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2003 DIGILAW 231 (JK)

Charan Dass v. State

2003-08-05

Y.P.NARGOTRA

body2003
This is an appeal against the judgement of conviction and sentence passed by the learned Special Judge Anti-corruption JAMMU dtaed 29.3.1994.Accused-appellant, Charandas, has been convicted for commission of offences under section5 (1)(d), read with sec.5 (2) of the Prevention of Corruption Act and sec.161 R.P.C and sentenced to undergo rigorous imprisonment for one year and a fine of Rs.500/- and in default of payment of fine to undergo simple imprisonment for a further period of one month for commission of an offence under sec.5 (1) (d), punishable under sec. 5(2) of the Prevention of corruption Act and also sentenced to undergo punishment of same description for commission of the offence under sec.161-RPC. Both the sentences have been ordered to run concurrently. 2. 5(2) of the Prevention of corruption Act and also sentenced to undergo punishment of same description for commission of the offence under sec.161-RPC. Both the sentences have been ordered to run concurrently. 2. The prosecution case, briefly stated, is that the accused Charandas was poste d as Patwari in Patwar halqa Datrayal, tehsil Jammu in the month of December 1986.PW Ram Krishan complainant was in possession of 4-kanals of land comprising in survey No. 478 at village Datryal.Sometime in the second week of December 1986 the complainant came into contract with the accused.The accused directed him to see him on the next day in Niabat Basohli, So, that they could discuss about the position of the land in possession of the complainant.Accordingly the complainant went to the Niabat and there he met the Naib-Tehsildar and the accused.The Naib-Tehsildar directed the accused to discuss the matter with the complainant whereupon the accused conducted the complainantto another room and told him that he would not be dispossessed from the land he was in possession provided he paid some money to the accused.The deal was struck between the complainant and the accused at Rs.400/- and consequently the accused instructed the complainant to meet him in village Goddichak where he had to go for demarcation of some land.The complainant approached the Vigilance Organization and lodged a complaint against the accused on which the FIR No. 80/86 was registered.A trap was arranged.Services of two independent witnesses PWs Pardeep Kumar and Yogesh Kumar, government employees, were solicited.In presence of of the members of the trap party and these two independent witnesses, the complainant produced two currency notes of Rs.100/- denomination each for being used as a trap money.Numbers of these currency notes were noted down by the independent witnesses on separate slips of paper, the notes were treated with phenolphthalein powder and returned to the complainant for onward payment to the accused. Solution of sodium carbonate was prepared and demonstration was carried out showing that when the hands of the person who has touched the currency notes treated with phenolphthalein powder are washed in sodium carbonate solution, the solution would turn pink. This wash was separately secured in a bottle and sealed. Solution of sodium carbonate was prepared and demonstration was carried out showing that when the hands of the person who has touched the currency notes treated with phenolphthalein powder are washed in sodium carbonate solution, the solution would turn pink. This wash was separately secured in a bottle and sealed. Handing over memos of the notes of the complainant were prepared.The raising party thereafter left for village Goddichak along with the complainant, after visiting Niabat office where the accused had not been found.At village Goddichak the raiding party was divided into two groups.The complainant was accompanied by shadow witness, PW Yashpal constable of the Vigilance Organization in civvies with the instructions that as and when the trap money was paid to the accused to pass on the settled signal to other members of the raiding party.In village Goddichak the accused while returning from the field where he had gone for demarcation met the complainant from whom he inquired whether he had brought the money whereon the complainant paid the tainted currency notes to the accused and gave signal to the shadow witness to pass on the signal to the raiding party, whereon all the members of the raiding party came on spot and took the accused to a shop where the senior officer, who was accompanying the trap party disclosed his identity to the accused.Numberdar was also present who first searched the person of Pw Pardeep Kumar and thereafter Pardeep Kumar searched the person of the accused and recovered the two tainted currency notes.Numbers of the currency notes were tallied with the chits, the hands of the accused were washed in sodium carbonate solution and the wash was preserved in a bottle.Likewise the lining of the pocket of the coat of the accused was also so washed and the wash was preserved.After completing other formalities the accused was arrested on the charge of having demanded and accepted Rs.200/- as illegal gratification from the complainant.After obtaining the sanction for prosecution of the accused from the Government, criminal charge sheet was laid against the accused seeking his trial for Commission of offences under sec. 161-RPC and sec. 5 (2) P.C. Act 2006, before the learned trial court. 3. 161-RPC and sec. 5 (2) P.C. Act 2006, before the learned trial court. 3. On being asked to plead, the accused abjured his guilt and claimed trial.Therefore, the prosecution was directed to lead evidence in support of the charge.Prosecution examined PWs.Ram Krishan, Pardeep Kumar, Yogesh Kumar, S.Baldev Singh, Ramdhan, S.Amrik Singh, Sh.Kuldeep Khudda, Yashpal, Hamidullah and Narinder Singh, Dy. S.P.as its witnesses. 4. After completion of the prosecution evidence, the circumstances appearing in the evdience against the accused were put to him under sec.342-Cr.P.C.but he denied the allegations and pleaded that there was no occassion for him to demand illegal gratification from the complainant nor he had demanded or received any money as bribe from the complainant.He denied recovery of the tainted money from him.In defence he also examined DWs.Shivdev Singh and Raju Dayal. 5. Learned trial court accepted the evidence of the prosecution and held the accused guilty of the offences for which the accused stood charged and has sentenced him as aforesaid. 6. Heard learned counsel for the appellant and learned Addl.Advocate General.Learned counsel for the appellant also led me through the statements of the prosecution witnesses.He has argued that the prosecution had not succeeded in proving conclusively and beyond all shadow of doubt, that the accused had demanded and accepted the bribe amount from the complainant.According to him the evidence of the complainant had not been corroborated by any way independent evidence and therefore should not have been relied upon to hold the accused guilty by the trial court. 7. In a case of trap for proving the offence of bribery it is legally incumbent upon the prosecution to prove that the accused demanded bribe, that pursuant to such demand the bribe amount was paid to the accused and that same had been recovered from the accused.Learned trial court has found that the prosecution has proved the said three factors conclusively and cogently and beyond all shadow of doubt. 8. Learned trial court has placed strong reliance on the evidence of complainant PW Ram Krishan and PW Yashpal Shadow witness for holding that the accused had accepted the bribe amount pursuant to his demand.For examining the correctness of the view of, the trial court it would be beneficial to take notice of the evidence of these witnesses. 9. 8. Learned trial court has placed strong reliance on the evidence of complainant PW Ram Krishan and PW Yashpal Shadow witness for holding that the accused had accepted the bribe amount pursuant to his demand.For examining the correctness of the view of, the trial court it would be beneficial to take notice of the evidence of these witnesses. 9. PW Ram, Krishan is the complainant and PW Yashpal is the shadow witness.PW Yashpal cannot be called an independent witness because he was a constable working with the Vigilance organization itself and had admittedly participated in two/three trap cases earlier also for the vigilance. 10. PW Ram Krishan after setting out the prosecution story as narrated above states that raiding party was divided into two groups.A constable in civies acompanied him.That he came across the accused in a lane.The accused enquired from his whether he had brought the money,.He passed on the currency notes to the accused who pocketed the same and then he gave the signal to the raiding party where at the raiding party reached on spot.The accused and members of the raiding party went to the shop.The S.P. who was in uniform asked the accused to raise his hands.Village Numberdar, Gian Chand, who was also present there searched PW Pardeep Kumar where after PW Pardeep Kumar searched the accused and recovered the currency notes.Numbers of the currency notes were tallied with the numbers already noted down by the independent witness.The accused was made to wash his hands and the colour of the wash turned pink. The pocket of the coat of the accused was also washed and the wash preserved.In cross-examination he admitted that accused was carrying some papers in his one hand and a cigarette in the other.He had put the currency notes in his pocket. 11. The pocket of the coat of the accused was also washed and the wash preserved.In cross-examination he admitted that accused was carrying some papers in his one hand and a cigarette in the other.He had put the currency notes in his pocket. 11. From the evidence of PW Yashpal it transpires that the shadow witness though in chief examination had stated that he had seen the complainant putting the currency notes into then pocket of the accused on the latters instruction but in cross-examination he demolished the evidentiary value of his statement by admitting that neither he had seen the complainant putting the money into the pocket of the accused nor he could hear what had transpired between the complainant and the accused at that point of time.Learned trial court ignored the discrepancy and used the evidence of the shadow witness given in the chief examination for the purposes of corroboration.In my view learned trial court grossly erred in placing reliance upon the evidence of a shadow witness.Shadow witness though was highly partisan yet had buckled under the cross-examination of the defence and there is nothing in his evidence by which corroboration can be provided to the testimony of the complainant. 12. Therefore there remains only the sole testimony of the complainant.It is the version of the complainant that he himself had put the tainted money into pocket of the accused after the had asked him whether he had brought the money.Why the accused had not taken the money into his hands, his explanation is that the accused was having some papers in his one hand and a cigarette in the other.The explanation appears to be unconvincing on the face of it.The hands of the accused when were washed in the carbonate solution the colour had not changed as per the story of the prosecution itself.Therefore admitted case of the prosecution is that the accused had not touched the tainted money and the complainant has stated that he had put the money into the pocket of the accused.The reason for putting the money into the pocket of the accused given by the complainant appears unnatural as why would not have the accused thrown the cigrette and taken the money with his hand.There is no corroboration to the version of the complainant from the shadow witness. 13. 13. In my view it would be highly unsafe and hazardous to rely upon the corroborated statement of complainant being a partisan witness being interested in the success of the trap, his evidence needed to be cautiously tested as like any other interested witness and the learned trial court should have insisted for corroboration before placing reliance thereon. Learned trial court therefore should not have relied upon the sole testimony of the complainant in the absence of corroboration from PW Yashpal shadow witness.The prosecution therefore cannot be held to have proved the demand and acceptance of bribe against the accused cogently and beyond all shadow of doubt. 14. The independent witnesses PW Pardeep Kumar and PW Yogesh Kumar have testified that tainted currency notes were recovered from the pocket of the accused.The prosecution has also proved that the colour of the wash of the pocket had turned the carbonate solution pink.Therefore recovery of the tainted currency notes from the pocket of the accused has very well been proved by the prosecution.But proof of recovery alone is not sufficient to prove the guilt of the accused.In AIR 1979 SC 1408 it has been held:- "Mere recovery by itself cannot prove the charge of the Prosecution against the appellant in the absence of any evidence to prove payment of bribe or to show that The appellant voluntarily accepted the money." In the present case there being no trustworthy evidence to show that the complainant had put the money into the pocket of the accused on his asking.It is in the evidence of the complainant that after putting the money into the pocket of the accused he had passed on the signal to the raiding party, meaning thereby that there was no time left for the accused to react to the putting of the money into his pocket.In such a situation from the recovery of tainted money alone it cannot be validly inferred that the accused had accepted the bribe voluntarily in pursunace of his demand. 15. 15. Learned A.A.G. Mr.Salathia, has also contended that in view of the proof of recovery of tainted money from the accused presumption under section 4(1) of Prevention of Corruption Act can be drawn against the accused for holding him guilty.4(1) reads as follows:- "4(1) Where in any trial of an offence punishable under section 161 or sec.165 of the Ranbir Penal Code, 1989 or an offence to in clause (a) or clause (b) of sec.(1) of sec.5 of this Act punishable under sec.(2) thereof it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other them legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be as a motive or reward such as is mentioned in the said sec.161 or as the case may be, without consideration or for a consideration which he knows to be inadequate." 16. From the bare reading of the section, it is manifest that no presumption under this section is available in respect of the offence defined under sec.5(1)(d) P.C.Act which is one of the offence alleged to have been committed by the accused in the instant case.As regards the offence under sec.161 R.P.C. is concerned, it can be drawn only when the prosecution is found to have proved "that an accused person has accepted or obatined any gratification".Mere recovery of money from the accused without the proof of voluntary acceptance thereof does not attract the application of section 4(1).In the present case there being no trustworthy evidence of the fact that the accused demanded and accepted money as gratification sec.4(1) P.C.Act cannot be pressed into service to convict the accused under sec.161-R.P.C. 17. The impugned judgement of the learned trial court, as such, cannot sustain.It is, therefore, set aside and the accused is acquitted of the charges.His bail bonds are discharged. The appeal is allowed.