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2012 DIGILAW 108 (ORI)

State of Orissa v. Bharat Chandra Naik

2012-02-24

PRADIP MOHANTY

body2012
JUDGMENT PRADIP MOHANTY, J. : The State has preferred this appeal against the judgment dated 31.07.1996 passed by Shri D. Barik, Special Judge, Vigilance, Sambalpur in T.R. Case No.32 of 1994 acquitting the respondent of the charges under Section 13(1)(d) read with Sections 13(2) and 7 of the Prevention of Corruption Act, 1988. 2.The case of the prosecution is that on 06.08.1993, the informant-Golak Ch. Biswal (P.W.5), who was working as a Munshi under the owner of the truck bearing registration No.ORH-5639, lodged a report (Ext.7) before the vigilance police to the effect that the accused-respondent, who was working as Head Clerk in the office of the R.T.O., Kalahandi, Bhawanipatna, demanded a bribe of Rs.500/- for issuance of five years permit in respect of the above vehicle. On receipt of the said report, a trap was laid, the accused-respondent was caught and after completion of the investigation charge sheet was filed against the accused-respondent. 3.Charges were framed under Section 13(1)(d) read with Section 13(2) and Section 7 of the Prevention of Corruption Act against the accused-respondent, who pleaded not guilty and claimed to be tried. His specific plea was that he did not demand any bribe from P.W.5, the decoy Sri Biswal nor did he accept the bribe of Rs.500/-, as alleged, and that P.W.5 being annoyed for the delay in issuance of the permit has falsely implicated in this case. In order to substantiate the charges, prosecution examined as many as nine witnesses and exhibited altogether eight documents. P.W.1 is an accompanying witness, P.Ws.2 to 4 and 6 are the preparation and post-detention witnesses, P.W.5 is the decoy, P.W.7 is the Investigating Officer, P.W.8 is the Senior Assistant serving in the office of Transport Commissioner-cum-Chairman, S.T.A. and P.W.9 is the sanctioning authority of prosecution. The accused-respondent did not choose to examine either any oral or documentary evidence in support of his plea. On conclusion of the trial, learned trial judge disbelieved the prosecution case and acquitted the accused-respondent of the charges by holding that the prosecution has failed to prove the charges beyond all reasonable doubt in view of the contradictions and infirmities appearing in the evidence of P.Ws.1, 5 and 7 (I.O.) as well as non-production of chemical report. 4.This Court minutely gone through the evidence of the witnesses so also the preparation report, detection report and the seizure lists. P.W.1 is the over-hearing witness. 4.This Court minutely gone through the evidence of the witnesses so also the preparation report, detection report and the seizure lists. P.W.1 is the over-hearing witness. He stated that on 06.08.1993 he was posted as Junior Clerk in Kalahandi Collectorate, Bhawanipatna. Being directed by the authority, he went to the office of the Inspector of Police vigilance along with their officer in-charge Sri N.R. Das (P.W.6). One Vigilance Inspector introduced the complainant to them. The complainant produced five number of hundred rupee G.C. notes before them which were noted by P.Ws.3 and 6 in separate chits. In his presence, one vigilance officer showed demonstration with phenolphthalein powder and S.C. solution. The sample hand washes were bottled and sealed. The G.C. notes were treated with phenolphthalein powder and given to the decoy Sri Biswal for payment to the accused-respondent on demand. The vigilance officer recorded the preparation report (Ext.10) on which he put his signature. Thereafter, they left for the office of the R.T.O. except the demonstrating vigilance police officer and one Inspector, Weights and Measure Sri Khamari. Both P.W.5 and he entered into the office of the R.T.O. and went to the accused-respondent whereas other members of the raiding party stayed outside awaiting signal from him. The accused-respondent asked for the bribe as per the previous talks from Sri Biswal and Sri Biswal paid him the tainted money which the accused-respondent accepted. But the manner of acceptance was that Sri Biswal kept the amount on the thigh of the accused-respondent below his table. Immediately, he gave the pre-instructed signal to the raiding party and they rushed into the room. One Vigilance Inspector disclosed the identity to the accused-respondent. Both the palms of the accused were washed in S.C. solution resulting in change of colour. The full pant of the accused was washed in S.C. solution which turned to pink colour. The Inspector of Police Vigilance (P.W.7) seized the tainted money, the chits and full pant and shirt of the accused-respondent, the sample bottles, etc. vide seizure lists (Exts.2, 3 and 4) on which he put his signature. P.W.1 further stated that P.W.7 recorded the detection report at the closure of the trap under Ext.5 in which he put his signature. This witness was turned hostile and leading questions were put to him. vide seizure lists (Exts.2, 3 and 4) on which he put his signature. P.W.1 further stated that P.W.7 recorded the detection report at the closure of the trap under Ext.5 in which he put his signature. This witness was turned hostile and leading questions were put to him. In cross-examination, he admitted that when he entered into the office, there were other staff working in the office. There was a rush of outsiders. He also admitted that the accused-respondent did not express in exact terms whether P.W.5 had brought the bribe for him so that he would do the work and the accused di not accept the tainted money in his hand from P.W.5. This witness also corroborated the statement with regard to turning of the solution to pink. He also proved the preparation report (Ext.1), seizure lists (Exts.2, 3 and 4) and detection report (Ext.5). P.W.5 being the complainant/decoy is a vital witness so far as this case is concerned. He stated in his evidence that the accused was working as the Head Clerk in the office of the R.T.O., Bhawanipatna. The owner of the Rice Mill, under whom P.W.5 was working as Munib, made an application to the R.T.O., Bhawanipatna for issuance of permit for a further period of five years in respect of his truck. For issuance of the permit, he (P.W.5) met the M.V.I., Bhawanipatna, who expressed his inability as he was not dealing with that mater. He met the R.T.O. for the above purpose who asked him to approach the Head Clerk of the office to get the permit issued for the vehicle. After visiting 10 to 12 times, the Head Clerk demanded a bribe of Rs.500/- for issuance of the permit. Ultimately, he lodged a report before the Vigilance DSP which is marked as Ext.7. On 06.08.1993, he went to the vigilance office and narrated before the vigilance staff and other members present there about the demand of bribe made by the accused-respondent. He also produced five number of hundred rupee G.C. notes before them. The G.C. notes were treated with the powder. The Inspector of Weights and Measure deeped his finger into the solution and the colour of the solution does not undergo any change. After handling the G.C. notes dusted with that powder, he again deeped his finger into the solution and the colour of that solution turned pink. The G.C. notes were treated with the powder. The Inspector of Weights and Measure deeped his finger into the solution and the colour of the solution does not undergo any change. After handling the G.C. notes dusted with that powder, he again deeped his finger into the solution and the colour of that solution turned pink. Both the colourless and pink solution were bottled and sealed. Thereafter, the notes were given to him to pay to the accused-respondent and Mr. Jena (P.W.1), the clerk was instructed to accompany him to the office of the R.T.O. He also put his signature on the preparation report (Ext.1). When he handed over the tainted money as per the direction, the accused-respondent put it on his chair by his right side stealthily near his thigh. The accused-respondent kept the tainted money in his pant pocket. P.W.1 saw this standing nearby them. Thereafter, the raiding party rushed in. The Inspector of Vigilance after introducing the members of the trap to the accused challenged him accepting the bribe money. The tainted money lying under the table of the accused-respondent was picked up and before recovery of the tainted money from under the chair of the accused-respondent, his right-hand fingers were washed in the solution which turned into pink colour. The pant pocket and the shirt pocket of the accused were also washed in the solution which also turned into pink colour. He also put his signature on the detection report. In cross-examination, he admitted that when he kept the tainted money near the right thigh of the accused-respondent, he was writing something. The accused-respondent stopped writing and stretched his right-hand towards his thigh. He kept the tainted money under the right thigh of the accused-respondent as per his direction. 5.After going through the evidence of P.Ws.1 and 5, as discussed above, and other oral and documentary evidence available on record, this Court arrives at the following conclusion. At the time of demand and acceptance of the bribe by accused-respondent from the decoy (P.W.5) there was heavy rush of people in the office of the R.T.O., as is evident from the evidence of P.W.2. But, as a matter of fact none of them has been cited as a witness by the prosecution. At the time of demand and acceptance of the bribe by accused-respondent from the decoy (P.W.5) there was heavy rush of people in the office of the R.T.O., as is evident from the evidence of P.W.2. But, as a matter of fact none of them has been cited as a witness by the prosecution. So, for non-examination of any of those independent witnesses, who were present at the time of occurrence, the case of the prosecution is shrouded in deep mystery. It has been held in Gulam Mahmood A. Malek v. The State of Gujarat, AIR 1980 SC 1558 that the accused should not be convicted for accepting bribe on the corroborating testimony of the punch witnesses as to recovery of money. In the instant case P.W.1 is the overhearing witness and P.W.5 is the complainant (decoy) and P.W.2 is the seizure witness, but none of the independent witnesses has been examined by the prosecution who were present at the time of occurrence. P.Ws.1 and 5 in their evidence have not whispered a single word about the demand of money by the accused-respondent from the decoy. The tainted money, as stated by P.Ws,1, 4 and 5 to 7, was lying on the floor near the chair of the accused-respondent which was picked up and seized by P.W.7. The I.O. (P.W.7) has category admitted not have taken the full part pocket, right side lower portion of the shirt and the banion wash of the accused-respondent in S.C. solution and he has denied to have taken the washes of both the palms of the accused in S.C. solution. There is no clear evidence with regard to demand for bribe by the accused-respondent from the decoy. The G.C. notes in question were not produced and proved before the trial Court. The chemical report was also not produced before the trial Court. It is settled principle of law that in a case of bribery, mere recovery of money divorced from circumstances under which it is paid is not sufficient for conviction when the substantive evidence is unreliable. In a case of this nature, one of the formalities has to be observed in searching a person. In that, the searching officer and others assisting him should give their personal search to the accused before searching the person of the accused. In a case of this nature, one of the formalities has to be observed in searching a person. In that, the searching officer and others assisting him should give their personal search to the accused before searching the person of the accused. This proposition has been settled in State of Bihar v. Kapil Singh, AIR 1969 SC 53 . The above procedure is meant to avoid the possibility of implanting the object which was brought out by the search. In the instant case, there is no evidence whatsoever on record that the raiding party gave their personal search to the accused before the latter’s person was searched. P.Ws.1 to 5 have not whispered a single word that searching officer had given personal search to the accused before recovery of the G.C. notes. In this view of the matter, the search was illegal. 6.For all the above reasons, this Court is of the opinion that the prosecution has failed to prove any of the charges levelled against the accused-respondent and as such there is no scope for this Court to interfere with the impugned judgment of acquittal recorded by the trial Court. 7.In the result, the Government Appeal is dismissed and the judgment of acquittal passed by the Special Judge, Vigilance, Sambalpur in T.R. Case No.32 of 1994 is upheld. Appeal dismissed.