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2005 DIGILAW 75 (JK)

Saroop Nath v. State Of J. &K.

2005-03-24

S.K.GUPTA

body2005
This appeal arises from the judgment and order of the learned Special Judge, Anti Corruption, Jammu, dated 06.07.1999 passed in file No. 232/Challan by virtue of which the learned Special Judge after holding the appellant guilty under section 5(2) of the J&K Prevention of Corruption Act, 2006 and section 161 R.P.C., sentenced him to undergo one years rigorous imprisonment with a fine of Rs. 1,000/- under section 5(2) of the J&K Prevention of Corruption Act and in the event of non payment of fine to further suffer three months simple imprisonment; and one years rigorous imprisonment under section 161 RPC as also to pay a fine of Rs. 1,000/- and in default of payment of this fine, the appellant has been directed to further undergo three months simple imprisonment. Both the sentences have been ordered to run concurrently. By means of this appeal, the appellant has challenged this judgment. The facts that culminated in the prosecution of the accused/appellant exacted from record, noticed in brief, are that one Zia-Ud-Din lodged a written complaint with DIG Kashmir Range in averring therein that on 25.04.1982, when the villagers were working in their fields, they saw a police party headed by ASI Saroop Nath, accused, coming from Kanthpura to their village Pattushai. The police party had come on a complaint of one Majnu Mir son of Hamza Mir against his brother Abdul Majid Mir. The police party called Abdul Majid Mir from the field and started abusing, and also slapped him. People who had assembled there from the locality including the complainant requested the accused not to give beating to Abdul Majid without recording any statement and holding any inquiry. It is further disclosed that on this, one of the constables accompanying the accused came to the complainant, Zai-Ud-Din and told him that ASI Saroop Nath, accused, has obtained from Majnu Mir and his companion Rs. 300/- in order to humiliate, insult and chastise Abdul Majid Mir. The complainant, however, expressed his readiness to pay Rs. 500/- if Abdul Majid is not beaten and harassed. The constable went inside and brought the accused/appellant outside and the latter demanded Rs. 600/-. However, on request Rs. 500/- were accepted and Abdul Majid was let off. 300/- in order to humiliate, insult and chastise Abdul Majid Mir. The complainant, however, expressed his readiness to pay Rs. 500/- if Abdul Majid is not beaten and harassed. The constable went inside and brought the accused/appellant outside and the latter demanded Rs. 600/-. However, on request Rs. 500/- were accepted and Abdul Majid was let off. On this complaint, a case under F.I.R. No. 13/1985 came to be registered after verification report EXPW-VI was submitted by SI Mohd Shaffi Khan, Vigilance Organisation, Kashmir, for offence under section 5(2) of the J&K Prevention of Corruption Act, 2006 and section 161 RPC. On the conclusion of investigation, accused/appellant Saroop Nath was sent up for trial before the Special Judge, Anti Corruption, Srinagar and subsequently the case stood transferred to the file of Special Judge, Anti Corruption, Jammu on 16.12.1998. The learned Trial Court, based on the evidence let in during trial, found the appellant guilty under section 5(2) of the Prevention of Corruption Act, 2006 and section 161 R.P.C., and he was sentenced accordingly. Mr. R.P. Bakshi, learned counsel appearing for the appellant argued that the evidence produced by the prosecution to prove `demand and acceptance of the bribe money is neither credible nor trustworthy and, therefore, insufficient to warrant conviction. The occurrence is alleged to have taken place on 25.04.1982, whereas the F.I.R. was registered in 1985 without plausible explanation and, thus, renders all the prosecution case unbelievable. Mr. Bakshi further contended that even the sanction has been given by the sanctioning authority without application of mind and is, thus, invalid. Whereas, Mr. B.S. Salathia, learned Sr. Addl.AG appearing for the State on the other hand submitted that the evidence relied upon by the prosecution is consistent only with the hypothesis that the accused has demanded and accepted the bribe money from the complainant and the offences under section 5(2) of the Prevention of Corruption Act, 2006 and section 161 R.P.C. has been established against the appellant beyond any reasonable doubt. I have heard the learned counsel appearing for the respective parties in extenso and a minute examination of facts on file has also been made meticulously. The case of the prosecution, it may be pointed out at the first flust, hinges on the evidence of the complainant, Zia-Ud-Din and further corroborated by Ghulla Mir, Mohd. I have heard the learned counsel appearing for the respective parties in extenso and a minute examination of facts on file has also been made meticulously. The case of the prosecution, it may be pointed out at the first flust, hinges on the evidence of the complainant, Zia-Ud-Din and further corroborated by Ghulla Mir, Mohd. Dilawar Mir and Abdul Majid Mir to prove the guilt of the accused beyond hilt. PW- Zia-Ud-Din is a star witness in the prosecution case and deposed that the accused came to their village for inquiry into the complaint of Majnu Mir and called Abdul Majid Mir. When Abdul Majid Mir came before the police, the accused who was heading the police party started abusing Abdul Majid Mir and physically chastised him in the presence of the people who had assembled at that time. Abdul Majid Mir was `Emam of a local mosque and by this act of the accused all the persons standing there felt grieved when the trousers of Abdul Majid Mir fell down and he became naked due to the beating given by the accused. It is also in the evidence of the witness that when Abdul Majid Mir deplored before the people for his rescue from the accused, he asked the constable to come out and the latter told him that if Rs. 600/- are paid to the accused, PW- Abdul Majid Mir would be released. Constable went inside the Verandah of the house of Majnu Mir. The witness further stated that the accused demanded Rs. 600/- but later on agreed to accept Rs. 500/- for releasing Abdul Majid Mir. It is further exacted from his statement that Dilawar and Ghulla Mir were associated in the transaction so that Abdul Majid Mir may not decline to pay Rs. 500/- for his release, to the complainant. The witness further stated to have paid Rs. 500/- to the accused in presence of Ghulla Mir and Mohd. Dilawar Mir. The accused, according to the witness, released Abdul Majid Mir after accepting the bribe money. Whereas, the evidence provided by Ghulla Mir is to the effect that he went to the house of Majnu Mir when learnt about the arrival of the police in the village. As soon as he reached there, he heard the accused abusing Abdul Majid Mir and the latter apologizing from the accused. Whereas, the evidence provided by Ghulla Mir is to the effect that he went to the house of Majnu Mir when learnt about the arrival of the police in the village. As soon as he reached there, he heard the accused abusing Abdul Majid Mir and the latter apologizing from the accused. The witness further stated to have learnt that the accused has also physically chastised and given beating to Abdul Majid Mir so was also confirmed by Abdul Majid Mir when he enquired from him. He also saw the girdle of the trousers of Abdul Majid Mir cut off. PW Zia-Ud-Din, who had also arrived there, went to the accused inside the room. Soon after Zia-Ud-Din came out from the room and gave him Rs. 500/- for counting. The witness also stated that in his presence Rs. 500/- were paid by Zia-Ud-Din to the accused in the Verandah of the house of Majnu Mir. The accused, after accepting the bribe money from Zia-Ud-Din, went inside and released Abdul Majid Mir. The witness further stated that when Zia-Ud-Din demanded the amount from Abdul Majid Mir, which was paid as bribe money to the accused for his release, Abdul Majid Mir declined to pay the money on the ground that he had been beaten and humiliated when there was no case against him. It is significant to point out that Ghulla Mir, though stated to be one of the witnesses of demand and acceptance of bribe money by the accused from the complainant, did not name P.W. Dilawar Mir also to be present on spot at that time and, thus, contradicted the complainant- Zia-Ud-Din in material particulars on this vital point. In fact, he has ruled out the presence of P.W. Dilawar Mir at the time when bribe money was demanded by the accused from the complainant and when paid, also accepted the same for the release of P.W. Abdul Majid Mir. Similarly, the evidence of Mohd. Dilawar Mir examined as witness by the prosecution is that he went to the house of Majnu Mir when learnt that the police had come in the village and saw the accused with two constables in the courtyard of the house. There were some other persons also present there. He also stated that the accused/appellant went into the room of Majnu Mir and gave severe beating to Abdul Majid Mir. There were some other persons also present there. He also stated that the accused/appellant went into the room of Majnu Mir and gave severe beating to Abdul Majid Mir. The accused also made Abdul Majid Mir naked as his trousers were torn due to beating. The situation had become grim on account of beating of Abdul Majid Mir by the accused as Abdul Majid Mir was `Imam of the mosque and the people got agitated. In the meantime, according to the witness, a constable came out from the room and told them that the accused has received money from Majnu Mir to cause harassment to Abdul Majid Mir and to keep him in custody for eight days. Constable also told them to pay Rs. 600/- to the accused for the release of Abdul Majid Mir. The witness further stated to have consulted each other in regard to the payment of bribe money to the accused to save the honour of Abdul Majid Mir. It is also in the evidence of the witness that when accused came out, he accepted Rs. 500/- though demanded Rs. 600/- from Zai-Ud-din, went inside and released Abdul Majid Mir. Further Abdul Majid Mir also came in the witness box and stated about the property dispute between him and his brother Majnu Mir. It was in the month of April 1982, when he was working in the field and was called by the accused through a constable. He accompanied the constable to the house of Majnu Mir and as soon as he reached there, the accused started abusing him and also gave him good beating. The accused when caught him from the string of his trousers, it got cut off and the trousers fell down, and he became naked. It is further elicited from the evidence of this witness that when he came out from the room in holding his trousers, asked the complainant to save him from humiliation. On this, Zai-Ud-Din told him to run away. The witness ran away and went to Kupwara and when came back late in the evening was intimated by Zia-Ud-Din regarding the payment of Rs. 500/- as bribe money to the accused for his release from the custody. The witness was also informed by Zia-Ud-Din that the bribe money was paid to the accused in the presence of Ghulla Mir and Dilawar Mir. 500/- as bribe money to the accused for his release from the custody. The witness was also informed by Zia-Ud-Din that the bribe money was paid to the accused in the presence of Ghulla Mir and Dilawar Mir. It is apt to point out that P.W. Abdul Majid Mir is neither a witness to the demand of illegal gratification by the accused nor a witness to its acceptance. The evidence provided by the complainant, Zia-Ud-Din, and PW Ghulla Mir stands contradicted by the evidence of Abdul Majid Mir on a material point that since he had run away from the place of occurrence at the instance of Zia-Ud-din and had not asked Zia-Ud-Din to pay illegal gratification to the accused. Mr. R. P. Bakshi, learned counsel appearing for the appellant, strenuously to urge that the evidence produced by the prosecution is qualitatively and quantitatively insufficient to prove the essential ingredients viz., demand, acceptance and recovery of the bribe money from the accused so as to bring offence under section 5(2) of the Prevention of Corruption Act and section 161 R.P.C., home to the accused/appellant. Their evidence is much too fragile and fractured that it renders the prosecution case highly improbable and unnatural. According to the witnesses, examined in the case including the statement of the complainant, the demand for bribe was made by the accused in the Verandah of the house of Majnu Mir where many persons had gathered. It does not san to common sense that a public servant while discharging his public duty would demand illegal gratification in presence of many people. Further dent is caused to the prosecution case when PW Abdul Majid Mir in his evidence stated that he became naked when he was caught by the accused from the string of his trousers as a result of which the trousers fell down. He came out of the room, holding the trousers and ran away at the instance of Zia-Ud-din. It is neither understandable nor can be digested that when Abdul Majid Mir had already run away from the place of occurrence how the necessity arose to pay Rs. 500/- as illegal gratification to the accused. This makes the whole story narrated by the prosecution witnesses unreliable, unbelievable and unnatural as their evidence does not inspire confidence in the Court. It is neither understandable nor can be digested that when Abdul Majid Mir had already run away from the place of occurrence how the necessity arose to pay Rs. 500/- as illegal gratification to the accused. This makes the whole story narrated by the prosecution witnesses unreliable, unbelievable and unnatural as their evidence does not inspire confidence in the Court. This aspect of the case has not been considered by the trial court and has landed itself in error in holding the accused guilty based on such evidence which is incredible and unacceptable. Ghulla Mir in his evidence admitted that Majnu Mir and Abdul Majid Mir are his cousins. They are related to each other. His evidence has to be taken with necessary care and circumspection. A person who gives bribe is an accomplice of the person who receives it and according to well settled principles, it is unsafe to base a conviction on his testimony without independent corroboration. In this case, Ghulla Mir and Dillawar Mir have been examined by the prosecution to corroborate the testimony of PW- Zia-Ud-Din in regard to demand and acceptance of illegal gratification by the accused. Ghulla Mir is the cousin of PW Abdul Majid Mir and Majnu Mir. His evidence manifestly is interested and smacks of partisanship and, therefore, cannot be relied upon unless corroborated by independent witness. Ghulla Mir in his evidence nowhere indicated the presence of Dilawar Mir at the time when the bribe money was demanded by the accused and on being paid by the complainant- Zia-Ul-Din was also accepted by the accused. PW- Abdul Majid Mir in his evidence has completely demolished the prosecution case when stated that since he had run away from the scene at the instance of Zia-Ud-Din and did not ask Zia-Ud-Din to pay bribe money to the accused. It was further argued by Mr. R.P. Bakshi that the sanction, accorded by the competent authority being without application of mind, is invalid. The law on the point has been stated in `Superintendent of Police v. Deepak Choudhary AIR 1996 SC 186, which reads as under:- "What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. The law on the point has been stated in `Superintendent of Police v. Deepak Choudhary AIR 1996 SC 186, which reads as under:- "What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima-facie the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refuse to grant sanction." The sanctioning authority is, however, expected to act fairly and its actions must be consistent with the public interest and the interest of law as is observed by the Apex Court in `State through Anti Corruption Bureau Government of Maharashtra v. K.K. Jagtiani AIR 1996 SC 1910. On going through the order of sanction, it is clearly exacted that the entire material, gathered during investigation disclosing the commission of offence, was made available to the sanctioning authority and the sanction has been accorded after proper application of mind. I do not find any substance in this submission made by the appellants counsel and holds the sanction to the prosecution of the appellant given by the competent authority to be valid. In a bribe case, the complainant is an interested witness and his evidence must be considered with great caution and it can be accepted when it is corroborated in material particulars by other evidence adduced by the prosecution. For taking this view, reference can usefully be made to the observations made by the Apex Court in case reported in AIR 1973 SC 707 `Jaswant Singh v. State of Punjab. There should be independent and trustworthy corroboration of the evidence of the complainant pertaining to the demand and acceptance of the bribe money. In `Ram Prakash Arora v. The State of Punjab, AIR 1973 SC 498, the Apex Court speaking about the evidence of trap witnesses observed as under:- "They were interested and partisan witnesses. They were concerned in the success of the trap and their evidence must be tested in the same way as that of any other interested witness. In a proper case the Court may look for independent corroboration before convicting the accused persons." As there is no such corroboration in this case, the appellant, according to Mr. R.P. Bakshi, should be given the benefit of doubt. Mr. In a proper case the Court may look for independent corroboration before convicting the accused persons." As there is no such corroboration in this case, the appellant, according to Mr. R.P. Bakshi, should be given the benefit of doubt. Mr. Bakshi, learned counsel further submitted that the constable accompanying the accused through whom initially the bribe was demanded and later on accepted by the accused has neither been cited as witness in the challan nor an accused in the case. This further causes a serious doubt about the truth of the prosecution story. The appellants counsel also buttress his argument in making submission that it is highly unimaginable and unusual that the accused would have demanded and accepted the bribe money in the presence of number of persons present in the Verandah of the house of Majnu Mir. The F.I.R., registered on the complaint of PW-Zia-Ud-Din, does not make mention of the role played by Ghulla Mir and Dilawar Mir in relation to Abdul Majid Mir. At the cost of repetition, it is significant to point out that Ghulla Mir has no-where stated about the presence of Dilawar Mir either when the bribe money was demanded or when it was accepted by the accused. Ghulla Mir is the cousin of Majnu Mir and Abdul Majid Mir, so his evidence can not be accepted being interested in the success of prosecution case. So the statement of the complainant, whose position is not better than accomplice, cannot be believed unless corroborated by independent witnesses. According to the prosecution, many people had assembled on spot on seeing the police in the house of Majnu Mir on the alleged day of occurrence but no one was produced and examined in proof of the accusation of demand and acceptance of bribe money by the accused from the complainant. There is no evidence apart from that of the complainant to show that the money was demanded by the accused from the complainant and when the latter paid, it was accepted by the former for the release of Abdul Majid Mir. In case Gurcharan Singh v. State of Haryana 1994 Crl.L.J. 1710, it was held that `in proof of demand and acceptance of bribe money, the evidence of complainant or trap witness cannot be relied upon in the absence of independent corroboration. In case Gurcharan Singh v. State of Haryana 1994 Crl.L.J. 1710, it was held that `in proof of demand and acceptance of bribe money, the evidence of complainant or trap witness cannot be relied upon in the absence of independent corroboration. When the evidence produced by the prosecution suffers from material discrepancies, such evidence becomes unreliable and unworthy of credence. In the aforesaid case, the Court further held as under:- "14. To prove the allegations of demand and acceptance of bribe by an accused person, the evidence of the complainant or trap witness cannot be safely acted upon in the absence of some independent corroborative evidence. In such a situation, bribe giver is normally treated as no better than an accomplice and so his evidence needs corroboration from an independent source. The same value is to be attached to the evidence of the shadow witness especially when he is not proved to be an independent witness. Independent corroboration to the evidence of such witnesses is generally required by the Court, if not as a rule of law, then at least a rule of caution and prudence." Allegedly, the occurrence had taken place on 25.04.1982 but the case has been registered by the Vigilance Organisation on 25.03.1985 i.e., after a lapse of about three years. No explanation has been given for this inexcusable and uncondoneable delay. The investigation taken by the Vigilance Organisation also took more than a year, for that also no explanation has been offered anywhere. In such event, the only inference much-less a logical inference deducible is that delay in registration of a case is made by the investigating agency in order to tailor and shape the case in their own way. Another serious lapse found in the prosecution is that the written complaint, allegedly lodged by the complainant- Zia-Ud-Din about the occurrence, is not placed on record. The F.I.R. registered, obviously based on the complaint, does not disclose the names of the witnesses in whose presence the accused/appellant demanded and accepted the bribe money. This clearly shows that their names also do not figure in the complaint and renders the evidence of Zia-Ud-Din unbelievable and unreliable when stated to have associated Ghulla Mir and Mohd. Dilawar Mir in the transaction. The evidence of the complainant has further become unconvincing and untruthful when Ghulla Mir stated least about the presence of Mohd. This clearly shows that their names also do not figure in the complaint and renders the evidence of Zia-Ud-Din unbelievable and unreliable when stated to have associated Ghulla Mir and Mohd. Dilawar Mir in the transaction. The evidence of the complainant has further become unconvincing and untruthful when Ghulla Mir stated least about the presence of Mohd. Dilawar Mir when the constable came out of the room and told them to pay Rs. 600/- to the accused for the release of Abdul Majid Mir and thereafter accused himself came out and accepted Rs. 500/- for the purpose. These two eye-witnesses namely Ghulla Mir and Mohd. Dilawar Mir, one of whom is the cousin of Majnu Mir and Abdul Majid Mir being relation, his evidence in the aforesaid circumstances cannot be believed for lack of inspiring confidence in the Court. All these facts coupled with the inaction of the police for a pretty long time in registration of a case smacks of infidelity in the prosecution case. As regards delay of about three years in the registration of a case and conduct of investigation by the Vigilance Organisation, the Apex Court in `Thulia Kali v. The State of Tamil Nadu AIR 1973 SC 501, held as under:- "12. ..............First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.............." When the occurrence is reported on the same day by making a written complaint, the non registration of the case and delay in investigation of about three years makes it highly unsafe to make the conviction of the accused/appellant upon the evidence adduced. The aforesaid discrepancies both found in the prosecution case, which renders it highly improbable and unnatural, has escaped the attention of the trial court and landed in error in holding the appellant guilty of the offences with which he stands charged. Having given my anxious consideration to all the facts and circumstances of the case, I am in ultimate analysis of the view that it is not possible to sustain the conviction of the accused on the evidence adduced. I accept the appeal, set aside the conviction and sentence of the accused/appellant and acquit him of the charges by giving him the benefit of doubt. The appellant is on bail, he stands discharged of his bail bond. Record shall be remitted back to the trial court forthwith.