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2012 DIGILAW 417 (PAT)

Deepak Patel v. State of Bihar through C. B. I

2012-03-07

MANDHATA SINGH

body2012
JUDGMENT Mandhata Singh, J., - One Narayan Sharma P.W.3 submitted a written complaint on 26.5.2003 to S.P., C.B.I., A.C.B., Patna alleging therein that he had submitted an application on 19.5.2003 for installation of a Pay Booth connection at Paliganj in name of his brother Bhagwat Sharma. On his approach to this appellant Head Clerk of S.D.O., Telephone, Danapur, there was demand of bribe of Rs. 4,000/-, on request that was reduced to Rs. 2,000/- and complainant was asked to come to his office with the said amount. Complainant was not adamant to pay bribe amount, so, he filed a written complaint in the office of S.P., C.B.I., A.C.B. Patna. 2. P.W.7 Ajay Kumar, Inspector verified the allegation and found the same true. A trap party was constituted in leadership of Inspector, S.K.Malviya including Yogendra Rai, Assistant Manager, Central Bank of India, Mauryalok, Patna and Sri Yogendra Prasad Saha, Manager, (Rural Development), Central Bank of India, Zonal Office, Maurya Complex, Patna. All the members got acquainted with the purpose including identifying each other followed by a practical demonstration regarding use of phenolphthalein powder and its reaction with solution of sodium carbonate. Further they were briefed about proposed action to be taken by the C.B.I. for apprehending accused after raid in case he demands and accepts bribe of Rs. 2,000/- from the complainant. Practical demonstration of collecting scientific evidence was also given to team members. G.C.Notes produced by the complainant to be used as bribe was treated with phenolphthalein powder and returned back to the complainant to use the same in case of demand and not otherwise. A pre-trap memorandum containing the details of G.C.Notes and other formalities were prepared/done before proceeding to the venue and signed by all. 3. After completion of all formalities, trap team reached the office of Sub-divisional Engineer, Telephone, Danapur where accused appellant Deepak Patel was sitting. Necessary directions were given to members of team to remain vigilant. As per direction complainant Narayan Sharma handed over tainted G.C.Notes to the accused appellant Deepak Patel taking it from his right pocket which Deepak Patel kept in right side back pocket of his Pant saying that “Tumhara application Main aaj hi file me badha dunga”. This much was seen and heard by shadow witnesses Yogendra Rai, Rakesh Kumar Gupta, Inspector and Ajay Kumar, S.I., C.B.I., Patna. Other members also saw the transaction. This much was seen and heard by shadow witnesses Yogendra Rai, Rakesh Kumar Gupta, Inspector and Ajay Kumar, S.I., C.B.I., Patna. Other members also saw the transaction. S.K.Malviya, Inspector, C.B.I., Patna challenged accused appellant by disclosing his identity for demand and accepting bribe money from the complainant and caught hold his right hand. S.I. Sri Ajay Kumar caught hold his left hand. There was no satisfactory reply on behalf of accused appellant. P.W.1 Yogendra Rai was directed to collect G.C. Notes from back right side pocket of accused appellant that was tallied with pre-trap memorandum which was found signed. 4. Sri Rajiv Kumar, S.D.E.T., Danapur was informed with request to participate the recovery proceeding as a witness. The hand wash of both the hands of accused appellant was taken in separate solution of freshly prepared sodium carbonate and water. Accused appellant dipped his finger of both the hands separately which changed to pink, same was preserved in separate glass vial, sealed and signed by all the present and marked as LHW and RHW for identification. Tainted money (notes) were also sealed in an envelope and signed by all the present. Pant of the accused appellant was taken after providing another trouser. Back side right pocket was also dipped in freshly prepared solution of sodium carbonate and water. The milky solution turned to pink which was preserved in separate glass vials and signed by all the present and marked as P.W. (pocket wash) for identification. 5. Guilt was accepted by accused appellant as a first case. He was taken into custody. 6. Nothing recovered from possession of accused appellant on his search but application for installation of PCO/Pay Phone in name of Bhagwat Sharma was recovered when a search of appellant’s table and Almirah was made. Recovery memorandum was prepared, read over to all, who signed it in token of its correctness. 7. After concluding the trial, appellant has been convicted and sentenced for the offence under sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act by passing the impugned judgment and order, validity of which has been questioned through filing this appeal. 8. 7. After concluding the trial, appellant has been convicted and sentenced for the offence under sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act by passing the impugned judgment and order, validity of which has been questioned through filing this appeal. 8. In all 11 witnesses are examined in the case and they are P.W.1 Yogendra Rai, P.W.2 Bhagwat Sharma, P.W.3 Narayan Sharma, P.W.4 Yogendra Prasad Saha, P.W.5 Ved Prakash, P.W.6 Rakesh Kumar Gupta, P.W.7 Ajay Kumar, P.W.8 Binod Chandra Purkait, P.W.9 Sanjay Kumar Malviya, P.W.10 Rajeev Kumar and P.W.11 Bhawesh Kumar Singh. 9. P.W.5 is sanctioning authority, states about his giving sanction for prosecution, P.W.2 is the real victim of the case who had applied for opening a telephone Pay Booth, in the office of S.D.E.T, Danapur by filing application with relevant papers which is marked exhibit-2 in the case. He states about his approach to the accused appellant identifying him also. He also states about entrusting P.W.3 for taking further steps in the matter. This much is admitted to P.W.3 also who further states that he approached accused appellant who demanded Rs. 2,000/-. He further states and identifies his complaint and signature thereon made to S.P., C.B.I. Patna (exhibit-3 of the case). Thereafter he does not corroborate the prosecution on the point of his going to C.B.I. Office and pre-trap and post trap incident. He has further denied the identification of accused appellant. He has been declared hostile and cross-examined by the prosecution but in cross-examination he identifies his signature over bottles of water, envelope and preliminary memorandum. 10. Identification of accused appellant as the person who received the bribe cannot be doubted as demand was made by him (Deepak Patel accused appellant) who was arrested in course of trap, remanded to custody, though on the point of identification P.W.3 has been declared hostile. 11. P.W. 8 is expert who has examined liquid of all the four sealed bottles and submitted report exhibit-6. P.W.7 is a member of raiding party. He has also verified the allegation, submitted his report, thereafter every initiative was taken for trapping. 11. P.W. 8 is expert who has examined liquid of all the four sealed bottles and submitted report exhibit-6. P.W.7 is a member of raiding party. He has also verified the allegation, submitted his report, thereafter every initiative was taken for trapping. He along with P.Ws 1,4,6,9 and 11 are witnesses to state that they were members of the trap party, there was pre-trap demonstration, pre-trap memorandum, coming to accused appellant’s office, handing over of tainted Government currency Notes, catching hold hands of accused appellant by two of the witnesses, his (accused appellant’s) dipping fingers in solution and water, dipping his back pocket of Pant in solution and water, search of his table and Almira, recovery of application filed on behalf of P.W.3 and arrest of appellant. P.W.10 is a witness, is not a member of raiding party but posted in BSNL, as S.D.E.T. who came out on the spot from his office and saw keeping recovered Notes in an envelope, happening of dipping fingers of appellant in solution and onwards. 12. Evidence of all the witnesses have elaborately been discussed by the trial court in its judgment. Doubting the prosecution case referring some of the infirmities appeared in statements of P.Ws 3 and 4 that on the point of identification already has been discussed. Jurisdiction of S.D.E.T., Danapur is questioned without referring such provision. After having considered the materials on record, I find no infirmity in reaching the final result or any other mistake committed by the trial court. 13. Now remains the sentence awarded to the appellant in the case, on this point submission of learned counsel for accused appellant is that incident took place in the year 2003, trial ended on 30.1.2010, accused appellant lost his service relying the allegation true, has not crossed the age of retirement, so a liberal view ought to be taken. To certain extent I also agree with the submission of learned counsel for the accused appellant. 14. This appeal is accordingly, dismissed. The judgment of conviction dated 30.1.2010 in Special Case No. 7 of 2003/R.C.no. To certain extent I also agree with the submission of learned counsel for the accused appellant. 14. This appeal is accordingly, dismissed. The judgment of conviction dated 30.1.2010 in Special Case No. 7 of 2003/R.C.no. 13(A) of 2003 is maintained/affirmed with modification in sentence to the extent that the sentence which was awarded to accused appellant is reduced to the period of one year each for the offences under sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act exonerating from the liability of fine with direction to run both the sentences concurrently. 15. As the appellant is on bail his bail bond is cancelled. He is directed to surrender in the court below to serve the rest of the sentence. The trial court is directed to take necessary steps for taking him into custody. 16. A copy of judgment along with lower court records be sent back to the court below forthwith.