..f€a^\. l«,k 'Sl rf •^. APPELLANT: (OnBail) HIGH COURT OF CRHATTISGARH. BILASPUR Criminal ARDealNo.176of 1992 Chandrabhan Koushik s/o Takelram Koushik, aged 32 years R/Q Village Amsena P.S. Hirri Distt. Bilaspur (the theh Forester, Social Forestry Project, Head Office Village Bohardih P,S. Mastun Djstt. Bilaspur (M.P.) (now C.G.) RESPONDENT: Versys The State of M.P. (now the State of C.G.)'.". -1! • ' :" ' .:. :^./ {Criminal appeal underSectipn 374 (2)afthe CQdeofCriminalProcedure, 1973} Present: . , . .. . : . Mr. Manoj Paranjpewith Mr.Vikram Dixrt, counselfor legal heirsoflhe deceased appellant. Mr. Rakesh Kumar Jha, Deputy Govt. Advocate for the State/ respondent. ; . ' • Sinale Bench: Hon'ble Mr. T.P. Sharma, J ORALJUDGMENT (22-7-2010) • ' 1. The appeltant died; Legal heirs of.the appellant are permitted to continue theappeal. . ' , 2. Challenge in this appeal is to the judgment of cpnviction & order pf ...L^.'.l-' sentence dated 29-1 -1992 passed by tbe Special Judge & 3ru Additional Sessipns Judge, Bilaspur in Spedat Sessions Trial No.4/87, whereby& whereunder learned Special Judge after holding appellant Chandrabhan Koushik (since deceased) guilty for commission of Qffence under Sections 5 (1) (d) read with SeGtion 5 (2) bfthe Prevention of Corruption Act, 1947 (for short 'the Act') and 161 of the I.P.C., sentenced him to undergo R.l. for 1 % years & pay fine ofRs.500/-, jn defaulf Qf paymentof - fine to furth^r'undergo S.l.for three months and to undergo R.l. for one year & pay fine of Rs.500/-, in default of payment of fine to further undergo&,l.forthreemQnths,respective!y.', ~ , ; 3. Conviction is impugned on the ground that without there being any evidence of demand and acceptance of illegal gratification other than legal remyneration, the trial Court has convicted & sentenced the ^ ,]appeltantand thereby committed illegality. ~r\"". 1 v&••sy ^ ^^ liveit^ ^-1. 4, Case oftheprosecution, in brief, is that theappellant (since deceased) was working as Forester at Bbhardih Forest Range, complainant Dheerdas (PW-10) had earlier encroached the Government tend and in the year 1986 ditcheswere dyg in the land occupied by Dhfeerdas (PW- 10) atthe insfance of the appellant. The complainant met theappetlant on which the appetlant demanded Rs.2,000/- as bribe and the complainant gave Rs.250/-t&the appellant. The appellant directed the complainant to pay the remainjng amount^on 1 -4-86. The complainant was not ready to give bribe and he made a written complaint to the Superintendent Qf Police, Vigilance Department, Bilaspyr on 1-4-86 vide Ex.P-7. Trap partywas constituted, Panch witnesses were requisitioned and the eomptaint was read over to the panch witnesses. The complainant produced ten currehGy notes of Rs.100/- each. Numbers of the said currency notes were recorded in the preliminary panchnama. Reaction of phenolphthalein powder anti sodium carbonate solution were demonstrated. Currency notes were tainted with phenolphthalein powcter and were kept in the pocket of thecoinplainant. The complainant was djrected to give the aforesaid amQunt tb the appeltant .on demand. Preljminary panchnamawas preparedvide Ex.P-8. Trap party proceeded for fhe spot and ataboyt 9 p.m. trap party reached near fhe house Qfthe appellant. The complairiant along with shadow witness went near the house ofth&appellant. The appellantwas present inside his house. The comptaihant went ihside the house of the appellant and the appeltant demandedRs.1,000/-onwhichthecomplaihanttookoutthemoneykept ih hjs pocket for giving such bribe and gavethe same to the appellant. The cpmplainant madesignal to trap party by lighting torch on which trap party came and after introduction hands of the appellant were washed withsodium carbonate solutibn which turned into pink coloyr, CurreBcy 'nQtes were kept on the cpt (bed) of the appellant. Thereafter, currency noteswere talliedwith the preliminary panchnama and samewereseized from the' appellant vide Ex.P-9. Final panchnama was prepared vide Ex,P-10. Hand wash solution andoriginal solution were seized. F.t.R. was lodged. Seized articles were sent for chemical examination and presence of phenotphthalein powder. in hand wash solution of the appeilant was confirmecl vide Ex.P-13. Sanction for prosecution was accorded against the appellant. After completion of investigation, charge sheetwas filed before the Special Judge, Bilaspur. ". it :...*^ ^::v-wV^ '». %i^|. i.'^.w •t^ ''i^-s': ^ -•scs?'<~.'w. IKI 5. In.oFdertoprovethe guilt ofthe appellant, the prosecutjon has examined as mahy as thirteen witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleadedinnocenee and false implication. . 6. After affording opportunity of hearing to the parties, learned Special Judgeconvicted & sentenced the appellant in the aforesaid manner. 7. I have heard learned counsel for the parties, perused the judgment and record of the trial Court. ' 8. Mr. Vikram Dixit, learned eounsel appearing on behalf of legal heirs of the deceased appellant, yehemently argued that although the appellant has expired but his relatives/lega! heirs want to continue the appeal oh the ground that the appellant has not committed any offence and has no^, demanded or accepted bribe. Learned counsel further argued that sybstarrttally, the case qfthe prosecution is based pn the evidence of complainant Dheerdas (PW-10) who has hot deposed anything .to show that the appellant has demanded or accepted illegsil gratificatioh ofher than legal remuneratjon from the complainant or that the appellarit was in the habjt of demanding ancl accepting bribe. Learhed counsel also argued that he is not disputing the sanctjon Ex.P-1 accordedagainst the appellant which is sine qua non for taking cognizance of the offerice punishable under the provisions of the Act. Learned counsel eontended that the evidenee of Dheerdas (PW-10) clearly reveals that wben the complainant met the appellant relating to plantation, the appellant informed hjm that the Panchayat has ^spent money and therefbre, the Gomplainant may contact members of the Panchayat and in case they agree after paying them the expenses incurred in cligging clitches, they may sfop digging ditclies and plantatton on the land occupied by the GQmplainant. Leamed counsel further contended at at the time of incident the comRlainant went to the house of the appellant and tried to give such^ n>6ney for the Panchayat on which the appellant directed him tpcall Panch TilaK whereuppn after keepinig the moriey on the cot ofthe appellant, he went forcalling Tilak& Vipin, then trap party came and cbnducfedafter trap proceeding. Learned counsel also contended that this shdws that the appellant has neither demanded nor aecepted illegal gratificatipn otherthan legal remuneration for himself orfbr others. A<'< ^~::- ••^&!^ ^^ ^ ^wSs *» ^^*>f^i. 'i 't'i'Vtyi°'' ?' (,••. •' 9. On the other hand, Mr. Rakesh Kumar Jha, learned State counsel, vehemently opposed the appeal and submitted that the evidence of Dheerdas (PW-10), S.S. Gour (PW-11) — Deputy Superintendent of Police &S.K. Tiwari (PW-12) - Aclditional District Magistrateare sufficient for drawing inference that the appellant lias demanded and accepted bribe.. . • !' ;. 1 .. ^ ,"- .'1':'. '. ., • •^ '' ,, . ;1 :1 ; : 10.In order to appreciate the argumentsadvancedon behalf of the parties, 1 have eXamined the evidence adduced on behalf ofthe^rosecutkin. 11 .Sanction to prosecute public servant in termsof Section 6 (1) dfthe Act is sine qua non for taking cognizance and the prosecutiQn has obtained sanction for prosecution Ex.P-1 from the compefeht authority whieh has been duly proved by Dariyany Lalwani (PW-3) - Dealing Assistant. 12.As regarclsdemgnd andaefieptance ofiflegalgratificationotherthanlegal remuneration by the appellant, Dheerdas (PW-10) has deposed in his evidence that fhe Forest Department has dug ditches on the Government lanc) oGcupied by him, he metthe appellant yho told him thaf ifhe pays the expenses incurred in digging the ditches, then the ap'pellant may direct for stopping the workand fhe appellant demanded Rs.1,500/-. He (this witness) went to the Vigilance Department where he lodged written compfaint Ex.P-7. He prodyced ten currency notes of Rs.100/- denomination which were tainted with phenolphthalein powder and were put in his pocKet. He went along with trap party to the house of the appellant in the night, th& appellant was preserit in his house, he gave moneytotheappellantahdcameoutfromhishouse.Trappartyentered the house of the appellant and conducted post trap proceedings. Defenee has cross-examined this witriess atlength. In para 51 of Ais cross-examination, this witness hasspecifically admitted that ditches tvere dug onthe direction pf the then Rariger Tager, he met theappellant whom he requested for relievjng his land from plantation workand he is ready te p'ay the expenses incurred in digging the ditctles oh which the appellant told him that iftt^ Rangerprders and the PancHayat agrees, . they m$y set his land free from plantation work. This witness has further deposed in para 5 of his evidence that he weht to the Vigjlance Department with one Ramsharan Tiwari. In para 6 of his cross- examination he has admitted that the appeillant was present in his house and MvHen he told the appellarit that hK had brought Rs.1^000/-, ttie ^- ':j:, i^ti^i^ •35it'a-—rsin-';i:' appellant told him to call Panch Tilak then he will take the money, thereafter, he kept fhe mdney on the cot of the appellant and went for calling Panch Tilak, in between trap partx entered in the house ofth^, appellantand conducfed proceeding. 13.StiadciW witness S;K. Tiwan (PW-'12) has substantially corroboratecl the evidenceof the complainant and has deposed thatafter receiying sigrial theywentinsidethehouseoftheappellant, atthattimetheappellantwas holding lantern in one hand and currency notes in other hand, then he caught hold of the hand in which the appellant was holcling currency notes and thereafter, post trapproceeding wasconducted. Hands of the appellant were washed in the SDdium carbonate solution which turned into pink colour and currency notes were aejzed. In para 7 ofhis cross- exsjmination, this witness has admitted that he caught hold of the hands of the appellant, but he has not directly took the currency notes from the hand of the appellant, the notes were kept somewhere in the house which he took atthetimeof comparing the numbers. ^ 14;£>.S. Gour (PW-11) — Investigating Officer has also corroborated the evidence of the complainartt in detail.' He hasspecifically admjttediin para4 of his cross-examinatiQn that althoygh the appellantwas keeping currency notes in his hand,but they have not directly taken the ciirrency notes from the hand of the appellant and^they directed him tb keep the same on the bed for washing the hands of the appeltant. After washing the hancls of the appellant, shadow witness S.K. Tiwarl (PW-'t2) took out theeurrency notes. . 15.As pertheeyidenceofDheerdas(PW-IO), there is no previous history of the appellant that he is in the habit ofdemanding and accepting bribe. Evidence of Dheerdas (PW-10),reveals that the appellant has fold him 1hat in case he pays the expenses incurred in digging ditches and if the appellant'&; superior offieer Ranger ahd authorities •of the Panchayat agree, lh6y maystop thework ofdigging djtches in the land encroached ; by him^ Evidence of Dhe^njas (PW-10) fupther reveals that at the^ime of . giving the said amount of Rs. 1,000/- the appellant has not accepted the money and direeted him to call Panch Tilak whereyppn afterkeeping the money on the cot (bed) he came out from the house of the appellanf for calling Panch Tilakand in between, posttrap proceieding was condyeted. ; .^ -r~-<^f ^' ^i^- C7 l6.As perpara 7 of cross-examination of shadow witness S.K. Tiwari (PW- 12) - Additional District Magistrate when he caught hold of the hands pf the appellant, theappellantWas not keeping currency notes in his hand and currency notes were kept somewhere which afterwards were taken out-by;him.. !'':' ••:\:1 ,',;'1 .': : . : /.-...1: ''• ' ^:1^'.' • • 17.As perpara 4 offhe eyidence oflriyestigating OfficerS.S.Gour(PW-11), the appellant was djrected to keep the currency notes on the bed,for washing his handsandcurren'cynotesweretaken byS.K. Tiwari (PW-12) from the bed for tallying thesame, Final panchnama Ex.P-10 also reveals the same thing thatcyrreney notes were directed to be kept on thebed.:.:;. ' , 1'.' ..•-1.';: - 1.'-' .' , 1" /,1 ,., -•:'•.,-. ' ^:^ 18.As per the evidenee of Dheerdas (PW-10), the appellant has not taken money in his Hand, mdney was kept on the cot and when this witness came out from the house offhe appellant, at the same time.trap party entered in the house ofthe appellant. S.K. Tiwari (PW-12) caught hold of the handsofthe appellantand atthattimerthe appellantwas not keeping mpney in his hand. In this situation, how itwould 'oe ppssible tq direet the appeHantto keepthemoneyonthebecl. iS.Evidenceof the aforesaid witnessesreveal that moneywas;seizedfrom Ihe bed (cot). If currency notes werenot touched bythe appellant, how the hand wash solytion turn to pink cplour and how presence of phenolphthalejn powder was confirmed-in the hand wash solufion. What was the propriety f6 direet the appellant for keeping money on bed wheh itwasinthehandoftheappellantandwhafwastheneceSsityofwashing the hands of the appellant before seizurp of such mpney from him. These questions create grave doubt Supon the evidenee .of the '^ prosecution. 2Q:Evidence relating to aforesaid facts deposed by Dheerdas (PW-10), S.S. - Gour (PW-1-^ & S.K. Tiwari (PW-12) are self-contradicfory. The : appellant was facing charge pf corruption i.e. demanding & acceptihg illegal gratificatjon other than legal remuneration, It is an offence against the moral turpitude and in caseOf cQnviction his serviees werg liable to be terminated. The offence was heinous and in case of heinous offences ^ degree of proving ttie offence is heavier ypon the prosecytion and the ^ prosecytion is required to prove the guilt of the appellant heyond-all ,: : reaspnabledpubls. Ifevidence oftheaforesaid witnesses are considered y ^ Soma then itwould beclearthatthe appellantwas not in the habitof clemanding & accepting bribe. Evidence adduced on behalfoftheprosecutipnisnot sufficient for amving at a definite cbnclusion that on the date pf inctelenl the appellant has demanded & accepted illegal gratifrcation other than legal Ternuneration by abusing his office, for himself or for others. In absenGe 6f such evidence to prove the aforesaid facts and essential ingredients of the offence, eonviction & sentences imppsed upon the appellantunderSections5(1)(d)readwithSection5(2)oftheAct&161 6f the I.P.C. ar6 not sustainafcjle ynder the law. While cohvieting & sentencing the appellant learned Special Judge has not Gonsidered the aforesajd evidence and thereby committed illegality. 21.Fortheforegoing reasons, theappeal isallowed. Conviction &sentences imposed upon the appellant under Sections 5 (1) (d) read with Section 5 (2) ofthe Act & 161 of Uie I.P.C. are hereby set aside. Sd/- T.P. Sharma Judge ^^ ;t, .{.' .' •.r,-\.. ••'•' ^ /