'l ffi '"^ / •- ^aflaasoyd .1. ;ao ao aaoo SOL so ^LC HoiAoas aacNfl ivaddV vesiHi-ao qssp-ead EAqpEH ?e S^E-^S ('d'K) jndsBTTS ^sxa'^.sTp eqTTS SO-JT^JO ;TTStIBA (^-Te-[0) SOJAJSS q.usuausAoo tioT^ednooo ^q 'sysS. g£ qnoqB ^sBe 'ElM-ieA TeT:nqsqopa>e'?.ET: ?®uos '.lo'qs-pi aepBM 966T/ ^ ^^•ON Tee<id¥ TEUTUT-IO T.uspBodss'g^ . < ^ °^ d ••I'U' -SA- ^^" -d \"fsc'v-' q.UETTsddv (•a'H) v^s'wir 3.V avBiwiaas; aa S.'SB.OV BSIH ses, HI :'iS. ifi.wsaiQ) sjja^^ sjMa^ gesesooooojo ii 1 / ^•' •^"'WkMf;saNii»»^^»»^»-il«dt|i s";l- A< pe.T ^iCtuyt oTrctur dfc.l W^3<'^^S^S. ':""'°" ~yf"?^Wii-s>3 ^, '„, <U.Ajtfei>^ 57 •11-»S ^^ -40 •yaaaEa. 2» RBWtkanfc v«ma S/e &»fee ViBi!aa» aged about 22 yra 9iE ••A. ^nat. 3. Bdia S/o &^i< Madan Wsaftaa aga: ariBWl*,. 16 y»s. all lt«,tden;»':ae»s(ha».,-BBlAdiBg gfca»fca»Vwaw siaaaigwf (e.Q.) r'A' '-«•!><, HIGH COURT OF CHHATTISGARH iBJLASPUR SINGLE BENCH: HON'BLE SHRI MANINDRA MOHAN SHRiVASTAVA.J. Applicants Criminal Appeal N0.1S17/1996 Asha Verma and others Respondent Versus State of Madhya Pradesh (now State of C.G.) ,>^. POST FOR JUDGMENT ON /' DECEMBER. 2010 Sd//- Manindra Mohan Shrivastava •it.LUige -. / ....B.^S^K.^ £3?» :^ff'"^. giS^iBl g ''1 S '*9S»^'</ K-^i^ HIGH COURT OF CHHATTISGARH : BILASPUR Sinale Bench: Hon'ble Shri ManindraMohanShrivastava, J, Applicants Respondent Criminal Appeal N0.1517/1996 Asha Verma and others Versus State of Madhya Pradesh (now State ofC.G.) Criminal Appeal under Section 374 of the Code of Criminal Procedure Present:- Shri V. K. Pandey, counsel for the applicants. Shri Ravindra Agrawal, Panel Lawyer for the State. JUDGMENT (Delivered 0 _J_-12-2010) This appeal is directed against'judgment of conviction and order of sentence dated 06-09-1996 passed bythe 1 Additional Sessions Judge,- t' Bilaspur in Special Case No.5/1992, by which, the Court below after holding the appellant guilty for commission of offence punishable under Section 7, 13(1)(d) read with Section13(2)ofthe Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act") sentenced to undergo rigorous imprisonment for one year for each ofthe offences found proved, to run concurrently. T' 2. It is not in ^ispOte that on the date of the incident, the deceased -7 appellant-Madan Kishorewas posted and working on the post of Clerk in "><t- Tehsil Office at Bilha. The story of the prosecution is that while the deceased-appellant-Madan Kishore was posted and working on the post ofClerk ifl the Tehsil Office at Bilha, a caseinvolving complainant-Anand ^•^.•it?-""^^^. ^ "^ JJ ./ - Ram was pending in the Court of Tehsildar and the complainant was interested in bringing the said litigation to an end. On 03-02-1990,.when complainant-Anand Ram attended revenue proceedings in the Tehsil Office at Bilha, he requested the accused to manage the dismissalof the case, upon which, the accused demanded illegal gratification of Rs.200/- for getting the case dismissed. Further case of the prosecution is that finally, the deal was struck at Rs.100/- and.pn 20-02-1990 i.e the next date of hearing, the complainant was asked to come with Rs.100/-. As the complainant-Anand Ram was not inclined tosatisfy the demand of bribe, he submitted a written complaint Ex.P-1 on 19-02-1990 in the Vigilance Office at Bilaspur before the D.S.P. (Vigilance). On such written complaint being lodged, C. B. Singh, P.W.1 and another government witness were :,^ ^ ^ summoned and introduced to the cotnplainant. After arriving at prima facie satisfaction with regard to genuineness of the complainant-Anand Ram, the concerned D.S.P. (Vigilance) proceeded te make arrangement for trap proceedjngs. A pre-trap demonstration was arranged in the Vigilance Office wherein solution of SodiumCarbonate was prepared in a glass. On dip of water paper, colour didnot change. Thereafter, another peace of paper containing Phenolphthalein Powder was again dipped in the solution of Sodium Carbonate, which turned the solution pink in colour. A Panchnama pj pre-trap proceedings were prtpared vide Ex.P-2. Affer giving such demonstratioriT the complainant was asked to present -./-. ^... currency note of Rs,10p/- which was placed, on which, Phenolphthalein sx».. Powder was smeared and kept in the pocket of the complainant. The complainant was also ihformed and guided as to how the trap would be I!!'!'' I- |tiiii.-iEi^:ra2(-=3: t4l .* arranged and the role which he is required to play in the trapproceedings. The number noted in the currency note of Rs.100/- was also recorded in the pre-trap proceedings, vide Panchnama Ex.P-2. 3. After preparing panchnam'a of arranging trap proceedings in Ex.P-2, the trap team proceeded towards Tehsil Office at Bilha where the complainant was asked to come with bribe of Rs.100/- by the accused. The vehicle inwhich, members of the trap team proceeded along with the complainant, stopped near Bilha Railway Station and the complainant was asked to proceed to the spot i.e. Tehsil Office at Bilhafor giving bribe and the members of the trap team gathered around the Tehsil Office at different places in order to witness the incident. The accused and the complainant were found in a hotef and the complainant-Anand Ram gave currency note of Rs.100/- to th6 acGused. Thereafter, receiving trap signal, members of the trap team immediately arrived at the spot and caught hold of the accused and currency note of Rs.100/- was recovered and was seized vide Ex. P-3 along with some more currency notes and the clothes of the accused appellant. Vide Ex. P-4, records of proceedings of case pending before the Executive Magistrate, Bilha were seized from the possession of the accused appellant and were given on supurdnama of Tehsildar, Bilha vide Ex.P-4(B) for being produced during the course of < trial as and when reqyired. Vide Ex.P-5 other records relating to disputes ./ ! 'where compjainafrit was a party and were pendin^ in the Tehsil Office at Bilha relating to mutation proceSaings, were also seized. Vide Ex.P-6, 1 - . " ~ . some'other relevant documents including notes and order passed in Civil -T ijiaB \: '^ proceedings were seized. Panchnama of the trap proceedings carried out by the trap team was prepared vide Ex. P-7. 4. Hands of the accused were washed in the Sodium Carbonate solution, which turned pink. Upon pocket part of the shirt of the accused being washed, thesame also'turned in light pink colour. Thereafter, solution of hand wash of the accused was kept in a bottle and sealed and Clothes were also sealed. The samples were thereafter seht for examination to the Forensic Science Laboratory. After completing the trap proceedings and the investigation and after obtaining sanction for prosecution vide Ex.P-8 against the accused-appellant, charge sheet was filed. The report Ex. P-15 received from the office of Director, Forensic Science Laboratory, Sagar, repprfed positive test of the bottles containing hand wash and cloth wash oftheaccused, contained in the sealed bottles sent to Forensic Science Laboratory. 5. The learned trial Court framed charges for the alleged commissipn of offence punishable under Section 7, 13(1)(d) read with Section 13(2) of the Act. The accused appellant abjured his guilt. In order to prove its case, the prosecution examined as many as 9 witnesses. In his examination under Section 313 of the Cr.P.C., upon being confronted with the incrimin'ating evidence appearing against the appellant, the appellant denied having deffianded or accepted bribe and saidthat he has been >- / falsely.implicated. 1 " 6. By the impugned judgment of conviction and order of sentence, the learned appellate Court celying upon the case of the prosecution and 'n ^••;?" -3 ^ "i» ^ u^ 'i ^> :i%B^ '~"~ui^'i| w holding the same to be proved from the evidence of C. B. Singh, P.W.1, Durga Prasad Parashar, P.W.2 , held the appellant guilty for thealleged commission of offence punishable under Section 7, 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 arid sentenced him to undergo R.l. for one year for each of the offences and the sentence were ordered to run concurrently. 7. In order to hold the appellant guilty for commission of offence, the learned trial Court has mainly relied upon the evidence of C. B. Singh, P.W.1, Ram Bahadur Singh, P.W.4, R. J. Toppo, P.W.9 and the complainant-Anand Ram, P.W.6 and also Forensic Science Laboratory report showing presence of phenolphthalein powder in the hand wash and cloth wash of the accused appellgfitas corroborative evidence. 8. Learned counsel for the appellant vehemently argued that the prosecution has failed to prove by clinchrng evidence that any demand was made by the appellant. Hesubmitted that the prosecution has failed to prove beyond reasonable doubt thatany bribe was accepted by the appellant, and therefore, presence of phenolphthaleln power and mere recovery of currency note from the possession of the appellant, cannot be made basis for his conviction. It has gilso been argued that none of the prosecution witnesses, particularly the independent witnesses, who were brought by the trapieam for the specific purpose to watch the incidentof s '/ bribe givjng and also as to what trgnspired between the complainant and ^«t>. the accused appellant, have deposed that any demand was made by the appellant or the bribe qfferwas accepted by him. It was next contended by :lni: f;^\ y- i^./' ,f \^s^" .w/ / . learned counsel for the appellant that there was no motive for the appellant to demand bribe as he was not the Clerk-ln charge of the proceedings and it was not within his authority to pass any order or to get the case dismissed. 9. Leaned counsel for the appellant next submitted that there was another Clerk, who was Incharge and looking after the concerned proceedings, which the complainantwas interestedin getting dismissed.It was only on 16-01-1990 that in the absence of the concerned Clerk, the appellant looked after his work. Further contention of learned counsel for the appellant is that the dates on which, demand is said to have been made, the complainant was not even present in the office as evident from the order sheets of the proceecjjrfgs, and therefore, the complainant's version that demand was made by the appellant is wholly concocted and afterthought. Further submission of learned counsel for the appellant is that the entire case 6f the prosecution suffers from serious and inherent contradiction in so far as the demand, acceptance and recovery is concerned. He submits that the prosecution witnesses including independent witnesses brought along with the trap team have not supported the case of the prosecution on material aspects and their statement is not only contradictory but also contradicts the story of the trap team, as deposed by other witnesses. Learned counsel for the ./ appeflant further>ai?gues that different places of giving bribe have been dep'osed which renders the entire ca^ of the prosecution highly doubtful. '••^ e 10. Learned counsel for the appellant argued that in the absenceof there being due corroboration on material aspects and Without corroboration oftestimony ofthe complainant which himself is accomplice and keenly interested to implicate the appellant, the conviction of the appellant is illegal and unsustainable in the eye of law. Learned counsel •» for the appellant lastly submitted that n6 presumptionthat the amount was accepted as bribe could be drawn by taking recourse to the provisions contained in Section 20 of the Prevention of Corruption Act, 1988, in the absence ofthere being proof of demand and acceptance bythe appellant. In support of his submissions, learned counsel for the appellant has relied upon the judgment in the case of Dr. A. Y. Prasad vs. State, 2002 (4) Crimes 527, Sunil Kumar Sharma vs. State (CBI), 2007(3) Crimes 160, Arjun Bajirao Kale vs. State of Maharashtra, 2009(4) Crimes 504(Bom.), K. Giri vs. State of A.P., 2009 (1) Crimes 367 (A.P.), State of Lokayuktha Pollce, Mandya vs. K.M.'Gangadhar, 2008(3) Crimes 532 (Kar.), State ofKarnataka vs. A. V.^athish, 2007 (4) Crimes (Kar.) 24, Hari Dev Sharma vs. State (Delhi Administration) (1977) 3 Supreme Court Cases 352, Ganapathi Sanya Naik vs. State of Karnataka, (2007) 8 SCC 309, State of Maharashtra vs. Dnyaneshwar LaxmanRao Wankhede, (2009) 15 SCC 200, A. Subair vs. State of Kerala, 2009 (3) Crimes 1 (SC), C. M. Girish Babu vs. CBI, CoBhin, HighCourt of Kerala/(2009) 3 SCC779, V. Venkata Subbarao v. State .. / represented bylnspector of Police,A.P., 2007 Cr.L.J. 754 and State, •*>»-.. Inspectorof Police, Visakhapatnam v. Surya Sankaram Karri, 2006 Cr.L.J.4598. i;. j.l •"—t.ij.' ;:L ..r rT ! J;^A ^ [ T 11. On the other hand, learned State counsel supported the judgment of conviction and order of sentence by submitting that the prosecution has led clinching and reliable evidence in order to prove demand, acceptance and recovery. Learned State counsel further submitted that from the trustworthy evidence ofAnand Ram, P.W.6 i.e. the complainant, it has '» been proved that the appellant demanded illegal gratification for getting the case dismissed which led to filing of complaint by the Anand Ram, P.W.6 in the Vigilance Office at Bilaspur, which has been duly proved. It has also been argued that the proeeedings of trap have been duly proved not only by the complainant, P.W.6 but also by other independent witnesses, P.W.1, C. B. Singh, Ram Bahadur Singh, P.W.4 as also from the evidence of R. J. Toppo, P.W.9. Learned counsel for the State further argued that the case of the prdsecution is fully corroborated from the Phenolphthalein Powder test, in respect of hand wash and cloth wash of the accused appellant which have been found positive. Learned counsel for the State submits that as the demand has been proved and acceptance and recovery of currency notes from the possession of the appellaht, is also proved, conviction ofthe appellant could not be assailed on certain minor and trivial contradictions and omissions, as on all material aspects with regard to demand, acceptance and recovery, the evidence-of the prosecution has remajned unshaken and trustwprthy. Learned State couns^el pfaces reliance up6n the judgment of the Supreme -• / Court in the case piState Rep.by C.B.I.;'Hyderabad versus G. Prem Raj, 201f> (1) CCSC 109 (SC). . :~?;j| '^~' ^^ L ^.^y. ''li!a,a ^ ^ 12. Durga Prasad Parashar, P.W.2 has proved grant of sanction for prosecution of the appellant accused vide order dated 23-01-1992, Ex.P-8 by S. C. Gupta, the Additional Secretary, Law and Legislative Affairs, Govt. of M.P., Bhopal. The accused appellant has also not disputed grant of sanction for his prosecution. 13. In order to prove its case of demand of illegal gratification, acceptance and recovery of currency note, the prosecution has mainly relied uponthe testimony of C. B. Sirigh, P.W.1, Ram BahadurSingh, P.W.4, Anand Ram, P.W.6 and R. J. Toppo, P.W.9. The learned Special Court has also held the demand, acceptance and recovery proved mainly relying upon the testimony of aforesaid prosecution witnesses. Out of these, Anand Ram, P.W.6 is the complainant and the star witness of the prosecution to prove demand of illegal gratification by the appellant. It would therefore be necessary toscrutinize the evidence of Anand Ram, * . f P.W.6 as also other witnesses to find out whether the prosecution has succeeded in proving demand of illegal gratification beyond reasonable doubt in order to bring home the charges and prove the guilt of the appellant. 14. In Pannalal Damodar Rathi t/s.. Sfate of Maharashtra,AIR 1979 SC ^^91,-the SupremeCourtobserved asuhder:- ( ' / "There could/be'no doubt that the evidence of the complainant^ should be corrobqrated in material particylars: After introduction ofSection 165-A ofthe IPC making the; person who offe^'bribe guilty of abetment of bfibery, the complainant cannot be placed on any better fo'oting thanthatof an accomplice and corroboration in material particulars eonnecting the accused with the crime has to be insisted upon." ^ The status of person offering bribe and the caution required while assessing his evidence implicating a government servant was examined by the Supreme Court in a subsequent decision of M. O. Shamsuddln vs. State ofKerala, (1995)3 SCC 351 wherein it was held : "In tap cases, if any of the witnesses are accomplices who are particeps criminis inrespect ofthe actual crime charged, their evidence must be treate'd as the evidence of accomplices is treated; if they are not accomplices in that sen.se but are only partisan or. interested witnesses who are concerned in the success of the trap, their evidence must be tested in thesame way as other interested evidence is tested which may vary from case to case and the corroboration in the case of such interested witnesses can be in a general way and not as one required in material particulars as in the case of an approver... In such cases at the most he can be treated as an interested witness and whether corroboration is necessary or not will be.wrthin the discretion of the Court depending upon the facts and circumstances of each case. However, as a rule of-prudgnce, the Court has to scrutinise the evidence of such interest witnesses carefully." 15. The settled-legal position which emerges is that the complainant's evidence has to be scrutihizedcarefully and if his evidence is found trustworthy, reliable and also finds corroboration on material aspects, the same can be acted upon. 16. The comptainant Anand Ram, P.W.6 in his cross-examination in chief, /has deposed that a case relating to his agricultural land was pending in the Cpuri^-of Tahsildar, Bilha and in respect of the same land, •• / civil case was'pending at Bilaspur and he had submitted papers ofthe civil '*». cases before fhe Tehsildar, Bilha and requested for closing the case. He has also deposed that Tehsildar, Bilha was not present and the appellant used togive him dates.'He has further deposed that when he asked the R!;H';H!S 11 3(E,«^' appellant togive him date as Tehsildar is not there, the appellant said that he is litigating and his work will not be done free of cost. At this, the appellant said that if he gives Rs.200/-, he woutd get the case dismissed. When he expressed his inability to give Rs.200/- but offered only Rs.100/-, the appellant agreed and said that he would get the case dismissed. Upon being asked, when he should give the money, he was told that whenever he arranges money, he may bring the same-.'Anand Ram, the complainant also deposed that after return to his village, he told about the said incident to Sarpanch, Tulsi Ram, and Tulsi Ram advised him to lodge a report whereafter he and Tulsi Ram came to Bilaspur and went to the Vigilance Office, Bilaspur and from there he went to the office of D.S.P.(Vigilance) and made a oral complaint. Upon being asked by the D.S.P. (Vigilance) to makethe complaint in writing, the complainant requested Tulsi Ram to prepare the application and Tulsi Ram prepared application, on which, he put his signature and submitted before the D.S.P. (Vigitance). The aforesaid application has been proved and exhibited as Ex.P-1, on which, Anand Ram has admitted his signatures. The aforesaid document Ex.P-1 which complainant Anand Ram States to have submitted on 19-02-1990 before the D.S.P. (Vigilance) reads that in respect of the land in dispute R. K. Gupta S/o Gajadhar had instituted civil proceedings and has also instituted mutation proceedings inthe Court of Tahsildar, Bilha. The dpcument further ngads that he had submitted the order of civil case in the ». / »'fc~ Court of Tahsildaryet he has l^en asked to appear on the date of hearing. The sa1d document importantly further reads that on 03-02-1990 which was the date-of hearing, when the complainant went there, the 12 ,0 appellant, who is clerk in the office of Tahsildar, stated that in order to get dismissed or case withheld, he will have to spent Rs.200/-, upon which, he has stated he is a poor man and he can give only Rs.100/-, on which, the appellant agreed and stated that^the next date of hearing is on 20-02- 1990, on which date, he may come with the money and his work would be done. 17. In his examination-in-chief, the complainant-Anand Ram states that the appellant demanded illegal gratification of Rs.200/- for getting the case dismissed, but in the application Ex.P-1, it is stated that the money was demanded for getting the case withheld. The complainant has not stated as to on which date, he met the accused appellant. Though, in his complaint Ex.P-1, it is written thattie went to the office of Tehsildar, Bilha on 03-02-1990, in his examination-in-chief, he has nowherestated. The complaint Ex.P-1 cannot be treated as substantive evidenceand is only a former statement of the complainant which can only be used to corroborate the evidence of the complainant given in the Court or to contradict hisevidence as held in the case ofSures/i Kumar Shrivastava vs. State of M.P. 1994, M.P.L.J.30. In his cross-examination, the complainant- Anand Ram has deposed that two cases in respect of the same land were going on in the Court of Tehsildar and he did not ask to get all the cases closed ^nd when he asl^ted the appellant to give early dates of hearing, the^accused.appellant said.that it would not be done free ^ ofcost. He has further stated that the conversation with the accused was I ' ' ' • concerning mutation proceedings. He emphatically deposed that 03-02- 1990 was the date of hearjng in the mutation case. The concerned ! 8 •l^"-!^ %:lts 13 records were shown to the complainant on which, date of hearing is shown 16-01-1990. Ex.P-9 is the order sheets of the mutation proceedings and the date of hearing is 16-01-1990 whereas next date given is 20-02-1990. In the order sheet dated 16-01-1990, it has been recorded that the presiding officer is busy in other government work and therefore the case is adjourned. Though, theapplicant-Balram Prasad is recorded to be present and his signatures'have also been appended on the margin of the order sheets, it neither records the presence of the complainant-Anand Ram nor his signatures are there to show that he was present on that date. Thus, the aforesaid contradiction in the testimony of Anand Ram, P.W.6, which is very material and not any minor contradiction, renders doubtful the' story of demand made by the appellant. It has to be noted th.at.in the complaint Ex.P.1, the date on which the complaint made against the appellant, is stated to be 03-02- 1990 and was asked to come on 20-02-1990. In the cross-examination, the complainant says that the demand'related to mutation proceedings. No date of hearing was fixed in the mutation case on 03-02-1990, but it was on 16-01-1990. On that date also, the order sheets do not record the presence of the complainant. Secondly, while in theexamination in chief, the complainant states that the appellant demanded money for getting the case disrfiissed, in the complaint, Ex.P-1', it iswritten that the compl&inant will bave to pay Ry.2001- for getting the case withheld/stayed. Thirdly, .'•'- while in, the examiriation-in-chief, ^g states that the accused appellant asked him to cOme with the money as and when arranged, in the complaint Ex.P-1, he tias asked to come on 20-02-1990. fe-'>:i.!s- '^. tlii. ..:)' ^saat- 14 The prosecution has also brought in evidence the order sheetsof the other proceedings i.e. proceedings under Section 145/146 of the Cr.P.C. That case was listed before the Tahsildar on 03-02-1990 and the next date given in the case was 03-03-1990 as Presiding Officer was not present. In that case also, presence of the applicant-Balram Prasad has been recorded and he has also signed on the margin of the order sheets. Neither the presence of the complainant has been recorded nor signatures are appended. Thus, the very presence of the complainant either in the proceedings dated 16-01-1990 in mutation case or his presence in proceedings under Section145/146 ofthe Cr.P.C. on 03-02- 1990 is itself doubtful. The evidence with regard to purpose for which the money was demanded is also,/eohtradictory. The aforesaid material contradictions in the testimony-^of the'complainant Anand Ram, P.W.6 make the story of demand by the appellant doubtful. 18. B. L. Patel, P.W.3 ,who was working as Clerk in the office of Tehsildar at Bilha, has deposed that Revenue Case No.20/A-6/88-89 was in his charge. On 16-01-1990, he was not in the office and had gone to Bilaspur for government work, and therefore, on that date, adjournment was given by the appellant. He has deposed that on dates of hearing before and after 16-01-1990, the recordsWere in his charge and appellant was not holding