JUDGMENT
S.L. Kochar, J.
1. The appellant has preferred this appeal against the judgment and finding dated 28-1-1993 passed by First Additional District Judge, Indore in Special Case No. 36/91 convicting the appellant for the offence punishable under Section 161, IPC and Section 5(2) of the Prevention of Corruption Act (for short, ‘the Act’) and sentenced to RI for 2 years and fine of Rs. 1000/-, respectively, in default of payment of fine further sentence of two months. Both the sentences were directed to run concurrently.
2. The appellant was posted as a Patwari on 23-7-1984 at Tahsil Badwah, District West Nimar on Halka No. 07 as a Public Servant. It is alleged by the prosecution that father of complainant Vishnu Prasad (P.W. 1) had purchased some agricultural land from the Ganpat s/o Lalchand resident of Sendhwa. Complainant Vishnu Prasad had submitted an application for mutation of name in the name of his father, in the land record but the application was pending since long and accused did not start mutation proceedings. Therefore, complainant Vishnu Prasad alongwith his friend on Bharos met the accused on 14-7-1984 at his residence where the accused/appellant demanded bribe of Rs. 200/- for doing his work. The complainant agreed for paying only Rs. 100/- and the same was agreed to be paid on 23-8-1984 in Badwah market. Since the complainant did not want to pay bribe amount, he lodged complaint in the office of the Lok Ayukt, Indore, Ex. P-1 and on this complaint, after performing the preliminary proceedings about the trap, Panchnama Ex. P-l was prepared and the trap party proceeded in a Government jeep on 23-7-1984 at 2.30 P.M. for Barwani. Both the shadow witnesses Laxmansingh (P.W. 2) and Hari Prasad (P.W. 3) were given instructions to see and hear the conver-
sation of the transaction about the acceptance of the payment of bribe amount, between the complainant and the accused/appellant.
3. As per the prosecution case on 23-7-1984 in the evening at 4.00 PM the trap party reached at Badwah headed by Babu Singh (P. W. 5), Investigating Officer/Inspector. Complainant Vishnu Prasad (P.W. 1) along with the only shadow witness Laxman Singh (P.W. 2) was sent first towards destiny followed by other constables. Inspector Babu Singh (P.W. 5) and another shadow witness Hari Prasad (P.W. 3), Gazetted Officer along with the members of the trap party, were standing on the road in front of one Navrang Tea Stall. Complainant Vishnu Prasad and the accused/appellant went inside of one Kiran Cafe House situated in Badwah market and other panch witness Laxman Singh (P.W. 5) along with other members of the police force sat on the bench underneath the front shade of Kiran Cafe House. After some time, accused/appellant and the complainant came out of the Kiran Cafe House and the complainant Vishnu Prasad gave signals as per the instructions given by the trap party. On these signals, Hari Prasad (P.W. 3) and Constable Bansidhar Joshi immediately reached there, caught hold of the hands of the appellant. Thereafter Inspector Babu Singh (P.W. 5) and panch witness Jai Prakash Rai (P.W. 4), Assistant Collector reached there and disclosed their identity. Panchnama Ex. P-3 was prepared on the spot for seizure of bribe money i.e., two currency notes of denomination of Rs. 50/- and about performance of other proceedings, demonstration of washing of hands in the solution of Sodium Carbonate which turned in pink, were carried out. After usual investigation, charge-sheet was filed for the aforesaid offences. Appellants denied the charges. According to him, one Ramnarayan had given hundred rupee note to the complainant for purchasing books for his son. The said hundred rupee note was put inside the pocket of the appellant by the complainant Vishnu Prasad with the instruction that he (accused) was to purchase and bring books for the child of Ramnarayan. In defence, he examined Abdul Rahman (D. W. 1). After trial, the Trial Court found the appellant guilty and convicted him as indicated above.
4. Counsel for the appellant Mr. Umesh Maheshwari has submitted that the prosecution has not proved the sanction for the prosecution Ex. P-18 by examining the concerned witness. Hence, though the sanction Ex. P-18 was admitted as per the Provision of Section 294 of the Code of Criminal Procedure but should not have been relied upon in absence of proving the same in Court by examining the concerned witness. For this contention he relied on the judgment reported in Rambabu v. State of M.P. [1981 Weekly Note (1) 297] ; Nahadariya v. State of M.P. (1980 JLJ 501); Ragan v. State of M.P. [2000 Weekly Note (I) 111]; Balmukund v. State of M.P., 1993 JLJ 109 and Mohd. Iqbal Ahmed v. State of A.P., AIR 1979 SC 677.
He, further submitted that the appellant was not having any motive
for demanding bribe because he was not authorized for passing the mutation order. It is also put forth by the Counsel that demand has also not been pressed by the prosecution by leading sufficient and acceptable evidence and there were number of independent witness for the alleged demand for the payment of money to the appellant but all these whiteness have not been examined. The submission of the Counsel for the appellant is that prior to the alleged trap dated 23-7-1984, the appellant was also tried to be trapped at the instance of the complainant with the trap party on 16-7-1984 but the same was unsuccessful. For this, he relied on the documents Exs. D-2 to D-5. On the other hand, learned Panel Lawyer appearing for the State supported the impugned judgment passed by the Trial Court. According to him, demand and acceptance of money has been proved by adducing cogent and reliable evidence by the prosecution. Therefore, presumption arose against the appellant under Section 4 of the Act that he had demanded and accepted illegal gratification and the said presumption has not been rebutted by the appellant.
5. After hearing both the Counsel at length and on careful perusal of the entire record of the case, this Court is of the considered view that the prosecution has not proved the guilt of the appellant beyond all reasonable doubt and therefore, the appellant is liable to be acquitted.
6. The first contention of the Counsel for the appellant is that the sanction for prosecution Ex. P-18 should not have been relied upon by the Trial Court because the same was not proved by examining the concerned witnesses is not acceptable because the same has been admitted by the defence under the Provision of Section 294 of the Code of Criminal Procedure. The judgments relied upon, on this point, by the defence, are not applicable and relevant. A11 the judgments are regarding the non-examination of medical expert. There is much difference between the proof of sanction of prosecution by adducing and examining its witness in Court and the proof of medical report given by the doctor. The examination of doctor, is quite different issue. The post-mortem report is the findings of an expert on the basis of which the opinion is given about the cause of death, nature of injury and its effect or connection with the death. Such opinion evidence is admissible under Section 45 of the Evidence Act and it could not be disputed that an opinion could not be admitted in evidence without the evidence of the expert. The genuineness of the post-mortem report may not be disputed; but the contents thereof i.e., facts observed by the doctor and the opinion as to the cause of death, nature of injury and the effect of injury are matters which could only be admitted in evidence under Section 45 of the Evidence Act. And under Section 45 the opinion could only be admitted in evidence if the expert is examined in Court as the mere certificate is not evidence. But on the question of grant of sanction for prosecution when the document has been admitted then by this document only thing is required to be seen whether after due application of mind by the authorized authority, had granted sanction or not. For this purpose, examination of concerned authority, who has accorded sanction for prosecution, is not essential. Document Ex. P-18, sanction for prosecution of the appellant very much clear on the point that the sanction was granted by the authorized authority as per requirement and that too after perusal of the recorded facts and circumstances of the case and due application of mind.
7. The Trial Court has failed to consider the important and significant material fact in the present case in its proper perspective that is about earlier trap which was unsuccessful against the appellant. Documents Exs. D-2 to D-5 are revealing these facts. Document D-2 is the report dated 16-7-1984 lodged by the complainant, Vishnu Prasad against the appellant and on this basis document Ex. D-3, presence of one gazetted officer was sought for arranging the trap. This is a letter addressed to the Commissioner and organizer of Vigilance Circle, Indore. Document Ex. D-4 is the preliminary Panchnama dated 16-7-1984 prepared at 13.45 (1.00 PM) on the basis of Ex. D-2. On careful perusal of these documents, it emerged that these documents were prepared on 16-7-1984. Both the panch witnesses as well as Inspector, scribe of these documents, signed on 16-7-1984, whereas underneath the signature of complainant Vishnu Prasad marked as “A” to “A” is showing the date as 19-7-1984. Ex. D-4-C is the carbon copy of Ex. D-3. This also reveals the same fact. The contents of the documents Ex. D-4 is also indicating that this was prepared in presence of the complainant Vishnu Prasad Dube when he submitted currency note of Rs. 100/denomination before the Inspector. If this was correct, how there is difference between the date of signing on this document by two panch witnesses Inspector and the complainant. It is a matter of judging and appreciating the proceedings drawn and taken up by the vigilance department. Another factor which requires consideration is that the complaint Ex. D-2 was submitted before the Superintendent of Police Vigilance, Indore on 16-7-1984. This complaint was marked for immediate action to the Inspector Mr. Chouhan and the same was witnessed by Mr. Z.A. Rizvi on 16-7-1984 at 1.45 PM and another witness Ratnakar Shinde. After signing the witness time was mentioned at 1.45 PM, So if this report was marked by S.P. for immediate action to Inspector Chouhan in presence of witnesses Z.A. Rizvi and Shinde on 16-7-1984 at 1.45 PM how the preliminary Panchnama could be prepared by Inspector Chouhan, showing the same time i.e., 13.45 (1,45 PM). After receiving the complaint by the S.P. Vigilance, the S.P. Vigilance has sent a letter of request on the same day Ex. D-3 asking for the availability of gazetted officer as panch witness for the purpose of arranging of trap. So, after receiving the complaint Ex. D-2, letter Ex. D-3 was written and thereafter, witness Rizvi and Shinde were present before the S.P. Vigilance and obviously, signed on the complaint, Ex. D-2. All these transactions must have taken some time. Hence, a preliminary Panchnama, Ex. D-4, was not prepared on 16-7-1984 at 1.45 PM. The difference of signing by the witnesses scribe and the complainant Vishnu Prasad arc clearly indicating that
the documents were prepared in ante-date and ante-time. One more factor is also significant to be noticed that the document Ex. D-5, a letter of information about the trap was written by Inspector Antar Singh Chouhan to the S.P. Vigilance, is also showing the date and the preparation of signing this document by the Inspector, Chouhan as 17-6-1984 whereas the trap was arranged on 16-7-1984 which is evident from document Exs. D-2 to D-5. The contents of this letter Ex. D-5 is also showing the date 16-7-1984 but while signing the document by its scribe Inspector Chouhan, he has mentioned the date 17-6-1984. This fact also reveals that the documents were prepared in ante-date and ante-time. The discussion about all these documents are important and essential because these are the initial documents prepared on the basis of the report first in time on 16-7-1984 on the basis of the first report in writing Ex. D-2, which is showing the demand by a Public Servant as illegal gratification for the purpose of some official work. It is not the prosecution case that after failure of first trap, there was again meeting of the complainant and the Patwari/ac-cused-appellant and demanded bribe for doing the official work of mutation. The prosecution was not able to explain as to why first trap was unsuccessful. This gives rise only two questions : The first is that the accused must be having knowledge of this trap proceedings, therefore, he did not return on the date, time and at the place as settled. The second is that there was absolutely no demand and there was no settlement between the complainant and the accused for the payment of money on a particular date, place and time but the complainant on its assumption was under the impression that on a particular date, ordinarily, the appellant could be available in Badwah Bazar on Monday. It is also pertinent to note here that the date of arranging first trap was 16-7-1984 and the second one was 23-7-1984, both the dates are falling on Monday.
8. It is not understandable as to why there was a requirement of conducting a second trap on 23-7-1984. The report was already with the Vigilance Department, which is Ex. D-2. In the written report, Ex. P-l dated 23-7-1984 as well as the statement of the prosecution witness, complainant Vishnu Prasad (P.W. 1), he has no where disclosed the fact that after 16-7-1984, there was meeting of the complainant and the accused and wherein they had fixed the date for giving Rs. 100/- i.e., on 23-7-1984 in Badwah market. According to the written report, Ex. P-l as well as Ex. D-2, complainant went to the house of the appellant on 14-7-1984 with his friend Bharos and asked about the mutation on which the accused demanded Rs. 200/- and ultimately agreed to pay Rs. 100/- between the parties for the performing the work of mutation in presence of Bharos. When there was no meeting after failure of the first trap between the complainant and the accused how the date and time was fixed for the payment of money on the basis of which the Vigilance Department arranged the second trap.
9. In the eye of this Court, the factum of failure of first trap is very
material and important and the way in which the second trap was arranged without having any knowledge, prior meeting between the complainant and the accused/appellant fixing the date, time and place, from the material only and only inference can be drawn that unsuccessful trap was planted one and the appellant was falsely implicated therein and the defence taken by the appellant that in the Hotel Kiran Cafe House, the complainant put hundred rupee note in his pocket saying that this money was for purchasing the books for the son of Ramnarayan. Despite the aforementioned infirmities in the prosecution case, there are other concomitant circumstances tilting the balance in favour of the appellant that is the shadow witness Laxman Singh (P. W. 2) was not an independent witness. He was a witness well known to the complainant and the complainant himself had brought this witness who according to the prosecution case met him on the way, Indore-Khandwa Road, when he was returning to his village after performing his work from Village Gwal. The statement of this witness Laxman Singh (P. W. 2) is clearly indicating that he was the friend of complainant Vishnu Prasad. The prosecution has not examined important and material witness Bharos with whom the complainant had gone to the house of the appellant on 14-7-1984 and before whom the money was demanded by the appellant and settlement was taken place.
10. Normally, the prosecution should keep, in bribe cases, two independent and respectable panch witnesses/shadow witnesses but in the present case, Laxman Singh is the only shadow witness and his version about hearing of conversation between the accused and the complainant appears to be unbelievable because in a hotel, a public place, accused would not have allowed the complainant to have talks about taking and giving bribe amount. The other panch witnesses Jaiprakash Rai (P.W. 4) though was directed to sec and hear the conversation about the payment of money, between the accused and the complainant, but this witness has denied of hearing the conversation about the money.
11. The Supreme Court in case of Raghubir Singh v. State of Punjab (AIR 1976 SC 91) has held that :–
“The officers functioning in the anti-corruption department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the Court and the Court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. They should insist on observing this safeguard for the protection of public servants against whom a trap may have been laid. In the present case, the search witnesses were interested witnesses and, therefore, their evidence with regard to the giving of bribe and the recovery of the amount from the person of the accused was not relied upon.”
12. Jaiprakash Rai (P.W. 4) who had taken out bribe money from the pocket of the appellant, has nowhere stated in his statement that before taking out money from the pocket of the appellant his hands were got washed in solution of Sodium Carbonate which turned pink and only thereafter, he put his hands inside the pocket of the appellant and took out money. Before the conduction of search of the appellant, search of the members of the trap party, were not given. In the case of Madhusudan Prasad v. State of M.P. (1981 JLJ 518) this Court has held that–
“From the evidence afforded by Pyarelal (P.W. 1) and Govind Singh (P.W. 9) it is clear that the search officer did not convince the witnesses that he was empty-handed. Accordingly, the possibility of planting of notes (Arts. 12 to 10) cannot be ruled out. As such the recovery of the notes from the person of the accused appears to be surrounded by a cloud of suspicion and the factum of recovery shaken.”
This judgment is further relied on by this Court in the case of Bimal Kumar Gupta v. Special Police Establishment, Lok Ayukt, 2001(1) JLJ 267. In the present case, no witness has stated that prior to taking of search of the accused, search officer did convince the witnesses that he was empty-handed coupled with the aforementioned fact that Jaiprakash Rai (P.W. 4) has also not stated about washing of his hands in Sodium Carbonate solution before putting his hands in the pocket. Though this fact has been stated by the Investigating Officer Babu Singh (P.W. 5) but is of no avail because Jaiprakash (P.W. 4) is not confirming the fact, who is a direct witness on point.
13. In the present case, during course of cross-examination, the Trial Court has disallowed the question put up by the Counsel for the appellant to the Vishnu Prasad (P.W. 1) holding it to be irrelevant, as to in the application of his father he appeared before the Naib Tehsildar, Boriwa!, pretending himself to be as Gangadhar but the said Naib Tehsildar has told him that his face was not looking of that age as mentioned in the application on which he has taken back his application and filed second application duly signed by his father. The Trial Court should not have disallowed this question because this is directly related with the mutation proceedings for which the appellant was tried before the Trial Court and the mutation proceedings were persuaded by this witness on behalf of his father. If this conduct is a relevant factor, again the Trial Court has wrongly rejected the question put up by the appellant that Radheshyam, resident of Kudiyagaon had collected LAGAN from 5-6 agriculturists but the same has not been deposited in the treasury, for which the appellant had started proceedings against said Radheshyam. This question was also relevant because according to the defence, Radheshyam was real brother of Bharos with whom complainant had gone to the house of the appellant and had talked about mutation proceedings and payment of bribe amount. The
accused wanted to show motive for his false implication by the complainant in the case.
14. The detail cross-examination on this point may have given some assistance to the Court for appreciating the evidence of the complainant. Not allowing these questions have certainly caused the prejudice to the defence.
15. Consequently, this appeal succeeds and is accordingly, allowed. The impugned judgment of the Trial Court is set aside. The accused/appellant is acquitted of the charges levelled against him. He is on bail, his bail bonds stand
cancelled.
