Research › Search › Judgment

Rajasthan High Court · body

2008 DIGILAW 1043 (RAJ)

Shambhu Dayal Sharma v. State of Rajasthan

2008-04-16

DEO NARAYAN THANVI

body2008
JUDGMENT 1. - This is an appeal against the judgment of the learned Special Judge, (Prevention of Corruption Cases), Udaipur, whereby he convicted the accused appellant Shambhu Dayal for the offence under ss. 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, and sentenced him to undergo two years' rigorous imprisonment in both the offences and to pay a fine of Rs. 10,000/- eaoh & in default, to further undergo six months' imprisonment in each of the offence. 2. Facts leading to this appeal are that on 27.8.1998, complainant Kalu filed a written report that his wife filed a case against him under Section 498A IPC at the Police Station, Peepalkhunt vide F.I.R. No. 148/1998. While accused appellant was posted as S.H.O., Police Station, Peepalkhunt, he demanded Rs. 4000/- for giving Final Report in the case. He paid Rs. 2000/- on 8.8.1998 and agreed to pay the balance later on. On 26.8.1998, he arranged for Rs. 1500/- to be paid to accused Shambhu Dayal and requested him to deliver the balance amount later on but the SHO threw the amount and asked the constable to put him behind the bars. The complainant apologized. He made this report to the Anti Corruption Bureau and later which recorded tape conversation and the trap was arranged. The currency notes of Rs. 2000/- were initiated by the Dy. Superintendent of the Bureau with phenolphthalein powder. The same amount was recovered concealed beneath the mattress of the bed and thereafter the case was registered. The chemically sealed bottles were sent for examination at Udaipur and thereafter at Jaipur and challan was filed after obtaining sanction. The accused was charged to which he pleaded not guilty. The prosecution examined 11 witnesses. The statement of accused was recorded u/s. 313 Cr.PC. He himself appeared in his defence as DW 1. After hearing the arguments, the learned trial Judge convicted the accused appellant as above. 3. It has been contended by the learned counsel for the accused appellant that in this case, the complainant has turned hostile and on the basis of the statement of complainant recorded u/s. 164 Cr.RC. and FIR lodged by him, the learned trial Judge has convicted the accused; whereas the statement u/s. 164 CR.P.C. and the FIR can be used only for the purpose of contradiction. and FIR lodged by him, the learned trial Judge has convicted the accused; whereas the statement u/s. 164 CR.P.C. and the FIR can be used only for the purpose of contradiction. According to him, both the chemical reports are contradictory and the recovery has not been made from the hands of the accused appellant, whereas the learned Public Prosecutor has supported the judgment of the trial Court. 4. From the perusal of the judgment, it appears that the learned trial Judge has convicted the accused appellant merely on the evidence of Rajendra Singh, PW 9, the FIR and the statement recorded u/s. 164 Cr.PC. It is true that in this case, the complainant Kalu (PW 1) has turned hostile and the trap has been arranged by Rajendra Singh, PW 9 to whom the report Ex.P 1 FIR was lodged and tape was arranged vide Ex.P. 2, which is transcription note arranged through constable Kishanlal but these proceedings of tape recorded which is Ex.P2, has neither been proved by Kishanlal, PW 5 nor by Kalu, PW 1. There is a note of the learned trial Judge in the statement of PW 1 at page 2 about tape conversation that the tape was opened in the court and when the voice of it was opened, it is stated that one voice was of the complainant and another was of some constable. When the voice of the accused appellant is not matching with the voice recorded in tape, the factum of demand itself goes away. 5. So far as the trap is concerned, the amount of Rs. 2000/- has been recovered concealed beneath the mattress of the bed and when sample colour on hands of accused, who took currency notes, was sent for chemical examination, there are two reports, one is positive and other is negative. The prosecution has produced only report Ex.P26 of the State Forensic Science Laboratory, Jaipur, whereas the earlier report has not been produced and it has been produced as Ex.D.2 by the accused in which it has been stated that phenolphthalein powder could not be detected in the samples contained in bottles marked RH-2, LH-2 & P2. The prosecution has produced only report Ex.P26 of the State Forensic Science Laboratory, Jaipur, whereas the earlier report has not been produced and it has been produced as Ex.D.2 by the accused in which it has been stated that phenolphthalein powder could not be detected in the samples contained in bottles marked RH-2, LH-2 & P2. When there are two versions of Forensic Science Laboratory, then the Court cannot rely upon the fact as to which report is correct and the benefit has to be given to the accused, unless there is a cross examination on both these reports with regard to its reliability and authenticity. 6. The next finding of the learned trial Court to arrive at a conclusion of guilt on the basis of FIR and statement u/s. 164 Cr.PC. is also contrary to the established principles of Criminal Jurisprudence. The statement u/s. 164 Cr.P.C. or 161 Cr.PC. can be used only for the purpose of contradiction. They cannot form the basis of conviction. Learned trial Judge on the one hand has issued notice to the complainant under Section 340 Cr.PC. for giving false evidence and on the other hand, he has relied upon this statement to form the basis of conviction, which is totally perverse. 7. As regards the pending work, the Final Report was already given and the work was not pending with the accused appellant so as to necessitate the demand of money. Ashok Jain, PW 2, Baldev, PW 3 and Gyarsilal, PW 4 are the witnesses of trap proceedings, alike Kishanlal, PW 5. Rajendra Singh, PW 6 has told that the money was not demanded by the SHO from Kalu, as he was standing outside. Rajendra Singh, PW 9 is the Investigating Officer and Prabhulal Ameta is the magistrate, who recorded the statement Ex.P22 u/s. 164 Cr.P.C. Thus, from the above evidence, it is clear that neither the prosecution has been able to prove the demand nor the pending work nor the recovery of money arranged through trap. Unless the initial burden is discharged by the prosecution, the presumption to disprove the same cannot be drawn against the accused, as required u/ss. 18 & 19 of the Act. Consequently, the finding of guilt arrived at by the learned trial Judge cannot be sustained. 8. Accordingly, the appeal is allowed. Unless the initial burden is discharged by the prosecution, the presumption to disprove the same cannot be drawn against the accused, as required u/ss. 18 & 19 of the Act. Consequently, the finding of guilt arrived at by the learned trial Judge cannot be sustained. 8. Accordingly, the appeal is allowed. The conviction & sentence recorded by the learned Special Judge, (Prevention of Atrocities) Cases, Udaipur, vide judgment dated 22.07.2003 against the appellant, are set aside and he is acquitted for the charges levelled. He is on bail, his bail bonds stand cancelled.Appeal allowed. *******