Research › Search › Judgment

Rajasthan High Court · body

2007 DIGILAW 2140 (RAJ)

State of Rajasthan v. Budhi Prakash

2007-11-02

MAHESH CHANDRA SHARMA

body2007
Honble SHARMA, J.–This appeal by the State of Rajasthan arises out of the judgment and order dated October 11, 1982 passed by the learned Special Judge, Anti Corruption Cases, Jaipur, by which the learned Judge has acquitted the accused respondents of the offences charged with. (2). The facts leading to this appeal on 18.1.1979, PW2 Rafiq Ahmed submitted an application, Ex. P.2 before the Deputy Superintendent of Police, Anti Corruption Department, Sawaimadhopur stating that some Government employee has demanded bribe of Rs. 40/- for getting prepared a map from Municipal Board, Sawaimadhopur. Again on 20.1.1979, he submitted a written report, Ex. P.3 before the same Officer of the Anti Corruption Department. Having received the report, the Dy. Superintendent of Police summoned two motbirs namely PW3 Laxmi Narain and PW4 Ram Singh and in their presence, the complainant gave currency notes of Rs. 25/- (two notes of Rs. 10/- and one note of Rs. 5/-) to the Dy. Superintendent of Police, upon which the Deputy Superintendent of Police put his signatures and applied phenolphthalein powder and returned the same to the complainant for being given to the person demanding bribe. The Dy. Superintendent of Police asked the complainant and motbirs to reach the office of Municipal Board and thereafter he along with other officials left the office in a official jeep. Having parked the jeep near bus stand, the Dy. Superintendent of Police along with other employees reached in front of the office of Municipal Board. It was 4.30 PM and both the Motbirs were found present out side the office of Municipal Board. The Deputy Superintendent of Police saw the complainant talking with accused Budhi Prakash. He also noticed that complainant has taken out some thing from his pocket and has given the same to accused Budhi Prakash. Thereafter Budhi Prakash and complainant came down stairs and Budhri Prakash kept the thing in the pocket of his coat, which was given by the complainant. According to the complainant he had given bribe money of Rs. 25/- to accused Budhi Prakash as was settled with accused Shanker Lal. The notes given to Budhi Prakash were initialed by the Deputy Superintendent of Police. (3). The complainant then informed the Deputy Superintendent of Police by signal that bribe has been given. According to the complainant he had given bribe money of Rs. 25/- to accused Budhi Prakash as was settled with accused Shanker Lal. The notes given to Budhi Prakash were initialed by the Deputy Superintendent of Police. (3). The complainant then informed the Deputy Superintendent of Police by signal that bribe has been given. Having received signal, the Deputy Superintendent of Police along with other police personnels entered the office of Municipal Board and found accused Budhi Prakash standing in office room of Revenue Officer. On being asked, accused disclosed his name as Budhi Prakash. The Deputy Superintendent of Police, having introduced himself, when asked about the bribe taken from the complainant, the accused refused to have taken any bribe and stated that he has taken back Rs. 25/- from Rafiq, which Rafiq had borrowed from him. However, the complainant denied this explanation of the accused. Thereafter, when the Deputy Superintendent of Police got washed both the hands of accused with the water mixed with Sodium carbonate, the water became light pink. Having filled the water in a bottle, Article 4, the bottle was sealed. Thereafter, the Deputy Superintendent of Police asked the accused to produce Rs. 25/- taken as bribe. The accused took out the notes from the right pocket of his coat and placed the same before the Dy. Superintendent of Police which were seized. Pocket of the coat of accused was also got washed with the water mixed with sodium carbonate and the said water changed in light pink colour, which was also sized. (4). The Deputy Superintendent of Police asked accused Shanker Lal to produce the file and documents concerning map of the house of complainant. Thereupon, the accused produced the relevant documents, which were seized and memos were prepared. Ultimately, both the accused were arrested, site memo was prepared and bottles were sent for chemical examination. (5). After completion of investigation, a charge sheet was submitted against the accused accused. The learned Special Judge framed charge under Sec. 161 IPC and Sec. 5(1)(d)(2) of the Prevention of Corruption Act,1947 against accused Budhi Prakash and under Section 161 read with Sec. 34 IPC and Sec. 5(1)(d)(2) of the Prevention of Corruption Act against accused Shanker Lal. The accused accused denied the charges and claimed trial. (6). In support of its case, the prosecution examined as many as 8 witnesses and got exhibited some documents. The accused accused denied the charges and claimed trial. (6). In support of its case, the prosecution examined as many as 8 witnesses and got exhibited some documents. After completion of prosecution evidence, the accused were examined under Section 313 Cr.P.C. (7). The accused also submitted their written statements. accused Shanker Lal has stated that on 20.1.1979 he was posted as Draftsman in Municipality, Sawaimadhopur. The complainant had applied for issue of a map in the month of december but he did not take any interest in getting the map prepared. He asked the complainant on numerous occasions to get measurement of the site. Ultimately on 12.1.1979 the complainant agreed to get the measurement. At the time of measurement, the complainant misbehaved with the accused and also abused him. The accused rebuked the complainant and also made a complaint to this effect to the Executive Officer. After taking measurement, the accused prepared the map and submitted it along with his report before the Executive Officer on 18.1.1979. He denied to have talked with the complainant about taking money, nor did he cause any delay in preparing the map. According to him, he was not authorized to issue the map and he had no relation with accused Budhi Prakash. Lastly, he stated that entire action has been taken by the Anti Corruption Department at his back. (8). Accused Budhi Prakash, at the relevant time, was posted a Lower Division Clerk in the Municipality. Complainant Rafiq had borrowed Rs. 25/- from him in the month of December, in the presence of Lallu Ram Soni and Chaturbhuj. Since. the complainant failed to return money despite request on 2-3 occasions, some altercation took place between the complainant and accused Budhi Prakash. On 20.1.79 while accused Budhi Prakash was sitting in his office, the complainant called him out side the office and returned Rs. 25/-, which he kept in his pocket. Laddu Lal, Nakedar and Girdhari Lal, LC were also prevent there. According to accused Budhi Prakash, neither he demanded bribe nor he accepted the bribe. He has been involved falsely because of enmity. (9). 25/-, which he kept in his pocket. Laddu Lal, Nakedar and Girdhari Lal, LC were also prevent there. According to accused Budhi Prakash, neither he demanded bribe nor he accepted the bribe. He has been involved falsely because of enmity. (9). At the conclusion of trial and on hearing the counsel for the parties, the learned trial Court came to the conclusion that the prosecution has not been able to establish the charges against the accused accuseds and accordingly, while extending benefit of doubt, acquitted both the accuseds vide its judgment under appeal. (10). I have heard learned counsel for the accused and the learned Public Prosecutor and gone through the evidence and material available on record. (11). Perusal of the record shows that accused Budhi Prakash, at the relevant time, was posted as Lower Division Clerk, while accused Shanker Lal was posted as Draftsman. According to the prosecution case, accused Shanker Lal demanded a sum of Rs. 25/- from the complainant for preparing map. Meaning thereby, as per the prosecution, the complainant gave bribe of Rs. 25/- to accused Bundhi Prakash for being given to accused Shanker Lal as Shanker Lal had to prepare the map. Accused Budhi Prakash had no concern with preparation of map. As per the prosecution, demand of bribe was raised by accused Shanker Lal, while bribe money was alleged to be accepted and recovery from accused Budhi Prakash. (12). PW.2 Mohd. Rafiq in his statement has stated that accused Shanker Lal demand bribe of Rs. 40/- for preparing map. On being told by this witness that demand was on higher side, accused Shanker Lal agreed for Rs. 25/-. According to this witness, the accused stated that he will not accept the money directly from him and him to give this amount to accused Budhi Prakash. In cross examination, the witness has admitted that accused Budhi Prakash was known to him prior to the incident, but he never met him in connection with the map. Further, the witness has not stated about the presence of Budhi Prakash at the time when Shanker Lal agreed to accept Rs. 25/- through Budhi Prakash. The complainant in his statement has no where stated a single word whether he ever talked accused Budhi in connection with the amount of bribe till so-called bribe was given 20.1.1979. The report dated 18.1.1979, Ex. 25/- through Budhi Prakash. The complainant in his statement has no where stated a single word whether he ever talked accused Budhi in connection with the amount of bribe till so-called bribe was given 20.1.1979. The report dated 18.1.1979, Ex. P.2 no where mentions that accused Shanker Lal agreed to take bribe through accused Budhi Prakash. The witness has admitted that matter was already settled with accused Shanker Lal at Rs. 25/- prior to submitting the report Ex. P. 2 dated 18.1.1979, but still this report speaks about the demand of Rs. 40/-. On being confronted with the statement Ex. D/1 and Ex. P2, the complainant could not offer any explanation as to whey he has not written any thing about the matter having been settled at Rs. 25/- and this amount to be given through accused Budhi Prakash, despite the fact that he was well conversant with these facts. In my considered view, there appears to be material differences between Ex. P.2 and Ex.P.3 about of bribe and the manner in which bribe was alleged to be given, which go to the root of the matter. Further, inclusion of few facts in the second report Ex. P.3 appears to be after thought. (13). The only evidence to establish that both the accuseds were related to each other and had joint hands in the instant case, is that of PW.2 Mohd. Refiq. There is no other evidence on record to show that accused Shanker Lal ever disclosed accused Budhi Prakash that he has to take Rs. 25/- from the complainant. What complainant has stated is that having seen him, accused Budhi Prakash came out of his office and demand Rs. 25/- for the map, which he gave. According to this witness, accused Budhi Prakash and he came on the ground floor and while Budhi Prakash was going to accused Shanker Lal, the Deputy Superintendent of Police caught him. This statement of the complainant appears to be highly unnatural for the simple reason that when complainant was well aware of the fact that accused Budhi Prakash was going to Shanker Lal along with bribe money and the complainant wanted to get accused Shanker Lal, there was no occasion with the complainant to extend signal to the Deputy Superintendent of Police immediately after giving money to Budhi Prakash. This witness has contradicted himself. He stated to have given Rs. This witness has contradicted himself. He stated to have given Rs. 25/- as bribe for preparing map. In cross examination he stated that he had not told accused Budhi Prakash for making available the map either at the time of giving money or prior to it. Having said so, he immediately changed his statement by stating that he had demanded maps from Budhi Prakash at the time of giving him money. This statement of the complainant is different from his earlier statement in Ex. D.1. (14). On scaning the evidence of PW.1, I am of the considered view that testimony of this witness appears to be not so strong enough and reliable, on the basis of which it can be said that both the accused had common intention and both were related to each other. The circumstances brought on record by the complainant in the course of trial, do not find place in his earlier statement Ex. P. 1 and the report Ex. P.2. Thus, it would be extremely unsafe to rely on the testimoney of such a witness, which is not worthy of credence. I am fortified in my view by a decision of the Apex Court in Shanti Lal vs. State of Rajasthan ( AIR 1976 SC 739 ), wherein their Lordships of the Supreme Court while dealing with a case involving offence under the Prevention of Corruption Act and on appreciation of evidence, their Lordships held that prosecution evidence was insufficient to establish beyond reasonable doubt that accused demanded bribe from complainant through co-accused. The facts involved in the instant case are more or less similar to the facts involved in the case cited above. (15). In the instant case there is no evidence except the evidence of complainant to prove beyond doubt the participation of both the accused in demanding and accepting the alleged bribe. Neither accused Shanker Lal was present at the time when complainant gave Rs. 25/- to accused Bundhi Prakash nor Budhi Prakash was present at the time when accused Shanker Lal raised a demand for money and agreed to receive the same through accused Budhi Prakash. (16). The statement of the complainant in respect of alleged demand of bribe by accused Shanker Lal does not find corroboration with any evidence. It may be noted that in the report Ex. P.2 the complainant has stated about the demand of Rs. (16). The statement of the complainant in respect of alleged demand of bribe by accused Shanker Lal does not find corroboration with any evidence. It may be noted that in the report Ex. P.2 the complainant has stated about the demand of Rs. 40/- having been made by accused Shanker Lal. However, his statement makes is clear that it was settled at Rs. 25/- even prior to 18.1.79, the date on which report Ex. 2 was submitted to the Deputy Superintendent of Police. Further, in his report Ex. P.2, the complainant has not named Shanker Lal. Thus, only on the basis of the statement of complainant it cannot at all be believed that accused Shanker Lal raised a demand Bribe. (17). As per the prosecution case, accused Shanker Lal demand Rs. 25/- for preparing maps. As stated above, none of the prosecution witnesses has supported the statement of the complainant as regards demand. Simply because the maps were recovered on 20.1.79 from the possession of accused Shanker Lal, it cannot be believed that he had kept the maps with him only for the purpose of taking bribe. The evidence brought on record clearly shows that accused Shanker Lal had prepared the maps and had submitted the same before the Executive Engineer prior to the date of raid arranged on 20.1.1979 and the Executive Engineer after putting his signatures ordered on 19.1.79 for sending the same to the building cell. Accused Shanker had no occasion to keep the maps with so as a make a demand of bribe from the complainant because the raid was arranged and he was arrested on the very next day i.e. On 20.1.79. Had there been any intention of taking bribe, accused Shanker Lal would not have prepared the maps. He immediately prepared the maps and placed the same before the Executive Engineer, who put his signatures on 19.1.79. (18). Other evidence led by the prosecution is that of PW.3 Laxmi Narain, PW.4 Ram Singh, PW.5 Banwari Lal and PW.8 Mohan Singh. Even if their evidence is accepted, the only fact which stands proved is that on 20.1.79 the complainant Mohd. Rafiq PW1 gave Rs. 25/- which were recovered from accused Budhi Prakash in the course of raid. (18). Other evidence led by the prosecution is that of PW.3 Laxmi Narain, PW.4 Ram Singh, PW.5 Banwari Lal and PW.8 Mohan Singh. Even if their evidence is accepted, the only fact which stands proved is that on 20.1.79 the complainant Mohd. Rafiq PW1 gave Rs. 25/- which were recovered from accused Budhi Prakash in the course of raid. Prosecution witnesses have very categorically stated that at the time of recovery, accused Bundhi Prakash had offered explanation that he has not taken any bribe and that complainant had returned the said amount which he had borrowed. Both the Motbirs namely PW.3 Laxmi Narain and PW.4 Ram Singh have specifically admitted this fact. Even PW6 Roshan Singh, Executive Officer has categorically stated in his cross examination that Budhi Prakash had offered his explanation instantaneously. PW.7 Badri has also supported the defence of accused Budhi Prakash by stating that while standing at a distance of 5-6 steps he had heard the complainant saying that he was returning the money which he had borrowed from Budhi Prakash. This witness has been declared hostile. However, the witness being a class IV employee of the Municipality, his presence at the time of raid cannot be doubted. Even the complainant himself has stated about the presence of two persons at the time when he gave money to respondent Budhi Prakash. DW2 Laddu Lal has also supported the defence version that complainant had returned the money which he had borrowed from respondent Budhi Prakash. The defence taken by the accused respondent appears to be just and reasonable as compared to the evidence adduced on behalf of the prosecution. DW1 Girdhari has also supported the defence version. (19). Thus, I am of the view that the evidence led on behalf of the prosecution is wholly insufficient to establish beyond reasonable doubt that accused respondent Shanker Lal made a demand for bribe and accepted the same through accused Budhi Prakash for preparing the maps. The judgment of acquittal passed by the learned trial court being based on proper appreciation of evidence does not call for any interference and deserves to be upheld. (20). In the result, the appeal fails and is hereby dismissed.