^ HIGH COURT OF CHHATTISGARH AT BILASPUR Cr.Apfl.No. 1834/1997 SB: Hosirble SSsri Justice R.L. Jhaawar APPELLANT State of Madhya Pradesh (Now C.G.) to^: RESPONDENT Versus Shri Deenbandhu Rathore JUDQM ENT Post for judgment on K .03.2010 Sd/- R.L. Jhanwar Judge HIGHCOURT OP CHHATTISGARH AT BILASPUR Cr. App. N0.1834/1997 Hon^ble Jisstice R.L. JIias&war APPELLANT State of Madhya Pradesh (Now Chhattisgarh). c: ¥ersus RESPONDBNT Sliri Deenbandhu Rafliore s/o RaBiji Rafhore, aged about 41 years, R/o Dhurkota Patwad Halka No. 67 Revenue Circle Nawagada, Tah. Jaajgir, Distdct Bilaspur. APPLICATEON U/S 378 (iiilFOR LBAVE TO APPBAL AGAENST ACQUITTAL AHD ALSO AH AP£>EALU/S 378 (il OF CR.P.C. AGAINST ACQ'UITTAL Appearaiiee: Shri. Aiviad Shnkla, Panel Lowyer for the appellaat/State. Shri Ramakant Pandey, counsel for fhe respondent. JUDGMBNT (Delivered on ^ "03. 2010) 1. The appella<iit/State has prefeiTed this appeal agaiast tlie judgment aiid fladtag of fhe Sessions Judge to flie Court of First Additional Judge aad Special Judge, Bilaspur, passed ia Special Case No.3/87, whereby, the learaed Special Jndge has acquitted the respondent of fhe charge under Section 161 of fhe IPC aad Sectious 5 (1) (d) and 5 (2) of fhe Preveution of Corruption Act, 1947. 2. The learaed lower Court has acqziitted fhe respoudent due to lack of evideuce, It has disbeUeved th.e prosecution witaaesses aad also acquitted fhe respondent on tlie groiind fhat fhe prosecution has not proved its case beyond rcasonable doubt, 3. Brief case of prosecution is tiiat flie coinplaiaaQ.t Thaadai'aBi waated a copy of Khasra number of his laiid, for which, he requested the accused/respondent-Patwad to give it to liisii, but he did uot give and deniaaded Rs,150/- for siipplyiag tlie copy of the Khasra nuinber. Coiaplain.ant gave Rs.20/~ to 1-iim and he assured fhe accused/respondent to give tih.e reniaiaiB.g aiiiount on 13 or 14th ofMay, 1985 at Shivrariiiarayaa near RJ, oftice. The coBiplainaxit was uot willing to give tiie rem.aiiiing aiiiount to fhe accused; fh.erefore, he reported th.e raatter to the Vigilaiice Coniniissioner, Bilaspur vide Ex, P/ 1. 4. On receipt of the complamt, trap party was arraiiged, coBiprisiiig of Onxega Toppo (PW-4), Dy, CoUector and J.P. Stolia, (PW-7), Naib Tehsildar and SOBIC ofh.er persons. After enquidng froni fhe coiiiplaisiaat aad perasal of the report, tiie trap party was satisfied, Thereafter, deHionstration of cheniical reaction of phenolphfhaleni powder aad sodiuni carbonate was doiie. One currency note of Rs. 100/ - aiid three currency notes of Rs.10/- were obtaiaed froin tlie co£aplain.aat aad phenolphtlialeisi powder was apptied on theni. The nuinbers of currency notes were recorded iu the Pan.chiiaoia. Directions were given to tiie coinplainaiit tliat before givrag tiie nxouey to tlie accused, he should not shake haiids wifh anybody and aller giving the curreucy notes to the accused, he wiU give signal to the trap party. Panchnama Ex. P/4 was prepared aiid the trap party proceeded for fhe iacident spot. 5. The complainaiit was sent for giviag inoney to the accused/respondent All fhe m.enibers of the torap party were staiiding at th.e distaiice of 100-150 yards away frora the spot haii^ Tlie coniplaixiaat went to the accused aad ca31ed him. The accused came out. The coinplamaat asked the accused for the copy of khasra nusiiber, on which, he denied tiien ftie coniplaiiiaD.t gave Rs. 130/ - to the acczised. The accused kept fhe Bioney io. his pocket aad went iaside his office. Thereafter, tibie coinplaiuaat gave signal to tlie trap party, Tlie trap party reached to fhe otllce of the accused aad after introduced tlie accused aad caught hold oftEie accused/respondeut A solution of Sodiuni Carbonate was prepared and haad of fhe accused/ respondeiit Vi7ere washed ia it on whir>h, fh.e solution tumed piak, A separate solution of sodiuni carbonate was also prepared aad haads of Ku. Oiiiega Toppo were dipped ia it, but the solution remamed colourless. Ku. Toppo recovered fhe notes froni fhe pocket of the accused/respondent- Patwari and numbers of currency uotes were taUied, which were identical to the numbers recorded m the Paiichnama, The chemical test of Phenolphttialem powder aad sodium carbonate was separately done for each of the raeiaber of the trap party, accused aad the coraplam.an.t, After corapletion of necessar)r foroialities, seiziire was done. Seizure of note is Ex. P/5. Seizure of Khasra Paiichshala is Ex. P/7, Rni Pustika is Ex. P/8 and Paachnasiia is Ex. P/6. The report was recorded at zero, which is Ex. P/10, Seized articles were sent to tih.e P.S.L, Sagar for chem.ical aiialysis. Peniiission for prosecution was obtained vide Ex. P/2. After coinpletion of fhe iavestigation, charge sheet was filed before the Special Judge, Bilaspur. 6. Charges were fraiaed under Sectiou 161 of the IPC and Sections 5 (1) (d) and 5 (2) of fhe Prevention of Comiption Act aiid read over aad explamed to fhe respondent accused, who abjured fh.e guilt and pleaded iauocence aad he took the defence fhat the raoney was giveu wifh. a letter by ttie coinplaiaaat to give it to tlie mother of tlie coiaplamasit. .^"'^^^ ^-e 7. After allordiiig opportunity of hearbig to fhe parties, the leamed Special Judge has acqiiitted fhe respondent of all the chajrge franied agaiast him. 8. It is evident from the statement ofThaiidaram (PW-13) aad Ex, P/14 and Ex, P/15 it is clear that the accused/respondent- Deenbaiidhu was posted as Patwad at grain KuMyari. an.d thereby accordisig to Section 21 (12) ofthic IPC, he was a PubUc Ser^ant The leanied Special Judge after appreciating Uie evidence did iiot fiiid tlie accused/respoiident guilty of fhe albrenientioried ofiences, It is clear from tlie statezaent ofThandaram. (PW-13) that his iincle Dayaram asked for the copy of Khasra nuniber, which was purchased by Uie fafher of th.e coniplainaiit. Therefore, tlie coniplaia.aQ.t asked for the copy. As the copy of Khasra B~ 1 was not available, th.e Panvari called hioi ou next day aiid on reaching next day, he demanded Rs. 150/- from him. The coinplamaat m.fomied his uncle about fais. Then his uiicle brought fhe complamao.t to BUaspur aiid they inet one Rajkuniar SharBia. They get written aii appMcation iroia Rajkuuiar Shai-ma aad gave it to ttie complaiaant to place before fhe Vigilaace office, He hiiaself has not dictated tlie matter to Rajkumai' Shamia, but it was dictated by Dayarani. Thandaraia was unknown what was written in the appMcation Ex. P/l. Ku. Toppo (PW-4) and Dr. Siaha (PW-7) aad Investigating Officer- M.K. Hiradhar (PW-15 have stated fhat aller readiiig Ex. P/ 1, tiiey were satisfied. It is evident from tlieir evidence fhat tliey have not asked anyfhuig froni fhe coniplamasit. Accoiding to tiie evidence of Rajkumar Shamia, he was not present iii Vigilaace ofllce. It is clear from tlie evidence of Than.dai'am. fhat tlie acciised/ respondent asked for Rs.150/- and Rs.20/»was given by fhe complairiaat and rest Rs.130/- had to be paid aiid fhe niatter was reported to the Vigilaace office, ___--__ ^^ N^- 8. Accordiag to Dayaram (PW-8), Thandaram told him that the accused/respondent had demaaded Rs.200/- from him aiid he has already given Rs.20/- aad only Rs.150/- remams. It seems that as per Dayaram Rs.20/- was ah-eady given and Rs.180/- had to be paid aad Thaudaram told Dayarani fhat only Rs.150/- remains to pay. In this way, total comes Rs.170/-, but Rs.130/- was given to flie respondent. This creates doubt that actuallv how much money was demaaded by tlie accused/ respondent. 9. Accordmg to Rajkumar (PW-1) Thandaram told him tiiat tlie acczised/respondent was simply harassmg for last one yeai' aiid he was not giviag tlie copy ofKhasra number ofhis laiid, but he has not adduced aay document ia tliis regard. Under siich circuBistZzHces, it is clear tliat whether aay proceediag for giviag copy of tlie Khasra niiniber was goiag on or uot. 10. After perusal of tiie evidence of Thandaram (PW-13), Ku, Toppo (PW-4), Dayaram (PW-8), Brijbihan, Honlal (PW-14), it is clear that trap party was arranged and the trap party went to the mcident spot, where currency notes quoted with phenolphthalein powder in denommation of Rs.130/- (1 note of Rs. 100 and 3 notes of Rs.IO ) were given to tlie complainant and those were haiided over by the complamant to the accused/respondent. The accused/respondent was trapped and money was recovered frorn him after testing it in the solution of sodmm carbonate. It is also proved by the report of F.S.L. Ex. P/13. 11. In the statement under Section 313 of the Cr.P.C., the accused/rcspondent has admitted that he has received Rs. 130/- from Thandaram. He has stated that those notes were given to him by Thandaram with a letter for giving it to his mother (mother ofThandaram). The letter is Ex. D/1 . ^-^ St. I li: ^,'^. ^;^^ 12. The defendaiit witaess Meharbaii (DW-1) has also stated the saiiie fact, Horilal (PW-14) has also coiToborated it. Under such circumstaaces, doubt has been crcated by fhe coinplamaiit that Rs.130/- was given by tiie complainaiit to the accused/ respondent for his niofh.er aad he has not deraaaded itlegal gratification. 13, The leamed lower Court after verifyiiig the signature, found it to be of Thandaram. In fhis context, neither ffae com.plaio.ant nor fhe prosecution has recorded the evidence of Handwritmg Expert, Under such condition, it caa be said that Ex. D/ 1 is written by Thao.daram, After seeiiig the letter written by Thaadai'ain to his nioth.er Ex. D/1, by which, he sent fhe money to his niofher tlirough fhe respondent. The learaed lower court has found it proper aad it is clear fhat Thaadaram has giveu nioney to fhe respondent to give it to his niofher. It is also clear from para 28 ofthe statenient of Thaiidarain (PW-13) fhat Dayaraoi was nimiical ternis witih. tiie respondent, fherefore, he iasisted hiai to lodge fhe complaint to the vigUance office, This also creates doubt 14. So far as the question arises fhat whetiier fhe Patwari was havnig autliority/jurisdiction to supply the desu-ed copy of Khasra number, in. this regard, J.P, Siiiha (PW-7), Naib Tahsildar has spectfically deposed io. para 8 ^^i^i ^T ^t <^T ^t ^WcT t^ ^S^s d^^d^J^ 'qi ^TTO d^tfld^l^ ^ d^^Tld <t?I^I<»i^ ^ ^Wcf ^TPT ^ cRT^T 1uiireT t i ^n^^f w^ Psr^ ^c^r ITCTTfl c^ 1tTRr '^\ifi WRTT t ^c^pT <4<^c{{41 ^Tc^cT I^T^ cf^ 4?S^fd^ ^' f^K '4^R[T t ft?Y ^T^cf ^^cR ^f ^f^cT ^fhT ^^ ^T^cT II^Tr? ^ \5TRft €i 15. This shows fhat he has no power to give that copy of khasra number. It is clear that when he did not have fhe right to give ftie copy, Uien why he will dem.and for iUegal gratification. ,^'a®^ ../"^^ " h. 1 ^tet^s ^?'3 Froni tlie entire record aad fhe evidence available ou record, fhe prosecution has failed to prove fhat whefher actually Rs.200/- was desnaaded or Rs.l50/-was dematided. The accused/ respondent has adniitted of receiviag Rs.130/- and has also admitted that Thaiidaraoi gave Rs. 130/ - along with a letter m ftie name of his m.0ttier. This was also supported by the Meharbaa (DW-1). Meharban. (DW-1) has also supported ttie version of Horilal (PW-14). In fhis way, defeuce has succeeded m creatmg doubt tiiat the accused/respondent has taken raoney froni fhe coniplaiuant to give his niother and has not taken any Ulegal gratilication. The accused/respondent had to prove only the existence of possibiMty of is uin.ocence. He gets fh.e benefit of doubt. This is also clear froni the statenient of Dayarami that he was previous ennxity with fh.e accused/respondent aiid Thaiidaram adniitted tliis fact. Under fhese cu'cunistan.ces, it is clear fhat ttie accused/ respondent has been falsely inipUcated ia tlie crmie in. question by fhe coraplainant at Uie iiistance of Dayaraoi, 16. In tlie facts aad circuBistaaces offhe case, I aia offhe view ftiat fhe prosecution has not been able to prove fhe guilty of fhe respondent under Section 161 of tlie IPC aiid Sectlous 5 (1) (d) aiid 5 (2) ofthe Prevention of Con'uption Act, 1947, The leaniecl Trial Court has not erred in acquitting the respondent uuder Section 161 of fhe IPC and Sections 5 (1) (d) and 5 (2) of the Prevention of CoiTuptiou Act, 1947. Thus, fhe acquittal of fhe respoadeut is wetl nierited aiid does not call for any isiterierence, 17, Iu the result, fhe appeal beiag devoid of substaace is Uable to be disinissed aad is accordnigly dism-issed. Sd/- R.L. Jhanwar Judge