JUDGMENT
Chandra Mohan Prasad, J.
Page 0638
1. This appeal is against the judgment dated 30th January 2003 of the Special Judge, Vigilance, Bihar, Patna in Special Case No. 62 of 1992 (arising out of vigilance P.S. Case No. 29 of 1992) whereby and whereunder the appellant has been convicted under Sections 7 and 13(2) of the Prevention of Corruption Act and Section 201 of the Indian Penal Code and respectively sentenced to R.I. for 1 year and a fine of Rs. 250/-, R.I. for 2 years and a fine of Rs. 500/- and R.I. for 1 year and all the sentences are to run concurrently.
2. The Prosecution commenced with the written report dated 4th July 1992 (Ext-3) of the informant Prahlad Mahto (who was not examined before the trial court, as he had died), a lecturer in Bhagwan Budha college, Mithapur. He alleged in his written report that in the 1st week of May, he had submitted a surrender certificate along with application to the Clerk Nageshwar Babu (appellant) of the Rationing Office for preparation of ration card. He (appellant) had asked him (informant) to come after two months and collect the prepared ration card. Accordingly, he (informant) went to the Office on 1st July 1992 and demanded the ration card, whereupon he (appellant) obtained his (informant’s) signature as acknowledgment of the receipt and gave the ration card but at the same time also demanded Rs. 10/- for the same. He (informant) Page 0639 refused to give Rs. 10/- whereupon he (appellant) took the card back from his (appellant’s) hand saying that he (appellant) will not get the card unless he pays Rs. 10/- because he (appellant) used to take Rs. 10/- from everybody for it. He (informant) was unwilling to pay the money as illegal gratification, hence, he approached the Vigilance authority and filed his written report (complaint) addressed to the Inspector General-cum-Special Secretary of the Vigilance Department. After receiving the written report, verification of the matter was done by Inspector Harishchandra Singh (P.W. 9) who submitted his verification report (Ext-4) whereafter F.I.R. (Ext2) was lodged and the investigation commenced. In course of investigation a trap was led by the Vigilance Department for apprehending the accused-appellant on his receiving the bribe money as demanded by him. The bribe money i.e. a ten-rupee note which was treated with the phenolphthalein powder was recovered from the Possession of the appellant who was arrested by the Vigilance team and while the seizure-list for Rs. 10/-was being prepared a mob comprising of Office people and others assembled and indulged into manhandling the members of the team and also pelting brick-bats and the seizure-list and other papers were also snatched from the possession of the members of the team for which the Vigilance team instituted Gandhi Maidan P.S. Case No. 213 of 1992 under Sections 197, 149, 224, 225, 337, 323, 307, 353, 379, 342 and 201 of the Indian Penal Code against the appellant and several others and it was also stated in the FIR that the papers, including the seizure-list, bag etc. were snatched from the members of the team but the recovered currency note of ten rupees was anyhow saved and preserved by one of the members of the team and it was produced at the time of filing of said FIR (Gandhi Maidan P.S. Case No. 213 of 1992). On completion of the investigation, charge-sheet was submitted and the appellant was put on trial and on conclusion of the trial, he was convicted and sentenced, as above.
3. As many as fourteen witnesses were examined by the prosecution. The defence also examined two witneses in support of the defence case according to which the appellant admitted to have received Rs. 10/- from the informant under the plea that he had taken it for realising Rs. 2/- as the price of the ration card and was returning the balance of Rs. 8/- to the appellant but before he could return the balance of Rs. 8/- to the informant, the vigilance people apprehended him saying that he (appellant) had received bribe of Rs. 10/-.
4. Out of the prosecution vitnesses, P.W. 1 Binod Kumar, Deputy Superintendent of Police, Vigilance had led the Vigilance Team. He deposed that the informant had produced ten-rupee note and after noting its number in the Pre-trap Memorandum it was treated with phenolphthalein powder and a demonstration of reaction of phenolphthalein power with solution of sodium carbonate was done and the note was given to the informant for handing it over to the appellant on demand as bribe. He also deposed that a trap was led and when the appellant took ten-rupee note from the informant, he was caught and a seizure-list was prepared but at that time several persons assembled and started abusing them and also pelted stones and snatched their articles, including the seizure list which was prepared. He further deposed that Mahendra Prasad, Office Superintendent and Mobin, Assistant of the Office had signed the seizure-list which was snatched but these two witnesses have not been examined by the prosecution. P.W. 1 further deposed that due to assault by the mob, informant Prahlad Mahto and S.I. Hari Shankar Singh had Page 0640 received iniuries for which Gandhi Maidan P.S.Case No. 213 of 1992 had been Instituted. At Para-17 of his evidence, he further deposed that the tainted money i.e. recovered ten-rupee note had been kept and preserved by him. The ten-rupee note was produced during the trial and it has been marked as Ext-1.
5. P.W. 2 Satish Chandra Das has been tendered by the prosecution and he has not said anything about the occurrence. P.W. 3 Prabhu Dayal Mahto, A.S.I. in the Vigilance Department has also been tendered and he also does not say anything about the occurrence.
6. P.W. 4 Siyaram Singh was a watcher in the department. He had joined the Vigilance team as a watcher and he deposed that on receiving fixed signal from the informant after acceptance of the money i.e. Rs. 10/- by the appellant, he along with other members of the party had rushed to the place and had caught both the hands of the appellant. He also deposed about the preparation of the sezure-list and the act of assault by the mob on the raiding party and arrest of some persons.
7. P.W. 5 Chandra Bhushan Singh who was also a watcher in the Department had joined the team as a watcher and he has deposed on similar Iines as that of P.W. 4.
8. P.W. 6 Upendra Prasad Singh, S.I. in the Department was also a member of the raiding party and he has also deposed on similar Iines as that of P.W. 4.
9. P.W. 7 Hari Shankar Choubey was Sub-divisional Police Officer in Vigilance Department. He deposed that on receipt of the written report (complaint) of the informant Prahlad Mahto, he had entrusted the verification to Inspector Hari Shankar Singh (P.W. 9) who submitted his verification report (Ext-4) and after receiving verification report. F.I.R. was lodged with the vigilance Department and the Investigation was entrusted to S.A.A. Rizvi, Deputy Superintendent of Police (P.W. 13) and then a raiding party under the leadership of Binod Kumar, Deputy Superintendent of Police (P.W. 1) had been constituted.
10. P.W. 8 Indranand Mishra, Deputy Superintendent of Police, in the department was member of the raiding party. He deposed on similar line in his deposition as that of P.W. 1 who had led the raiding party. He also deposed that a fresh seizure-list of the recovered note of Rs. 10/- was subsequently prepared and he had signed the same. The seizure-list is Ext-1.
11. P.W. 9 Hari Shankar Singh, Inspector in the Department had made verification into informant’s complaint before lodging of the F.I.R. He deposed that on receipt of informant’s written report (complaint) he was entrusted to verify the matter, hence, he (P.W. 9) along with informant went to the Supply Office where the informant demanded the ration card from the appellant who took out the ration card and demanded Rs. 10/- from the informant. The informant said that he had paid Rs. 21-, hence the card should be given to him. Thereafter the informant said that he had no money with him as he had left the same at his house then the appellant asked him (informant) to bring the money and kept the ration card back with him. This witness further stated that he had prepared his verification report and the same has been proved on record as Ext-4. In the verification report, this witness has simply reported that the appellant had demanded Rs. 10/- but he had not mentioned that the informant had replied that he had already paid Rs. 2/- as the price of the ration card. This witness (P.W. 9) like P.W. 1 has further deposed about the pre-trap activity and the raid and recovery of Rs. 10/- from appellant and the disturbance by the mob leading Page 0641 to institution of the said F.I.R. by the vigilance team with Gandhi Maidan Police Station.
12. P.W. 10 Ram Prasad, Office Superintendent in Patna Collectorate is a formal witness, who has proved the sanctiori order (Ext-6) for prosecution.
13. P.W. 11 Baidya Nath Prasad, Sub-Inspector in the Department was a member in the raiding party. He deposed about the occurrence on similar line as that of P.W. 1 with regard to the receipt by and recovery of Rs. 10/- from the appellant and about institution of F.I.R. due to occurrence of snatching and assault by the mob.
14. P.W. 12 Ramesh Chandra Giri, Inspector in the Department has also deposed about the occurrence on similar line as that of P.W. 1.
15. P.W. 13 Syed Asgar Ali Rizvi, the then Deputy Superintendent of Police in the Department is the Investigating Officer of the case. He deposed that he had investigated the case, recorded statement of witnesses and had submitted charge-sheet. He further deposed that he had found some brick-bats near the Ration Office. He also deposed that the informant had produced before him the Ration Card which was produced in Court and proved as Material Ext-2. Photo copy of the F.I.R. of Gandhi Maidan P.S.Case No. 213 of 1992 has also been proved as Ext-8 by this vitness. He further deposed that the informant Prahlad Mahto had died during treatment in Darbhanga Medical College Hospital, Darbhanga on 5th October 1992. The copy of his death certificate has been proved as Ext-9.
16. P.W. 14 Lal Bahadur Singh is Sub-Inspector in the Department who has deposed that Prahlad Mahto had died in the D.M.C.H., Darbhanga. He further deposed that the Bed-Head Ticket Number was 1174 and its registration Number was 1309 dated 30th September 1992. He also deposed that the Vigilance Department had verified in the matter of death of the informant. This witness had identified the death certificate (Ext-9) granted by the D.M.C.H., Darbhanga.
17. D.W.1 Narendra Kumar Singh has deposed that on 4th July 1992 at about 4:00 P.M. he had gone to the Supply Office for enquirying about permit for sugar and there he had seen that one man was demanding ration card from Nageshwar Choudhary who gave it to him and then he demanded Rs. 2/- as its price. The man said that he had no change, hence he gave a ten-rupee note. Nageshvar Choudhary said that he would return Rs. 8/-after changing the note with coins but in the mean time, two persons came there and apprehended Nageshwar Choudhary on the allegation that he had received bribe. The witness further deposed that when soine persons assembled there he left the place and went away. Thus, according to this wit.ness, the appellant had received a currency note of Rs. 10/- for realising Rs. 2/- as the price of the ration card and returning the balance of Rs. 8/- to the informant but in the mean time he was apprehended by the vigilance people.
18. D.W.2 Madan Lal had also gone to the Supply office for sugar permit. He has also deposed on similar Iines as that of D.W.1 about receipt of Rs. 10/-by the appellant for the purpose of realising Rs. 2/- as the price of the ration card and returning the balance of Rs. 8/- to the informant and in the rnean time the arrest of the appellant by the vigilance people.
19. The whole of the prosecution evidence brought through the statements of witnesses has been brought with a view to proving the receipt of ten-rupee note by Page 0642 the appellant which according to the written report as filed by the informant was demanded by the appellant as bribe for giving the ration card to the informant. So far the prosecution evidence with regard to the receiving of ten-rupee note by the appellant is concerned the same is not challenged by the appellant inasmuch as the appellant himself admitted in his statement under Section 313 Cr.P.C. that the ten-rupee note vas given to him and he had to return the balance of Rs. 8/- to the informant after realising Rs. 2/- as the price of the ration card but, in the roean time, the vigilance people had caught him. It is also the case of the defence that the appellant had received the ten-rupee note for the purpose of realising Rs. 2/- as the price of the ration card and returning the balance of Rs. 8/- to the appellant but before he could return Rs. 8/-, he was caught by the vigilance people.
20. In support of defence case, the appellant examined D.Ws. 1 & 2 vho have deposed that while they had gone to the ration office for obtaining permit for sugar, they had seen that one person had demanded the ration card from Nageshwar Choudhary (appellant) and when Nageshwar Choudhary demanded Rs. 2/-as the price of the ration card that person had stated that he had no coin for Rs. 2/-, hence, he gave ten-rupee note to him (appellant) and Nageshwar Choudhary had stated that he was returning Rs. 8/- after changing the note with coins but in the mean time, some persons came there and they caught the appellant. The evidence of these two defence witnesses appears to be natural and probable and there does not appear to be any reason to discredit their testimony. Thus, the appellant has made out his case that he had not received the ten-rupee note as bribe for handing over the ration card but it was received for realising Rs. 2/- as the price of the ration card and returning the balance of Rs. 8/- to the informant.
21. The prosecution has brought on record the prepared ration card and the same has been proved which is in a Book form with pages containing the prescribed columns with details of name and address of the informant and which has been marked material Ext-2 and on the last page of the Ration Card Book, there are nine informations in seriatum and. Information No. 5 is that the price of the Ration Card Book was Rs. 1.25/-but its price was at Rs. 2/- when required for the second time due to loss of the 1st card or otherwise.
22. Learned Counsel for the appellant referred to the written report of the informant (Ext-3) wherein it is stated that a surrender certificate along with an application had been filed by the informant for preparation of the ration card. Thus, when surrender certificate with regard to the previous ration card was filed, the case would be definitely of preparation of the ration card for the second time and in such case, according to the aforesaid Information No.5 on the ration card the price of Rs. 2/- for the same had to be realised. In his written report (Ext-3) the informant did not say anywhere that he had paid Rs. 2/- as the price of the ration card at any point of time and his simple statement in it (written statement, Ext-3) is that after submitting his surrender certificate and the application form for preparation of ration card, when he went to receive the ration card Rs. 10/- was demanded by appellant as bribe. In this case the informant could not be examined because he had died in the Hospital in course of treatment of his ailment. In this context the verification report (Ext-4) as submitted by the verifying Officer (P.W. 9) before institution of the FIR is also relevant to be noticed. In the verification report, also the verifying Officer had, reported that in course of verification he found that when the informant demanded ration card, the Page 0643 appellant had asked for Rs. 10/- for it but the informant taking the plea that he had no money with him at that time left the place for bringing the money. In the verification report the verifying Officer (P.W. 9) nowhere has said that the informant had expressed anything like that that he had paid earlier Rs. 21- as the price of the ration card. Thus, in the written report of the informant and the verification report of the verifying Officer (P.W. 9), there is no mention of the fact of Rs. 2/- having been paid at any point of time as the price of the ration card. In such view of the matter, this has to be accepted that the amount of Rs. 2/- was realisable as the price of the ration card to be delivered to the informant.
23. The learned A.P.P. submitted that the informant had paid Rs. 2/- as the price of the ration card and nothing was due towards the price of the card and that Rs. 10/- as demanded and received by the appellant was nothing but an illegal gratification for delivery of the ration card to the informant. In support of his contention the learned A.P.P. referred to the evidence of the verifying Officer (P.W. 9 at Para-6) vhere he has stated that on demand of Rs. 10/-by the appellant the informant had stated that he had already paid Rs. 2/- as the price of the ration card. But the learned Counsel for the appellant challenged the veracity of this statement of P.W. 9 and he subrnitted that it was a subsequent embellishment and addition in the prosecution evidence for the purpose of making the prosecution case successful by all means. The learned Counsel submitted that the verifying Officer (P.W. 9) himself did not mention this fact in his verification report (Ext-4) filed by him before lodging of FIR. It was also submitted that even the informant in his written report (Ext-3) has not mentioned that he had paid Rs. 2/- as the price of the ration card. Thus, due to the absence of this fact in the informant’s written report (Ext-3) and the verification report (Ext-4), I find substance in the contention of the appellant’s counsel that this fact has been purposely added subsequently by P.W. 9 in his evidence, in order to make the prosecution case successful and, hence, no reliance can be placed on this statement of P.W. 9. Thus, in view of the discussions it is found that Rs. 2/- i.e. the price of the ration card had not been paid earlier and it had to be paid at the time of obtaining the ration card from the appellant. The appellant has categorically admitted this fact that he had received a ten-rupee note but it was taken for the purpose of realising Rs. 2/- as the price of the ration card and returning the balance amount of Rs. 8/- but he was apprehended before he could return Rs. 8/- by the vigilance people. The learned Counsel for the appellant submitted that the informant had not paid Rs. 2/- as the price of the ration card and he did not want to make that payment and that due to the dispute when the appellant refused to hand over the ration card without receiving Rs. 2/-as its price, he (informant) misrepresented the fact before the vigilance authorities that the appellant was demanding bribe and thus he (informant) got the appellant implicated in this case by handing over a ten-rupee note under the misrepresentation that it was the bribe money whereas, infact, it was given to the appelant for realising Rs. 2/- as the price of the ration card and returning the balance of Rs. 8/- but before the appellant could return the balance of Rs. 8/-to the informant, the vigilance people appreheded the appellant due to the reason that the informant had misrepresented this transaction as passing over of the money as illegal gratification for handing over of the ration card by the appellant to the informant.
24. In view of the facts and circumstances, as discussed above and also considering the categorical admission of the appellant as also supported with the evidence of Page 0644 the two defence witnesses that he had received the ten-rupee note for realising Rs. 2/- as the price of the ration card and returning the balance amount of R.8/- to the informant, I find that the defence plea has some basis to stand and it is not totalyv devoid of any credence.
25 In course of argument, the learned A.P.P. referred to the FIR institute by the vigilance team with regard to the manhandling and snatching of articles and papers, as made by the members of the mob at the time of occurrence and he submitted that the appellant was also an accused in that case. The prosecution has simply proved the FIR (Ext-8) of that case and beyond this, nothing has been brought on the record as to vhat happened to that case. Learned Counsel for the appellant argued that even in the FIR the allegations are of general and omnibus nature, without there being any specific attribution against the appellant. It was also submitted that the appellant had himself admitted even at the time of occurrence that he had received the ten-rupee note for the purpose of realising Rs. 2/- as the price of the ration card delivered to the informant and returning the balance of Rs. 8/- to the informant but despite such explanation of the appellant, the vigilance people insisted that the appellant had received the amount as bribe and that due to this, some altercation had taken place and people had assembled but the appellant was not involved in any manner in criminal activity committed on the vigilance people. The learned Counsel further argued that P.W. 1, the leader of the vigilance team stated in his evidence that after recovery of the ten-rupe note from the appellant a seizure-list had been prepared and Mahendra Prasad, Office Superintendent and Mobin, Assistant of the Office had signed the seizure-list as witnesses and that the mob had snatched the seizure-list but the prosecution has not examined these two persons in support of case of the prosecution.
26. Thus considering I find that the FIR as lodged by he vigilance team with regard to the occurrence as committed by the mob, as alleged by the vigilance team is entirely a different matter and it has to be decided according to the evidence produced in that case. So far the instant case is concerned, it has to be decided on the basis of the evidence produced in this case.
27. As to the evidence, as brought in this case and the facts and circumstances of the case, as already discussed above, I find that the defence plea as taken by the appellant cannot be brushed aside on the ground of its being devoid of any basis or reason. In such view of the matters, I find that it is a case in which the appellant is entitled to benefit of doubt. Therefore it is hereby held that the prosecution has not been able to prove its case beyond the shadows of doubt and, hence the appellant, by way of giving benefit of doubt, is acquitted of the charges levelled against him. He is also discharged frorn liability of bail bonds.
27. In the result, the order of conviction and sentence, as passed by the learned trial court, is hereby set aside and the appeal succeeds.
28. Appeal allowed.