{"id":186654,"date":"2010-08-31T00:00:00","date_gmt":"2010-08-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dayashanker-singh-vs-the-state-of-m-p-on-31-august-2010"},"modified":"2016-08-24T05:54:38","modified_gmt":"2016-08-24T00:24:38","slug":"dayashanker-singh-vs-the-state-of-m-p-on-31-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dayashanker-singh-vs-the-state-of-m-p-on-31-august-2010","title":{"rendered":"Dayashanker Singh vs The State Of M P on 31 August, 2010"},"content":{"rendered":"<div class=\"docsource_main\">Chattisgarh High Court<\/div>\n<div class=\"doc_title\">Dayashanker Singh vs The State Of M P on 31 August, 2010<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n             HIGH COURT OF CHATTISGARH AT BILASPUR      \n\n               Criminal Appeal  972 of 1990\n\n               Dayashanker   Singh\n                         ...Petitioners\n\n                           Versus\n\n              The  State  of  M P\n                            ...Respondents\n\n!              Mrs  Anju Ahuja\n\n^              Mr R R Sinha\n\n CORAM:          Honble Mr T P Sharma J \n\n Dated:    31\/08\/2010\n\n: JUDGEMENT    \n<\/pre>\n<p>   Criminal appeal under Section 374 2  of the Cr P C<\/p>\n<p>1.     Challenge  in  this  appeal  is  to  the  judgment  of<br \/>\n  conviction &amp; order of sentence dated 12-10-1990 passed by the<br \/>\n  4th Special Judge, Bilaspur in Special Criminal Case No.6\/88,<br \/>\n  whereby &amp; whereunder learned Special Judge after holding the<br \/>\n  appellant  guilty  for  demanding  and  accepting   illegal<br \/>\n  gratification other than legal remuneration by misusing the<br \/>\n  office, convicted the appellant under Sections 161  of  the<br \/>\n  I.P.C. &amp; 5 (1) (d) read with Section 5 (2) of the Prevention<br \/>\n  of Corruption Act, 1947 and sentenced him to undergo R.I. for<br \/>\n  one  year and to undergo R.I. for two years &amp; pay  fine  of<br \/>\n  Rs.2,000\/-, in default of payment of fine to further undergo<br \/>\n  R.I. for six months, respectively.\n<\/p>\n<p>2.    Conviction  is impugned on the ground that without  any<br \/>\n  iota of demanding and accepting bribe, the Court below  has<br \/>\n  convicted  &amp; sentenced the appellant and thereby  committed<br \/>\n  illegality.\n<\/p>\n<p>3.   Case of the prosecution, in brief, is that the appellant<br \/>\n  was posted as Ranger in the Forest Department at Achanakmar<br \/>\n  Reserve Forest.  Complainant Sohanlal (PW-1) was dealing with<br \/>\n  mahul  leaves, a forest produce.  In the month of  October,<br \/>\n  1986 the complainant sent truck for transportation of mahul<br \/>\n  leaves, but the appellant returned the truck and directed the<br \/>\n  clerk of the complainant to inform the complainant to  come<br \/>\n  with money for issuance of transit pass.  The complainant was<br \/>\n  not ready to give bribe.  He filed an application before the<br \/>\n  Deputy  Superintendent of Police (Vigilance)  on  17-11-86.<br \/>\n  After  preliminary enquiry, trap party was constituted  and<br \/>\n  witnesses  R.K.  Pandey  &amp; Sainat  Ram  were  called.   The<br \/>\n  complainant produced five currency notes of Rs.100\/-  each,<br \/>\n  numbers of which were recorded in the preliminary panchnama,<br \/>\n  same were treated with phenolphthalein powder and kept in the<br \/>\n  shirt of the complainant.  The complainant was directed not<br \/>\n  to  touch the currency notes before giving the same to  the<br \/>\n  appellant and not to shake hand with any other person.   He<br \/>\n  was  also  directed to give signal after giving the  bribe.<br \/>\n  Reaction  of sodium carbonate &amp; phenolphthalein powder  was<br \/>\n  demonstrated.  Primary panchnama was prepared vide  Ex.P-2.<br \/>\n  Trap party proceeded for the spot.  The appellant was present<br \/>\n  in his house, trap party took its position, the complainant<br \/>\n  went  to the house of the appellant, the appellant demanded<br \/>\n  Rs.500\/- as bribe and the complainant gave Rs.500\/- kept by<br \/>\n  the  trap  party in his pocket to the appellant  which  the<br \/>\n  appellant received and kept the same in the pocket  of  his<br \/>\n  full  pant.   After giving signal by the complainant,  trap<br \/>\n  party entered in the house of the appellant and after giving<br \/>\n  introduction, post-trap proceedings were initiated.  During<br \/>\n  the proceedings, the appellant threw the currency notes  on<br \/>\n  the floor.  Hands of the appellant and the complainant were<br \/>\n  washed with sodium carbonate solution which turned into pink<br \/>\n  colour.  Currency notes were taken up by witness Pandey and<br \/>\n  numbers  were  tallied.  They were  also  washed  with  the<br \/>\n  solution  of sodium carbonate which also turned  into  pink<br \/>\n  colour.  Currency notes and full pant were seized vide Ex.P-\n<\/p>\n<p>  10.   Final  panchnama  was prepared  vide  Ex.P-9.   Other<br \/>\n  currency  notes  and other articles were  seized  from  the<br \/>\n  appellant vide Ex.P-11.  Dehati nalsi was recorded vide Ex.P-\n<\/p>\n<p>  12.   F.I.R. was lodged vide Ex.P-13.  Seized solution  was<br \/>\n  sent  for  chemical examination vide Ex.P-14.  Presence  of<br \/>\n  sodium carbonate &amp; phenolphthalein powder was confirmed  in<br \/>\n  hand wash solution and pocket wash solution of the appellant<br \/>\n  vide Ex.P-15A.\n<\/p>\n<p>4.    Statements of the witnesses were recorded under Section<br \/>\n  161 of the Cr.P.C. and other documents were seized.  Material<br \/>\n  collected  during  the course of investigation  was  placed<br \/>\n  before   the  sanctioning  authority  and  the  sanctioning<br \/>\n  authority   has  accorded  sanction  vide  Ex.P-4.    After<br \/>\n  completion of investigation, charge sheet was filed  before<br \/>\n  the Special Judge, Bilaspur.\n<\/p>\n<p>5.    In  order  to  prove  the guilt  of  the  accused,  the<br \/>\n  prosecution  has examined as many as nine  witnesses.   The<br \/>\n  accused  was examined under Section 313 of the  Cr.P.C.  in<br \/>\n  which he denied the circumstances appearing against him and<br \/>\n  pleaded innocence &amp; false implication.\n<\/p>\n<p>6.     The  accused  has  taken  specific  defence  that  the<br \/>\n  complainant has constructed temporary hut in the forest area<br \/>\n  after  cutting  the  forest  produce,  forest  offence  was<br \/>\n  registered  against  the clerk of  the  complainant  &amp;  the<br \/>\n  complainant,  the clerk of the complainant compromised  the<br \/>\n  offence and the complainant was required to deposit Rs.500\/-<br \/>\n  as  fine  which he has deposited to the appellant  who  was<br \/>\n  competent to receive money and issue receipt, and while  he<br \/>\n  was preparing the receipt, trap party came in the house  of<br \/>\n  the appellant and caught hold of him.  The appellant has also<br \/>\n  taken  defence  that he was not competent to issue  transit<br \/>\n  pass, previously other authorities have issued transit pass<br \/>\n  to  the  complainant, but on that day the  complainant  has<br \/>\n  falsely  implicated  him  in the crime  in  question.   The<br \/>\n  appellant has examined defence witnesses M.R. Thakre (DW-1),<br \/>\n  S.N.  Ram  (DW-2), Vinod Bhushan Shukla (DW-3),  Jauharilal<br \/>\n  Shukla (DW-4) &amp; Prakash Yadav (DW-5) in support of his claim.\n<\/p>\n<p>7.    After  providing opportunity of hearing to the parties,<br \/>\n  learned Special Judge convicted &amp; sentenced the appellant in<br \/>\n  the aforesaid manner.\n<\/p>\n<p>8.   I have heard learned counsel for the parties and perused<br \/>\n  the impugned judgment as also the record of the trial Court.\n<\/p>\n<p>9.   Learned counsel for the appellant vehemently argued that<br \/>\n  in  the present case, the complainant has never applied for<br \/>\n  transit  pass  to the appellant and the appellant  was  not<br \/>\n  competent  to  issue  transit pass.   The  complainant  had<br \/>\n  constructed  one  temporary hut in the  forest  area  after<br \/>\n  cutting  and removing forest produce through his  clerk  on<br \/>\n  which  forest offence was registered against  him  and  his<br \/>\n  clerk.  Clerk of the complainant entered into compromise and<br \/>\n  the  competent authority has imposed fine of Rs.500\/-.  The<br \/>\n  complainant was required to deposit fine.  At the  time  of<br \/>\n  alleged incident, the complainant contacted the appellant to<br \/>\n  deposit  fine  amount  and he has  tendered  Rs.500\/-,  the<br \/>\n  appellant was preparing receipt of the same and at that time,<br \/>\n  he was caught red handed.  The appellant has neither demanded<br \/>\n  nor accepted bribe, he has demanded and accepted the amount<br \/>\n  of  Rs.500\/-  as fine for which he was competent.   Learned<br \/>\n  counsel  placed reliance in the matter of Banarsi  Dass  v.<br \/>\n  State of Haryana1 in which the Apex Court has held that mere<br \/>\n  proof  of  recovery  of bribe money  from  accused  is  not<br \/>\n  sufficient to prove the offence, the prosecution is required<br \/>\n  to  prove  the  factum of demand and acceptance  of  bribe.<br \/>\n  Learned counsel further placed reliance in the matter of Ram<br \/>\n  Prakash Arora v. The State of Punjab2 in which the Apex Court<br \/>\n  has held that evidence of interested and partisan witnesses<br \/>\n  who are concerned in the success of the trap must be tested<br \/>\n  in the same way as that of any other interested witness.  In<br \/>\n  a   proper   case  the  Court  may  look  for   independent<br \/>\n  corroboration before convicting the accused persons.  Learned<br \/>\ncounsel  also  placed reliance in the matter of Abdul  Rahman<br \/>\n  Sheikh  v. State of M.P.3 in which the High Court of Madhya<br \/>\n  Pradesh  has  held that in case of failure of  first  trap,<br \/>\n  factum of second trap is not understandable.  Learned counsel<br \/>\n  relied upon the matter of Dwarkaprasad Ramnath Gupta v. State<br \/>\n  of Madhya Pradesh4 in which the High Court of Madhya Pradesh<br \/>\n  has held that receipt of money by accused raises presumption<br \/>\n  against  him  under  Section 4 (1)  of  the  Prevention  of<br \/>\n  Corruption  Act,  1947,  accused  may  discharge  onus   by<br \/>\n  preponderance of probability.  Learned counsel further relied<br \/>\n  upon  the  matter of Smt. Meena Balwant Hemke v.  State  of<br \/>\n  Maharashtra5  in which the Apex Court has  held  that  mere<br \/>\n  recovery of money from pad on the table of the accused is not<br \/>\n  sufficient to prove the factum of demand and acceptance  of<br \/>\n  bribe.  Learned counsel also relied upon the judgment dated 4-<br \/>\n  8-2010  passed by this Court in Criminal Appeal No.749\/1993<br \/>\n  (Baharata Ram and another v. The State of Madhya Pradesh) in<br \/>\n  which it has been held that mere recovery of bribe amount is<br \/>\n  not sufficient to prove the factum of demand and acceptance<br \/>\n  of bribe.  Learned counsel placed reliance in the matter of<br \/>\n  Ram  Kumar Verma v. State of M.P.6 in which this Court  has<br \/>\n  held  that mere recovery of tainted currency notes  is  not<br \/>\n  sufficient to prove the factum of demand and acceptance  of<br \/>\n  bribe.\n<\/p>\n<p>10.   On  the  other  hand, learned State counsel  vehemently<br \/>\n  opposed the appeal and submitted that in the present  case,<br \/>\n  the appellant has accepted the fact that he has demanded and<br \/>\n  accepted Rs.500\/- from the complainant, but the appellant has<br \/>\n  offered explanation that he has demanded money as recovery of<br \/>\n  fine and has not demanded bribe, however, the appellant has<br \/>\n  failed  to  discharge his burden and the  trial  Court  has<br \/>\n  rightly convicted &amp; sentenced the appellant.\n<\/p>\n<p>11.   In order to appreciate the arguments advanced on behalf<br \/>\n  of  the parties, I have examined the evidence available  on<br \/>\n  record.\n<\/p>\n<p>12.   In  the  present case, as per the evidence of  Sohanlal<br \/>\n  Agrawal  (PW-1)  &#8211; complainant, Ramdinkar Pandey  (PW-8)  &#8211;<br \/>\n  Assistant Director (Agriculture) and H.N. Shukla  (PW-9)  &#8211;<br \/>\n  Inspector, the appellant was found in possession of tainted<br \/>\n  currency  notes  which  were kept  in  the  pocket  of  the<br \/>\n  complainant for giving the same as bribe on demand  by  the<br \/>\n  accused.  As per the evidence of Sohanlal Agrawal (PW-1), he<br \/>\n  has  given  money to the appellant which the appellant  had<br \/>\n  taken.   As  held by the M.P. High Court in the  matter  of<br \/>\n  Dwarkaprasad (supra) and in accordance with Section 4 of the<br \/>\nPrevention  of  Corruption Act, 1947, it  raises  presumption<br \/>\n  that  the  accused  has  demanded  &amp;  accepted  bribe,  but<br \/>\n  presumption  is  rebuttable  and  it  can  be  rebutted  by<br \/>\n  preponderance of probability, no strict proof is required.\n<\/p>\n<p>13.   In  order  to  discharge his burden, the appellant  had<br \/>\n  examined M.R. Thakre (DW-1) &#8211; Superintendent working in the<br \/>\n  Forest Department who has deposed in his evidence that he was<br \/>\n  competent for compromise relating to forest offence, he has<br \/>\n  produced and proved document Ex.D-4, document of compromise<br \/>\n  with complainant Sohanlal Agrawal through Prakash Yadav  in<br \/>\n  which  Rs.500\/-  fine was imposed.  This witness  has  also<br \/>\n  proved the documents relating to forest offence viz., Exs.D-5<br \/>\n  to D-9, statement of Prakash Yadav Ex.D-10, statement of Ram<br \/>\n  Singh &amp; Pratap Singh Ex.D-11 and Ex.D-12.  This witness has<br \/>\n  further deposed that he has sent the recovery memo of Ex.D-5<br \/>\n  to the Range Officer, Achanakmar.\n<\/p>\n<p>14.  S.N. Ram (DW-2) &#8211; Ranger has deposed that money receipt<br \/>\nEx.D-13 contains writing of the appellant.  Ex.D-13 is a half<br \/>\nwritten receipt in which the words `Bilaspur Achanakmar<br \/>\nPrakash vaste Sohan Lal Agrawal&#8217; have been written.  This<br \/>\nwitness has further deposed that previously transit passes<br \/>\nExs.D-14 to D-18 have been issued to the complainant for<br \/>\ntransportation of mahul leaves by the Range Assistant.  Vinod<br \/>\nBhushan Shukla (DW-3) &#8211; Range Officer has also proved Exs.D-<br \/>\n13 to D-17.  Jauharilal Shukla (DW-4) &#8211; Forester has deposed<br \/>\nin his evidence that forest offence was registered against<br \/>\nPrakash Yadav who entered into compromise and Sohanlal<br \/>\nAgrawal has written letter Ex.D-24 to him relating to<br \/>\nconstruction of temporary hut, in his letter pad.  Prakash<br \/>\nYadav (DW-5) &#8211; clerk of the complainant has also corroborated<br \/>\nthe document Ex.D-24 and has admitted the registration of<br \/>\nforest offence and compromise in the forest offence.  These<br \/>\ndocuments are related to 3-10-86 &amp; 4-10-86 prior to the date<br \/>\nof commission of offence i.e. 17-11-86.\n<\/p>\n<p>15.   Evidence of these witnesses are based on the  documents<br \/>\n  which cannot be doubted, at this stage and which reveal that<br \/>\n  clerk of the complainant has collected forest produce without<br \/>\n  permission  of  the  forest  authorities  and  has  started<br \/>\n  construction of temporary hut for collection and  temporary<br \/>\n  storage  of  mahul leaves.  Forest offence  was  registered<br \/>\n  against the complainant through his clerk Prakash Yadav  in<br \/>\n  which  he  entered  into compromise.  The  complainant  has<br \/>\n  written letter Ex.D-24 to the Forester relating to the same<br \/>\n  activity.  As per Ex.D-4, fine of Rs.500\/- was imposed upon<br \/>\n  the complainant and the complainant was required to deposit<br \/>\n  Rs.500\/- to the forest authorities.  Ex.D-13 is half filled<br \/>\n  copy  of  money  receipt  containing  the  words  `Bilaspur<br \/>\n  Achanakmar Prakash vaste Sohan Lal Agrawal&#8217; which have been<br \/>\n  written  by  the  appellant.  As per  the  defence  of  the<br \/>\n  appellant, the complainant came to him for depositing  fine<br \/>\n  imposed upon him, the complainant produced Rs.500\/- which he<br \/>\n  received and when he was preparing money receipt, trap party<br \/>\n  came to his house and seized the money.  The appellant  has<br \/>\n  suggested the complainant and the prosecution witnesses  to<br \/>\n  this effect which the complainant has denied.\n<\/p>\n<p>16.   As  per  the evidence of Vinod Bhushan Shukla (DW-3)  &#8211;<br \/>\n  Range Officer &amp; S.N. Ram (DW-2) &#8211; Ranger, previously Exs.D-14<br \/>\n  to  D-18,  transit passes, were issued to  the  complainant<br \/>\n  relating  to transportation of mahul leaves from Achanakmar<br \/>\n  Reserve  Forest  at the instance of the complainant.   This<br \/>\n  shows that the complainant has never contacted the appellant<br \/>\n  for issuance of transit pass and he used to contact another<br \/>\n  Assistant  Ranger  for  issuance  of  transit  pass.    The<br \/>\n  complainant was previously not in contact with the appellant.\n<\/p>\n<p>17.   In  the  present case, Deputy Superintendent of  Police<br \/>\n  Markam  has  conducted trap, but the  prosecution  has  not<br \/>\n  examined  Markam  who  has  conducted  trap.   Except   the<br \/>\n  complainant, nobody has supported the case of the prosecution<br \/>\n  that  the  appellant  has  demanded  and  accepted  illegal<br \/>\n  gratification.  Inter alia, by examining defence witnesses,<br \/>\n  defence  has  tried  to establish that  the  appellant  was<br \/>\n  authorized  to  collect fine amount,  the  complainant  has<br \/>\n  tendered  Rs.500\/- as fine which the appellant has received<br \/>\n  and  at the time of issuance of receipt Ex.D-13, trap party<br \/>\n  entered  in  the  house  of the appellant  and  seized  the<br \/>\n  aforesaid amount.\n<\/p>\n<p>18.   Defence  is not required to prove its case  beyond  all<br \/>\n  reasonable doubts, it is required to establish its case  by<br \/>\n  preponderance of probability.  Evidence adduced on behalf of<br \/>\n  the defence is sufficient for drawing suspicion on the case<br \/>\n  of the prosecution.  As held by the Apex Court in the matter<br \/>\n  of Ram Prakash (supra), evidence of interested and partisan<br \/>\n  witnesses who are concerned in the success of the trap must<br \/>\n  be  tested  in the same way as that of any other interested<br \/>\n  witness  and  in  a  proper case the  Court  may  look  for<br \/>\n  independent  corroboration before  convicting  the  accused<br \/>\n  persons.\n<\/p>\n<p>19.   In the present case, except the complainant nobody  has<br \/>\n  supported  the case of the prosecution and the defence  has<br \/>\n  adduced evidence to show that the appellant has demanded and<br \/>\n  accepted  money as fine and not as bribe.  As held  in  the<br \/>\n  matters of Ram Kumar (supra) and Banarsi Dass (supra), mere<br \/>\n  recovery of money is not sufficient to establish the factum<br \/>\n  of demand of bribe.\n<\/p>\n<p>20.  In the present case, considering the specific defence on<br \/>\n  the basis of ocular and documentary evidence, it is difficult<br \/>\n  to hold that the appellant has demanded and accepted illegal<br \/>\n  gratification other than legal remuneration by abusing  his<br \/>\n  office.   Evidence  adduced on behalf  of  the  defence  is<br \/>\n  sufficient for throwing doubt on the case of the prosecution.\n<\/p>\n<p>21.     In   these   circumstances,   without   any   further<br \/>\n  corroboration  in  absence  of  evidence  of  Investigating<br \/>\n  Officer,  it  is difficult to hold that the  appellant  has<br \/>\n  demanded   and   accepted  illegal  gratification.    While<br \/>\n  convicting the appellant, the trial Court has not considered<br \/>\n  the  most material aspect of the case and the fact that the<br \/>\n  defence has succeeded in throwing suspicion upon the case of<br \/>\n  the prosecution by preponderance of probability, and thereby<br \/>\n  committed illegality.  Consequently, conviction &amp; sentences<br \/>\n  imposed upon the appellant under Sections 161 of the I.P.C. &amp;<br \/>\n  5  (1)  (d)  read with Section 5 (2) of the  Prevention  of<br \/>\n  Corruption Act, 1947 are not sustainable under the law.\n<\/p>\n<p>22.   The  appeal is allowed.  Conviction &amp; sentences imposed<br \/>\n  upon the appellant under Sections 161 of the I.P.C. &amp; 5 (1)\n<\/p>\n<p>  (d) read with Section 5 (2) of the Prevention of Corruption<br \/>\n  Act, 1947 are hereby set aside and the appellant is acquitted<br \/>\n  of the said charges.  He be set at liberty forthwith, if not<br \/>\n  required in any other case.\n<\/p>\n<p>                                        J U D G E<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Chattisgarh High Court Dayashanker Singh vs The State Of M P on 31 August, 2010 HIGH COURT OF CHATTISGARH AT BILASPUR Criminal Appeal 972 of 1990 Dayashanker Singh &#8230;Petitioners Versus The State of M P &#8230;Respondents ! Mrs Anju Ahuja ^ Mr R R Sinha CORAM: Honble Mr T P Sharma J Dated: 31\/08\/2010 : [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[12,8],"tags":[],"class_list":["post-186654","post","type-post","status-publish","format-standard","hentry","category-chattisgarh-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.4 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Dayashanker Singh vs The State Of M P on 31 August, 2010 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dayashanker-singh-vs-the-state-of-m-p-on-31-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dayashanker Singh vs The State Of M P on 31 August, 2010 - Free Judgements of Supreme Court &amp; 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