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Madhya Pradesh High Court · body

2008 DIGILAW 1094 (MP)

HIFZATULAH ALIAS NASIRULLAH v. STATE OF M P

2008-09-01

A.K.SHRIVASTAVA

body2008
Judgment ( 1. ) FEELING aggrieved by the judgment of conviction and order of sentence dated 28/2/1996 passed by learned V Additional Sessions Judge, bhopal in Special Case No. 2/88 convicting appellant under Section 161 of IPC and also under Sections 5 (1) (d) read with Section 5 (2) of Prevention of Corruption act, 1947 (in short the Act) and sentencing him to suffer RI of one year and fine rs. 100/- for each offence, in default, further R. I. of 30 days for each offence with a further stipulation that all the sentences shall run concurrently, the appellant has knocked the door of this court by preferring this appeal under Section 374 (2)of Code of Criminal Procedure, 1973. ( 2. ) IN brief, the case of prosecution is that on 22/9/1986 Kailash Singh (hereinafter referred to as the complainant) submitted an application before the special Police Establishment that on 19. 9. 1986 appellant in order to facilitate in obtaining the amount of Rs. 1500/- being a Bhopal gas victim, made demand of bribe of Rs. 200/ -. This fact was stated by the complainant to Prabhulal and Prahlad das. On the basis of the complaint made by the complainant a trap was arranged. On submitting one currency note of Rs. 100/- and two currency notes having denomination of Rs. 50/- each by the complainant, their numbers were noted down in the pre-trap Panchnama. These currency notes were treated by phenolphthalein powder and were kept in the pocket of the complainant. ( 3. ) THE trap party proceeded to the office of the appellant but by the time it could reach there, the office was already closed. On the next day, again complainant went to the office of appellant along with the members of the trap party. The complainant was sent inside the office of the appellant and it is said that the treated currency notes were handed over by the complainant to the appellant and out of these treated currency notes, one treated currency note of. Rs. 50/- was returned back by the appellant to complainant. ( 4. The complainant was sent inside the office of the appellant and it is said that the treated currency notes were handed over by the complainant to the appellant and out of these treated currency notes, one treated currency note of. Rs. 50/- was returned back by the appellant to complainant. ( 4. ) IT is the further case of prosecution that on receiving the signal given by the complainant, the members of the trap party entered inside the office and on being pointed out by the complainant, Constable Jagdish and Head Constable Ram khilawan caught hold of hands of the appellant from the wrist. Thereafter, phenolphthalein powder test was conducted on the fingers of the hands of the appellant and on dipping his fingers in the solution of sodium carbonate the colour of the chemical solution changed to pink which was collected in a separate sealed bottles. ( 5. ) AFTER the investigation was over, a charge sheet was submitted before the learned Special Judge who framed charges punishable under Section 5 (1) (d) read with Section 5 (2) of the Act as well as under Section 161 of IPC. Needless to emphasize the appellant abjured his guilt and pleaded complete innocence. The defence of appellant is that complainant took loan of Rs. 150/-from him and that amount of loan was repaid by the complainant to him. ( 6. ) THE prosecution thereafter examined 14 witnesses and proved Ex. P/1 to P/26 the documents on record. ( 7. ) THE learned Special Judge found charges framed against appellant to be proved and eventually convicted appellant and passed the sentences which I have mentioned herein above. In this manner the present appeal has been filed by the appellant assailing his judgment of conviction and order of sentence. ( 8. ) IN the present case, the complainant Kailash died before he could be examined. But merely -he had died it would not mean that the guilt cannot be proved if it is proved by other evidence. ( 9. ) IN the present case, written complaint (Ex. P/1) of the complainant had been proved by M. A. Ansari (PW-1) who is a trap witness and was summoned by the Special Police Establishment. According to this witness, a written complaint was read over to him in presence of the complainant which the complainant admitted and this witness put his endorsement on the complaint (Ex. P/1) of the complainant had been proved by M. A. Ansari (PW-1) who is a trap witness and was summoned by the Special Police Establishment. According to this witness, a written complaint was read over to him in presence of the complainant which the complainant admitted and this witness put his endorsement on the complaint (Ex. P/1 ). On going through the complainant (Ex. P/1) it is revealed that Babu (Clerk) Nasirullah made demand of bribe of Rs. 200/- from the complainant. This witness specifically admitted during the cross-examination in para 24 that the amount of bribe was not required to be given to the appellant but it was to be given to one Nasirullah. According to this witness, the treated currency notes were given by complainant to the appellant. In para 23 of his cross-examination, this trap witness has specifically admitted that when appellant was caught, he told that Rs. 150/- has been given by complainant to him towards the re-payment of loan which he gave to him. Further this witness has admitted that the complainant handed over the treated currency notes to the appellant by saying that he is paying the loan. This witness is an altogether independent witness and is an officer and, therefore, due credence should be given to his testimony. On scanning the evidence of this witness, it is clear that complaint was made by the complainant against one Nasirullah and not against the appellant Hifazatullah. True the finding of learned Special Judge on the basis of evidence of Naib Tehsildar Sunil Raj (PW-9) is that in the office there is no person by the name of Nasirullah. But looking to the evidence of independent witness PW-1, M. A. Ansari that when appellant was caught he was saying that complainant has repaid the loan amount to him. Thus, the first version of the appellant when he was caught is that he has received the amount towards the repayment of the loan which the complainant took from him. The said defence of appellant cannot be said to be afterthought because it was stated at the spot only when he was caught. ( 10. ) ON further scanning the testimony of this independent trap witness (PW-1), para 25, it is gathered that what actually transpired between appellant and complainant at the time of handing over the treated currency notes, he was unable to overhear. ( 10. ) ON further scanning the testimony of this independent trap witness (PW-1), para 25, it is gathered that what actually transpired between appellant and complainant at the time of handing over the treated currency notes, he was unable to overhear. The Supreme Court in the case of Smt. Meena Balwant Hemke vs. State of Maharashtra AIR 2000 SC 3377 in para 9 has specifically held that in trap case the corroboration is essentially required in order to ascertain that what actually transpired between accused and complainant at the time of acceptance of the bribe. In the case of Smt. Meena Balwant Hemke (supra) what actually transpired between the accused and the complainant of that case was wanting and in the present case also this fact is wanting. Apart from this, in examination-in-chief para 8 this witness has categorically stated that out of the amount of rs. 200/-, one treated currency note of Rs. 50/- was returned by the appellant to the complainant before he was caught. Thus, it raises a doubt about the truthfulness of the story of prosecution because if the demand of Rs. 200/- was made by the appellant, why he would return Rs. 50/- back to him. The act of appellant returning rs. 50/- back to the complainant corroborates the probable defence which he has taken that the money which was given by the complainant to him was towards the repayment of loan and this fact also corroborates from the testimony of this independent witness. ( 11. ) EVEN for the sake of argument if it is assumed that alias of appellant is Nasirullah. However, since it is borne out from the evidence of independent trap witness that appellant was saying, when he was caught, that the amount of loan has been repaid by the complainant and because as per prosecutions own case rs. 50/- was returned by the appellant to the complainant, the defence which has been taken by him appears to be quite probable. 50/- was returned by the appellant to the complainant, the defence which has been taken by him appears to be quite probable. The Supreme Court in Punjabrao vs. State of Maharashtra AIR 2002 SC 486 and also in v. Venkata Subbarao vs. State represented by Inspector of Police, A. P. AIR 2007 SC 489 in para 25 has held that if the defence is found to be probable due credence should be given and it should not be compared with that of the case of prosecution where the prosecution is obliged to prove its case beyond doubt. ( 12. ) PRABHULAL (PW-2) to whom it is said that complainant told him that appellant is making demand of bribe has not supported the case of prosecution and was declared hostile. So far as the other witness Prahalad (PW-3) to whom also it is said that complainant told that appellant is making demand of bribe has not named the appellant but only stated that complainant told him that one clerk of Municipal corporation is making demand of bribe. Hence it cannot be said that the appellant is the same clerk. ( 13. ) CONSTABLE Jagdish who caught hold the hands of appellant has also admitted in para 12 of his cross-examination that Rs. 200/- were not found in the possession of the appellant. This also proves the probable defence of appellant that there was a loan transaction of Rs. 150/- between complainant and appellant and the treated currency notes of Rs. 200/- were given to appellant by complainant by saying that he is repaying the loan amount of Rs. 150/- and this is the reason why appellant returned Rs. 50/- immediately to the complainant. ( 14. ) NAIB Tehsildar Sunil Raj (PW-9) in his cross-examination is also saying that when appellant was caught, he was saying that complainant has returned the loan amount of Rs. 150/- and thus the defence which the appellant took at the first instance is also corroborated from the testimony of Sunil Raj. ( 15. ) THE Dy. Superintendent of Police, Lokayukta has been examined as PW-12 and this witness was also present when the trap was conducted. 150/- and thus the defence which the appellant took at the first instance is also corroborated from the testimony of Sunil Raj. ( 15. ) THE Dy. Superintendent of Police, Lokayukta has been examined as PW-12 and this witness was also present when the trap was conducted. This witness has categorically stated in para 14 of his cross-examination that appellant was not the Incharge of the Gas Relief Cell and it was obligatory on the part of Naib Tehsildar Sunil Raj to prepare and issue slip for the distribution of the amount of gas relief to the gas victims. The Panchnama etc and the necessary information was required to be collected by Naib Tehsildar only. Thus, the appellant was not having any motive to make demand of bribe as envisaged under Section 161 IPC. ( 16. ) ANOTHER Dy. Superintendent of Police V. K. Singh (PW-13) who prepared the Panchnama etc. at the spot has admitted in para 10 of his cross-examination that neither he nor any member of the trap party did see the actual transaction of giving and taking of the bribe. He has further admitted that complainant Kailash did not tell him that he has received Rs. 50/- back. According to this witness this fact came to his knowledge only when Rs. 150/-was seized from the appellant. On the basis of above said evidence it can safely be said that the defence which the appellant has taken during the cross-examination of prosecution witnesses as well as in his statement under Section 313 Cr. P. C. is probable. Hence, the impugned judgment passed by learned Special Judge convicting and sentencing the appellant cannot be sustained. ( 17. ) RESUITANTLY, this appeal is allowed and appellant is acquitted from all the charges. The appellant is on bail, his bail bonds are discharged. The amount of fine, if deposited, be refunded to him. Appeal allowed.