CRIMINAL APPEAL No.295 OF 1993 (S.J.) (Against the judgment and order of conviction dated 04.09.1993 passed by Special Judge (Vigilance), South Bihar, Patna in Special Case no. 18 of 1989 arising out of Vigilance Police Station Case No. 60/77) Syed Imam Ali S/o Late Syed Taiyab Ali Resident of village Tirmohani, Police Station Amdabad,Dist. Katihar. ---------- (Appellant) Versus State of Bihar --------- (Respondent) For the appellant : Mrs. Asha Kumari (Asha), Amicus curie. For the State : Mr. Satnarayan Prasad,APP P R E S E N T THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL Kishore K. Mandal, J. The sole appellant who, during the relevant time, was posted as Assistant Sub Inspector of police in a Police Station/outpost was charged under Section 161 of the Indian Penal Code (for short “the code”) for having accepted gratification of a sum of Rs.500/- for helping the complainant (PW-12) by not arresting him in connection with a case. He was further charged under Section 5(2) of the Prevention of Corruption Act, 1947 ( hereinafter referred to as 1947 Act) for having committed criminal misconduct by obtaining illegal gratification from the complainant 2 by abusing his official powers and position as a public servant on the date of occurrence i.e. 09.12.1977. The trial court on appraisal of the evidence brought on record found and held that the charge(s) so framed against the appellant stood proved beyond reasonable doubts and accordingly he was convicted under Section 161 of the Penal Code and Section 5(2) read with Section 5(1) (d) of the P.C. Act, 1947 and sentenced to undergo R.I. for one year under each head/count and also to pay a fine of Rs.1000/- in addition to sentence under Section 5(2) read with Section 5(1)(d) of the P.C. Act with default clause. 2. The back ground facts in a nut shell are as follows:- The appellant during the relevant time was posted as the Assistant Sub-Inspector at Morhan outpost within Sabour Police Station in the District of Bhagalpur. In the night of 01.12.1977 he arrested two persons who happened to be the servants of the complainant (PW 12) late in the evening and thereafter broke into his house and arrested him alleging that he had supplied fire arms to his servants. The complainant pleaded innocence and cajoled the accused to release him. The appellant initially showed his reluctance but subsequently became agreeable to 3 his release and non implication in the case if he was paid a sum of Rs.2000/-. It was, however, agreed that the complainant (PW- 12) would pay a sum of Rs.1400/- to the accused for his non implication in the case under focus. Complainant‟s uncle PW 15 was asked to manage the amount and pay the same to the appellant and accordingly a sum of Rs.900/- was paid to the appellant with a promise that the rest of the amount shall be paid later on. The complainant was thereafter set at liberty. As he was not acceding to further demand of the balance amount i.e. Rs.500/- he approached the Vigilance Department and filed a complaint on 04.12.1977 (Ext.4) with Additional Superintendent of Police (Vigilance) Bhagalpur requesting therein for taking appropriate legal action against the appellant. P.W.16 M.K. Jha, Additional Superintendent of Police (Vigilance), Bhagalpur entrusted the complaint petition to Satyadeo Mistry, Sub Inspector of Police (PW- 17) to verify the allegations. This was done by endorsement made on the complaint (Ext.5). P.W.-17 Satyadeo Mistry accompanied by the complainant went to the Morhan outpost next day i.e. 05.12.1977 in order to verify the allegations. The appellant asked the complainant in 4 presence of this witness (P.W.-17) to give him the balance of the amount Rs.500/- whereafter the complainant explained that he would very soon arrange the amount from his brother and pay him to which the appellant agreed. P.W.-17 on finding the substance in the allegations, based on his verification, submitted verification report (Ext.6) on 06.12.1977 to the Additional Superintendent of Police (Vigilance) (PW -16) who forwarded the same to the Vigilance Headquarters at Patna where a formal F.I.R. (Ext.7) was drawn up and registered. Upon such registration of the Vigilance case a raiding team headed by Sri S.N. Sinha, Deputy Superintendent of Police and Sri Sambhu Saran, Special Magistrate (PW-9) was constituted to lay a trap and thereby arrest the appellant red handed while accepting the illegal gratification. On 08.12.1977 all the members of the raiding team assembled at Bhagalpur. The complainant produced 05 G.C. notes each of 100 denominations before the Dy. S.P. who prepared a memorandum (Ext.3) incorporating complete details of the G.C. notes so produced by the complainant. The G.C. notes were thereafter returned to the complainant with instruction to pay as and when demanded. The team so constituted started off 5 for the Morhan outpost on that day but due to some mechanical problem in the jeep carrying the team, and the condition of road they had to abandon the trap on that particular day. The following day i.e. on 09.12.1977 the members of the team once again proceeded to and reached at Morhan Hat at about 10 A.M. They left the vehicle quite a distance away from Morhan outpost and covered the rest on foot. Close to the outpost they dispersed and took their positions in the vicinity of the police outpost. Complainant (PW-12) accompanied with Satyadeo Mistry, Sub Inspector of Police (PW- 17) went inside the outpost and within a short time they walked out along with the appellant and proceeded towards a betel shop. At this point of time appellant demanded the money whereafter P.W- 12 handed over the amount (05 G.C. notes) worth Rs.500/- to the appellant. The amount/ G.C. notes were accepted with alacrity and the appellant kept the same under the „lungi‟ he wore near his waist. Immediately after such demand and acceptance of bribe money P.W.-17 gave pre- determined signal which prompted the members of the raiding team available close to them including PW-9 Sambhu Saran, Special Magistrate and S.N. Sinha Dy. S.P. they rushed in and challenged the accused of having 6 accepted illegal gratification. Two independent witnesses namely, Sitabi Kapri and Dr. B.P.Saha were called in and in their presence the person of the accused was searched in course whereof the aforesaid 05 G.C. notes ( Material Exts. I to I/4) worth Rs.500/- were recovered from the „lungi‟ close to his waist. The G.C. notes recovered from the possession of the appellant was tallied with the numbers of the G.C. notes mentioned in the memorandum prepared earlier (Ext.3). The G.C. notes and the „lungi‟ (Ext. I) of the appellant were seized. S.N. Sinha, Dy. S.P. prepared the search list (Ext.2) in presence of witnesses including the independent witnesses who also put their signature(s) thereon. Investigation was thereafter taken up by S.N. Sinha, DY.S.P. The charge of investigation was subsequently handed over to Jacob Rakhal Jha, Inspector of Vigilance (PW 21) who, upon completion of investigation and obtaining sanctions for prosecution etc, submitted charge sheet against the appellant. Cognizance was taken and thereafter the trial of the case was taken up at Patna, on transfer from Bhagalpur, by the learned Special Judge (Vigilance),Patna. Charges under Sections/provisions of law noticed above were framed and read over to the appellant to which he pleaded not guilty and therefore 7 the trial. The defence of the appellant reflected from the records was his innocence and false implication in the case. The defence also adduced oral evidence 3. In order to drive home the charges, the prosecution examined altogether 21 witnesses. P.W.1 Sitabi Kapri is the independent witness in whose presence search of the person of the appellant was made and the G.C. notes were recovered. P.W.2 Dinesh Singh, P.W.4 Tilakdhari Singh, P.W.6 Anandi Prasad Kesari, P.W.8 Laxmi Narayan Singh, P.W.14 Laxman Kesari and P.W.19 Brij Bihari Prasad Inspector of police were tendered by the prosecution. P.W.12 (complainant) and P.W.17 Satyadeo Mistry (shadow witness) are the witnesses on the point of demand and acceptance of illegal gratification of Rs.500/- by the appellant. PW 7 Vijay Kumar Singh, P.W.9 Sambhu Saran (Special Magistrate), P.W.10 Arvind Prasad Singh, S.I. of police, P.W.11 Bhola Sharma Inspector of Police and P.W.18 Purosotam Singh Inspector of police are the other witnesses supporting the prosecution case. The evidence of P.W.15 Hari Shankar Singh, uncle of the compliant supports the allegation made by P.W.12 (complainant) with regard to the initial part payment of Rs. 900/- to the appellant out of the agreed amount of illegal 8 gratification of Rs.1400/-. P.W.16 is M.K. Jha, Additional Superintendent of police, Bhagalpur. He has deposed as to how the complainant submitted the complaint petition and thereafter under his order the same was entrusted to the Sub Inspector of Police (Vigilance) (PW-17) Satyadeo Mistry for verification of the allegation and that upon verification of the allegations incorporated in the complaint, the verification report (Ext.6) was submitted finding the allegations prima-facie true. The complaint was thereafter forwarded by him to the Headquarter of the Department of Vigilance at Patna, on the basis whereof the formal F.I.R. (Ext.7) was drawn up and the case was accordingly registered. P.W.20 Md. Islam is a formal witness who proved the sanction order (Ext.8). P.W.21 Jacob Rakhal Jha is the Inspector of police (vigilance) and Investigating Officer, who subsequently took over charge of investigation upon the death of S.N. Sinha, Dy. S.P., and after conclusion thereof submitted charge sheet against the present appellant. P.W.3 Bishwanath Singh, P.W.5 Basdeo Singh and P.W.15 Hari Shankar Singh are the witnesses who have supported the prosecution case in respect of arrest of the complainant (PW-12) by the accused in the night of 01.12.1977 and his 9 subsequent release by him on part payment of the illegal gratification and the promise to pay the balance of the agreed amount later on. 4. Learned amicus curie appearing for the appellant while assailing the judgment and order under appeal made short submissions. According to her, the prosecution case with regard to search and seizure of the amount of illegal gratification Rs.500/- has not been proved beyond all reasonable doubts. She took the court through the deposition of P.W.1 Sitabi Kapri in order to contend that the evidence of this witness does not inspire confidence. Secondly, it has been submitted that all the other witnesses who have supported the prosecution case are police personnels and as such they cannot be readily relied upon in order to come to a conclusion that the prosecution has been able to prove the case beyond reasonable doubts. Learned A.P.P. appearing on behalf of the state, on the contrary, supported the judgment and order under appeal. According to him, the evidence of the witnesses including that of independent witness (P.W.1) conclusively proved the guilt of the appellant. 5. Before this court proceeds to consider the submissions of the parties and scan the 10 evidence, it is deemed apposite to notice Section 4 of the P.C. Act, 1947 as a guiding factor. Section 4 of the said Act reads thus: “4. Presumption where public servant accepts gratification other than legal remuneration: (1) Where in any trial of any offence punishable under Section 161 or Section 165 of the Indian Penal Code or of an offence referred to in clause (a) or clause (b) of Sub-section (1) of Section 5 of this Act punishable under sub-section (2) thereof, it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification ( other than legal remuneration) or any valuable thing from any person , it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain the gratification or that valuable thing as the case may be, as a motive or reward such as is mentioned in the said Section 161 or as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence, punishable under Section 165-A of the Indian Penal Code, or under clause (ii) of Sub-Section (3) of Section 5 of this Act, it is proved that any gratification ( other than 11 legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 161 of the Indian Penal Code or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in sub-section (1) and (2) the Court may decline to draw the presumption referred to in either of the said sub- sections, if the gratification or thing aforesaid is in its opinion so trivial that no inference of corruption may fairly be drawn.” 6. P.W.1 Sitabi Kapri is a Headmaster in a Government girls School. According to him, on the alleged date of occurrence while he was on way to the school he could see the appellant surrounded by few persons. He identified the said person as the appellant. He along with one Dr. B.P. Sinha was called in as the witnesse(s). Both of them signed the search and seizure documents. Paragraph no.4 of his deposition discloses that before effecting search and 12 seizure on the person of the appellant he gave his personal search thereafter the person of the appellant was searched in his presence and in course thereof from the „lungi‟ close to his waist G.C. notes were recovered and a seizure memo was drawn up respecting those recoveries in his presence whereon he too put his signature (Ext. ½). He also put his signature on each of the G.C. notes recovered from the possession of the appellant (Exts. I/3 to I/7). The signature of another independent witness namely Dr. B.P. Sinha (Since dead) was obtained on the seizure memo. From his cross-examination this court finds that nothing has been elicited in order to show and/or demonstrate that the witness is not a truthful witness. In fact, in course of his cross-examination he has narrated meticulously the manner in which the entire process of search and seizure was taken up by the officials of the Vigilance Department. Learned amicus curie submits that apart from this witness (PW-1) other witnesses who have supported the prosecution case on material aspects are police personnels only. The law is well crystallized and settled. In a case of trap, search and seizure the prosecution is always obliged to make endeavour to secure independent and respectable witnesses so that the court may rely upon 13 him/them in order to come to a conclusion with regard to factum of search and recovery. P.W.1 is a headmaster aged about 52 years. He was then the Principal of a girl‟s school. He is, therefore, definitely an independent and respectable witness in the attending circumstances of the case. From the cross- examination of this witness, this court finds that not even a suggestion was made to him with regard to any animosity or interestedness of this witness in securing conviction of the present appellant. Thus, this court has absolutely no hesitation in coming to the conclusion that the evidence of this witness as an independent witness to the search and seizure supports the prosecution case. Learned amicus curie admitting the fact that other police witnesses have supported the prosecution case contended that based on their evidence only the court should not come to the conclusion that the prosecution has been able to prove the case beyond all reasonable doubts. The submission appears to be specious. True it is that the police officials to some extent in such matter can be said to be an interested persons in securing conviction of the accused but on this score itself, without there being any other circumstance to doubt their testimonies, the evidence of such officials cannot be 14 brushed aside. It is not the case of the appellant that any of these police witnesses had personal animosity with the appellant from before. Learned amicus curie has not referred to the evidence of any of these police officials to show that there was any vital contradictions in their evidence and/or that any of them had any personal grudge against the present appellant. In this factual scenario, this court has absolutely no hesitation in holding that the evidence available on record conclusively proved the charge(s) for which the appellant was booked and tried. 7. For the reasons noted above, this court is of the considered opinion, that the prosecution has been able to prove the charge(s) framed against the appellant beyond all reasonable doubts. 8. Learned amicus curie submits that there are ample circumstances which have mitigating effects which need to be taken notice of while sentencing the appellant for the charge(s) which have been established. According to her, the occurrence had taken place on 09.12.1977. The appellant had been fighting the present litigation since 1977. The judgment and order of conviction was recorded against him in the year 1993, whereas the present 15 appeal is being disposed of about 15 years thereafter. The appellant by now must have superannuated from service and leading a retired life. On the other hand, learned A.P.P. appearing on behalf of the State submits that normally in such matter the trial takes a long time. The offence for which he has been found guilty is not against a person but against the society as a whole and as such the court should not show undue sympathy while imposing sentence. 9. Having considered the rival contentions advanced on behalf of the parties on this aspect of the matter, this court is of the view, that the following sentence(s), in the facts and circumstances of the case, shall meet the ends of justice: (i) The appellant is sentenced to undergo R.I. for 03 months under Section 161 of the Penal Code. (ii) He is also sentenced to undergo R.I. for 03 months under Section 5(2) read with 5(1)(d) of the P.C. Act, 1947 besides a fine of Rs.2000/-. In case of default in making payment of fine he shall further under go R.I. for 15 days. The sentences shall run concurrently. (iii) The bail bond(s) of the appellant is hereby cancelled. He is directed to surrender before 16 the court below forthwith. 10. In the result, the appeal stands dismissed with modification in sentence as noted above. Patna High Court, Dated the 30th March,2009 Sym/NAFR ( Kishore K. Mandal, J.)