1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Shambhoo Giri vs. State of Rajasthan (S.B.Criminal Appeal No.198/83) Dated of Judgment:- 8th September,2006. PRESENT HON'BLE MR.JUSTICE MOHAMMAD RARIQ Mr.Doongar Singh, Advocate for the appellant. Mr.Rameshwar Dave, Public Prosecutor for the State. BY THE COURT:- REPORTABLE This criminal appeal has been filed by the appellant against the judgment dated 3.5.1983 passed by the learned Special Judge, N.D.P.S. Cases, Udaipur thereby convicting him for offence u/s 161 IPC and sentencing to undergo two years' Rigorous Imprisonment and a fine of Rs.250/- and also convicting him for offence under Section 5 (1)(D)(2) of the Prevention of Corruption Act, 1947( for short “the Act of 1947”) and sentencing to undergo two years' Rigorous Imprisonment and a fine of Rs.250/-. In default of payment of fine for both the convictions, the appellant was directed to further undergo six months' Simple Imprisonment. Factual matrix of the case are that one Fakirchand resident 2 of Lupdi submitted a written application to the Sub Divisional Magistrate, Pratapgarh( for short “the S.D.M.”) in which he alleged that head constable Shambhu Giri posted in the Police Station, Arnod was threatening him to lodge more complaints against him under Section 110 Cr.P.C. and was demanding a sum of Rs.200/- as illegal gratification. The S.D.M. kept the said application with him. However, one Raghuraj Singh , Advocate went to the house of the S.D.M. during lunch hours and produced before him currency notes of Rs.200/-. The S.D.M. put his signatures on each of these currency notes which this Raghuraj Singh later gave to Fakirchand. Complainant Fakirchand handed over said currency notes to head constable Shambhu Giri. On being informed of this fact, the S.D.M. immediately called Shambhu Giri to his chamber and asked him to produce currency notes which he received from Fakirchand. Accused produced these notes in presence of Raghuraj Singh, Vinodi Lal and one other person and handed over the notes to the S.D.M. These notes contained signatures of the S.D.M. The S.D.M. prepared recovery memo and thereafter sent the same with the currency notes to the Collector, Chittorgarh and also sent an information to the Superintendent of Police, Chittorgarh. The Anti Corruption Bureau thereupon registered a case u/s 161 IPC and Section 5(1))(D) and 5(2) of the Act of 1947 and later on submitted a charge-sheet against the accused appellant in the Court of Special Judge, Anti Corruption Cases, Udaipur . The learned Special Judge vide his judgment dated 3rd May, 1983 convicted and sentenced the accused-appellant in the manner as indicated above. Hence this appeal. 3 I have heard Mr.Doongar Singh, learned counsel for the appellant and Mr.Rameshwhar Dave, learned Public Prosecutor for the State and perused the record. Mr.Doongar Singh, learned counsel for the appellant has argued that the learned Special Judge has committed illegality in relying upon the alleged recovery of currency notes in as much as the S.D.M. had no legal authority to hold the trap in relation to the cases under the Act of 1947. He argued that while the application is alleged to have been handed over to the S.D.M. earlier, the currency notes were submitted to him at much later point of time. Case of the prosecution is that the application was submitted to Kuldeep Singh, S.D.M. in his office and thereafter Raghuraj Singh, Advocate went to his residence during lunch hours to give him the currency notes while Fakirchand stood outside. On this aspect however there were number of contradictions in the various statements of the prosecution witnesses. He invited attention of the Court to the statement of P.W. 4 Fakirchand especially to the portion in which he stated that the accused demanded a sum of Rs.500/- whereas in the application submitted before the S.D.M., Fakirchand restricted the demand of the accused to Rs.200/- only. It has been argued that P.W. 4 Fakirchand in his statement admitted that when he gave Rs.200/- to accused Shambhu Giri, Rama was also present with him at that time. Mr.Doongar Singh argued that defence of the accused-appellant was that the amount of Rs.200/- was given to him by Fakirchand for being given to Hari Ram because Fakirchand owed some money to him(Hari Ram). This defence was disclosed by the accused Shambhu Giri at the first available 4 opportunity immediately when the S.D.M. asked him to produce currency notes. D.W. 1 Rama whose presence has been admitted by none other than decoy Fakirchand himself has provided corroboration to this defence when he stated that Fakirchand gave this amount of Rs.200/- to accused Shambhu Giri in his presence for being paid to Hari Ram with the promise that he would give remaining 200/- at a later stage. In his statement, D.W. 1 Rama further stated that Hari Ram had given a contract of certain construction work for a total amount of Rs.1500/-,out of which he gave Rs.400/- in advance to Fakirchand, who however failed to execute the contract . Hari Ram has been examined as D.W. 2. He was also corroborated the defence of the accused-appellant that he had given a contract to Fakirchand and paid advance and that this amount of Rs.200/- was given by Fakirchand to the accused Shambhu Giri to be paid to him. In his cross-examination,P.W. 6 Kuldeep Sharma has admitted this much when the accused produced currency notes in his chamber he stated that this money was of their mutual affairs. He referred to cross-examination of P.W. 7 Raghuraj Singh where he admitted that when Fakirchand gave the money to Shambhu Giri, one more person was present with them and that person according to the learned counsel was none other than D.W. 1 Rama. He has placed very strong reliance on the last few lines of the cross-examination of P.W.7 Raghuraj Singh where he stated that accused Shambhu Giri while producing currency notes before the S.D.M. stated that Fakirchand had given this money to him for giving it to Hari Ram because he had taken loan from him. Reference has been made to the statement of P.W. 5 5 Vinodilal who in his cross-examination has stated that at the time of recovery and preparation of recovery memo in the chamber of S.D.M., Moinuddin, Station House Officer, Pratapgarh was also present there. On the basis of this statement, Mr.Doongar Singh argued that S.H.O., Pratapgarh has not been deliberately produced in evidence by the prosecution so as to suppress the genesis of the incident. He has referred to various contradictions in the statements of the prosecution witnesses and argued that P.W. 4 Fakirchand in his statement all along maintained that total illegal gratification demanded by the accused was Rs.500/- whereas in the complaint made to the S.D.M., he referred to this amount as only Rs.200/-. P.W. 4 Fakirchand in his cross-examination has stated that on account of tension he might not have told Raghunath Singh that accused Shambhu Giri was demanding Rs.500/- as gratification. He has invited my attention to the statement of P.W. 6 Kuldeep Sharma who in his examination in chief has stated that application Ex. P/6 was presented to him while he was in office and then he went to residence during lunch and this application at that time was lying in the drawer of his office table. When Raghuraj Singh came to his residence, his client Fakirchand stood outside. Raghuraj Singh produced before him the currency notes on which he marked his initials. In cross-examination however P.W. 6 Kuldeep Sharma has stated that the application was presented to him when he was at his residence. After sometime he went to his office. As against this, P.W. 7 Raghuraj Singh in his examination-in-chief has stated that he went to the residence of S.D.M. because his residence was just in front of his office. He submitted the application and also the currency notes before Mr.Kuldeep Sharma, S.D.M. There,who made his initials on such notes 6 and entered the number of currency notes in his diary. The S.D.M. retained the application and returned the currency notes with the instruction that when accused demand money, Fakirchand should give these notes to him. With the help of these contradictions, Mr.Doongar Singh, learned counsel for the appellant argued that the prosecution has not been able to prove as to where the application was handed over to the Sub Divisional Magistrate, whether in the office or at his residence. He argued that accused-appellant was merely a head constable and had no authority to file complaint u/s 110 Cr.P.C.. In assailing the impugned judgment , the learned counsel has argued that the learned trial Court has not only did not correctly appreciate the prosecution evidence but has also mis-read the statement of P.W. 7 Raghuraj Singh where he admitted that accused appellant in his first available opportunity before the S.D.M. when he produced the currency notes stated that Fakirchand gave him a sum of Rs.200/- for being given to Hari Ram.. But, the learned Special Judge has concluded that this was a typing mistake because P.W. 7 Raghuraj Singh meant to deny any such defence was taken by the accused appellant before the S.D.M. but due to typing error ”Nahin”(no) has not been typed out in the statement. Learned counsel for the appellant argued that if there had been any such typing mistake in recording statement of P.W. 7 Raghuraj Singh, the Public Prosecutor could make a request to re-examine or re-call of the witness even at a subsequent stage before the judgment was delivered. The learned Special Judge on his own could not hold that there was any such typing 7 error in the statement of P.W. 7 Raghuraj Singh and on that basis could not read that part of statement of Raghuraj Singh in a negative form even though he gave such statement in positive form. Mr.Doongar Singh has relied upon the judgments of the Hon'ble Supreme Court in Sultan Singh vs. State of Rajasthan, reported in WLN 1969 p.25, Sitaram Vs. State of Rajasthan, reported in AIR 1975 p.1432 and Mansingh vs. Delhi Administration, reported in 1979 S.C.C. (Criminal) p.528 and with the help of these judgments argued that presumption u/s 4 of the Act of 1947 that money recovered from the accused was received as illegal gratification stood rebutted by the explanation given by the accused that he received such amount from P.W. 4 Fakirchand for being given to Hari Ram. This defence taken by the accused-appellant at the earliest available opportunity has been probabilised by evidence of not only star witness of the prosecution P.W.7 Raghuraj Singh but also by statements of D.W.1 Rama and D.W. 2 Hari Ram. He therefore prayed that the judgment passed by the learned trial Court be set aside and the accused appellant be acquitted of all the charges against him. On the other hand, Mr.Rameshwar Dave, learned Public Prosecutor for the State argued that so called contradictions pointed by the learned counsel for the accused-appellant were only minor and negligible in nature. The factum of demand and recovery of illegal gratification has been proved by overwhelming evidence. He referred to the statement of P.W. 4 Fakirchand wherein he has stated that he was frequently arrested and subjected to number of proceedings u/s 110 Cr.P.C. and accused-appellant was demanding a sum of Rs.500/- else 8 he would continue to be harassed in this manner. Mr.Rameshwar Dave argued that P.W. 4 Fakirchand, P.W.5 Vinodilal, P.W. 6 Kuldeep Sharma and P.W. 7 Raghuraj Singh have also proved both demand and recovery. P.W. 5 Vinodilal has categorically stated that when the accused was required to produce currency notes, he did not state anything else and did not say that he accepted the money for being paid to Hari Ram. Learned Public Prosecutor also referred to the statement of P.W. 6 Kuldeep Sharma and argued that when Kuldeep Sharma inquired from the accused appellant as to why he accepted the bribe, he admitted having committed a mistake . Apart from the application Ex.P/6, he has referred to Ex.P/7 which is the list of notes, Ex.P/8 sample of seal, Ex.P/9 containing signatures of S.D.M., Ex.P/10 memo of proceedings and Ex.P/12 diary in which number of currency notes were entered . He has also relied on the statements of P.W. 7 Raghuraj Singh and argued that he has also fully supported the prosecution version. As regards the admission made by him that accused stated before the S.D.M. that Fakirchand gave this money to him for giving it to Hari Ram, he argued that the learned Special Judge has rightly held this to be result of typing mistake because the statement of P.W. 7 Raghuraj Singh has to be read in its entirety and in this line of statement, word “Nahin”(no) has been inadvertently left out from being typed. He therefore argued that the present appeal preferred by the appellant deserves to be dismissed. I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties and perused the record. 9 According to the prosecution, the motive with which the accused appellant is alleged to have demanded illegal gratification from Fakirchand was to save him from continued proceedings u/s 110 Cr.P.C. Accused Shambhu Giri was only working as head constable. The decision to lodge a complaint u/s 110 Cr.P.C. is required to be taken at the level of Station House Officer of the Police Station. This motive assigned by the prosecution therefore does not appear to be logical. This shall have to be judged in the light of the character of the person who has made such allegation. P.W. 4 Fakirchand in his statement has admitted that during the past two years, he had been arrested and subjected to proceedings us 110 Cr.P.C. on at least four occasions. While he has stated that accused-appellant demanded from him a sum of Rs.500/- as bribe, in the complaint made to Kuldeep Sharma, S.D.M. he simply stated that accused was demanding from him a sum of Rs.200/- and therefore he was producing such amount of Rs.200/- which the S.D.M. should sign and return him. He eventually submitted currency notes of Rs.200/- to S.D.M. for his signatures. His counsel P.W. 7 Raghuraj Singh who was instrumental in arranging this trap for him, has stated that he went to the residence of S.D.M. with the application around 12 in the noon and at that time also produced currency notes and obtained signatures of the S.D.M. P.W. 6 Kuldeep Sharma. P.W. 6 Kuldeep Sharma has however taken shifting stands on this aspect and has stated that he received such application in his office and thereafter when he went to his residence during lunch, the application was lying in the drawer of his table in office. Raghuraj Singh came to him with currency notes and his client Fakirchand stood outside. In cross-examination however he has stated that this 10 application was produced before him at his residence. P.W. 5 Vinodilal has stated that at the time of recovery of the currency notes, S.H.O. , Pratapgarh was present in the chamber of S.D.M. but the prosecution has not produced the S.H.O. in evidence. P.W. 4 Fakirchand in his statement has categorically stated that Rama was also present on that day as he was to appear with him in proceedings u/s 110 Cr.P.C. . He has admitted that when he gave this amount of Rs.200/- to accused-appellant, Rama Chamar was also with him. This fact also provide credence to the statement of P.W. 4 Fakirchand when P.W. 7 Raghuraj Singh stated that one more person was present with Fakirchand when he gave money to accused Shambhu Giri . P.W. 7 Raghuraj Singh has also categorically stated that when accused Shambhu Giri produced the currency notes before the S.D.M., he at that very time stated that Fakirchand had given this money to him for being paid to Hari Ram whom he was due to pay such amount. In making such statement, P.W. 7 Raghuraj Singh has clearly probablised the defence of the accused appellant which he offered at the earliest point of time. D.W. 1 Rama has stated that Fakirchand had given a sum of Rs.200/- to accused Shambhu Giri in his presence and asked him to give this money to Hari Ram. He stated that Hari Ram had given a contract for certain construction work to Fakirchand for a sum of Rs.1500/- and paid a sum of Rs.400/- to him in advance. When Fakirchand failed to execute the contract, he was to refund this amount of Rs.400/- to Hari Ram. While giving this amount to Shambhu Giri, Fakirchand also told him that he shall also give remaining Rs.200/- later. Hari Ram who has been 11 examined by the defence as D.W. 2 has stated that he has so far not received the amount of Rs.400/-. He stated that he had given a contract to Fakirchand for constructing a boundary wall of his “baara” for a sum of Rs.1500/- and paid a sum of Rs.400/- as advance to him. He gave this money to Fakirchand because he was doing such work. When once he saw Fakirchand in police custody, he demanded from his due amount, but he expressed his inability to pay the amount immediately and promised that either he would himself return the amount or would give it to the person nominated by Hari Ram . Hari Ram further stated that he told Fakirchand to give this money to the accused appellant Shambhu Giri. Later, the accused appellant complained that due to him(Hari Ram), he has been falsely implicated in a criminal case. The appellant in his statement u/s 313 Cr.P.C. has reiterated the defence which he had taken at the earliest point of time that Fakirchand gave him a sum of Rs.200/- for being given to Hari Ram. In his statement, he has also stated that Fakirchand had falsely implicated him in this case because he had arrested him(Fakirchand) on 25.8.1977 and further that when he gave this money to Fakirchand, Rama Chamar was also present there. He has stated that when he produced currency notes before the S.D.M., Moinuddin,Station House Officer of the Police Station was also present there. Their Lordships of the Hon'ble Supreme Court in State of Andhra Pradesh vs. V.Vasudeva Rao, reported in (2004) 9 S.C.C. 319 while considering the scope of Section 4 of the Act made a finer 12 distinction between the expressions “may presume” and “shall presume” and held that presumption falling under the former category are compendiously known as “factual presumptions” or “discretionary presumptions” and those falling under the latter as “legal presumptions” or “compulsory presumptions”. It must have the same import of compulsion. Their Lordships in para 18 of the said judgment while discussing as to what is the legal meaning of presumption held as under :- “18. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the court can draw an inference and that would remain until such inference is either disproved or dispelled.” In order to appreciate the true contents and meaning of Section 4 of the Act relating to presumption, its reproduction herein shall be apt:- “4(1) Presumption where public servant accepts gratification other than legal remuneration:(1) Where in any trial or an offence punishable under section 161 or section 165 of the IPC 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, that gratification or that valuable 13 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.” Question with regard to probability of defence and resultant rebuttal of presumption u/s 4 of the Act came to be considered by their Lordships of the Hon'ble Supreme Court in Sultan Singh vs. State of Rajasthan (supra) in which charge against the Patwari was for acceptance of bribe of Rs.100/- for supplying copies of Khasra Teeps to the decoy. The defence of the accused Patwari was that this amount was paid to him by the decoy towards arrears of land revenue. Both the trial Court and this Court accepted the version of the prosecution. When the matter went to the Hon'ble Supreme Court, their Lordships held that the courts below neither analysed the record nor shifted the probabilities. The Hon'ble Supreme Court held that the complainant in that case alongwith the trap party went for search of the accused and ultimately found him in a certain dispensary where he took the accused to an inner room and passed on a hundred rupees note. He did not allow the witnesses who accompanied him to observe the payment. In the circumstances, their Lordships held that decoy in fact was an accomplice and therefore his testimony could not be relied upon as it was not corroborated by any other evidence or circumstance. Their Lordships accepted the defence of the accused by holding that the decoy pretended ignorance about his arrears of land revenue but this fact was conclusively proved and was not disputed even before the Supreme Court nor before any of the courts below. Their Lordships referred to the statement of Dy.S.P., Anti Corruption 14 Department who asked the accused -appellant immediately when he came out of the inner room of the clinic as to what for he had accepted the money, the accused immediately came out with a defence that such money was paid to him by the complainant towards arrears of his land revenue. In the facts of the case, their Lordships held that “it is difficult to believe that the appellant could have concocted his defence within such a short time.” Similarly, the Hon'ble Supreme Court in the case of Sita Ram vs. State of Rajasthan(supra) while examining the scope and import of Section 161 IPC held that when the facts that the accused was a public servant and obtained gratification are proved, then a rebuttable presumption arises in respect of the fact that such gratification was for the motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official functions, favour or disfavour to the person. Their Lordships held that on mere recovery of certain money from the person of an accused without the proof of its payment by or on behalf of some person to whom official favour was to be shown, the presumption cannot arise. In the present case also the prosecution has failed to prove that accused appellant being a government servant of the status of head constable only, how possibly could he accept the gratification for motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to the person. Only Station House Officer of the Police Station concerned was competent to initiate proceedings u/s 110 Cr.P.C. Nothing has been brought on record that the accused appellant accepted such gratification on his behalf. 15 In Man Singh vs. State of Rajasthan(supra) their