mIIIIIIIHHHHHIIHMll! IM 006 5 Sh rt a Pnpch {PNmiual} E HIGH POURT OF mmATBRE AT JABALPUR (Mp) 34 OF THE CGDE O CRxMINALv pRaCEDURE crir‘hinal Apeal No.21 “3 of 1997 / I N T; CRIMINAL APPEAL UNDER VSECTIGN ih , Anan ram, s/o Bhukhanram/'au, age about Zyyeers, by Occupé’él ‘ Part tune Sweeper, Veterlnufy ’Pospltalg Chulk dam, Distrt Rajnandgaom PPELLANT: ’ (E? 3% ® x x Versils‘ Resgmfadents: State of Madhya Pradsy fl, 1 7 F p d on ic A ' ehf HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench : Hon’ble ShriRaieshwar|a|Jhanwar,J. Criminal AQQeaI No. 2240 of 1997 RajenQra Singh VGFSUS State of Madhya Pradesh (now State of C.G‘) And Criminal Aggeal No. 2249]Q7 é,\ Anandram Versus State of Madhya Pradesh (now State of C.G.) JUDGMENT Post for pronouncement of Judgment 6-1 1-2009 Sdl- R.L. Jhanwar JugL/i gzé HIGH COURT OF CHHATTISGARH: BILASPUR SINGLE BENCH: HON’BLE SHRI RAJESHWAR LAL JHANWAR, J. Criminal Anneal No.2240/ 1997 y G Appe;lant Rajendra Singh, son of Shivnath Bhadoria, aged 33 years, Veterinary Doctor, Chhuikhadan, District Rajnandgaon (MP) (nOW C.G.) Versus State of Madhya Pradesh (now Chhattisgarh)) Criminal Agpeal u[S 374 [2! of the Code of Criminal Procedure Resgondent And : V " -» Criminal Appeal No.2249/ 1997 Appellant Anandram, S/o Bhukhanram Sahu, aged about 22 ‘ ‘years, by occupation Part Time Sweeper, Veterinary .Hospital, Chuikhadan, District Rajnandgaon. Versus Respondent State of Madhya Pradesh (now Chhattisgarh) Criminal Appeal u[S 374 of the Code of Criminal Procedure Present:-Shri T.K. Tiwari, counsel for the appellant in Cr.A. No.2240/97. Shri R.N. Jha, counsel for the appellant in Cr.A. No.2249/97. Shri RR. Sinha, Panel Lawyer for the State/respondent. ; JUDGMENT (Delivered on 4/ 1 1 /2009) Criminal Appeal No.2240/97 and Criminal Appeal No.2249/97 are being jdisposed of by this common judgment, as the appellants/accused Rajendra Singh and Anandram have preferred these appeals against the judgment of conviction and order of sentence dated 15$ October, 1997 passed by the learned Special Judge, Rajnandgaon in Special Case No$1/1993, whereby‘ therlearned Special" Judge has convicted the appellant — Rajendra Singh for commission of offence punishable under Section 7 and Section 13 (2) of the Prevention of Corruption Act, 1988 (henceforth ‘the Act of 1988) and sentenced him to undergo R.I. for 6 months and to pay a fine of Rs.500/— and R.I. for '1 year and fine of Vw Rs.500/-, in default of payment of fme to further undergo S.I. for 3 months respectively with a direction to run both the sentences concurrently and also convicted the appellant — Anandram under Section g 13 (2) of the Act of 198$ and sentenced to undergo RI. for 1 year and fine of Rs.250/—, in default of payment of fine to further undergo S.I. for 1 month. 2. i The prosecution story in brief is that appellant in Cr.Appea1 No. 224Q of 1997 — Dr. Rajendra Singh Bhadoria (henceforth ‘appellant No. 1’) i V ‘ at the time of incident was Veterinary Surgeon and appellant in Cr.Appea1 No. 2249 of 1997 ~ Anandram (henceforth ‘appellant No.2’) was part-time é Sweeper. Both the appellants were in the Government Employment and posted at Veterinary Hospital, Chhuikhadan. The complainant — Bhukhau applied for loan for purchasing one pair of bullocks in the Gramin Bank, Khairagarh. On 09.07.1989 the Bank held a camp for sanction of loans at Khairagarhr The complainant — Bukhau brought the pair of bullocks to Bank and completed necessary formalities for Bank loan. Both the bullocks were examined by appellant No.1 but for certification appellant No.1 demanded illegal gratification of Rs.200/- from the complainant. The complainant accompanied with Gangaram P.W. 14 met with the appellant No.1 on 17.07.1989 for getting certificate but the appellant No.1 refused to give certificate because of non-payment of illegal gratification by Bukhau. Bukhau P.W.12 made a complaint on 19.07.1989 to Superintendent of Police, Special Police Establishment, Raipur. On his report, a trap party was arranged and necessary l Oformalities were conducted after applying phenolphthalein powder on currency notes of Rs.100/— each. Both currency notes of Rs.100/- were given to Bukhau with a direction to give the currency notes to appellant No.1 on demand. Bukhau went to the Office of appellant No.1 at Chhuikhadan and met with appellant No.1 who demanded the amount a 3" ' and Bukhau was picking up those currency notes from his pocket to give the same to appellant No.1 whereupon appellant No.1 called appellant No.2 and Bukhau was asked to give the said amount to appellant No.2. ii Bukhau gave those two currency notes to appellant No.2, as directed by appellant No.1. Thereafter, Bukhau gave signal to trap party and the trap party immediately after receipt of signal entered the office of Veterinary and ‘on the information of appellant No.1 they (trap party) recovered both currency notes and seized from appellant No.2. Necessary scientific processes were conducted and necessary seizures were made. During investigation, statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. Solutions of sodium carbonate were sent to Forensic Science Laboratory from where positive report was received. After completion of investigation, charge sheet against both the appellants for commission of offence punishable under Sections 7, 13 (1)(d) and 13(2) of the Act of 1988 was filed before the Court of Special Judge, Rajnandgaon. 3. The learned trial Court, after appreciating the evidence and believing the statements of witnesses produced by the prosecution, held both the appellant No.1 guilty under Section 7 and 13 (2) and appellant No.2 under Section 13 (2) of the Act of 1988 and accordingly convicted and sentenced both the appellants as above. 4. Counsel for both the parties was heard at length and record of the trial Court has been perused. tax ' SJ. . The appellant No.1, as alleged,~-was working as Assistant Surgeon and appellant No.2 was working as part—time Sweeper in the Veterinary Hospital, Chhuikhadan. Both the appellants were public servants at the time of incident. This fact has not been disputed by the appellants. On 20.07.1989 from the possession of appellant No.2, two currency notes of ,r Rs.100/- in denomination having application of phenolphthal'ein powder were recovered at Veterinary Hospital, Chhuikhadan by trap party and the same have been seized from him which has not been questioned by the appellants. Even otheryvise from the statement of Witnessesyie R.S. Uikey P.W.16, Bhagat Singh Kulesh P.W.13 and J.S.Armo P.W.15, the above facts have been established and the learned trial Court after arriving at a conclusion that phenolphthalein powder applied on two currencynotes of dendmination of Rs.IOO/— each have been recovered and seized from appellant No.2 has not committed any error. 6. It is also not in dispute that appellant No.2 never demanded illegal A gratification of any amount from Bukhau nor appellant No.2 had any occasion or reason to demand illegal gratification from Bukhau. There is no evidence to show that both the appellants have common intention to commit alleged offence or nowhere it is found that they had conspired to get illegal gratification from Bukhau. a 7. So far as the appellant No.1 is concerned, the only evidence to implicate him in the alleged offence is of Bukhau. Bukhau, in his statement, has stated that appellant No.1 for signing the documents, demanded Rs.200/- as illegal gratification. He reported the matter at Raipur and under instructions of the trap party met appellant No.1 at Veterinary Hospital, Chhuikhadan where the appellant No.1 asked for money and on his instructions he has given Rs.200/- to appellant No.2. Thereafter, he gave signal to trap party and left the place. The trap party entered the hospital andwcaught appellant No.2 (Anandram). Other witnesses who accompanied with Bukhau did not corroborate the above story regarding tendering of Rs.2OQ/— to appellant No.2 on the instructions of appellant No.1. J.S. Armo P.W.15, in his statement, has stated that inside the room both the appellants were found. R.S.Uikey > y¢ \ , P.W.16, in his statement, has also stated that both the appellants were found inside the room Whereas Bhagat SinghrKulesh P.W.13, who was accompanied by trap party, in his cross—examination had admitted that Q appellant No.1 was found in Hospital compound. EX.P.5 is the map of the place filed by the prosecution wherein it is clearly shown that appellant No.1}was found at main gate of the Hospital compound which is adjacent to the Kawardha main road. 8. Thus, it is evident that the prosecution has failed to prove that appellant No.1 was inside the room but he was found at main gate of the Hospital compound which is adjacent to the Kawardha main road and & where the amount has been given to Anandrarn. a 9i The defence witness Kanhaiya Das Vaishnav D.W.1 and Satish Shrivastava D.W.2, in their statement, have stated that they were in the company of appellant No.1 at the time when he was caught by the trap party. Only from their statement, it is clear that appellant No.1 did not demand any illegal gratification from Bukhaii nor on his instructions amount has been given to appellant No.2. From their statement, it is also clear that the person who got Rs.200/— has stated that the amount has been given to him only for sipping tea etc. 10. From the statements of both the defence witnesses and from the testimony of above witnesses led by the prosecution and also on perusal of ,documents annexed therewith, it appears that defence taken by appellant No.1 that he did not demand any amount from Bukhau nor instructed anybody to pay the amount to anyone on 20/07/ 1989 is correct. The defence that he was at the time of incident in the company of Satish Shrivastava and was moving outside'of the Hospital campus and was caught at the gate of compound is also correct. ‘:r<\ ' has 11. Bukhau P.W.12, in his statement, has stated that he along with Gangaram P.W.14 had gone to bring Rs.200/ - and gave the same to police officers. In cross-examination, he stated that he was suffering from fever, ‘ a therefore, he could not‘move outside. Again he stated that ”he went to his relative who was residing at Raipur and borrowed Rs.200/- from him. So far as statement recorded under Section 161 of the Cr.P.C. by the police is concerned, the above fact was fully contradicted by him in many places. From his statement, it is also clear that he did not know what proceedings hadh‘een conducted by the police inside the Veterinary Hospital after he left the place. A ‘ l2. The prosecution has also failed to establish those documents which were given by appellant No. l to Bukhau and has further failed to establish that for which document the appellant No.1 demanded illegal gratification from Bukhau. Suresh Kumar Shrivastava P.W.5 also failed to establish as to which documents were given to Bukhau for obtaining signatures. 13. In the facts and circumstances mentioned above, it is not safe to ‘\ rely on the sole testimony of Bukhau in this case to hold the appellants guilty for commission of the alleged offences as above since the statement of Bukhau alone was not credible. 14.. Having thus considered the above discussion, it emerged that prosecution has completely failed to prove conspiracy of the appellants in taking illegal gratification from Bukhau. On the other hand, from the above discussion, it also emerged that the defence taken by appellant No. 1 ‘ ”was plausible and acceptable. 15. So far as involvement of appellant No.2 in the said offence that he had received Rs.200/- from Bukhau is concerned, the prosecution could not bring home the appellant No.2 under Section 13 (2) of the Act of 1988. For the foregoing reasons, I am of the View that the learned lower Court grossly erred in holding the appellant No.1 guilty for the offence punishable under Sections 7 and 13 (2) of the Act of 1988‘ and that of appellant No.2 under Section 13 (2) of the Act of 1988 and grossly erred to award sentence to both of them. In the result, both the appeals succeed. Conviction of the appellant No.1 under Section 7 and 13 (2) of the Act of 1988 and the sentence awarded thereunder and conviction of the appellant No.2 under Section 13 (2) of the act of 1988 and the sentence awarded thereunder are set W aside. The appellants are acquitted of the charges and shall beéit/liberty é’ forthwith. Fine amount if paid by the appellants shall be refunded to them immediately. A copy of this judgment be placed in the Criminal Appeal No. 2249/ 1997. Sd/— R.L. Jhanwar “x Judge