\ > '^./ /--^ v ^/^^- CF0000060181 IN THE HIGH COURT OF JUDICATURE AT JABALPUR Cr.A. No 14^-S Qf 98 Appellant (&: :j Gaya Prasad Singh, Son of Shivsampat Singh Respondent ^ Thakur, aged 42 yyears, Constable No. 348, P.S. Nevara, Raipur• *•-"•"' Versus : State of M.P., through Special Police Establishment, Lokayut Office, Bhopal, Office at c Raipur. CRIMINAL APPEAL UNDER SECTION 374(2) OF CR.P.C. AGAINST THE JUDGMENT AND SENTENCE DATED 30-6-98 PASSED BY SHRI H.P. SINGH SPECIAL JUDGE, RAIPUR IN SPECIAL CASE N0. 5/94 < "K. HIGH COURT OP CHHATnSGARH AT RjLASp^R Q-.ADpealNo. 1447/1998 Gaya Prasad Siagh -Versus- State ofChhattisgarh JUDGMENT Postfor:lL 11.2005 ot 2 ^.M 1 Sd/- Dilip Raosaheb Deshmukh Judge ^...r' ^ \.> HIGH COURT OF CHHATTISGARH AT BILA8PU1R Cr. Aopeal No.1447/1998 Gaya Prasad Siagh -Versus- State of Chhatdsgarh Present:- AppeBant t>y Smit Meera Ansad & Shri. N.P. Kela assisted with Shri K,A. Ansad, Senior Advocate. State by Shri U.N.S.Deo, Govt.Advocate/Additional PubUc Prosecutor. JUDGMBNT (Delivered on 21/11/2005) The foUowineludtsaieat ofthe Ctourt was delivered by DiUp Raosaheb Deshmukli, J. i. This appeal is directed agamst fhe judginent dated 30.6.98 deUvered in special Case No. 5/94 by Shri H.P. Singh/Special Judge, Raipur whereby the appeUarit Gaya Prasad Siagh was convicted U/S 7 aad Section 13 (1) (D) read with Section 13 (2) of fhe Prcvention of Corruption Act, 1988 (heremafter referrcd to as fhe Act of 1988) aad was sentenced to undei^p ngprous iaiprisonment for one year aad a fme of Rs. 1,000/- under Section 7 of fhe Act of 1988 aad ia default of payinent offme to undergo simple iaiprisomnent for fhree inonths aad also to ngorous imprisonment for one year and a fine of Rs.1,000/- under Section 13 (1) (D) rcad with Section 13 (2) of fhe Act of 1988 aad in default, to undeigo simple imprisonment for 3 months. 2. The appeUant was prosecuted with co-accused T.S. Choiihaa, the then Station House Officer of P.S. Nevra who was acquitted by fhe Special Judge froia fhe chai^e under Section 7 axid 13 (1) (D) read wifh Section 13 (2) offhe Act of 1988. s'.. 3. Briefly stated fhe prosecution stoiy is fhat Shiv Kuniar Aganval P.W. 11 deals wifh scrap inaterial at Nevra. On 28.1.89, fhe appeUant constable Gaya Prasad Siagh took Shiv Kuinar P.W. 11 to fhe rest house wherc fhey aiet fhe Station House Officer, T.S. Chouhaa.. The appeUant aad T,S, Chouhaa told Shiv Kuiaar fhat a case for unlawful possession of rathvay property exists agamst him aad thercfore, ifhe waats to peacefuUy run his iUegal scrap busiaess, he should pay Rs. 3,000/- per xnontih. to fheia failing which a case wUl be registered agamst hiai, T.S. Choiihaa asked Shiv Kiunar to give Rs. 1,500/- to Gaya Prasad Singh by eveniag on fhe sanie day, Shiv Kumar somehow maaag^d to pay Rs. 1,380/- to fhe appeUant Gaya Prasad Siagh at lus rcsidence aad prayed for tioie for fhe reniamiag amount On 13.2.89, the appeUaat Gaya Prasad Singh topk Shiv Kuinar froni his shop to fhe rest house where T.S, Chouhan. was waiting for thein. T.S. Chouhan directed Shiv KumLar that he should deliver Rs. 1,620/- at the house offhe appeUaiit Gaya Prasad Siagh before 14,2,89, On fhis, Shiv Kuniar lodged a written complamt to fhe S.P. Lokayukt, Raipur. A trap was organized headed by luspector C.K. Tiwari P.W. 13, M.K. Das Gupta, Asstt. Fisheries Officer, B.C. Shanna, P,W. 3, Asstt Director who were suniinoned as witnesses, Shiv Kumar P.W. 11 prcsented Rs. 1,620/- in notes of different denomiaations. Afiter applyiag Phenolphfhalein powder to the notes, fhey were kept ia fhe pocket of Shiv KuiEiar. He went near P.S. Nevra. The appeUaat Gaya Prasad Singh caoie to fhe PoUce Station, met Shiv Kumar aad expressed aanoyaace on fhe delay, B.C. Sharma P.W. 3 was standing with Shiv Kumar. The appeUant Gaya Prasad Siagh asked Shiv Kiimar to come L ^ to his quarter. Shiv Kiunar asked B.C. Sharma to accompaay him. The appeUartt did not agree, took Shiv Kiiinar alone with him iiiside his quarter aad locked the door aiid denianded Rs. 1,620/- . Shiv Kuraar haaded over fhe money. The appeUant coiuited tiie notes and kept it ui fhe pocket of his Bushshirt and was about to accompaay Shiv Kiimar towards fhe PoUce Station. At this tuiie, upon a predetemimed signal given by Shiv Kuniar fhe frap party arrived at fhe spot Inspector Rajeshwar Siagh P.W. 12 identified himself to fhe appeUaat who tded to run away. Rajeshwar Singh caught fhe appeUaat. There was a sciifHe. The notes feU down fromL fhe pocket of fhe appeUaiit on fhe ground. In fhe presence of Shri M.K. Das Gupta aad Shri B.C. Sharma P.W. 3, Inspector C.K. Tiwan P.W. 13, prcpared the Panchnama and seized fhe notes amountmg to Rs. 1^620/- which had faUen on the ground. Fmgers ofGaya Prasad Siagh and his shirt pocket were dipped ia fhe plaui solution of Sodiuxn Carbonate which chaaged iato pinlc colour. It was sealed aad seized. The notes seized froni the ground were also dipped ia the plaia solution of Sodiuin Carbonate which becaoie piak. After coinpletion of investigation/ the appeUaat along witih. T.S. Chouhan was prosecuted for oflTences under Section 7 aad 13 (1) (D) read witfa Section 13 (2) ofthe Act of 1988. 4, The appeUaat abjiired the giult aad pleaded innocence. He denied^ haviag raade any deniand of bribe to Shiv Kumar or to have ever harassed him. In his defence, he stated fhat Shiv Kumar deliberately atteiapted to put the inoney ia his pocket which was desisted by him, In fhis process, the contents of his pocket feU down. He was fhus falsely mipUcated. No evidence ia defence was adduced. ./l. 5. Learaed Senior counsel for fhe appellaat Shri K.A. Ansari has assaUed fhe conviction of the appeUant Gaya Prasad Sin.gh on the ground fhat fhere was no legal aad reUable evidence of record to substaatiate fhe conviction of fhe appeUant for the above nientioned oflfences. He led eiaphasis on the testiinony of Shiv Kumar ia para 7 whercin he had stated that he took out fhe raoney fix>Di his pocket aiid pushed it in fhe jfront pocket of Gaya Prasad Singh saying fhat henceforfh he should not be harassed. Upon fhis, Gaya Prasad Siagh repeatedly stated "What is fhis? I do not accept money^ but iaiinediately after fhis he left the place and scratched his head signalmg fhe trap party. This iacident occzirrcd at fhe quarter of tiie appeUant Gaya Prasad Siagh. Learaed senior counsel fhen poiated out to fhe testimony of B.C. Shanaa P.W. 3 whereia it was stated fhat on hearing noise froni iaside fhe Polic^ Station he found fhat a scufltte was gouig on between Shiv Kuinar, fhe appeUant Gaya Prasad Siagh aad fhe trap party after which fhe hands of the appeUant Gaya Prasad were washed ia fhe solution of Sodiuni Carbouate aad fhe trap party seized fhe currency notes which had fallen OVL fhe ground. It was contended fhat fhe evidence was totally contradictoiy so far as fhe place ofoccurrence was conceraed. It was also poiated out fhat fhe testiiaony of Shiv KumLar P.W. 11 ia para 7 clearly proved fhe innocence of fhe appeUaiit Gaya Prasad Siagh. There was absolutely no evidence about deniaad for aay bribe or to show fhat Shiv Kum.ar had paid Rs. 1,380/-to Gaya Prasad on aa earlier occasion. Panchnama Ex. P-4 also revealed fhat the notes which had faUen to the ground had been seized, So far as the evidence relating to titie change of colour of fhe Sodiiiin Carbonate solution zipon washing of the fiiigers of the appeUaat is conceraed, it was argued fhat as a natural conduct, fhe appeUaat Gaya Prasad Singh had w immediately fhrown fhe notes which had been fhrust by Shiv Kuuiar ia his pocket aad ia fhat process, the fingers of fhe appellaat had contacted fhe Phenolphfh.aleia powder as a result of which fhe colour of fhe Sodiuin Carbonate solution changed to piak. ReUaace was placed on Smt Meena Vs. State of Mdharcishtra reported ia 2000 Vol. 5 SCC 21 whereia it was held that mere recoveiy of currcncy note of Rs. 20/- denomiaation aad fhat too lying on fhe pad on the table by itselfcould not be held to be proper or siifficient proof of fhe acceptaace of bribe m fhe peciiliar circzinistaaces of fhe case which also lent credence to fhe case of the appeUant fhat it feU on the table ia fhe pressurc of the appeUaiit pushiag it away wifh his haads when fhe currency note was attempted to be fhrust iato his haads, The rcsiilts of Phenolphfhalein test viewed ia fhe context fhat fhe appeUaat could have also coine iato contact wifh. the ciirrcncy notes when he pushed it away wifh his haads cannot thus be considered to be of aay rcUaace to prove that the appeUant had reaUy accepted fhe bribe aiuount. It was also held fhat fhe circiiinstaiices revealed fhat fhere was aa atteinpt to weave a web around fhe appeUaat to somehow get hiai iato trouble aad victimize him. The Apex Court m fhe above mentioned case aUowed fhe appeal settmg aside fhe conviction and sentence of the appellaat On the other haiid, Shri U.N.S. Deo^ learaed State counsel has argued in support of the impugned judgment aad contended fhat fhe testiniony of Inspector Rajeshwar Siagh P,W, 12 clearly shows fhat the appeUant had attempted to run away on ardval of fhe trap party which was foUowed by a scnflGle duriag which fhe currency notes feU down from. fhe pocket of fhe appeUaat. This showed ftie conduct of fhe appellaat in. accepting fhe bribe who did not voluntarily fhrew fhe currency notes alleged to have been thrust m his pocket by Shiv Kumar P.W. 11. He argued that despite fhe testimony of Shiv Kumar P.W. 11 ia para 7, fhe veiy fact fhat the Phenolphfhaleia test offhe appeUant was positive, fhe tdal Judge had r^hfly convicted fhe appellaiit. <t 6. have heard nval contentions aad have also miautely perused fhe record ofSpecial CrimiEial Case No.05/1994. The testimony of Inspector R^eshwar Singh PW-12, C.K.Tiwari PW-13 and Shiv Kmnar Agmwal, FW-11 proves beyond doubt fhat a trap was orgaoized diiring which currency notes of Rs. 1,620/ - werc suppUed by fhe coia^)lamaat Shiv Kuinar Agrawal, After appfyiag Phenolphfhaleui powder to fhe hotes aad after coinpletmg the necessaiy legal formaUfies fhe notes were kept m the pocket of Shiv Kumar Agrwal and he was asked to give a signal after fhe notes were accepted by the appellaat This part offhe testiinony has also not been questioned during fhe course of arguments by fhe leanied counsel for the appeUaut. 7. In fhe entirc evidence led by ffeie prosecution fhere is not even aii iota of material to show tiiat tihie appeUaat Gaya Prasad Sia.gh along wifh co-accused T.S.Chouhaa deinaaded aa araount of Rs.3,000/-per m.onfh fi-om Shiv Kuxaar Agrawal PWr-ll as protection money for not proceeduig against hiai as per Law for his illegal activities. Relating to sale ofRailway irori scrap niaterial Shiv Kumar AgrawalPW-11 at whose iastance fhe trap was orgaruzed, has not said a word about fhis. All fhat he testified is fhat Constable Gaya Prasad Siagh used to regularly harass hiin aad at the advice of soine people he had gone to the special Police estabUshiaent. A look at fhe aatecedents of Shiv Kuiaar Agrawal PW-11 reveals fhat ia par^raph-20 bf his stateinent he has admitted fhat several cases relating to fheft ofiron scrap were iaitiated agauist him ^^-: aad even on fhe date of his evidence fhere was a case relatmg to fheft of iron scrap ia one of fhe Courts agamst hmi. This shows fhat fhe poUce was upright ui iavestigatm.g aad prosecuting Shiv Kum.ar P.w, 11 for his iUegal activities of fheft of iron scrap. Bearmg fhis backgroiuid of Shiv Kuinar Agrawal PW-11 in mind, it is absolutely necessaiy fhat his testixaony is scrutinized wifh. grcat carc and caution, lest aa upright police constable raay not faU prcy to fhe evU designs of such persons. This witaess was fhoroughly cross-examiiied by Special PubUc Prosecutor yet nothing could be eUcited fix)ra him which would go to show fhat at aay poiat of tiiae, the appeUant Constable Gaya Prasad Siagh had deinaaded a bribe of Rs.3,000/- per raonfh froin him. There is also uofhing ia his evidence to show that he had paid Rs. 1,380/- to Constable Gaya Prasad Suigh before the trap was orgaaized aad fhe remaiaing amoiint of Rs.1,620/- was agreed to be paid at fhe residence of Constable Gaya Prasad Sm.gh. 8, Besides, Shiv Kimiar Agawal PW-11 none of the prosecution witaesses have disclosed as to what happened when Shiv Kuinar Agrawal actually handed over the amount of Rs. 1,620/- to fhe appeUant In paragraph-11 Shiv Kumar Agrawal has clearly stated fhat siace the appeUaat had never deinaaded aay bnbe, fhere was, no question of giviag aiiy bribe to fhe appeUant He has stated fhat he only waated fhat the appeUan.t aad T.S.Chouhan should not harass hiai. In paragraph-7 ofhis testibaiony he has stated fhat he raet fhe appeUaat Constable Gaya Prasad Siagh at his quarter whereas witnesses, Ramji Bhoi PW-9, Rajeshwar Siagh PW-12 and C.K.Tiwari PW-13 have deposed fhat Shiv Kumiar Agrawal PW-11 had spoken to Constable Gaya Prasad Siagh near fhe PoUce Station aad thereafter both went togefher to fhe house of Gaya Prasad @ ..^-4 Siagh. Shiv Kumar AgrawalPW-11 ia para-7 of his testmiony has stated fhat he took out fhe xnoney froia his pocket aad fhrust it ia fhe front pocket of Constable Gaya Prasad Siagh and said fhat henceforth he should not be harassed, Upon fhis Constable Gaya Prasad said awhat is fhis", <6what is fhis^ and also said fhat he will not accept fhe inoney. While Constable Gaya Prasad Siagh was repeatedly sayiag fhat he does not accept fhe nioney, he caaie out and scratched his head whereupon fhe trap party reached and at fhat poiat of timie he found fhat the mpney tihinisf by hun ia fhe front pocket of Constable Gaya Prasad Siagh was lying on the ground. This raises a reasonable doubt that upon the money beiag fhrust in his pocket by Shiv Kumar Agrawal PW-11, ftie appeUaat as a natural conduct took fhe mLoney out aaid fhrcw it on fhe ground. 9. Inspector Rajeshwar Smgh PW-12 has a different stoiy to narrate. He does not state fhat upon receiviag sigaal froni Shiv Kuiaar Agrawal PW-11 he went to fhe spot, Accordiag to hiai, he went to fhe house of Gaya Prasad FW-12 on a Cycle and caiight him whereafter fhere was a scufQe aad both feU on fhe ground during which the ciurency notes which were sent wifh Shiv Kuiaar Agrawal PW-11 fell on the ground. It is pertiaent to note that Constable Ranyi Bhoi PW-9 also does not state anythmg about aiiy scufiEle between Rajeshwar Siagh PW-12 aad fhe appeUaat In para-10 ofhis testmiony he has also stated fhat when he entercd fhe house offhe appeUant he found fhat the notes were lying on the ground, Anofher witaess constable Pofhi Raai PW-4 also did nbt say anyfhiag about aay scufHe between Inspector Rajeshwar Siagh and fhe appeUaat. He only testfc&ed fhat when Rajeshwar Siagh caught hold of the appellaat ia front ofhis house, fhe notes were lyin.g on fhe ground, B.C.Sharma PW-3 has also given ao. absolutely dtfferent version regarduig the iacident. According to hiai, the entire iacident took place iaside fhe PoUce Station where sciiffle was goiag on between fhe coniplauiaat Shiv Kuniar Agrawal PW-11, fhe appeUaat Constable Gaya Prasad Siagh aad the VigUaace Cell people who had picked up fhe currency notes from. the ground and prcpared seizure nieino. ^--.-<. 10. The testunony of Shiv Kiimar Agrawal PW-11 clearly shows fhat no demao^d of bribe was made by fhe appeUant It also shows that he only waated fhat the appeUant should not harass hiin. May be fhat he had an evil design of getting constable Gaya Prasad trapped. The testimony of Shiv Kumar Agrawal PW-11 does not show fhat he had acconipanied Constable Gaya Prasad Singh fromi the PoUce Station to his rcsidence. It reveals fhat when he thrust the amounf of Rs.1,620/- io. ftie pocket of tihie appeUant, the appeUaiit protested by sayiag tf what is this", " what is thisw, <c\ do not accept the nioney aad whUe fhe appeUaaf was repeatedly sayiag fhis, he went out aiid Signaled fhe trap party. The evidence led by the prosecution clearly shows fhat fhe currency notes amountmg to Rs.1,620/- were lyiag on fhe grouud. 11. The only question which now requires consideration is whether it is plausible fhat the j5ngers of fhe appeUan^t cacae m contact wifh Phenolphthaleia powder applied to tihie currency notes when he threw it on fhe ground. In view of the antecedents of Shiv Kiunar Agrawal PW-11 and fhe fact fhat fhere is not even aa iota of evidence on record to show fhat fhe appellant had ever deiaaaded any bribe from. Shiv Kuiaar P.W, 11 this possibility cannot be ruled out Besides fhis, bearing fhe natural conduct of a person deinaading bribe aad takiag Shiv 10 Kzimar P.W. 11 to his house for fhis, it would be highly improbable that fhe xaoney would be required to be thnist ia his pocket, If fhe deiaaiid was fhere, the laoney would have been accepted by haad directly. 12. The followmg poiats thus emerge from the aforcsaid discussion:- (A) There is absolutely no evidence to show fhat fhe appeUaat deinaaded a suia of Rs. 3,000/- per monfh froni Shiv Kuinar Agrawal PW-11 for protectmg him agauist his iUegal activities ofsale ofrailway scrap. (B) There is not even an iota ofevidence to show that fhe complamaat Shiv Kumar Agrawal PW-11 had paid Rs, 1,680/- to fhe appeUant Constable Gaya Prasad Siagh before fhe trap was orgaaized, (C) Coinplaiaaiit Shiv Kuniar Agrawal PW-11 was involved ia several cases of theft ofiron scrap. (D)The testimony of B.C.Sharma PW-3 showed that the iacident took place iaside the poUce station and coxnpletely contoradicted fhe testuaony of Inspector Rajeshwar Siugh PW-12 and C.K. Tiwari PW-13. (E) The defence fhat upon fhe cirrrency notes beiag fhrust ia his pQcket by Shiv Kumar P.W. 11, the appeUant protested aad fhrew the uioney on fhe ground, is plausible. 13. In fhe Ught of aforesaid discussion, I ani of fhe considercd opiaion fhat the evidence led by fhe prosecution does not estabUsh beyond doubt fhat fhere was a dexaand ofbribe by fhe appeUaat. It is also not proved that Shiv Kumar P.W. 11 had paid Rs. 1,380/- to fhe appellaat before fhe trap was organized. It is also not estabHshed beyond doubt fhat fhe appeUant had accepted aa amount of Rs. 1,620/- as bri.be from. Shiv Kumar Agrawal PW-11 on 28-01-1989. The 11 @ aatecedents of Shiv Kumar Agrawal PW-11 ia para-20 of his testimony aiid his testimony ia para 7 create a reasonable doubt fhat fhe appeUant had not accepted the bribe of Rs. 1,620/- fix>m Shiv Kumar Agrawal PW- 11 aad upon fhe money being fhrust ia his pocket despite protests, he fhrew it on fhe ground due to which Phenolphthaleia test was positive, Thercfore, conviction of fhe appeUaat under Section- 7 aad Section-13 (1) (D) rcad with Section 13 (2) ofthe Act of 1988 cannotbe sustaiaed. 14. In fhe rcsult, fhe appeal is allowed. The conviction of fh.e appellaat uiider Section- 7 and Section 13 (1) (D) read with Section 13 (2) offhe Prevention ofCorruption Act, 1988 is set aside. The appeUaiit Constable Gaya Prasad Siagh is acqiiitted ofthe charge under Section- 7 and Section 13 (1) (D) read with Section 13 (2) offhe Prcvention of Corraption Act, 1988. Fiae, ifpaid, shall be refunded to the appeUaat. Sd/- Dilip Raosaheb Deshmukh Judge Priya/Satish