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2011 DIGILAW 1085 (JHR)

Rama Shankar Verma v. State of Bihar

2011-12-09

JAYA ROY

body2011
JUDGMENT By Court.- The appellant has field this appeal for setting aside the judgment of conviction and sentence dated 3.5.2000 and 8.5.2000 passed by the Special Judge. C.B.I. Dhanbad in R.C. No.13(A of 1993(D). whereby the appellant has been convicted for the offence under Sections 7 and 13(2) read with Section 13(l)(d) of the Prevention of Corruption Act. 1988 and sentenced to R.I. for two years and to pay a fine of Rs. 1000/- and in default of payment of fine further undergo R.I. for a period of five months. All the sentences will run con-currently. 2. The prosecution case in short is that the complainant Awadhesh singh, Loading Clerk. Bhowrah South Colliery 16 No. Railway Siding. Bhowrah Area. B.C.C.L. Dhanbad lodged a written complaint petition dated. 14.7.1993 with the Superintendent of Police C.B.I.. Dhanbad alleging therein that a demand of Rs. 600/-is made as illegal gratification by accused. Rama Shankar Verma. Senior Loading Inspector. Bhowrah South Colliery. 16 No. Railway siding. Bhowrah Area. B.C.C.L. Dhanbad. from him for allowing him to continue to work in the first shift. The allegation of the complainant as contained in his complaint petition was verified by Sri R.P. Tiwary. Sub-Inspector. C.B.I. Dhanbad and a trap team was constituted. The prê-trap formalities were held at C.B.I. office. Dhanbad on 15.7.1993 in presence of the complainant and two independent witnesses namely Salil Kumar Mishra and Sailendra Kumar Tiwary besides the other members of the C.B.I. raiding party. After doing all this formalities. the raiding party including the complainant and two aforesaid independent witnesses proceeded and reached near the office of the accused/appellant Rama Shankar Verma at about 8.15 hours. On arrival there. B.K: Birdi. C.B.I. Inspector who is the I.O. of the case. instructed the members of the raiding party to be alert and vigilant and take suitable position in a discreet manner in and around the office premises of the accused/ appellant at 16 number Railway Siding of Bhowrah South Colliery. As, briefed. the complaint Awadhesh Singh duly followed by the independent witness Shailendra Kumar Tiwary (Shadow witness}, proceeded towards the office of the accused and reached there where accused Rama shankar Verma was sitting in his office chair. Sri RP. Tiwary. Sub-Inspector. C.B.I. too accompanied the complainant Awadhesh Singh showing himself to be a relative of the complainant. On having seen the accused. Sri RP. Tiwary. Sub-Inspector. C.B.I. too accompanied the complainant Awadhesh Singh showing himself to be a relative of the complainant. On having seen the accused. complainant Awadhesh Singh wished him after which accused Rama Shankar Verma enquired from him (complainant) whether he had brought Rs. 600/- with him as demanded by him. At that the complainant replied in affirmative and told him that he had arranged the amount with much difficulty for giving him as illegal gratification as asked by him. Subsequent to that accused Rama Shankar Verma asked the' complainant Awadhesh Singh to give him the said amount by stretching his left hand towards him (the complainant). Thereafter. the complainant took out the tainted G.C. Notes of Rs. 600/-from the upper left chest pocket of his kurta with his right hand and handed over the same to the accused Rama Shankar Verma who accepted that money from the complainant with his left hand and after counting the G.C. Notes in question with both the hands. he kept the same in the left side of upper chest pocket of his shirt with his right hand. In the meantime complainant Awadhesh Singh requested accused appellant Rama Shankar Verma to let his work in the first shift and not to disturb him by shifting his duty to the third shift (night shift). The aforesaid conversation and money transaction in between the accused and the complainant were overheard and seen by the shadow witness Shailendra Kumar Tiwary and R.P. Tiwary. Sub-Inspector of Police C.B.I. Dhanbad who was posting himself as one of the relation of complainant Awadhesh Singh. Immediately after the money transaction. the shadow witness Shailendra Kumar Tiwary flashed the pre-fixed-signal by stretching his head with his right hand. On getting the signal from him B.I. Birdi (I.O.) alongwith the other independent witness Salil Kumar Mishra rushed to the spot. After disclosing his identity B.1. Birdi (I.O.). challenged accused R.S. Verma for having demanded and accepted a sum of Rs. 600/-as illegal gratification from the complainant Awadhesh Singh. 3. Further case of the prosecution is that on being challenged the accused appellant made a futile attempt to throwaway the tainted G.C. Notes of Rs. 600/- from his pocket. The accused became nervous and• .perplexed and his face turned pale. He (accused) could not offer any explanation whatsoever. 600/-as illegal gratification from the complainant Awadhesh Singh. 3. Further case of the prosecution is that on being challenged the accused appellant made a futile attempt to throwaway the tainted G.C. Notes of Rs. 600/- from his pocket. The accused became nervous and• .perplexed and his face turned pale. He (accused) could not offer any explanation whatsoever. In the meantime other members of the C.B.I. raiding party too arrived at the spot and the left and right hands of accused Rama Shankar Verma were caught from his wrists by R.P. Tiwary. Sub-Inspector of Police. C.B.I. Dhanbad and B. Paswan. A.S.I. of Police. C.B.I.. Dhanbad respectively. Thereafter. on being pointed out by shadow witness Shailendra Kumar Tiwary and complainant Awadhesh Singh. the tainted G.C. Notes of Rs. 600/- were recovered from the left upper chest pocket of the shirt of the accused by shadow witness. S.K. Tiwary in the presence of all the members of the C.B.I. raiding party including the complainant and other independent witness. Thereafter the hands of the accused appellant were washed in the solution containing sodium carbonate. The water turned pink and the solution was sealed in bottles. The numbers of the currency notes were tallied with the memo prepared before trap. and found that the currency notes were the same which were handed over to the complainant after spreading phenolphthalein' powder on them. After doing all the formalities a case was registered under Sections 7 and 13(2) read with Section 13(l)(d) of the Prevention of Corruption Act. 1988. After conclusion of the investigation, the I.O. submitted a charge-sheet under the aforesaid sections of the P.C. Act against accused appellant and cognizance was taken by the Special Judge. Thereafter charges were framed under the aforesaid sections, against the accused appellant. 4. Persecution has examined seven witnesses to prove its case and out of them PW. 3 Mukhti Pado Sahana a formal witness who has proved the sanction order (Ext. 2), Awadesh'Singh PW 6 is the complainant, PW 1 Salil Kumar Mishra. and PW 2 Shailendra Kumar Tiwary are the two independent witnesses out of whom PW 2 has also acted as a Shadow witness. PW 4 Sanat Kumar Mukhopadhyay is the Forensic• Expert. PW 5 Ram Pujan Tiwary is Sub-Inspector of Police. C.B.I.. who claims to have verified the allegation of the complainant and participated in pre-trap. and PW 2 Shailendra Kumar Tiwary are the two independent witnesses out of whom PW 2 has also acted as a Shadow witness. PW 4 Sanat Kumar Mukhopadhyay is the Forensic• Expert. PW 5 Ram Pujan Tiwary is Sub-Inspector of Police. C.B.I.. who claims to have verified the allegation of the complainant and participated in pre-trap. post trap and all operations and PW 7 Bal Krishna Birdi is I.O. of the case. 5. The accused appellant has examined four witnesses to support his defence case. The defence of the accused appellant is that the complainant had taken Rs. 5000/- as loan in the year 1993 for the marriage of his daughter from him (appellant) and out of that loan, he had already paid Rs. 1100/- and of the remaining loan amount. the complainant again paid him Rs. 600/- in his office on 15.7.1993 (day of the occurrence) at the relevant time. The accused appellant never demanded any bribe from the complainant. He had no power to change the shift of the complainant. The complainant has lodged this case against the accused appellant with a view to grab his loan money. 6. The learned counsel of the appellant has submitted that the appellant has not denied that he has not taken the money amounting Rs. 600/- from the complainant on the day of occurrence at the relevant time but the said money given by the complainant to him only as a part payment of his loan amount which was given to the complainant by him. In this regard he has pointed out that on the point of demand, the complainant PW 6 has submitted in para 5 of his evidence that he went inside the office of the appellant along with PW 2 and he has further stated that he told the appellant that as he demanded Rs. 600/-for not changing his shift. he has brought the same and requested the appellant to accept the same and on this. the appellant took the said amount from the complainant. But the I.O. PW 7 in para 34 of his deposition clearly stated that the complainant has not stated all these things before him. The. 600/-for not changing his shift. he has brought the same and requested the appellant to accept the same and on this. the appellant took the said amount from the complainant. But the I.O. PW 7 in para 34 of his deposition clearly stated that the complainant has not stated all these things before him. The. counsel of the appellant further contended that PW 2 is the another witness on the point of demand who has very specifically stated in his evidence that the appellant has asked the complainant only whether he has brought the money or not and the complainant has said that he has brought Rs. 600/-. Thereafter. the complainant gave the said amount to the appellant. Another witness Ram Pujan Tiwary PW 5 on the point demand who had also entered into the office of the appellant along with PW6 (complainant) and PW 2 . (Shailendra Kumar Tiwary). has stated in his deposition in para 7 that the complainant when entered into the office of the appellant and asked him about his duty. The appellant told him as to whether he has brought the money or not and on this the complainant gave the aforesaid money to the appellant. Thus. it clearly shows that the appellant never demanded any money for not changing the shift duty of the complainant and no talk was made in this regard before any of the witnesses who were present there at the relevant time. 7. The counsel of the appellant has submitted the defence of the accused is very specific in this regard that he had accepted the money as it was given by the complainant to him as part payment of his loan amount. The counsel of the appellant pointed out in this regard that the I.O. (PW 7)'in his deposition in para 26-27 has admitted that the appellant has very specifically stated before him on the date of• occurrence (15.7.73) after completion of the trap proceeding regarding• his aforesaid defence. Furthermore. the defence witnesses have also supported the defence taken by the appellant from very- beginning i.e.. the day of the occurrence. 8. The counsel of the appellant has submitted that the complainant. though in his evidence has stated that marriage of his daughter was solemnized in 1992 and he has got only one daughter but on enquiry. Furthermore. the defence witnesses have also supported the defence taken by the appellant from very- beginning i.e.. the day of the occurrence. 8. The counsel of the appellant has submitted that the complainant. though in his evidence has stated that marriage of his daughter was solemnized in 1992 and he has got only one daughter but on enquiry. it has come that the marriage of the daughter of the complainant was fixed in February 1993 but it could not be solemnized at that time due to some reasons and ultimately marriage was performed in June 1993. Therefore, the defence of the accused that the complainant has taken Rs.5000 /- in April 1993 as loan from the appellant for his daughter's marriage cannot be disbelieved which is also supported by the defence witness in their evidence before the trial Court. 9. The counsel of the C.B.I Mr. Khan has vehemently opposed all this argument but could not point out from the evidence of the eye-witness/independent witness that any demand made by the accused for not changing the shift duty of the complainant. On the contrary-, it has come in the evidence of the I.O. (PW 7) that the appellant took the plea just after the completion of the trap proceeding by him that the aforesaid amount was not in pursuance of any demand by him as any illegal gratification but it was part payment of the loan amount which the appellant had given to the complainant for the marriage of his daughter. 10. Mr. Khan has further contended that the complainant himself has stated in his evidence at para 5 that when he entered into the office of the accused with the PW 2, the complainant after saying 'Pranam' told him that the amount which he demanded for not changing his shift duty, that six hundred rupees, he has. brought and further asked him to accept. On this the accused has demanded the said money and took the same by his right hand and kept in the pocket of his shirt. Therefore, the complainant has proved the demand. The appellant has not denied the acceptance of the said money or recovery of the same from him. Therefore, the prosecution has proved the charges against the accused appellant. 11. Therefore, the complainant has proved the demand. The appellant has not denied the acceptance of the said money or recovery of the same from him. Therefore, the prosecution has proved the charges against the accused appellant. 11. As it is submitted by the counsel of the appellant that the appellant did not denied the acceptance of the money from the complainant therefore. I think it is not necessary to deal with the matter in detail. Now the only question is whether the appellant has demanded or accepted the aforesaid money as illegal gratification for not changing his shift duty or whether the said amount was paid by the complainant to the appellant as part payment of the loan amount given by the appellant to hira (complainant). The learned counsel of the C.B.I. could not point out any specific evidence given by any of the eye-witness of the occurrence that the complainant ever demanded the aforesaid money for not changing the shift duty of the complainant. I further find from the record of the case. the date mentioned by the complainant regarding the marriage of his daughter has been found wrong and on the other hand. the defence of the appellant in this regard is found true. According to the defence of the appellant and the statements of the defence witnesses. the marriage of the daughter of the complainant was fixed in February 1993 but it could not be solemnized and thereafter marriage was performed in June 1993. The claim of the appellant that he had given a sum of Rs. 5000/- as a loan to the complainant as asked by him seems to be true. No doubt. there is some discrepancy in respect of the dates but it does not effect much to the prosecution case. 12. From the records of the case. I find that the complainant is the only witness who has stated about the demand of illegal gratification. . Therefore to convict a person on the basis of the sole witness the witness should be trustworthy. In the present case. though the complaint has stated about the aforesaid demand. but the I.O. (PW 7) in his evidence at para No. 34 denied the same. Furthermore, the complainant has given the wrong date about the marriage of his daughter as I have discussed earlier. In the present case. though the complaint has stated about the aforesaid demand. but the I.O. (PW 7) in his evidence at para No. 34 denied the same. Furthermore, the complainant has given the wrong date about the marriage of his daughter as I have discussed earlier. Not only that, the complainant has further stated in para No. 13 his evidence that he was never dismissed from his service. But the Ext. A clearly shows that the complainant was dismissed from his service on 30.9.1993 for misconduct. The DW 2 has also supported this fact in his evidence. Therefore. as the complainant has given so many false statements in his evidence. he cannot be treated as trustworthy witness. Furthermore, from all these facts it can be ascertained that the intention of the complainant was to falsely implicate the accused appellant and for the same he had given several false statements. 13. In this appeal, the learned counsel appearing for the accused appellant relied on large number of citations and just of them is that the demand of illegal gratification is the backbone of the case and failure to prove it renders the case highly suspicious. In view of the aforesaid discussions, I find the prosecution has not been able to prove its case beyond all reasonable doubts. 14. Having regard to all these circumstances. I think it is fit case where the appellant should be given the benefit of doubt. Therefore appeal is allowed. The conviction and sentence of the appellant passed by the Special Judge. C.B.I. Dhanbad in R.C. No. 13(A) of 1993 (D) by the order dated 3.5.2000 and 8.5.2000 are set aside. As the appellant is on bail. he is discharged from the liability of his bail bonds. Appeal allowed.