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2011 DIGILAW 1327 (MP)

RAMDAS v. STATE OF M. P.

2011-11-22

M.C.GARG, S.K.SETH

body2011
JUDGMENT : M. C. GARG, J. 1. This appeal has been filed by the deceased appellant Ramdas Sulane (since dead) now represented by his LRs, under section 374 of Cr. P. C. and section 27 of Prevention of Corruption Act, 1988 being aggrieved by the impugned judgment and order of conviction dated 2nd January, 1998 delivered by Special Judge, Indore in Special Case No. 18 of 1991 whereby the appellant has been found guilty of the offence under sections 7 and 13(1)(d) of the Prevention of Corruption Act, has been sentenced to undergo six months RI with fine of Rs. 500/- and one year's RI with fine of Rs. 1000/- respectively, in default of payment of fine to further undergo 3 months and six months additionally. Both the sentences were directed to be run concurrently. 2. It would be appropriate to take note of the facts in brief. According to the prosecution story, complainant Premnarayan PW-1 is working in Malwa Mill Indore. He wanted four weeks medical leave on account of his illness. He, therefore, met the appellant who was working as LDC in Mill Area Karmachari Rajya Bima Hospital Branch Malwa Mill. It was further alleged by the complainant that during discussions had by the complainant with the appellant, the appellant had asked a sum of Rs. 100/- from the complainant that taking out his MRE Card and to get his leave sanctioned. Complainant was also informed that if the amount is not given, then his leave would not be sanctioned. As per complaint, the complainant was not willing to give the bribe and wanted to trap the appellant. He therefore lodged a complaint Ex. P. 1 before Superintendent of Police, Lokayukt. At that time, he was also accompanied with one Rameshchandra. On the basis of complaint Ex. P.1, the Lokayukt establishment carried out all formal proceedings for holding the trap. On 12-1-1990 taking into possession of two notes of Rs. 50/- given by the complainant to the trap party, for which a panchnama (Ex.P.2) was prepared. Thereafter in terms of the complaint laying down the trap. The complainant had gone to the office of appellant where he asked the appellant for his work to be done for sanction of four weeks leave. At this, on asking of the appellant, the complainant handed over two notes of Rs. Thereafter in terms of the complaint laying down the trap. The complainant had gone to the office of appellant where he asked the appellant for his work to be done for sanction of four weeks leave. At this, on asking of the appellant, the complainant handed over two notes of Rs. 50/- to him which were kept by the appellant in the left pocket of his pant. Thereafter he asked the complainant to accompany him to the Doctor's room for preparation of medical certificate. While going towards Doctor's room, as per the complainant, stated to have given signal the trap party. The Trap Party, including the Investigating Officer, came to the spot and apprehended the appellant, recovered the same two currency notes of Rs. 50/- having the same number which were mentioned in the panchnama Ex. P. 2 and other currency notes were recovered and prepared the seizure memo of the recovered amount. The hand of the appellant washed in a glass, the colour of the water became pink in the solution brought by the trap party. After completing the investigation, the Lokayukta establishment Indore registered the FIR No. 6 of 1990 against the appellant. Thereafter a charge-sheet was filed against the appellant under sections 7 and 13(i)(d) of Prevention of Corruption Act, 1988. 3. We may observe the defence as set up by the appellant was that he never demanded the money and according to the appellant, after taking the card of the complainant when he was going towards Doctor's room, on way, the complainant intentionally and forcibly tried to keep something in his pocket ("Jabran Thoos Raha tha") and something fell on the ground which was recovered by the police from the ground. Thus, it was his case that neither he made any demand, nor any amount was recovered from his possession. He has been falsely implicated in the alleged offence. 4. The learned Special Judge framed the charges against the appellant. Since the appellant denied the charges levelled against him, the prosecution to prove its case, examined as many as seven witnesses namely; PW-1 Premnarayan, PW-2 Rameshchandra, PW-3 Dr. Dilip Kumar Bhand, PW-4 Dr. Sanjeev Kumar, PW5 Sunita Naik, PW6- Hariprasad Malviya and PW7 Chotelal Raj, Investigating Officer. No evidence was led in defence. 5. Since the appellant denied the charges levelled against him, the prosecution to prove its case, examined as many as seven witnesses namely; PW-1 Premnarayan, PW-2 Rameshchandra, PW-3 Dr. Dilip Kumar Bhand, PW-4 Dr. Sanjeev Kumar, PW5 Sunita Naik, PW6- Hariprasad Malviya and PW7 Chotelal Raj, Investigating Officer. No evidence was led in defence. 5. After concluding the Trial, the learned Special Judge found the appellant guilty for commission of the offence under sections 7 and 13(1)(d) of Prevention of Corruption Act and convicted him as described in para 1 of the judgment. Being aggrieved by the judgment of conviction and order of sentence, the appellant (deceased) has filed this appeal. After the death of appellant his LRs have now represented the appellant. 6. The appellants have assailed the impugned judgment of conviction and order of sentence delivered by learned Special Judge on the grounds that prosecution has failed to prove any demand, offer and acceptance of the alleged bribe made by the appellant from the complainant. It is submitted that there is no evidence on record to show that appellant ever demanded any amount from the complainant, in fact, the work in question was to be done by one Raghunath Chouhan, an employee of the hospital and not by the appellant. This fact has also been admitted by the complainant. It is also submitted that mere recovery cannot prove the prosecution case. Further the sanction of prosecution granted was awarded by an authority who was not competent to grant the sanction of prosecution. 7. It has also been submitted that the entire judgment of the trial Court is based on the testimony of hostile witnesses which includes complainant also. It is submitted that the amount which is said to have been recovered from the ground was tried to be kept in the pocket of the appellant forcibly. It is thus submitted that taking into consideration all these facts, the findings of conviction recorded by the Special Judge, cannot be sustained and must be set aside. Consequently, the appellant must be clear of the charges levelled against him. 8. On the other hand, learned Government Advocate appearing for respondent submitted that in this case, the complainant has fully supported the prosecution case, inasmuch as he has admitted that he made a complaint Ex. P. 1. He also deposed that the currency notes which were particularised in the panchnama Ex. 8. On the other hand, learned Government Advocate appearing for respondent submitted that in this case, the complainant has fully supported the prosecution case, inasmuch as he has admitted that he made a complaint Ex. P. 1. He also deposed that the currency notes which were particularised in the panchnama Ex. P. 2 as was prepared at the time of undergoing pre-trap proceedings, were recovered from the possession of appellant. The prosecution story as narrated by the complainant in Ex. P.1 was also corroborated by other witnesses, may be in parts, but the effect of the total evidence which has come on record fully establishes that the complaint made by the complainant Ex. P. 1 was correct and that the currency notes given to the complainant during trap proceedings were the same currency notes recovered from possession of the appellant and thus finding recorded by the Special Judge does not suffer from any infirmity. Learned Government Advocate prayed that the appeal of the appellant which now represented by LRs deserves to be dismissed. 9. We have heard learned counsel for the parties and perused the record. 10. We have also scrutinized the entire evidence and find that the grounds taken by the appellant/s to come out of the impugned judgment are not sufficient to reverse the finding of conviction arrived at by the trial Court, inasmuch as, if we start with the evidence of complainant Premnarayan PW-1, we find that few facts are not disputed (i) that complainant knew the appellant, who was working in Malwa Mill Rajya Bima Hospital at the relevant point of time and that (ii) the complainant was working as a checker in Malwa Mill Folding No. 2; (iii) that the complainant wanted medical leave for four weeks as per his statement made in the Court, he initially contacted Raghunath Chouhan (which is an improvement in his statement) but on asking of Raghunath who was going on leave, he met the appellant on an assurance that the appellant would carry out the work of the appellant. The statement of the complainant to the effect that it was the suggestion of Raghunath that he should pay the amount to the appellant, is again an improvement in his statement. The statement of the complainant to the effect that it was the suggestion of Raghunath that he should pay the amount to the appellant, is again an improvement in his statement. But even this twisted statement affirms his allegation made in his complaint that he had to pay the money (illegal gratification) to the appellant for the purpose of getting four weeks sanctioned leave, to that extent the story is in accordance with the complaint Ex. P. 1 that at the relevant time he accompanied by one Bhudeo Sharma, may be an improvement in his statement, but, his further statement that at the time he had a discussion with Raghunath Chouhan, the appellant was also there, further corroborates his version in Ex.P.1. The same is reproduced hereunder :- 11. It is quite possible that the complainant won over by the appellant, but, his statement to the extent that since Raghunath was going on leave and in his place it was the appellant who would carry out his work and that he was to pay illegal gratification to the appellant, is in accordance with the averment made by him in his complaint Ex. P.1. He admits having made such complaint in his deposition which bears his signatures at A to A. 12. The complainant Premnarayan (PW-1) in his deposition also talks about the proceedings which took place on the next day in Lokayukta office. He stated that he was accompanied by Bhudeo Sharma. The name of Rameshchandra Sharma was also mentioned. He talks about the formal proceedings taken in the Lokayukta office regarding preparation of sodium corbonate solution and other relevant proceedings. He also deposed that when he went to the Hospital along with Raiding Party and met appellant Ramdas Sulane, he had inquired about Raghunath who had gone on leave. At that time he also gave his Card to the appellant and thereafter appellant took out his MRE Card. It is important to take note of further deposition of the complainant regarding the talks which he had with the appellant when the appellant specifically asked him about bringing of money as per the earlier discussion. On this, he stated that he brought the money and that he handed over two notes of Rs. 50/- each. Thereafter he gave the desired signal and then members of Trap Party came there. On this, he stated that he brought the money and that he handed over two notes of Rs. 50/- each. Thereafter he gave the desired signal and then members of Trap Party came there. At that time, hand of the appellant became pink after the same was dipped in the solution brought by the raiding party. For the sake of reference, paras 2 and 3 of the statement made by complainant is reproduced hereunder :- 13. Thus the aforesaid deposition of complainant Premnarayan PW-1 corroborates the complaint Ex. P.1 to the extent that there was a demand of Rs. 100/- by the appellant Ramdas from the complainant for the purpose of getting medical leave sanctioned for four weeks which was the purpose for which complainant initially contacted Raghunath Chouhan, though modified, but later on, met the appellant and paid a sum of Rs. 100/- as illegal gratification which has been recovered from the appellant. 14. The next witness PW-2 Rameshchandra also supports the prosecution case to the extent that he had gone to the office of Lokayukta ( Vigilance Department) along with the complainant, where the complaint was made which was signed by him. His statement also corroborates the proceedings which took place on the second day where two currency notes of Rs. 50/- each were given by the complainant to the office of Lokayukta; treatment of those notes were done with sodium carbonate solution. The evidence of PW-2 further corroborates the version of complainant to the extent that those two notes were found lying on the ground which were recovered where the appellant was apprehended. It is true that the statement of Premnarayan to the extent that the notes were found lying on the ground, is an improvement in his statement. But the fact remains that he was not an eye-witness of trap but corroborates the prosecution case that a complaint was made and a trap was laid and thereafter recovery was effected. 15. Dr. Dilip Kumar Bhand PW- 3 also supports the prosecution case to the extent that some currency notes were recovered from the pocket of appellant, though he was not sure from which pocket of his pant the notes were recovered. According to PW-4 Dr. Sanjeev Kumar, the money recovered from the pant of appellant includes two notes which bearing the same numbers mentioned in the panchnama. 16. According to PW-4 Dr. Sanjeev Kumar, the money recovered from the pant of appellant includes two notes which bearing the same numbers mentioned in the panchnama. 16. Sunita Naik (PW-5) is a formal witness who proved the signature of Smt. Shailja Johari, who had granted sanction of the prosecution of the appellant. 17. Hariprasad Malviya PW-6, a member of raiding party has also corroborated the prosecution story that the hands of the appellant were washed in sodium carbonate solution which turned pink when dipped in the solution. PW.7 Chhotelal Raj, the Investigating Officer, he may be interested in success of prosecution case, but taking into consideration the entire evidence which has come on record including the evidence of complainant who may be a partly hostile witness, have been rightly relied upon by the Special Judge in arriving at a conclusion that the prosecution has proved its case beyond reasonable doubt that appellant had made a demand and accepted the illegal gratification of Rs. 100/- which was recovered from possession of the appellant. The learned Special Judge has considered all these aspects and discussed the evidence in detail. There is substance in the observations made by the Special Judge that PW-3 Dr. Dilip Kumar Bhand and PW-4 Dr. Sanjeev Kumar who are independent witnesses and their statements corroborates the prosecution story. There is nothing on record to show that they had any enmity with the appellant which goes to prove that after the raid, recovery of tainted money was made from possession of the appellant. 18. After appreciating the evidence on record, we come to the inescapable conclusion that the testimony of PW-1;PW-3 and PW-4 coupled with complaint Ex. P. 1, the learned Special Judge has rightly observed that it was a case where the prosecution has proved its case beyond reasonable doubt. The ground raised about the sanction being not proper as not given by the competent authority has also been discussed in para 21 of the impugned judgment which is reproduced hereunder :- 19. It is well settled that evidence of hostile witnesses also to the extent which corroborates the prosecution version can be relied upon. This has been so held in the case of Balram Prasad Agrawal vs. State of Bihar, (1997) 9 SCC 338 . The relevant discussion appeared in para 11 of the judgment is reproduced hereunder :- "11. We now proceed to narrate these circumstances. This has been so held in the case of Balram Prasad Agrawal vs. State of Bihar, (1997) 9 SCC 338 . The relevant discussion appeared in para 11 of the judgment is reproduced hereunder :- "11. We now proceed to narrate these circumstances. It is now well settled that even evidence of hostile witness also to the extent it corroborates the prosecution version can be relied upon (Khujji vs. State of MP and St. Paul vs. Delhi Admn.). Witness Laxmi Mahto, PW.3 in his chief examination before the Court stated that he heard in the night of the incident sound of quarrelling from the house of Paran Prasad Agrawal ( accused-husband of the deceased). A fight was going on inside the house and the said hullah was of the same. At around 1.00-1.30 a.m. in the night he heard the said hullah. That was a sound of a woman but he could not say whose voice was that. This version of his in the examination-in-chief lends credence to the version deposed to by the complainant PW 6 and fully supports his case about what the witness is said to have conveyed to the complainant when he met him on 12-11-1988. So far as the evidence of hostile witnesses Shiv Nath Mahto PW-4, Laxmi Mahto, PW3 as well as Ajay Mittal, PW-2 is concerned, it becomes clear that they have resiled from their original versions before the Investigating Officer with a view to help their neighbours, the present accused and their contrary versions on oath before the Court were clearly unreliable and false ones. We would, therefore, reject their versions and on the contrary rely upon the natural version of PW6, complainant whose evidence appears to be more reliable and creditworthy and which gets corroborated even by the evidence of hostile witness PW 3. We would, therefore, reject their versions and on the contrary rely upon the natural version of PW6, complainant whose evidence appears to be more reliable and creditworthy and which gets corroborated even by the evidence of hostile witness PW 3. We may also note that even if the nature of information alleged to be conveyed to PW 6 the father of the deceased by the neighbours about what was actually heard by them on that fateful night may be ruled out as hearsay, the fact that some information was conveyed to him by the neighbours about the conduct of the accused on that night and which made him apprehend about their culpability in connection with unnatural death of his daughter, would remain admissible in evidence as the conduct of this witness PW 6 propelled by the fact of such information by neighbours about what the witness did on 12-11-1988 and not earlier by approaching the police. That part of his evidence was not shaken in cross-examination. Not only that but even the hostile witnesses PWs 3 and 4 who are alleged to have given some information to the witness PW 6 on 12-11-1988 had not even whispered either in their chief examination or cross-examination about their not having conveyed any information or not having met PW 6 on 12-11-1988 as deposed to by PW6 in his evidence. This part of the evidence of PW 6 would not be hit by the rule of exclusion of hearsay evidence." 20. It is also well settled that if there is a corroboration of reliable part of the testimony of even a hostile witness, then that testimony can be believed. A reference can be to para 20 of the judgment of Apex Court reported in the case of State of Madhya Prades vs. Ramesh and anr., (2011) 4 SCC 786 ; "20. The witness examined by the prosecution supported its case to the extent that the door of the room wherein the offence had been committed was bolted from inside. It was only when Ram Bharose, village watchman (PW5) threatened Bhaggo Bai, the accused, saying that he would call the Police, the door was opened and, by that time, accused Ramesh had left the place of occurrence and Chatra had died. Thus, there is no conflict between the medical and ocular evidence. It was only when Ram Bharose, village watchman (PW5) threatened Bhaggo Bai, the accused, saying that he would call the Police, the door was opened and, by that time, accused Ramesh had left the place of occurrence and Chatra had died. Thus, there is no conflict between the medical and ocular evidence. The prosecution is fully supported by Ram Bharose PW5 and partly supported by Hannu PW7 and Anand Lal PW3. Even the part of the depositions of hostile witnesses, particularly Basori Lal, sarpanch PW-4, can be relied upon to the extent that on being called, he reached the place of occurrence and found that the room had been bolted from inside. It is also evident from the evidence on record that Rannu Bai PW-1 and Munna Lal PW-2 had called the persons from their houses and after their arrival, they found that the room had been bolted from inside. So to that extent, the version of these witnesses including of the hostile witnesses, can be believed and reliedk upon. The post-mortem report clearly explained that Chatra died of "asphyxia" and this version has been fully supported by Dr. D. K. Jain PW-8." 21. Hon. Apex Court in the case of Paramjeet Singh alias Pamma vs. State of Uttarakhand reported in (2010) 10 SCC 439 have also made the following observations in para 17 19 & 20 :- 17. This Court while deciding the issue in Radha Mohan Singh vs. State of U.P. observed as under (SCC p.457 para7) :- "7. .... It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof." 19. In Rajendra vs. State of U.P., this Court observed that merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. This reiterated a similar view in Govindappa vs. State of Karnataka observing that the deposition of a hostile witness can be relied upon at least upto the extent he supported the case of the prosecution. 20. This reiterated a similar view in Govindappa vs. State of Karnataka observing that the deposition of a hostile witness can be relied upon at least upto the extent he supported the case of the prosecution. 20. In view of the above, it is evident that the evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution." 22. In view of the aforesaid analysis of facts and evidence available on record, we do not find any cogent reasons to interfere with the impugned judgment. The appeal lacks merit and is, accordingly, dismissed.