Devendra Narain v. State of Uttar Pradesh — 1992 DIGILAW 848 (ALL)

B. P. SINGH, J. ( 1 ) DEVENDRA Narain has come in appeal against his conviction for one year R. I. anda I. P. C. recorded by IV Additional Sessions Judge, Aligarh in Special Case No. 11 of 1985. ( 2 ) THE case of the prosecution may briefly be stated as follows: on 22. 2. 1984 Smt. Lajja Sharma wife of Banwari Lal Sharma, resident of village Shahjahanpur, P. S. Harduaganj District Aligarh had moved an application (Ex. Ka. 1) before Sri Dhananjai Singh (P. W. 1), Additional District Magistrate Aligarh, alleging that one Assistant Record Keeper in Tahsil Kol, District Aligarh was demanding Rs. 500/- by way of bribe for getting her name mutated in revenue records and that after higgling the matter has been settled at Rs. 300/ -. It was further alleged by Smt. Lajja Sharma in her application that out of the bribe of Rs. 300/ - a sum of Rs. 150/- was to be paid in advance to the said Assistant Record Keeper and the balance of Rs. 150/- was to be paid after the mutation in her name was done. Sri Dhananjai Singh (P. W. 1) directed the Sub-Divisional Magistrate, Kol to take necessary action. Sri Prakash Singh, S. D. M. , Kol then sent the papers to the S. P. City vide his application (Ex. Ka. 2 ). The S. P. City directed the C. O. City II, Sri S. K. Saxena to lay the trap vide his order dated 22. 2. 1984 (Ex. Ka. 3) along with the application (Ex. Ka. 2) and the order (Ex. Ka. 3 ). The S. D. M. , Kol had also sent the Statement of Smt. Lajja Sharma (Ex. Ka 4) which was recorded by him. Acting under the orders of the S. P. City, Dy. S. P. , Sri Shiv Kumar Sharma (P. W. 2) made the preparation for laying the trap against the concerned Assistant Record Keeper, Devendra Narain. Smt. Lajja Sharma had given him notes in the value of Rs. 150/- and their numbers were compared by Dy. S. P. , Sri S. K. Sharma (P. W. 2), with the numbers which were mentioned in the statement of Smt. Lajja Sharma (Ex. Ka. 4 ). As Devendra Narain was not available on 25. 2. Smt. Lajja Sharma had given him notes in the value of Rs. 150/- and their numbers were compared by Dy. S. P. , Sri S. K. Sharma (P. W. 2), with the numbers which were mentioned in the statement of Smt. Lajja Sharma (Ex. Ka. 4 ). As Devendra Narain was not available on 25. 2. 1984 the trap could not be laid on that date and the date of trap was shifted to 28. 2. 1984. On 28. 2. 1984 Smt. Lajja Sharma came to Dy. S. P. (P. W. 2) and gave him the noter. Numbers of these notes were again compared by Dy. S. P. (P. W. 2) with the numbers, which were mentioned in the Statement of Smt. Lajja Sharma (Ex. Ka. 4 ). It was also given out by Smt. Lajja Sharma that her husband, Banwari Lal5harma had got a sale deed executed in his favour from Shafi Ahmad son of Mahtab, but the village Lekhpal had fictitiously recorded the name of Shafi Ullah in place of Shafi Ahmad and it was to correct this name that Devendra Narain had agreed to accept Rs. 300/- by way of bribe. ( 3 ) AS pre-arranged Smt. Lajja Sharma accompanied by Rajendra Prasad and Maha Prakash met Dy. S. P. , Sri Shiv Kumar Sharma (p. W. 2), in P. S. Kol, Aligarh. Taking C. O. City, Sri. S. S. Negi; Inspector Kotwali, Sri. G. N. Tyagi, Sub-Inspector Sri Tej Pal Singh, Smt. Lajja Sharma and the witnesses with him, Dy. S. P. Sri Shiv Kumar Sharma proceeded to Tahsil Kol. Rupees 150/- in notes were given by Dy. S. P. to Smt Lajja Sharma with the direction that these notes were to be handed over in bribe to Devendra Narain. It was further directed that Smt. Lajja Sharma accompanied by Rajendra Prasad and Maha Prakash would go in the room of Devendra Narain while Dy. S. P. Shiv Kumar Sharma (P. W. 2) and C. O. City S. S. Negi will remain near the door of the said room which had its opening in verandah. The Inspector Kol and S. I. Tej Pal Singh were to remain outside the varandah. ( 4 ) AT about 1. 10 p. m. Smt. Lajja Sharma and the witnesses went inside the room where Devendra Narain was working. The Inspector Kol and S. I. Tej Pal Singh were to remain outside the varandah. ( 4 ) AT about 1. 10 p. m. Smt. Lajja Sharma and the witnesses went inside the room where Devendra Narain was working. Handing over the notes to Devendra Narain, Smt. Lajja Sharma gave out that she had paid the bribe of Rs. 150/- which was agreed and the balance of Rs. 150/- would be paid by her afterwards and that now Devendra Narain was to make entries in the records in the name of her husband after deleting the name of Shafi Ullah. Smt. Lajja Sharma had further given out that the dishonest action of the Lekhpal was not to be repeated. Devendra Narain then gave reply that no mischief would be played in the matter and that he had already taken out the file of Smt. Lajja Sharma and would get the entries done in her presence. Devendra Narain had the notes in his left hand and had started writing upon a paper, which had a carbon paper underneath. In the meantime Dy S. P. Sri Shiv Kumar Sharma (P. W. 2) and C. O. City Sri S. S. Negi (P. W. 3) had entered the room of Devendra Narain. After introducing himself Dy S. P. Sri Shiv Kumar Sharmasearched Devendra Narain in accordance with law and recovered Rs. 150/- from his left hand and one ball point pencil from the right hand of Devendra Narain. These notes were the same, which were given to Smt. Lajja Sharma for giving to Devendra Narain in bribe. The paper on which Devendra Narain was writing was also taken in his possession by Dy. S. P. Sri Shiv Kumar Sharma. The file relating to the mutation proceedings was also taken in his custody by Dy. S. P. (P. W. 2 ). All the recovered articles were sealed in separate bundles under recovery memo (Ex. Ka. 7 ). The notes (Ex. 1 to 10) were sealed in a separate bundle. The papers (Ex. 11 and 12) were sealed in another bundle. The carbon copies of these papers (Ex. 14) were also sealed. The bali point pen (Ex. 13) was also sealed. ( 5 ) THEREAFTER the Dy. S. P. Sri Shiv Kumar Sharma (P. W. 2) brought the accused Devendra Narain and the relevant papers and articles to P. S. Kol, District Aligarh. 11 and 12) were sealed in another bundle. The carbon copies of these papers (Ex. 14) were also sealed. The bali point pen (Ex. 13) was also sealed. ( 5 ) THEREAFTER the Dy. S. P. Sri Shiv Kumar Sharma (P. W. 2) brought the accused Devendra Narain and the relevant papers and articles to P. S. Kol, District Aligarh. The recovery memo and the article along with the accused were handed over to the police in P. S. Kol. Head Constable Sobaran Singh (P. W. 5), who was posted in P. S. Kol, Aligarh in April 1984, had received the recovery memo (Ex. Ka. 7) and the recovered articles. On the basis of recovery memo (Ex. Ka. 7) he had prepared F. I. R. (Ex. Ka. 8) and also made G. D. entry Ex. Ka. 9 about the commission of the crime. ( 6 ) THE case was investigated by Dy. S. P. Qazi Wasnur Rahman (P. W. 7 ). Routine investigation followed. After completing the investigation and after obtaining sanction (Ex. Ka. 11) from the District Magistrate, Sri. P. N. Kumar, for the prosecution of the applicant, charge sheet (Ex. Ka. 12) was submitted by the 1. 0. in the case. At the trial Devendra Narain pleaded not guilty and claimed to be tried. ( 7 ) THE prosecution examined seven witnesses i. e. A. D. M. Sri Dhananjai Singh (P. W. 1), Dy. S. P. Sri shiv Kumar Sharma (P. W. 2), Dy. S. P. Sri Surendra Singh Negi (P. W. 3) S. 1. Tej Pal Singh (P. W. 4), Head Constable Sobaran Singh (P. W. 5), Rajendra Prasad (P. W. 6) and Dy. S. P. Qazi Wasnur rahman (P. W. 7) in the case. The accused examined Sri Bihari Lal (D. W. 1 in his defence. ( 8 ) LEARNED Special Judge accepted the evidence of prosecution witnesses and held that the accused was guilty of the offence punishable under section 5 (2) of the Prevention of Corruption Actread with Section 161 I. P. C. Consequently the accused was sentenced to undergo one year R. I. and to pay a fine of Rs. 1,000/ -. In case of default in payment of fine the accused was to undergo three months R. I. ( 9 ) IT is against this ORDER and order of the Sessions Judge that Devendra Narain has come in appeal. 1,000/ -. In case of default in payment of fine the accused was to undergo three months R. I. ( 9 ) IT is against this ORDER and order of the Sessions Judge that Devendra Narain has come in appeal. ( 10 ) I have heard learned counsel for the parties and have gone through the record the case. In this case complainant Smt Lajja Sharma could not be examined as a witness because she had died before the prosecution could open its case before the trial Court The evidence of Dhananjai Singh (P. W. 1), Head Constable. Sobaran Singh (P. W. 5) and Qazi Wasnur Rahman (P. W. 7) has not been challenged before me. Their evidence is more or less of a formal nature and does not connect the appellant directly with the crime in question. ( 11 ) THE case of the prosecution regarding the main trap and acceptance of bribe on the part of the appellant and his subsequent arrest by Dy. S. P. Sri Shiv Kumar Sharma (P. W. 2) and regarding the recovery of the bribe money from his left hand in based upon the evidence of Dy. S. P. Sri Shiv Kumar Sharma, Dy. S. P. Sri S. S. Negi (P. W. 3), S. 1. Tej Pal Singh (P. W. 4) and Rajendra Prasad (P. W. 5 ). ( 12 ) THE contention of the appellants counsel that it was not safe to place much reliance upon the evidence of these witnesses has force. ( 13 ) IT is significant to note that the notes (Ex. 1 to 10) which were alleged to have been accepted by the appellant by way of bribe from Smt. Lajja Sharma were not treated with phenolphthalein powder. In the case of Khilli Ram v. State of Rajasthan, the Supreme Court has held that ordinarily in trap cases powder treatment of the notes given in bribe is made with phenolphthalein powder. This practice has been in force for more than three decades and if such powder treatment is made then the proof that (he bribe did pass be comes easy. This practice has been in force for more than three decades and if such powder treatment is made then the proof that (he bribe did pass be comes easy. ( 14 ) THUS it is obvious that for the leader of the trap party it is almost mandatory to treat the bribe money with phenolphthalein powder so that when the recovery is made the hand wash of the accused may be kept in sealed water after getting the same with sodium carbonate. Of course there may be cases where phenolphthalein powder may not be available to the leader of the trap party. But in the present case when cross-examined the leader of the trap party Dy. S. P. Sri Shiv Kumar Sharma stated that he did not think it necessary to treat the bribe money with phenolphthalein powder. This explanation is highly unsatisfactory and shows that the leader of the trap Dy. S. P. Sri Shiv Kumar Sharma was extremely inefficient in performing his duties in this case. In the absence of any explanation as to why the bribe money was not treated with phenolphthalein powder, the case of the prosecution becomes somewhat suspect. ( 15 ) FURTHER more it is admitted to Sri Dhananjai Singh (P. W. 1) that the mutation proceedings are done by the Tahsildar or the Naib Tahsildar and the Assistant Record Keeper has no hand in the decision of a mutation case. The 1. Citation not given. contention of the appellantts counsel that if the bribe was to be paid then the same was to be paid either to the Tahsildar or Naib Tahsildar who were the actual persons to decide the mutation proceedings. The above contention has force. ( 16 ) ADMITTEDLY Rajendra Prasad (P. W. 6) belongs to the village of the Smt. Lajja Sharma. He is an interested witness. The remaining three witnesses of fact belong to the police force. It is admitted to Dy. S. P. Sri Shiv Kumar Sharma (P. W. 2) that a number of persons had assembled out side the room whom the appellant was apprehended. There must be a number of advocates and their clerks in the Tahsil compound at 1. 10 p. m. because it was a working day. It is admitted to Dy. S. P. Sri Shiv Kumar Sharma (P. W. 2) that a number of persons had assembled out side the room whom the appellant was apprehended. There must be a number of advocates and their clerks in the Tahsil compound at 1. 10 p. m. because it was a working day. Yet it is really surprising that no effort was made by the trap laying officer to get any independent witness of the public when the recovery of the bribe was alleged to have been made from the appellant. ( 17 ) ANOTHER circumstance to note in this case is that according to Shiv Kumar Sharma (P. W. 2), the accused had accepted the money from Smt. Lajja Sharma and while keeping the notes in his left hand he started writing upon some paper in full view of the witnesses. It is somewhat unnatural that a man, who has accepted bribe money, would not care to put the money in his pocket or drawer of the table and would retain it in his left hand although he would get busy in doing some writing work. It would appear, if Shiv Kumar Sharma (P. W. 2) is to be believed, that the accused was waiting for being trapped for the offence of accepting bribe and was keeping the bribe money in his left hand. Such a conduct would not be the normal conduct of a man who is said to haveaccepted the bribe. ( 18 ) LEARNED counsel for the appellant has also referred to the contradiction in the statements of Shiv Kumar Sharma (P. W. 2) and Rajendra Prasad (P. W. 6) on the question as to what were the actual words, which were uttered by Smt. Lajja Sharma, when the bribe money was passed by her to the appellant. According to Shiv Kumar Sharma (P. W. 2) Smt. Lajja Sharma while handing over bribe money to the appellant had stated that She had paid the sum of Rs. 1501- which was agreed as bribe but Rajendra Prasad (P. W. 6) has not mentioned the words bribe money in his statement when he has narrated the words which were used by Smt. Lajja Sharma while handing over the amount to the appellant. This contradiction cannot be overlooked. The mention of bribe money in such cases is invariably made by the bribe giver. This contradiction cannot be overlooked. The mention of bribe money in such cases is invariably made by the bribe giver. ( 19 ) ANOTHER circumstance to note in this case is that who ever agrees to accept the bribe is aware of the fact that acceptance of such money is an offence. He is expected to take precaution and the bribe money is passed to him in some secluded place or at least at the time when no one else is in the neighbour hood but if Rajendra Prasad (P. W. 6) is to be believed, two or three other officials were present in the room in which the appellant is said to have accepted the bribe money. Again such a conduct would not be the natural conduct of a person, who has accepted the bribe. ( 20 ) YET there is another circumstance which shows that some manipulation was made in the site- plan of the room where the bribe was said to have been passed. In this connection, I may refer to the statement of Qazi Wasnur Rehman (P. W. 7 ). He has admitted in his cross examination that the site-plan, which was proved in the case, was not the same site-plan, which was prepared by him during the course of investigation. The accused had filed the copy of the site-plan which was given to him before the case was committed to the Court of Session. This copy of the site plan which was filed by the accused and was supplied to him by the prosecution before the case was committed was at variance with the site plan which was proved by the prosecution at the trial. This also creates some doubt regarding the investigation of the case. ( 21 ) IN this view of the matter, lam of the view that it would not be safe to place reliance upon the evidence of the prosecution witnesses. I conclude that the prosecution has failed to prove its case against the appellant beyond reasonable doubt and the appellant is entitled to benefit of doubt. ( 22 ) THE appeal is allowed. The ORDER and order of the learned Sessions Judge are hereby set aside. The appellant is on bail. He need not surrender. His bail bonds are cancelled and the sureties are discharged. Appeal allowed. . .