demanded and received bribe amounting to Rs. 25/- ( twenty five) from the complainant (P.W.6). On entering into the cabin/room of the doctor (appellant) he found glasses laying on the table and the appellant was surrounded by C.B.I. officials. Chemical tests were carried out. Solutions kept in the glasses turned pink/red when the appellant‟s fingers and pocket of his coat was/were dipped/washed. This witness has proved sick certificate no.573641 in the writings and signature of the appellant which has been marked as Exhibit-2. The prescriptions have also been marked as Exhibit 3 and3/1 respectively. The sick certificate book/register has been proved as Exhibit-5. The sick certificate bearing no. 573641 has also been proved as Exhibit 4 and 4/1 by this witness. The testimony of this witness does corroborate the stand of the prosecution that the present appellant was only the competent authority being Divisional Medical Officer to grant sick memos/certificate to the Railway employees working under his jurisdiction. The Exhibits so proved and brought on record by this witness do indicate that the prescription and sick memos were granted/issued to the complainant (P.W.6) by the present appellant. Exhibit 4 series and Exhibit 5 are the register concerning the sick memo of the Railway employees which is/are required to be maintained by the accused/appellant in the official discharge of his duty. 12. P.W.3 R.K.Choubay is the Inspector of C.B.I.. According to this witness, on the relevant date i.e. 23.01.1985 he went to the office of Sri Akhileshwar Prasad (P.W.17) where he was made to know that there was complaint lodged by P.W.6 that the present appellant had demanded Rs. 25/-(twenty five) as bribe for issuing sick 10 certificate. A demonstration was carried out in the office in presence of several C.B.I. personnels and the independent witnesses/observers who were drafted from the State Bank of India and Income Tax Department. After demonstration was complete the solution and all the other materials used in the said demonstration were sealed. He has proved his signatures on the seizure lists drawn up at the C.B.I. office. According to him G.C. Notes of different denominations( three in numbers) were smeared in phenolphthalein powder and thereafter given to the complainant with clear instruction to tender the same only when the doctor( appellant) demands for the same. Thereafter everybody present there washed their hands with soap. His evidence further indicates that thereafter the entire trap team proceeded to the dispensary where the complainant was made to stand at the door followed by one of the independent observers, namely Mr. C.P.K. Pillai. The complainant in his turn went inside the room. The doctor demanded money (bribe). The complainant said in affirmative and thereafter he took out the tainted G.C.Notes and tendered them to the doctor who received the same in his right hand, counted them and thereafter kept in the right pocket of the prince coat. His further evidence is that getting the predetermined signal by the complainant the other officials of the trap team barged into the room and thereafter the tainted G.C. Notes were recovered from the drawer of the table used by the appellant which was followed by chemical tests. Fingers of both hands of the appellant, pen and pocket of the prince coat etc.; were tested in the solution. The result of such tests was/were positive as the solution of Sodium carbonate turned pink. This witness in paragraph no.7 of his evidence has proved the material Exhibits I to XIII. 13. P.W.4 Sheo Shanker Agrawal is a witness who was requisitioned by the prosecution as an independent witness/observer. According to him a requisition was made whereafter he went to the C.B.I. office on 23.01.1985. There he could know 11 that a complaint was lodged by P.W.6 wherein it was alleged that the appellant had demanded an illegal gratification of Rs. 25/- (twenty five) for issuing sick certificate. The said allegation application was read over to all the members of the trap team present at the said office. According to him one Mr. C.P.K.Pillai (since dead) was also present at the said office. In presence of this witness and other C.B.I. police personnels a demonstration was carried out. And thereafter, the materials used in such demonstration were seized and sealed. A memorandum of the process undergone there was drawn up. He has proved his signature appearing on the said memorandum dated 23.01.1985 (Exhibit-6) as also the seizure memo prepared on the same date (Exhibit 6/1). According to this witness he along with the other members of the trap team thereafter proceeded to and reached the dispensary/Health Unit. P.W.6 stood up at the door of the room and in his turn entered into the room of the doctor. The doctor (appellant) enquired from him about the money (bribe) on which the complainant said: „yes sir‟. On such demand the complainant (P.W.6) took out the G.C.Notes and tendered the same to the appellant who accepted the same, counted them and thereafter kept them into his right pocket of the coat. Thereafter he enquired from the complainant as to whether he wanted sick leave from today or from yesterday (22.01.1985). On this, the complainant said he had already worked on 22.01.1985 and as such he would be happy if the sick certificate is/was granted with effect from 23.01.1985. The appellant accordingly made certain corrections/entries, got the L.T.I. of the complainant on the sick certificate, made corresponding entries in the register(s) and thereafter handed over the sick certificate (Exhibit 1/1) to the complainant P.W.6. No sooner this had happened P.W.6 gave signal whereafter the C.B.I. personnels entered into the room challenged the doctor (appellant). The doctor meanwhile had transferred the G.C. Notes from his pocket to the drawer of the table. 12 The bribe amount ( G.C. Notes) were recovered in his presence from the drawer and a memorandum was prepared. This witness has further stated that chemical tests were thereafter carried out of the materials/articles seized at the place of occurrence including the fingers of the appellant, the pen used by him and the pocket of the coat used by him for keeping the G.C. Notes. The tests gave positive results as the solution turned pink. Thereafter all the materials used in the said dispensary were sealed in his presence. He has proved his signature on the seizure memorandum. 14. P.W.5 Raghubansh Sinha is a witness who has deposed that on the relevant date he was staying at the guest house situated at Mahendrughat. P.W.6 complainant contacted him for help in drafting and filing application, as according to P.W.6 the appellant was demanding bribe for issuing sick memos/certificate. 15. P.W.6 is the complainant himself. As per his evidence on the relevant date he was working as „Safai karmchari‟ and was posted at Mahendrughat. He has stated that he was not very much literate and is only able to sign. During the relevant time he was posted as „Safaiwala‟ and was working as such in the Railway guest house, Mahendrughat. He and his entire family was registered with the Railway office entitling to free medical assistance. The appellant during the relevant time was posted as the Divisional Medical Officer and was serving as such at the Railway dispensary located close to Chiraiyatanr over-bridge. According to him he had in connection with his ailment visited the said dispensary a few days earlier also. On 22.01.1985 when he desired to have a certificate from the doctor (appellant) a sum of Rs. 25/- (twenty five) was demanded from him as illegal gratification for granting such certificate. Thereafter with the help of P.W.5 Raghubansh Sinha an application was drafted which was duly signed by him. The application is Exhibit-7 and his signature appearing thereon has been proved as Exhibit 7/1. From his evidence this court finds 13 that as deposed by the earlier witness the allegation was initially verified and thereafter an F.I.R. was drawn. On 23.01.1985 he reached the C.B.I. office where other members of the trap team had assembled. In their presence his allegation application was read out. A detailed demonstration was carried out about the use and effect of phenolphthalein powder. After completing the demonstration the articles used therein were sealed. Complainant was given G.C. Notes after treating them with phenolphthalein powder with clear instruction that he should tender the bribe (G.C.Notes) only when demanded by the doctor (appellant).All present at the demonstration were made to wash their hands. He was thereafter instructed to give pre-determined signal so that the C.B.I. officials present close to the room could catch the appellant red hand. Accordingly he along with the trap team went to the dispensary. He stood up on the door behind one patient whereas the other C.B.I. personnel took their respective