JUDGMENT
S.L. Kochar, J
1. This appeal has been directed by the appellant against the judgment and order dated 29th August, 1992, passed by the Special Judge, Dewas, in Special Case No. 2/86 convicting the appellant for offence punishable under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as ‘the Act’) as also under Section 161, IPC and sentencing him Rigorous Imprisonment for six months on both counts and fine of Rs. 500/- in total Rs. 1000/- in both the counts, in default of payment of fine, further sentences of 3 months on each count. All the sentences were directed to run concurrently.
2. According to the prosecution case, appellant was posted at ‘Double Chouky’ of Police Chouky District, Dewas on 28-11-1985 as Assistant Sub Inspector. He demanded Rs. 300/- rupees as bribe for releasing complainant Rajaram and his son Mohan on bail in connection with Crime No. 71/85 registered for the offence under Section 509, IPC. He obtained Rs. 100/- from complainant Rajaram being public servant and thereby committed offence punishable under Section 161, IPC and under Section 5 (1) (d)/5 (2) of the Act.
3. It is alleged by the prosecution that complainant Rajaram does not want to pay any amount as illegal gratification for releasing himself and his son on bail, therefore, he went to the office of the Divisional Special Establishment of Police, Lok Ayukta, Indore and lodged a complaint (Exh. P-3) for taking action against the appellant. On this report, a trap was arranged against the appellant. After completion of preliminary formalities, to trap the appellant red handed, the trap party consisting complainant Rajaram (P.W. 2), Panchwitness, Deokaran (P.W. 5), Gazetted Officer B.L. Manik (P.W. 6), Rajnath Upadhyaya (P.W. 8), Constable Jagdish Chandra (not examined), Vithalrao (P.W. 3) and other constables proceeded for ‘Double Chouky’ on 28-11-1985 in Government jeep at about 1.00 PM. They reached at the destination after 45 minutes.
Complainant Rajaram (P.W. 2) and shadow witness Deokaran (P.W. 5) were sent to Police Chouky and rest members of the trap party were standing at a distance of the police chouky. It is, further, alleged by the prosecution that the complainant paid marked and powder treated currency note of Rs. 100/- to the appellant. On accepting the same by the appellant, the complainant as per the plan gave signal to the members of the trap party. The members of the trap party immediately entered inside the police chouky and caught hold of the hands of the appellant. The officers of the trap party disclosed their identity and asked the appellant about the said hundred rupee currency note, upon which the appellant disclosed that same was put by him in the pocket of his pant. B.L. Manik (P.W. 6) took out the said note and thereafter hands of the accused were washed in the solution of Sodium Carbonate, which turned pink. Some solution was preserved in a bottle and it was sealed. The appellant was arrested. After performance of other formalities as also usual investigation, challan was filed against the appellant before the Trial Court.
4. The Special Judge, framed charges against the appellant for the offences punishable under Section 5 (1) (d)/Section 5 (2) of the Act and under Section 161, IPC, which was denied by the appellant. According to the appellant, he was falsely implicated in the case by complainant Rajaram against whom the case was registered by him as also by Panchwitness Deokaran (P.W. 5), who was the accused for the offence under Section 379 and whose photograph was affixed in the police station as habitual offender. Deokaran (P.W. 5) was compelling him for removing his photograph for which he was not agreed. It is also contended by the appellant that Station House Officer Shyam Sundar Trivedi was keeping grudge against him and wanted to him to transfer from ‘Double Chouky’ police chouky and on his conspiracy the whole false case was concocted against him. He examined Kamta Prasad (D.W. 1) constable in defence. After trial, the appellant has been convicted as indicated above. Aggrieved, the appellant has filed this appeal.
5. Counsel for the appellant has submitted that the sanction for prosecution was not granted after due application of mind. Hence, it was no legal sanction for prosecuting the appellant. There is no reliable evidence available on record for demand of illegal gratification. It has also been contended that shadow witness Deokaran (P.W. 5), and a panch witness about recovery of currency note, B.L. Manik (P.W. 6) are not independent witnesses. Their testimony should not have been relied upon by the Court below. It has also been argued that before taking search of the appellant, the trap party did not give its own search.
6. As against this, Shri Abdul Salim, Panel Lawyer supported the impugned judgment and submitted that from the evidence adduced by the prosecution, the demand of alleged bribe and acceptance of Rs. 100/- as illegal gratification for releasing the complainant and his son on bail, is duly established. Hence, the appellant is rightly convicted.
7. Having heard the learned Counsel for the parties and after perusing the entire record of the case, this Court is of the opinion that the prosecution is not able to prove its case beyond all reasonable doubt against the appellant. Hence, he is liable to be acquitted.
As regards the question of sanction, this Court has perused the statement of Virendra Pal Singh (P.W. 1) who was the employee of the Home Department and who has proved Exh. P-1, dated 25-7-1986, sending a case for according sanction, Exh. P-2 a sanction given by the State Government. Both these documents revealing the facts of the case, show that before granting sanction (Exh. P-2), the concerned authority has applied its mind thoroughly and only thereafter the sanction for prosecution was granted by order dated 25th August, 1986 (Exh. P-2). Accused/appellant got proved in cross-examination of witness Virendra Pal Singh (P.W. 1). The comments (Exh. D-1) were sent by Up Lok Ayukta for grant of sanction to prosecute the applicant. The contents of Exh. D-1 is also establishing the fact of that the sanction was granted after due consideration of the facts and the material involved in the case and not mechanically without application of mind as submitted by the Counsel for the appellant.
8. ‘ The prosecution has examined Deokaran (P.W. 5) as a shadow witness of the trap. Deokaran (P.W. 5) cannot be regarded as independent and respectable witness. The complainant Rajaram (P.W. 2) and other witnesses were residents of the same Village, Radhogarh. In Paragraph 18 of its deposition the witness has accepted that in the same police chouky his photograph was affixed. This shows that he was also not respectable person. Because of his criminal activities, he was a notified offender. Deokaran (P.W. 5) has also admitted in Paragraph 8 of his deposition that complainant Rajaram was his neighbour as well as his relative. These two factors are strong enough to discard his testimony because he cannot be regarded as an independent and respectable witness. 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.”
9. B.L. Manik (P.W. 6) was a witness present right from very beginning of the arranging of the trap till recovery of bribe amount at the instance of the appellant. Though this witness is a public servant and holding a post of Tehsildar but he also cannot be regarded as independent witness. In Paragraph 8 of his deposition he accepted the fact that he was a witness in several trap cases. He was not a shadow witness. This witness is never saw the complainant while giving money to the appellant/accused. For the purpose of payment of money, only complainant Rajaram (P.W. 2) and Deokaran (P.W. 5) were sent to police chouky. This witness had reached after payment of money when the other constables of the trap party had reached there and caught hold of the hands of the appellant, who was sitting in a varandha of the police chouky. The Supreme Court in the case of Som Prakash v. State of Punjab (AIR 1992 SC 665) has held that if the witness forming part of raiding party were not independent, their evidence should not be used for convicting the accused. The statements of Deokaran (P.W. 5) and B.L. Manik (P.W. 6) who were panch witnesses of the trap, cannot be termed as independent witnesses on the basis of the aforementioned facts. In Paragraph 13 of the statement of B.L. Manik (P.W. 6), this witness has stated that before conducting the search of the appellant and taking out the note from his pocket, he had not given his own search before the witnesses. On perusal of the statements of Babusingh (P.W. 7) Deputy Superintendent of Police who was the leader of the trap party and Rajnath Upadhyaya (P.W. 8), Investigating Officer, who had finally filed charge-sheet, it appears that they have nowhere stated that before taking the search of the accused, search officer did convince the witnesses that he was empty-handed. So there is absolutely no evidence on record showing the fact that members of the trap party or persons conducting the search gave their personal search before the appellant. As such in the facts and circumstances of the case, possibility of plantation of currency note and its recovery during the search, cannot be ruled out. In the case of Madhusudan Prasad v. State of M.P. (1981 JLJ 518) it has been observed that :–
“From the evidence afforded by Pyrelal (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, possibility of Planting of the note (Arts. 2 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 is shaken.”
Same legal and factual position has also been considered in the judgment of Bimal Kumar Gupta v. Special Police Establishment, Lokayukt, 2001(1) M.P.H.T. 330 = 2001 (1) JLJ 267.
10. In the case in hand the prosecution has also failed to lead independent corroboration to the testimony of Rajaram (P.W. 2) about the demand of Rs. 300/- for releasing him and his son on bail. Rajaram (P.W. 2) has also accepted in Paragraph 7 of his deposition that he was knowing Deokaran (P.W. 5) since 30-40 years having visiting terms with him. So there is ample evidence on record to establish that complainant Rajaram (P.W. 2) and only shadow witness and witness for demand Deokaran (P.W. 5) were having good relations and long standing friendship. Because of criminal history of Deokaran (P.W. 5) his photograph was affixed in the police chouky also, he cannot be regarded as independent witness. As per the report (Exh. P-3), accused went to the village of the complainant twice or thrice and demanded 300/- rupees saying that unless and until 300/- rupees are not paid to him by the complainant he will not file charge-sheet in Court. In this report facts are mentioned in writing on 28-11-1986 whereas the documents (Exhs. D-3 and D-4) are showing that two notices were sent to the complainant on 18-11-1985 and 21-11-1985. The first one was sent intimating the date of filing of charge-sheet in Court and for his presence in Court on 20-11-1985. Complainant Rajaram did not remain present on 20-11-1985, therefore, again second notice dated 21-11-1985 was sent to him giving the date for his appearance for filing charge-sheet on 25-11-1985. Both the notices were bearing the signatures of Rajaram and his son Mohan. When these notices were shown to this witness in Court, he has shown his ignorance about the signature. His reply in Paragraph 9 of his deposition throws considerable amount of doubt on this testimony, either he should accept or deny the documents (Exhs. D-3 and D-4) bearing his signatures. The suggestion was given to this witness that he was putting pressure upon the appellant for not filing charge-sheet but the appellant did not succumb to his pressure. Therefore, he lodged false complaint against him.
11. Rajaram (P.W. 2) and other witnesses have also accepted the fact that a place of incident ‘double chouky’ was situated in the midst of the market surrounded by several shops. There was also a shop of Hartal, a barbar in front of police chouky, but not a single witness of that area was kept present at the time of search and seizure. In the statements of B.L. Manik (P.W. 6) as well as Deokaran (P.W. 5) in Paragraphs 4 and 16 respectively disclosed the fact that the appellant was sitting in the Varandah and the Varandah was easily visible from the road of the police chouky. But B.L. Manik (P.W. 6) who was standing in front of the police chouky by the road side, did not witness the payment of money made by the complainant to the appellant. Deokaran (P.W. 5) in Paragraph 15 has admitted the fact that in the ‘Double Chouky’ there was no lock-up (Hawalat). He also admitted the fact of presence of Constable Kamta Prasad (D.W. 1) at the time of release of the appellant and his son Mohan on surety. In Paragraph 16, this witness has also admitted that at the time of payment of bribe and conversation between the complainant and the accused, some police constables were also present but none of them were examined and interrogated by the trap party and also produced before the Court as a witness. It does not sound probable that in presence of several police constables, the appellant would accept the bribe.
12. In Paragraphs, surety Deokaran has deposed that from the pocket of the accused, currency note was taken out by one of the members of the trap party, whose hands and pant pocket got washed and they turned in pink colour. This statement again throws doubt on the truthfulness of the prosecution case because it is not the prosecution case that after taking out currency note from the pocket of the pant of the appellant by any members of the trap party, and put the same in his pocket. This witness in Paragraph 17 of his statement states that at the first instance, said money was taken out from the pocket of the appellant, by the person who came with the trap party from Indore but the accused himself has taken currency note from his pocket. When he was shown his previous statement in his examination-in- chief Paragraph 5 “A” to “A” portion, he replied that this statement was correct but he was not remembering as to who has taken out the note from his pocket of the appellant. The defence has given suggestion to Deokaran (P.W. 5) as well as Rajaram (P.W. 2) that they had entered inside the room of police chouky where the appellant was sleeping and his pant was hanging in which they have put 300/-rupees currency notes. Thereafter, accused was awaken and after wearing the dress came in a Verandah. For this defence suggestion, accused examined Constable Kamta Prasad (D.W. 1) who was posted at the relevant time, in a police chouky ‘Double Chouky’, is present and the presence of the other constables were also accepted by witnesses Rajaram (P.W. 2) and Deokaran (P.W. 5). This defence witness has also stated about bad blood between the appellant and S.P. Trivedi, S.H.O., Badwaha Police Station who was absconding because of conviction in some criminal case. This witness has also admits that he had arrested the complainant Rajaram and his son and brought them in the police station on 14-11-1995 and in his presence, the appellant released them on bail on accepting surety of Deokaran and one Lalsingh. For all procedure, the presence of Kamta Prasad (D.W. 1) has been accepted by shadow witness/panch witness Deokaran (P.W. 5) in Paragraph 15 of its statement. This defence witness has denied about the talks between complainant Rajaram and Panchwitness Deokaran, and the appellant about payment of money. This defence witness has given detail statement about the factum of calling the complainant, Rajaram and his son Mohan in police station and their release as also the alleged incident of trap in the police chouky. According to this witness, at the relevant time, the appellant was residing in the police chouky on 28-11-1985. Rajaram (P.W. 2) and Deokaran (P.W. 5) came to the appellant and asked him about his calling by the Tehsildar who was standing in the Verandah. On this information, the appellant dressed up and came out of chouky. The pant which was worn by him, was hanging at the place, which is having access for coming and going outside the chouky. The defence suggestion was that the case of payment of bribe of Rs. 100/- was planted one.
13. In view of the above discussions and in the facts and circumstances of the case, the defence version, cannot be rejected outright especially when the prosecution story suffers from number of legal infirmities.
14. It has also been argued by the Counsel for the appellant that important witness like Mohan, the son of the complainant and other witnesses of police chouky, inhabitants of the concerned area, were not examined for which adverse inference against the prosecution ought to have been drawn. It is also the matter of consideration that no documents have been shown to be seized and filed in the case about the case, registered under Section 509, IPC, against the complainant, Rajaram and his son Mohan, which was the sole basis for their arrest and thereafter releasing on bail as well as demand of bribe. No witness, at least Pappu, who had lodged report against Rajaram has been examined. No explanation has been given by the prosecution in Court for not filing of these documents, which are important and relevant for the purpose of deciding the reasons and factum of demand of bribe.
15. Babu Singh (P.W. 7) has denied in Paragraph 14 of its deposition that for successful trap, award and promotion are given to the concerned officer whereas the Investigating Officer Raj Nath Upadhyaya (P.W. 8), who was posted as D.S.P. in Loka Ayukt Office, has admitted this position in Paragraph 12 of its deposition. The denial of this factual position of Babusingh (P.W. 7) shows his nature and tendency of his denying simple facts. It emerged from the statement of complainant Rajaram (P.W. 2) in Paragraph 4 that when hands of the appellant were caught hold, he was asked about money, which was denied by the appellant saying that “he did not take any note”. This shows his conduct pointing towards his innocence.
16. B.L. Manik (P.W. 6) has stated in Paragraph 3 of his deposition that in the preliminary proceedings of arranging of trap, when the hands were washed after putting powder on the notes, the water turn into blue colour. If it is correct, then the preliminary proceedings before arranging the trap, as mentioned in the document Panchanama (Exh. P-4) is also doubtful and is falsified by the statement of this witness.
17. In the present case, the purpose for which the money was demanded as illegal gratification by the appellant, was already served much prior to the alleged demand of Rs. 100/- to the appellant for releasing the complainant and his son Mohan. Complainant Rajaram was also given notice for appearance before the Court for filing of the charge-sheet, in the circumstances, it would be difficult to believe that the appellant was demanding money for the work which had already been done. If the money was not paid by the complainant, after his release on surety Deokaran (P.W. 5), was never called and asked for the payment of money because as per the prosecution case, on his assurance, complainant Rajaram and his son were released on bail. This fact is also tilting balance of innocence in favour of the appellant.
18. For the foregoing reasons and legal and factual position as discussed above, the appellant is entitled to get the benefit of doubt. Accordingly, the judgment and order of conviction passed by the Trial Court is, hereby set aside. The appellant is on bail. His bail bonds stand cancelled.