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2003 DIGILAW 288 (UTT)

Ram Saran Sharma v. State

2003-11-25

IRSHAD HUSSAIN

body2003
JUDGMENT Irshad Hussain, J. : This appeal is against the judgment dated 23.12.1981 passed by the then Special Judge, Dehradun in a bribery case, Special Trial No. 2/1981, State Vs. Ram Saran Sharma, P. S. Kotwali District, Dehradun under section 161 I.P.C. and 5(2) read with section 5(1)(d) of Prevention of Corruption Act, 1947. 2. Briefly stated facts are as follows : Appellant Ram Saran Sharma was posted as A.S.I. (M), Record Keeper in the Superintendent of Police Office, Dehradun on 15-10-1979. Surya Prakash Agarwal was in need of certified copy of post mortem report of his father Mithan Lal to facilitate drawl of money deposited in bank and post office in the name of the said deceased. He gave an application dated 8.10.1979 to Superintendent of Police, Dehradun for supply of the copy of the post mortem report and deposited copying fee of Rs. 10/- on 9-10-1979. On 12-101979 he went to the said Record Keeper (appellant) for delivery of copy of post mortem, but was told to come on 1510-1979 and to bring a sum of Rs. 15/ -. Complainant was not willing to pay Rs. 15/- as bribe and, therefore, gave a report (Ex.Ka.7) to the Superintendent of Police, Vigilance Department, Dehradun on 12-10-1979 with a request that he want the Record Keeper to be arrested red-handed while accepting bribe of Rs. 15/-. 3. On 15-10-1979 Superintendent of Police Vigilance Department, Dehradun directed Inspector Sri Kali Ram of the department to make necessary enquiries and take action for laying a trap, if found necessary. This endorsement of the Superintendent of Police is (Ex. Ka.13) on the said complaint. 4. P.W.2, Inspector Vigilance Sri Kali Ram contacted complainant and prepared a trap plan for 15-10-1979. He received currency notes of Rs. 15/- from Superintendent of Police which were earlier given by the complainant and also procured the attenance of independent witness Maya Ram Sarvahi, Senior Clerk of the office of Deputy Labour Commissioner. Thereafter in the presence of Inspector O.P. Sharma, constable Badar Ali, witness Maya Ram Sarvahi and the complainant Surya Prakash Agarwal the currency notes were treated with phenophalein powder and gave these to the complainant. The hands of the complainant were then got washed by sodium solution. It turned pink and the same was sealed in a phial vide memo, Ex.Ka.9. The numbers of the currency notes were also noted in the said memo. The hands of the complainant were then got washed by sodium solution. It turned pink and the same was sealed in a phial vide memo, Ex.Ka.9. The numbers of the currency notes were also noted in the said memo. Currency notes were in the denomination of one note of Re. 10/-, two notes of Re. 2/- each and one note of Re. 1/-. After giving necessary instructions the party left at 2 P.M. for police office compound. At about 2.53 P.M. appellant Ram Saran Sharma reached in front of the court of S.D.M. Sri B.S. Bhandari and took the amount of Rs. 15/- from the complainant and kept the same in the left pocket of his pair of trousers. P.W.2, Inspector Kali Ram and other witnesses then surrounded the appellant and disclosed their identity and took his search. The currency notes were recovered from the said left pocket of the appellant besides some other papers. The hands of the appellant were got washed by sodium solution and it turned pink. The same was sealed in a phial and memo, Exa.10 was then prepared. The appellant was brought to the police station where at 3.55 P.M. pair of trouser of appellant was got changed and left pocket of the same was also washed by sodium solution. It also turned pink. The pant was also sealed and memo Ex. Ka. 11, was prepared. Therefore, Inspector Kali Ram prepared the written report, Ex. Ka. 14 and filed it at police station and on its basis case against the appellant was registered at 4.20 P.M. on 15.10.1979. 5. Investigation was entrusted to Deputy Superintendent of Police Vigilance Sri Mahar Singh and on his getting ill Inspector Vigilance Sri B.S. Panwar took up the investigation of the case. He recorded the statements of the witnesses and collected relevant documents. The sealed phials of the solution were sent to Forensic Science Laboratory, U.P. Lucknow for expert report. On completion of the investigation he submitted charge sheet, Ex. Ka. 23, against the appellant. Sanction, Ex. Ka. 18 to prosecute him was obtained from the appointing authority. 6. Appellant pleaded not guilty and contended that on 15-10-1979 complainant came to him at about 2 P.M. and invited him for a cup of tea and on that pretext he was taken to vigilance office where all the proceedings were surreptitiously completed. 23, against the appellant. Sanction, Ex. Ka. 18 to prosecute him was obtained from the appointing authority. 6. Appellant pleaded not guilty and contended that on 15-10-1979 complainant came to him at about 2 P.M. and invited him for a cup of tea and on that pretext he was taken to vigilance office where all the proceedings were surreptitiously completed. He also gave out that on 12-10-1979 complainant was informed that a copy of the post mortems report can not be given as the Post Mortem Report has not yet been consigned to Record Room. 7. In order to prove its case prosecution relied upon the evidence of six witnesses. Of these, P.W.1, Surya Prakash Agarwal, P.W.2 Inspector Kali Ram and P.W.3, Maya Ram are the witnesses of fact. P.W.4, Inspector B.S. Panwar proved the steps taken in the investigation of the case and relevant documents. P.W.5, Head Constable Magna Nand is a formal witness. PW.6, Dr. Gopal Dutt Junior Scientific Officer proved the Forensic Science Lab Report Ex.Ka.20. In defence appellant has examined witness Mahendra Kumar (D.W.1) who was posted as a constable of the confidential department of the office of Superintendent of Police, Dehradun. He brought letter Ex.Kha. 1, from the record room and it was sent by the complainant to S.P, Dehradun. Learned Special Judge believed the evidence of the prosecution and found the appellant guilty of taking bribe and convicted and sentenced him to undergo for VE six months R.I. under section 161 I.P.C. and for one year's R.I. and a fine of Rs. 500/- under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act. In default of payment of fine he was to undergo further R.I. for three a months. Both the substantive sentences were directed to run concurrently. 8. I have heard both the learned h counsel for the parties and have gone through the record with the help of both of them. I have also carefully perused the judgment in appeal. 9. It is not in dispute that complaint, ant S.P. Agarwal (PW.1) submitted an application for getting certified copy of the post mortem report of his father Mithan Lal and has also deposited Rs. 10/- as its fee. The appellant was the Record Keeper and he was to have the copy supplied as per rules to the complainant. 9. It is not in dispute that complaint, ant S.P. Agarwal (PW.1) submitted an application for getting certified copy of the post mortem report of his father Mithan Lal and has also deposited Rs. 10/- as its fee. The appellant was the Record Keeper and he was to have the copy supplied as per rules to the complainant. From the statement of the appellant it is also evident that complainant visited Superintendent of Police office on 12-10-1979 also but the certified copy was not delivered to him. According to the complainant he was told by the appellant to come on 15-10-1979 with Rs. 15/- to fetch the copy of the post mortem report. He gave out that according to the arranged trap plan he reached the S.P. Office on 15.10. 1979 and met the appellant there in the office. The appellant was busy in some work and therefore he was made to wait for about 20 minutes. After some time the appellant asked the complainant to come out-side the office and they went towards the office of the Prosecution Officer. According to the complainant the appellant was then carrying his documents with him. Learned counsel for the appellant submitted that when the complainant had stayed for about 20 minutes in the office with the appellant the alleged amount of bribe could have very well been demanded by the appellant in the office itself and there was no occasion for him to ask the complainant to come out and then to proceed towards the office of the Prosecution Officer. The evidence of the complainant do not indicate that any third person was then present in the office at the table of the appellant and, therefore, if he had intended to receive the bribe he could have very well asked for the same from the complainant then and there instead of going out side the office to receive paltry sum of Rs. 15/-. As submitted this aspect of the matter create grave doubt in the entire prosecution version and in the credibility of the complainant. 10. 15/-. As submitted this aspect of the matter create grave doubt in the entire prosecution version and in the credibility of the complainant. 10. It was next submitted by the learned counsel that the currency notes allegedly given to the appellant and recovered from him did not bear the signatures of the complainant Surya Prakash Agarwal although the complainant categorically stated that he had signed on the currency notes which were given to the appellant that this aspect of the matter also create grave doubt in the veracity of the prosecution version. In this connection attention was also drawn to the evidence of Investigating Officer who proved that not only the complainant but Inspector Kali Ram (P.W.2) and witness Maya Ram (P.W.3) also stated in statements under section 161 of the Code of Criminal Procedure that the signatures of the complainant were there on the currency notes. Absence of the signature however, tell upon the credibility of the prosecution witnesses in regard to the plan of trap allegedly laid on the appellant. Learned trial Judge did not attach any significance to this infirmity by stating that under mis-apprehension the Investigating Officer had recorded the statements of the witnesses in this manner although these witnesses have not given the statements like this to him. The learned Judge was also of the view that even otherwise it is not a material contradiction which could falsify the prosecution story. In the face of the facts of the case the submission of the learned counsel for the appellant that this infirmity give an indication that the evidence of the witnesses is not credible as the signed currency notes were not recovered because the complainant had not given currency notes to the appellant and when it was found that the currency notes shown as having been recovered from the appellant without bearing the signatures of the complainant they changed their version to assert that the complainant had not signed the currency notes, can not safely be said to be without substance and force. 11. Further as pointed out by the learned counsel, the complainant gave out that the currency notes were kept in an envelope which was given by him to the appellant. This assertion is contrary to the prosecution case because according to the witnesses no envelope containing the currency notes was recovered from the pocket of the appellant. 11. Further as pointed out by the learned counsel, the complainant gave out that the currency notes were kept in an envelope which was given by him to the appellant. This assertion is contrary to the prosecution case because according to the witnesses no envelope containing the currency notes was recovered from the pocket of the appellant. P.W.2 and P.W.3 have not alleged that any envelope was treated with phenophthalein powder. If an envelope containing the currency notes was handed over to the appellant there was no occasion that the solution of the sodium could turn pink if the hands of the appellant were washed after alleged recovery. As submitted this glaring aspect further create grave doubt in the prosecution version and in the reliability of the evidence of the witnesses. 12. It has also come in the evidence of P.W.1, P.W.2 and P.W.3 that from the possession of the appellant documents Ex.Ka.3 to Ex.Ka.6 were also recovered. Ex.Ka.3 is the application submitted by the complainant for issuing a copy of the post mortem report. It is dated 810-1979. EX.Ka.4 is the affidavit of the complainant which was submitted with the said application. Ex.Ka.5 is the death certificate of cremation society which was also given with the application and so is the case with non-judicial stamp paper of Rs. 5/- Ex. Ka. 6. Learned counsel argued that there was no occasion for the appellant to take out these documents with him at the alleged time of the incident because in every case these were the official records which were bound to be retained in the S. P. office and there was at all no necessity to keep these with him. Strangely enough the certified copy of the post mortem report is not alleged to have been recovered from the possession of the appellant, meaning thereby the same had not yet been prepared and on this account also, as argued, it does not stand to reason that the complainant could have demanded Rs. 15/- as bribe in exchange of certified copy of the post mortem report. In the evidence it as not shown that till that date the Post Mortem Report had been consigned to record room. Without that the copy could not have been prepared. 15/- as bribe in exchange of certified copy of the post mortem report. In the evidence it as not shown that till that date the Post Mortem Report had been consigned to record room. Without that the copy could not have been prepared. In other words the alleged possession of the unnecessary documents rather than possession of the certified copy of the post mortem report with the appellant further create grave doubt. in the prosecution version and evidence as led in this case. In a situation like this the claim of the appellant that he was invited for a cup of tea by the complainant and on that pretext he was taken from the office and that he was implicated in the case at the instance of the complainant can not be said to be without any meaning and substance. 13. In view of the foregoing discussion, I am of the view that the prosecution evidence admits of an inference that the evidence of the prosecution does not repose confidence so as to record a finding that the appellant had in fact demanded bribe from the complainant and received the sum in order to have the certified copy of the post mortem report prepared and delivered to the complainant beyond reasonable doubt. Hence conviction and sentences recorded against the appellant can not be maintained and he is entitled to be held not guilty and acquitted of the charges levelled against him. 14. The appeal is therefore allowed. The judgment dated 23-12-1981 passed by the Special Judge, Dehradun in Special Trial No. 2/1981 is set aside. He is acquitted of the offences charged against him. He is on bail. He need not surrender. His bail bonds are discharged.