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2002 DIGILAW 34 (ORI)

SAROJAKANTA SAHU v. STATE OF ORISSA

2002-01-16

B.P.DAS

body2002
JUDGMENT : B.P. Das, J. - The appellant stood charged u/s 5(1)(d) of the Prevention of Corruption Act (in short 'the Act') punishable u/s 5(2) of the Act for obtaining pecuniary advantage for himself by use of corrupt and illegal means or abusing his official position as a public servant. He also stood charged u/s 161, I.P.C. for dishonestly accepting gratification other than legal remuneration with the motive for showing favour in exercise of his official functions as clerk. 2. The facts leading to this appeal are briefly narrated hereunder: The accused was the Bench Clerk of the Tahasildar, Nuapara in the district of Kalahandi and was dealing with the ceiling case records. The complainant was a police officer attached to District Crime Intelligence Bureau, Sambalpur as A.S.I. His father had landed property in village Budhikomana and two other villages within the limits of Nuapada Tahasil. Ceiling Case No. 51 of 1979 was initiated against his father. He was noticed to appear before the Tahasildar, Nuapada on 14.1.1980. Due to ailment of his father, complainant (P.W. 2) and his three brothers appeared before the Tahasildar, Nuapada on 14.1.1980 and produced necessary papers before the Tahasildar, who in turn directed them to produce the papers before the accused-appellant. As the case of the prosecution runs, the complainant and his brothers asked the accused as to how the ceiling case was started against them as they had no excess land. The accused, in reply, stated that the ceiling case can be dropped on payment of Rs. 300/- to him and rupees three thousand to the Tahasildar. Without conceding to the aforesaid demand of the accused, the brothers of the complainant used to attend the court of the Tahasildar on different dates. 3. On 8.3.1981 the complainant (P.W. 2) received a copy of the draft statement (Ext. 6), wherein it was disclosed that the complainant's having the ceiling surplus land to the extent of Ac 14.05 decimals. The further case of the prosecution was that on 10.3.1981 while the complainant was coming to his village on leave he met the accused at Bargarh bus stand and on his query the accused told the complainant that the statement was prepared as they failed to pay the demanded money and reiterated his demand of Rs. 300/-. The further case of the prosecution was that on 10.3.1981 while the complainant was coming to his village on leave he met the accused at Bargarh bus stand and on his query the accused told the complainant that the statement was prepared as they failed to pay the demanded money and reiterated his demand of Rs. 300/-. Accused also asked him that on payment of the aforesaid amount the lands purchased by his wife and his brothers, which were included in the lands of his father as per the draft statement, would be excluded and on further payment of Rs. 30007- to the Tahasildar, the entire case would be dropped, and instructed the complainant to meet him (accused) after his return from Cuttack on 17.3.1981. The complainant decided to resist the demand of bribe and determined to expose the illegal demand of accused. For that purpose on 17.3.1981 he met the accused in his office and on his demand the complainant told him to pay Rs. 300/- on instalment and was ready to pay Rs. 50/- on that very day. The accused accepted Rs. 50/- on that day (17.3.81) from the complainant and asked him to pay Rs. 100/- on 27.3.81 and the balance thereafter and also told him that until the entire amount was paid, the case would not be dropped. On 19.3.1981, the complainant went to Sambalpur and on 24.3.1981 he had gone to Bhawanipatna in connection with his personal work. There he got information that the D.S.P. (Vig.), Berhampur was camping there. On 25.3.1981 the complainant met the D.S.P. (Vig.) at Bhawanipatna and orally reported the aforesaid facts to him and on his direction, the complainant came to Khariar road and lodged the written report (Ext. 7) before the D.S.P. (Vig.), Berhampur and on his instruction, the complainant went to the Revenue l.B. at Khariar Road in the morning of 27.3.1981. One Hrusikesh Satpathy, an octroi check gate peon (P.W. 6), the A.C.T.O., Khariar Road (P.W. 1) and J. N. Pani, S.D.O. (PHD), Khariar Road (P.W. 5) were then present in the revenue l.B. at Khariar Road along with some vigilance officers including P.W. 4 A.C. Mohanty D.S.P. (Vig.), Parsuram Sahu. S.I. (Vig.) (P.W. 3). One Hrusikesh Satpathy, an octroi check gate peon (P.W. 6), the A.C.T.O., Khariar Road (P.W. 1) and J. N. Pani, S.D.O. (PHD), Khariar Road (P.W. 5) were then present in the revenue l.B. at Khariar Road along with some vigilance officers including P.W. 4 A.C. Mohanty D.S.P. (Vig.), Parsuram Sahu. S.I. (Vig.) (P.W. 3). The complainant was introduced to the witnesses, whereupon he narrated the facts of his complaint to all of them and after personal search of the complainant was taken, the complainant produced two fifty rupee Government currency notes, the numbers of which were noted down by the A.C.T.O. and the S.D.O. (PHD) in separate chits. Then two fifty rupees G.C. notes were smeared with phenolphthalein powder. Thereafter, the complainant kept those two G.C. notes in his shift pocket. The complainant was instructed to make over those notes to the accused on his demand. The accompanying witness Hrusikesh Satpathy (P.W. 6) was instructed to accompany the complainant to witness the payment of bribe, and thereafter to signal by tying his head with a napkin. A preparation report (Ext. 1) was drawn up and the same was signed by the witnesses. As the prosecution case runs, all those persons went to the office of the Tahasildar and the complainant enquired from the accused about his ceiling case. No other clerk was sitting in that room. The accused asked the complainant to pay Rs. 100/- and the complainant paid two fifty rupee G.C. notes to him. The accused received the said notes, and kept the same in his left side pant pocket. Thereafter the witness came out of the room and gave signal. Soon thereafter, the Vigilance Officer and the other witnesses rushed to the room of the accused. The Vigilance Inspector, Khariar Road (P.W. 8) challenged the accused saying that he had received Rs. 100/- as bribe from the complainant. The accused then produced the said two fifty rupee currency notes from his left side pant pocket. The numbers of those notes when compared, tallied with the numbers noted down by the A.C.T.O. and the S.D.O. (PHD) so also with the numbers noted in the preparation report (Ext. 1). The hand wash and pocket wash of the accused were taken with sodium carbonate solution which turned pink rose colour. 4. The plea of the accused was one of complete denial of the charges. He pleaded his innocence. 1). The hand wash and pocket wash of the accused were taken with sodium carbonate solution which turned pink rose colour. 4. The plea of the accused was one of complete denial of the charges. He pleaded his innocence. A plea was taken in his statement u/s 313 Cr.P.C. that the complainant, i.e. (P.W. 2) forced the two fifty rupee G.C. notes into the hands of the accused despite his protest, and when he still refused to accept, the complainant forced the notes into the pant pocket of the accused. The further plea of defence was that the complainant was fully aware that he and his family members were going to lose 14 acres of land in the ceiling case and as such he decided to put pressure on the accused to favour him. Failing in his attempt to influence the accused, the complainant, who is a police officer, had lodged a false report, in collusion with other police officers. 5. Prosecution has examined as many as 10 witnesses to bring home the charges. Out of them P.W. 2 is the complainant, P.W. 6 is the overhearing witness, P.Ws. 1 and 5 are the witnesses, who assisted in lying the trap; P.W. 4 is the then Dy. Superintendent of Police (Vig.), Berhampur, on whose direction the trap was laid, P.W. 7 is said to have seen the recovery of the tainted G.C. notes from the possession of the accused and he was also said to have been present when the hand wash and pocket was of the accused were taken by the I.O., P.W. 3 is the then S.I. (Vig.) Bhawanipatna squad, who assisted the raiding party in lying the trap and P.W. 8 is the I.O. 6. On consideration of the evidence on record, the learned Special Judge, (Vig.), Sambalpur accepted the case of the prosecution disbelieving the plea of the defence and held that both the charges have been established and accordingly, convicted the appellant and sentenced him to undergo R.I. for two years on each count. Both the sentences were directed to run concurrently. 7. Mr. Mishra, learned counsel for the appellant submits that the allegations made against the appellant are false and fabricated; that too all the witnesses are interested witnesses and P.W. 6 who was an independent witness has not supported the case of the prosecution. Both the sentences were directed to run concurrently. 7. Mr. Mishra, learned counsel for the appellant submits that the allegations made against the appellant are false and fabricated; that too all the witnesses are interested witnesses and P.W. 6 who was an independent witness has not supported the case of the prosecution. According to him, the Special Judge should have disbelieved the entire prosecution story, P.W. 6 has been declared hostile, who in turn completely supported the defence story about the fact that it was rather P.W. 2 who forcibly put two fifty rupees G.C. notes into the pocket of the appellant. Admittedly, there is no dispute about the fact that P.W. 5 is a witness, who accompanied the complainant, and is an eye witness. P.W. 6 is an Octroi peon, who has stated as follows : "The complainant requested the accused to help him in his ceiling case. The accused told him that he cannot help him in the matter and he may, if advised, meet the Addl. Tahasildar. In the mean time on being called by the Addl. Tahasildar, the accused went into his room and after the accused returned to his room, the complainant forcibly gave the two notes to the hand of the accused. The accused did not demand any amount from the complainant. The accused refused to keep the amount saying that he cannot do anything to help the complainant. In the mean time some peon came with a dak which the accused received. Thereafter, while he was going to open the almirah, the complainant forced the two fifty rupee notes into the pant pocket of the accused. At this, I ran out of the office and gave signal." He was cross-examined by the Special Public Prosecutor and was declared hostile. He has stated that he told the same thing to the Inspector, Vigilance and denied to have stated anything to the I.O. regarding the fact that the accused accepted and put the money in his pant pocket. Banking upon the aforesaid statement of P.W. 6, who is undisputedly an eye witness, learned counsel for the appellant says that there is nothing in this case for the Special Judge to come to a conclusion that a case has been made out as against the appellant for which he has been convicted. 8. Banking upon the aforesaid statement of P.W. 6, who is undisputedly an eye witness, learned counsel for the appellant says that there is nothing in this case for the Special Judge to come to a conclusion that a case has been made out as against the appellant for which he has been convicted. 8. The Apex Court while dealing with the case of State of U.P. v. Dr. G. K. Ghosh, reported in AIR 1984 Supreme Court 1453 held as follows : "It is now time to deal with the criticism urged as a matter of course in the context of the police officer leading the raiding party - namely that he is an interested witness. This is true, but only to an extent - a very limited extent. He is interested in the success of the trap to ensure that a citizen, who complains of harassment by a Government Officer making a demand for illegal gratification is protected and the role of his department in the protection of such citizens is vindicate. Perhaps it can be contended that he is interested in the success of the trap so that his ego is satisfied or that he earns a feather in his cap. At the same it must be realised that it is not frequently that a Police Officer, himself being a Government servant, would resort to perjury and concoct evidence in order to rope in an innocent Government servant. In the event of the Government servant concerned refusing to accept the currency notes offered by the complainant, it would not be reasonable to expect the Police Officer to go to the length of concocting a false seizure memo for prosecuting and humiliating him merely in order to save the face of the complainant, thereby compromising his own conscience. The Court may therefore, depending on the circumstances of a case, feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the Police Officers even if the trap witnesses turn hostile or are found not to be independent. When therefore besides ' such evidence there is circumstantial evidence which Is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case. The present appears to be a case of that nature. When therefore besides ' such evidence there is circumstantial evidence which Is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case. The present appears to be a case of that nature. If the circumstantial evidence is of such a nature that it affords adequate corroboration to the prosecution case, as held by the learned special Judge, the appeal must succeed. If on the other hand the circumstantial evidence is considered to be inadequate to buttress the oral testimony, the appeal necessarily must bail." In the light of the aforesaid decision, let me see whether the evidence of other witnesses lends any support to the case of the prosecution. 9. The Addl. Commercial Tax Officer was requisitioned by the D.S.P., Vigilance for the purpose of accompanying the party going to trap the accused. According to him, ho noted down the numbers of currency notes, and put his signatures on the notes. During his cross-examination he has stated that after getting signal from P.W. 6, P.W. 1 along with others rushed to the room and called the Tahasildar, who was sitting in the room adjacent to the room of the accused and in his presence the I.O. challenged the accused that he had accepted the bribe from the complainant. By the time they entered into the room the complainant and other witnesses were present. It is stated by this witness that when the accused dipped his finger in the solution, it turned slightly pink. The accused then brought out the two notes from his left side pant pocket, the I.O. verified the numbers of the notes with the numbers noted by them in separate chits, which tallied with the number of the notes, P.W. 1 found his initials and the initials of P.W. 5 on the notes. During his cross-examination nothing was brought out by the defence to disbelieve the fact of seizure of two currency notes which were brought out by the accused from his pant pocket. The specific suggestion given by the defence that the currency notes were lying on the table of the accused was stoutly denied by the present witness. P.W. 5, who had accompanied the raiding party was the S.D.O. (PHD), Khariar Road. The specific suggestion given by the defence that the currency notes were lying on the table of the accused was stoutly denied by the present witness. P.W. 5, who had accompanied the raiding party was the S.D.O. (PHD), Khariar Road. In his evidence he has stated that by the time he entered into the room of the accused, he found the accused, the complainant and the accompanying witnesses were present. The Inspector of Vigilance challenged the accused saying that he had accepted bribe from the complainant. The hand wash of the accused was taken which turned to pink colour. Accused then produced the two fifty rupee notes from his pant pocket. The present witness, P.W. 1 along with others compared the numbers of those two notes with the numbers noted by him and the A.C.T.O. and the same tallied. This witness withstood the rigours of cross-examination and his evidence remains unshattered. 10. From the evidence stated above, it emerges that the handwash of the accused was taken which turned to pink colour and both the notes were brought out from the pocket of the accused and given to the Investigating Officer. These witnesses had nothing to do with the case and they were requisitioned from different departments and it can never be said that these witnesses are not truthful witnesses, who had no axe to grind against the accused. 11. The pant pocket wash of the accused was also taken with sodium carbonate solution, but the same could not be preserved as it fell down. P.W. 2 is the complainant, who has stated in his evidence that on the fateful day when the accused asked him to pay Rs. 100/-, he paid two fifty rupee G.C. notes to him. He received the two notes in his right hand then took them to his left hand and kept the same in his left side pocket. Immediately thereafter the Inspector, and other officers rushed to the spot and the Inspector took the hand wash of the accused with sodium carbonate solution, which turned to pink colour. The accused then produced the two fifty rupee notes from his left side pant pocket. Immediately thereafter the Inspector, and other officers rushed to the spot and the Inspector took the hand wash of the accused with sodium carbonate solution, which turned to pink colour. The accused then produced the two fifty rupee notes from his left side pant pocket. This corroborates the version of P.W. 6, which has not been disturbed in any manner in course of cross-examination P.W. 8, the I.O. took the hand wash of the accused, and on demand by him, the accused produced the tainted notes from the left side of his pocket. The evidence of this has not in any manner shattered by cross-examination. The aforesaid currency notes were seized in presence of P.W. 7. On perusal of the evidence of P.W. 7, the Add!. Tahasildar, it appears that he has admitted that the accused was dealing with the cases of land records, and after the trap was over he got information about the trap. He stated that he has not seen production of any money by the accused before the Vigilance Officers. He was declared hostile, and the P.P. was permitted to put the leading questions to which he said that no hand wash was done in his presence, but he has seen bottles containing liquid materials. At the same time he has stated during cross-examination that he put his signature on the seizure list after going through the contents of the seizure list. On being confronted, he denied to have stated before the I.O. that he was present and had witnessed the occurrence. In the evidence of Addl. Tahasildar, it appears that even though he admitted that he was signatory to the seizure list and he expressed his ignorance regarding seizure. In my opinion, P.W. 7 is an untrustworthy witness and his evidence is unworthy of credence. There is nothing to disbelieve the veracity of the testimony of P.Ws. 1, 4, 5 and 8. The evidence of P.Ws. 1, 4, 5 and 8 is of great importance. P.W. 8 who was the Inspector of Vigilance, an accompanying officer, says in his evidence as follows : "At 11.28 A.M. on getting signal, we rushed to the room of the accused. We also called the Tahasildar and two Addl. Tahasildars to that room. I challenged the accused saying that he had accepted bribe from the complainant. The accused at first denied to have accepted the bribe. We also called the Tahasildar and two Addl. Tahasildars to that room. I challenged the accused saying that he had accepted bribe from the complainant. The accused at first denied to have accepted the bribe. I then prepared sodium carbonate solution in three glass tumblers. I asked the accused to dip his fingers in the solution kept in one glass tumbler and that gave pink colour. I preserved that coloured solution in a bottle and sealed. I asked the accused to produce the bribe money. The accused produced two fifty rupee notes from his pant pocket." Even though, P.W. 6 has resiled from his earlier statement and was declared hostile, it is crystal clear, mostly from the evidence of P.Ws. 1 and 5, that the tained notes was recovered from the pocket of the accused, and not from the table of accused as the plea taken by the defence. Now, let me see whether the explanation offered by the defence is enough to prove his innocence. 12. The plea taken during the trial was that the accused had not taken money, but when he went to his almirah to bring files, the notes were put into his pocket by force and after that he brought out the notes and kept the same on the table. The evidence of aforesaid P.Ws. 1 and 5 belies the plea of the appellant and it also appears to be improbable. If such an incident occurred, the appellant would have resisted to the offer of bribe and if at all the complainant forced two fifty rupee currency notes into the pocket of the accused, he would have very well gone to the chamber of the Addl. Tahasildar who, as per evidence, shares the same room which was partitioned by almirah. This aspect clearly casts doubt on the plea of defence and the trial court is correct is not accepting the version of the appellant. 13. The allegation of the appellant is that the complainant being a police officer has roped him in this false case. In this regard I may refer to a decision of the Apex court in the case of State of Maharashtra Vs. Narsingrao Gangaram Pimple, wherein it is held as follows : "***** It is manifest that if one wears a pair of pale glasses, everything which he sees would appear to him to be pale. In this regard I may refer to a decision of the Apex court in the case of State of Maharashtra Vs. Narsingrao Gangaram Pimple, wherein it is held as follows : "***** It is manifest that if one wears a pair of pale glasses, everything which he sees would appear to him to be pale. In fact, the learned Judge appears to have been so much prejudiced against the prosecution that he magnified every minor detail or omission to falsify or throw even a shadow of doubt on the prosecution evidence. This is the very antithesis of a correct judicial approach to the evidence of witnesses in a trap case. Indeed, if such a harsh touchstone is prescribed to prove a case it will be difficult for the prosecution to establish any case at all." That apart, my attention was drawn to the decision reported in 1989 3 Crimes 470 (Superintendent of Police (SPE/CBI) v. M. K. Gopinathan) a decision of Kerala High Court in which while referring to the case of State of Maharashtra Vs. Narsingrao Gangaram Pimple, it was held as follows : "***** For various reasons enumerated in that decision, it is said that by and large a citizen is somewhat reluctant rather than anxious, to complain to the Vigilance department, and to have a trap arranged even if illegal gratification is demanded from him. No one would be too anxious to face such a cumbersome ordeal having serious after-effects on him unless he feels oppressed by being wronged and finds the solution to be beyond endurance. His evidence cannot therefore be easily and lightly brushed aside. But that should not mean that court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict government officer may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving ago by to the rules, the official refused to yield." This is not a case where any evidence has come to show that the complainant has demanded for showing favour. In the case of R.S. Nayak Vs. A.R. Antulay, it has been observed as follows : "Re. (a) : The 1947 Act was enacted, as its long title shows, to make more effective provision for the prevention of bribery and corruption. In the case of R.S. Nayak Vs. A.R. Antulay, it has been observed as follows : "Re. (a) : The 1947 Act was enacted, as its long title shows, to make more effective provision for the prevention of bribery and corruption. Indisputably therefore, the provisions of the Act must receive such construction at the hands of the Court as would advance the object and purpose underlying the Act and at any rate not defeat it. If the words of the Statute are clear and unambiguous, it is the plainest duty of the Court to give effect to the natural meaning of the words used in the provision. The question of construction arises only in the event of an ambiguity or the plain meaning of the words used in the Statute would be self-deteating. The Court is entitled to ascertain the intention of the Legislature to remove the ambiguity by construing the provisions of the statute as a whole keeping in view what was the mischief when the statute was enacted and to remove which the legislature enacted Statute ..." 14. Therefore, in view of the aforesaid facts and circumstances, as also the evidence on record, I have no hesitation to confirm the order of conviction passed by the learned Special Judge (Vigilance), Sambalpur and the sentence of R.I. for two years on each count. The appeal fails, and is dismissed. Final Result : Dismissed