HIGH COURT OF CHHATnSGARH: BILASPUR SINGLEBENCH: HON'BLE SHRI RAJESHWARLAL JHANWAR. J. ADpellant Criminal.Appeal N0.1133/1992 State of Madhya Pradesh Respondents 1 Versus R. K. Pan^ey (died) S/o Pyarelal, aged 52 years, the ' then Sub-Inspector, P.S.- Bankimongara, Tahsil-Katghora, District- Bilaspur Rampher Pathak, S/o Mahadev Prasad, aged 32 years, the then Head Constable No.27, P.S. Bankimongara, Tahsil- Kat^hora, District- Bilaspyr Application for leave to apDeaI U/S378 (3) ofthe Cr.P.C. againstthe order ofacauittalaridaDDeal U/S378 11) ofthe Cr.P.C. Present: - SatisU Gupta, Govt. AdvQcafefortheState/appellant. Shri Anand Venna and Shri Ashish Shrivastava, counsel for the respondent No.2. JUDGMENT (Delivered on ^)J1?./2009) /•' 1. The State has preferred this appeal against the order of acquittal dated 5th September, 1991 passed by the learned 4th Additional Sessions Judge, Bilaspur in Special CaseNo. 1/88, whereby the learhed 4th Additional Sessions Judge has acquitted the respondents from the charge under Section 161 of the IPC and Section 5(1) (d) and Secdon 5 (2) of the Prevention ofCorruption Act 1947(forshort the "theAcf) 2. Due to/death of respondent No.l - R. K. Pandey, during the • pendency of this appe^l, the appeal on behalf of respondent R.K. Pandey has been abated. '? 3. Case of the prosecudon, in brief, is that the complainant Akrain Ali, who is resident ofvillage- Gajra was working on the post of Fitter in W.C.L. Due to some altercatiori between him and Talsi at Bankimongara, Tulsi and his brother had lodged a report against him in the Police Station - Barikimongara. After 3-4 days of lodging of report, Head Constable- RampUer (respondent No.2) of Pblice Station -Bankimdngara has calledAkraFti Ali and detained him upto 3.00 p.m in the police station andsaid to the him that if he agrees to give sOme a.mount, he will leave him. At the same tiine one Mobin went to police station to see the coinplainant and Mobin was ihforined by Respondent - Rampher that he will leave Akram Ali on the advice of R.K. Pandey. Mobin again toldRampher to leave the corriplainant whereupon Respondent- Rariipher letAkram AU to gb from his custody. Thereafter, respondent -Rarapher used f6 reaiind the complainant about illegal gratification and also infornied that if he fails to give Rs.500/-, Statioh House Officer R.K. Pandey shall arrest hirri. Upon which, the coinplainant lodged a written report to Dy. SuperiritehdentofPoliGe, VigilanGe, Bilaspur vide his application Ex.P-6. On receiving such report.the Dy. S.P., Vigilance prepared preliminary panchnama vide Ex.P-7 and directed Inspector- R.C. Pandato organize the trap. Dy. Colleetor- B. R. Dhruv was called to witness the trap proceedings. The complainantgave Rs.500/- ofdenomination of 100/-each, numbers of which were recorded in preliininary panchnam.a Ex.P-7.The coiiiplainarit was shown demonstration of chemical reaetictn of phenolphthalein powder and sodiuin carbonate which was to be used in ta-ap proceedings. Phenolphfhalein powder was applied on currenGy notes given by the coinpliant and after wrapping those currehcy notes in a white pap'er, they were kept in the shirt pocket of complainant. / ^ - • : . . The coEEiplainant was explained not t6 touch the notes before giving it to the respondeTit and after giying the same he shall give a signal. Constable-Hiradhar arid Gour were also nieinbers in the Trap Party. The complainanf after reaching place of oceurrence wifh the Trap Party, saw the respondent -R.K. ^•^•^•^•Sv.S^-S'S^SS': \ ^ -4.. - '• :«i Pandey and on deinand of respondent he gave Rs.500/- to him. Thereafter, the complainant has signalled the trap party and as soon as the Trap Party tried to apprehend him, he dropped the currency notes on tHe ground whereupon the hands of the respondent-R.K. Pandey were got washed with solution water (chemically melted) resulting in water became pink. Subsequently, pocket of fullspant in which the respondent had kept the currency notes was also dipped into the colouriess water (chemical solution) which also became pink colour. The chemical solutions were seized and F.I.R. was registered against the appellant. After completion of investigation and after obtaining necessary permission froin the competent authority, charge sheet was filed against the respondents in the Court of Special Judge. 4. The learned Special Judge, Bilaspur framed charge under Section 161 of the IPC and Sections 5 (1) (d) 85 Section 5 (2) of the Act against the respondents and read over and explained the saine to the respondents, who abjured the guilt and pleaded that they have been falsely implicated in the case. 5. The learned 4th Addidonal Special Judge, Bilaspur has, after evaluating the evidence available on record and hearing the counsel for respective parties, acquitted the respondents of the charge under Section 161 of the IPC and Sections 5 (1) (d) 85 Section 5 (2) of the Act. 6. Madanlal (P.W.l), owner of the hotel, in his statement has not disposed about the presence of respondent -Rampher on the spot. He has stated that respondent -R.K. Pandey was apprehefided by the Trap Party. It is evident from the statement '•ofR.D. Diwan (P.W.7), Qy. S.P. that he has deposed only about the prelirainary trap proceedings cpnducted before him. i-lllb'i-al •''s'::'s"v^~i^*S.~s^'v3!SS& ^i 7. The Special Court acquitted the TespQndent^inairity on the ground that the prosecution could not'esjfeablish that the reSpondents by use of corrupt arid illegal imea.ns or by abusing his pbsition as a publie servant.obta.ined illegal gratification of Rs.500/-from the complainaht. ; - •V • • • • , ^:.: '.:•--• 8. It is evident frora the evidence of MQbin Khan (P.W.3) that he does not know about the quarrel betweeH theYcoinplainant and Tulsi iri the market. He had gohe t6 Bankiiriongara Police Station to meet of complainant- Akraffl. When he asked respondent - Ramfer as to wKy fhe coniplainarit was detained illegally upon which he was informed that diie to soffle quarrel the coHiplainant was detained. When he again asked froni Ramfer to release the complainant, Ramfer sent him to respondent -R.K. Paridey. When they reached R.K. Pandey, he du-ecteli^Ralnferto relea.se the cotnplainantoirbail. Thus, there was ricv coriversation abbuf the bribe at^that lame.' Accbrding to Mobin Khan, oh 17.6.1986 respljhdenf-Ramferinformed his wife to serid Mobin to police Station with Rs.-500/-. Mobin Khan went to police station along with the cofnplairiant and when the complainant was about t6 pay Rs.400/- tQ;Ramfer, Ramfer told hiin thaf R.K. Pandey will not acGept ifgand^deraarided fbr Rs.500/-. From perusal of the whole evideEtee3oEtliis wifness, it is clear that he does not know as to wheii the resporidents were caught. ^ ' \~" ' ,' i^l 9. Akram Ali (P.W.6) also sfated that.hewas-arrested'by'Hianedar- Bankitnohgara. Mobin Khari (P.W.3) Gaa'ae t&^ineet liim and .releasey;jiiai on bail. Ohthe-next';^a(e^¥espcihdeht- R.K. Pahdeyflemanded Rs.500/- fronThiih. He'also sfafed that while fr . •• ' ' . ' .,- .• ' • • ' '••:•. .•.•:.:::":: .:.. '.• they were at hotel, respondent - Ranlfer inet with hiru and asked ain&ynt on behalfofR.K. Paiidey. Wh.cn hegave Rs.400/- to respondent Raiiifer,he did not accept and asked for Rs.500/- to give the sarae to respondeiTt-R.K.'Pandey.HefHrtherstafed ^ ^ that thereafter they reported the matter to the Vigilance Office and the Vigilance Office organized the trap party to nab the appellant. He further stated that the trap party arrested respondent - R.K. Pandey. 10. However, in his 'testimony it is nowhere sfated that R.K.Pandey demanded nioney from him and he gave money to him. There is not even an iota of evidence of Mobin Khan to show that he went to police station and asked R.K.Pandey to release Akram Ali whereupon he told Ramfer to release Akrara and thereafter he was released, at that time money was not demanded and also ho discussion thereofwas held to pay illegal gratification from fhem. It has also not come in their evidence that there was any cbnspiraey between the presentrespondents about demand of bribe money. i:II. '^ 'SVSSS 11. It is clear frora the statemerit 6f Mobin (P.W.3) and Akram (P.W.6) that both of thein have not stated ttiat 'Ramfer demanded nioriey from him and they gave money to Ranifer, but it is clear that they wanted to give ffloney to Rainfer, but he refused to take. It is also surprised to note that despite opportunities being granted, the prosecution has not been able to examine investigating officer and other officers like hira before the Court, who actually participated and successfuUy led the trap party. R.D. Diwan was only such witness, who participated in preliminary proceedings and did not accompany with the trap party. There is nothing on record to show thatthe prosecution adduced evidence as to proceedings in which currency notes were treated witli PhenOlphthalein Powder and acceptarice of those currency notes and also examination of those notes. •I2. Hon'ble the Apex Court held in the inatter 6f Budh Singh and others Vs. StUte of KP. (2006) 9 SCC 731 has held the y i>'^ ^,. vf High Court does not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view of the Appellate Coiirt is a more probable one. However, while dealing with a judgment of aoquittal, it is free to consider fhe endre evidence on record so as to arrive at a finding as_to whether the views of the trial Court were perverse or otherwise unsustainable. It is also entitled to consider as to whether in arriving at a finding of fact, the trial Court has failed to take into consideration adniissible evidence and has taken into consideration evidence thought on record contrary to law. Similary,wrong placing of burden of proof may also be a subject matter of the scrutiny ofthe AppellantCourt. 13, It was further held by the Apex Court in V.N.Ratheesh vs. State of Kerala, AIR 2006 SC 2667 that if two views ai-e possible oh the evidence adduced in the case, one pointing to the guilt 6f the accused and tither to his innocence, the view whicfa is favourable to the accused should be adopted. The Apex Court further said that the paramount consideration of the Court is to ensure that niiscarriage ofjustice is prevented. The Apex Court referred to the decisions rendered in the inatter of Bhagwan Singh and others vs. State ofMadhya Pradesh, 2002 (2) Supreme 567. It was further held that the principle to be foUowed by Appellate Courtconsidering the appeal against the judgment of acquittal is to interfere only .when there are Gompelling and substantial reasons for doing so. If the impugned judgment is clear unreasonable and relevant and convincing rnaterials. have been unjustifiably eliminated in the process, it. is a- compelling reason for interference. / • ' '^ ^ - 14; Ih Nepal Singh vs. State of Haryana, decided in Criminal Appeal No. 383 of 2002 on 24.04.3,009, the Apex Court whUe .'• dealirig with the acquittal of an accused has further held that it cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of tbe aecused. Firsfly, the I: . ' ; • -i"-"' '%'^s^:' 7 presumption of innocence is available to hirh under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial Court. 15. In the facts and circumstances of the case and in view ofthe decisions (supra) rendered by the Supreme Court, I am of the view that the prosecution has ndt been able t6 prove the guilty ofthe respondents under Section 161 ofthe IPC and Sections 5 (1) (d) Ss Section 5 (2) ofthe Act. The learned trial Court has not erred in acquitting the respondents under Sections 161 of the IPC and Sections 5 (1) (d) & Section 5 (2) of the Act. Thus, the acquittal of the respondents is well tnerited and does not call for any interference; 16. In the result, the appeal being devoid df substance is liable to be dismissed and is accordingly dismissed j R.L. JhaBwar Judge