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2012 DIGILAW 125 (UTT)

Amichandra v. State of Uttaranchal

2012-03-22

SUDHANSHU DHULIA

body2012
Judgment : Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Heard Mr. T.A. Khan, Senior Advocate assisted by Mr. Rajesh Joshi, Advocate for the appellant and Mr. M.A. Khan, Brief Holder for the State of Uttarakhand. 2. This appeal arises out of judgment and order dated 2.12.2004 passed by the Special Judge (Anti Corruption/Additional District Judge/Second Fast Track Court) in Special Trial No. 2 of 2001 (State Vs. Amichandra) for the offences punishable under Section 7/13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 3. The brief facts of the case, as per the prosecution, are that on 5.1.2000 complainant was made by one Neeraj Awasthi who was subsequently produced as PW-1 before the Superintendent of Police (Vigilance), Dehradun stating that his sister-in-law (“Bhabhi”) Smt. Laxmi W/o Hoshiyar Singh R/o Deep Nagar Ajabpur Kalan has been allotted a plot by Village Panchayat since 1994. On this plot she has already constructed a room where her family members are staying. All the same, when she was raising a wall on the said plot on 5.1.2000 the accused-appellant Amichandra, who was “Patwari” of the area, stopped the construction and said that he will only be allowed to raise this wall when he gives `5,000/- to him. Thereafter the matter was settled for the said amount by which `1500/- was to be given to him tomorrow i.e. 6.1.2000 and the remaining amount after the wall is constructed. He, however, stated in his FIR that he does not want to give bribe to such a person and in fact such person should be arrested and prosecuted. On this report Superintendent of Police (Vigilance), Dehradun sought a confidential report from his Deputy and consequently it was registered as an FIR of 5.1.2000. Consequent to the said FIR and on instructions of Superintendent of Police (Vigilance) a trap team was constituted under the leadership of Inspector Harsharan Singh Panwar. Two independent witnesses Ram Teerath (PW-3) and Rajendra Prasad (PW-5) were also procured, of which PW3 was a daily-wage worker in an organized sector and PW5 was a conductor in Uttar Pradesh State Road Transport Corporation. Consequently, thereafter as per the “guidelines” in such matters, a demonstration of phenolphthalein powder etc. was conducted and the required instruction given to all the members of the parties. Consequently, thereafter as per the “guidelines” in such matters, a demonstration of phenolphthalein powder etc. was conducted and the required instruction given to all the members of the parties. Clarifications were made before the trap party could proceed, and thereafter trap party along with decoy/complainant Neeraj Awasthi and two witnesses PW3 and PW5 proceeded towards Village Kedarpur near the house of Purna Thapa at about 3.30 pm on 6.1.2000. The accused/appellant was sitting on the “Aangan” i.e. courtyard as per the statements given by PW1 he entered in the house where the accused-appellant was sitting on a chair whereas PW3 and PW5 remained outside the house of Purna Thapa to hear the conversation between the PW1/complainant and accused. He further states that he had placed three notes of `500/- on the table and he had no conversation with the accused/appellant. As soon he placed the money on the table the police party presented himself on the spot. He further states that Inspector Sri Harsharan Singh Panwar shook hands with the accused-appellant and showed his identity card stating that he was a police officer and that he was arresting him for accepting bribe. At this stage, on the request of prosecution, PW1 declared hostile. PW3 and PW5 the trap witnesses though support the case of the prosecution, but with certain contradictions. According to PW3, they were watching this transaction between PW1 and accused-appellant from a distance of about 15-20 steps and the wall was of about five feet high but none actually heard the conversation between two i.e. PW1/complainant and accused-appellant. All the same, PW3 states that three notes were given by PW1 to the accused which he promptly kept in his jacket pocket and it was from his jacket that the money was subsequently recovered by the trap party. According to PW5, however, money was given by PW1 to the accused-appellant, which the accused-appellant received in his right hand and it was at that time the police actually recovered the money from his hand. There is another contradiction between the stories of prosecution inasmuch as per the guidelines laid down for such trap proceedings, immediately after a person is caught in such proceedings his hands must be washed on the spot itself and then the solution is sealed and kept in a bottle. There is another contradiction between the stories of prosecution inasmuch as per the guidelines laid down for such trap proceedings, immediately after a person is caught in such proceedings his hands must be washed on the spot itself and then the solution is sealed and kept in a bottle. Important thing here is that the solution has to be prepared and the proceeding has to be done on the spot. According to PW3 the proceedings (preparation of solution etc.) were done on the spot, but according to PW5 no such proceedings took place on the spot and this formality was done only at the police station later. 4. Be that as it may, according to the prosecution, the recovery of Rs.1500/-, which was the same tainted money and was numbered and noted at the time of pre trap proceedings in the police station, tallied with the ones received from the appellant. Consequently, charge was framed against the accused-appellant under Section 7 as well as 13(1)(c) which is punishable under Section 13(2) of the Prevention of Corruption Act, 1988. 5. During the trial, the main defence of the accused-appellant was that there had been neither demand nor recovery from the possession of accused-appellant. In fact he denied that any such incident had taken place at all. He further states that he has been falsely implicated and a conspiracy was hatched by one Mr. Umesh Sharma PW10. Interestingly, the accused-appellant also examined himself as DW3. In his statement before the court below the accused has stated that in the year 1994-95, PW10 (Sri Umesh Sharma) was the Up-Pradhan of the area and his father was the Pradhan and certain “pattas” (lease deeds) were executed in favour of some persons in violation of the law, and subsequently as capacity as Patwari and under the orders of the superior authorities he had initiated eviction proceedings against such persons i.e. those who were given these “pattas” in violation of the law by PW-10 and his father. In other words, he comes out that there was an enmity between him and Mr. Umesh Sharma (PW-10). 6. That being the factual matrix in which the accused was examined by the trial court one of the important features under Section 7 as well as particularly under Section 13 (2) of the of the Prevention of Corruption Act, 1988 is a demand being made by the accused. Umesh Sharma (PW-10). 6. That being the factual matrix in which the accused was examined by the trial court one of the important features under Section 7 as well as particularly under Section 13 (2) of the of the Prevention of Corruption Act, 1988 is a demand being made by the accused. The only aspect from where the court could have determined this factor of demand from the side of the accused was the FIR, which was lodged by PW1. This aspect of demand is evident from nowhere else. Interestingly, this witness (PW1) who is also the complainant has turned hostile. 7. PW-1 has subsequently turned hostile and stated that he has lodged the FIR on instigation by Mr. Umesh Sharma PW-10. The least, which was required in the situation, was that this bald allegation of demand, should have been corroborated by some other evidence. This has not been done. The prosecution has not been able to prove the factum of demand by the accused/appellant. Moreover, the contradictory statements of PW-3 and PW-5, also cast a doubt on the aspect of recovery. One of the important factor appended by the senior counsel for the accused/appellant Mr. T.A. Khan before this Court regarding the recovery which according to him has never been proved and there are enough contradictions in the statements of prosecution witnesses here as well, whereas PW-3 states that the money was recovered from the jacket pocket of the accused-appellant, this jacket was not made part of the exhibit nor was the process as given under the “guidelines” followed in order to determine that the recovery was done from this jacket. Moreover, there are clear contradictions between the statements of PW-3 and PW-5 on the aspect of recovery itself. It is undoubtedly true that the present case is under the Prevention of Corruption Act. The presumption is cast upon the accused-appellant under Section 20 but before this presumption can be established the prosecution must prove its case. In the present case, the demand as well as recovery both for the offences under Section 7 and Section 13 of the Prevention of Corruption Act has not been made out. That being so, the appellant is entitled to the benefit of a reasonable doubt. 8. Learned Senior Counsel for the accused-appellant Mr. In the present case, the demand as well as recovery both for the offences under Section 7 and Section 13 of the Prevention of Corruption Act has not been made out. That being so, the appellant is entitled to the benefit of a reasonable doubt. 8. Learned Senior Counsel for the accused-appellant Mr. Tanveer Alam Khan has cited, in his favour, a number of judgments of the Hon’ble Apex Court both on the question of “demand” as well as the presumption against an accused under Section 20 of the Act, under the Prevention of Corruption Act. One of the cases cited by the senior counsel is V. Venkata Subbarao v. State represented by Inspector of Police, A.P. reported in 2007 CRI. L. J. 754. In the said case the Hon’ble Apex Court has held that the question of presumption under Section 20 of the Act against the accused can only come into play once the factor of demand has been established against the accused. However, in case, the demand itself has not been established, the question of presumption against the accused under Section 20 of the Act does not even arise. Under similar circumstances, the Hon’ble Apex Court in the case of Sita Ram, v. The State of Rajasthan reported in AIR 1975 SC 1432 in a matter relating to Prevention of Corruption Act, 1947, had held that the presumption was liable to be rebutted when the case of demand of bribe itself was not proved. 9. This Court, therefore, on the basis of evidence, which were before the trial court, is of the considered view that based on the evidence, which were there against the accused-appellant he should not have been convicted of the charges which were there against him. The conviction and sentence by the trial court, therefore, cannot be sustained. This appeal, therefore, is allowed. Impugned judgment and order dated 2.12.2004 passed by the Special Judge (Anti Corruption/Additional District Judge/Second Fast Track Court) in Special Trial No. 2 of 2001 is set aside. Accused appellant, namely, Amichandra is acquitted of charge of offences punishable under Section 7/13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988. He is on bail. He need not surrender. 10. Lower court record be sent back along with a copy of this judgment.