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2013 DIGILAW 957 (HP)

BAHADUR SINGH v. STATE OF HIMACHAL PRADESH

2013-11-14

DHARAM CHAND CHAUDHARY

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JUDGMENT : DHARAM CHAND CHAUDHARY, J. 1. Learned Special Judge, Solan has convicted appellant Bahadur Singh, hereinafter referred to as the accused, under Section 7 and 13 (1) (d) read with section 13 (2) of the prevention of Corruption Act, hereinafter referred to as 'the Act' in short, and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 10,000/- for the offence punishable under Section 7 of the Act and rigorous imprisonment for one year and to pay a fine of Rs. 20,000/- under Section 13 (1)(d) read with Section 13 (2) of the Act. While holding the accused guilty of demanding illegal gratification amounting to Rs. 20,000/- on account of supplying the copies of revenue record, when he was posted as Patwari, Patwar circle, Jheera, Tehsil Nalgarah, District Solan and supply of such record on 29.7.2008 after acceptance of amount aforesaid being not his legal remuneration and rather illegal gratification from the complainant Ved Prakash (PW-1), which otherwise was part of his official duties and for that he should have not received any such amount, he, therefore, has been found to have misused his official position by obtaining Rs. 20,000/- as illegal gratification other than his legal remuneration. 2. Mr. G.D. Verma, learned Senior Advocate assisted by Mr. B.C. Verma, Advocate has strenuously contended that the present is a case where there is no iota of evidence suggesting the involvement of the accused for the commission of the offence. No independent witness has been associated by the I.O. during the investigation of the case. Complainant Ved Praksah (PW-1) and Ram Rakha (PW-9), according to Mr. Verma, being partisan and interested witnesses should have not been relied upon as they were interested in the success of the prosecution case. In this context, it is emphasised that as per own admission of PW-1 and PW-9, they both are business partners and as such deposed falsely to implicate the accused in this case. It has further been pointed out that the recovery of the copies of revenue record from the accused has been given undue weightage while convicting the accused, however, erroneously as according to learned counsel, had a sum of Rs. 20,000/- been received by the accused as illegal gratification, why such record was not handed over to the complainant on the receipt of the amount in question. 20,000/- been received by the accused as illegal gratification, why such record was not handed over to the complainant on the receipt of the amount in question. Further that cogent and reliable evidence has not been brought on record to satisfactorily prove the manner in which the alleged trap was laid and to the contrary findings of conviction have been based upon hypothesis and conjectures. The evidence produced by the accused in his defence is stated to be not appreciated in its right perspective. 3. On the other hand, learned Additional Advocate General while supporting the impugned judgment has forcefully contended that the demand of illegal gratification and its acceptance by the accused stands satisfactorily established on record. The complainant and the shadow witness, no doubt, were well known to each other, however, not in relation with each other in any manner whatsoever. The prosecution case right from the very beginning till the recovery of Rs. 20,000/- from the accused is stated to be well established from the evidence available on record. 4. The grevamen of the offence of this nature is the demand and acceptance of illegal gratification by the accused other than his legal remuneration to provide service to any person connected with discharge of his official duties and the recovery thereof from his possession. Therefore, in order to constitute the offence of this nature, the accused should have been a public servant and in the discharge of duties as such public servant demands illegal gratification from a person, who otherwise is entitled to have such services from the accused free of costs and ultimately acceptance of the gratification in lieu of the services so rendered. The sine qua non for the commission of such offence, therefore, is demand and acceptance of illegal gratification. 5. The apex Court in Rakesh Kapoor v. State of Himachal Pradesh, 2013 (1) R.C.R. (Criminal) 211 has held that in the absence of cogent and reliable evidence qua demand and acceptance of illegal gratification, the accused is entitled to benefit of doubt. Accused Rakesh Kapoor was therefore, acquitted in that case by the apex Court for want of cogent and reliable evidence suggesting the demand of illegal gratification made by him and acceptance thereof. The apex Court has further held that when the demand of bribe and its acceptance by the accused is not proved beyond all reasonable doubt. Accused Rakesh Kapoor was therefore, acquitted in that case by the apex Court for want of cogent and reliable evidence suggesting the demand of illegal gratification made by him and acceptance thereof. The apex Court has further held that when the demand of bribe and its acceptance by the accused is not proved beyond all reasonable doubt. Mere recovery of the amount in question is not sufficient to fasten any criminal liability on him. The ratio of the judgment in T. Subramanian v. State of Tamil Nadu, (2006) 1 SCC 401 reads as under:- "12. Mere receipt of Rs. 200/- by the appellant from PW-1 on 10.7.1987 (admitted by the appellant) will not be sufficient to fasten guilt under Section 5 (1)(a) or Section 5 (1)(d) of the Act, in the absence of any evidence of demand and acceptance of the amount as illegal gratification. .." 6. The apex Court has again held so in Suraj Mal v. State (Delhi Administration), (1979) 4 SCC 725 . 7. The apex Court in C.M. Girish Babu v. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779 has held that the recovery of the tainted money itself is not sufficient to convict the accused when reliable evidence qua demand and its acceptance is not available. 8. The Apex Court has again held in Banarsi Dass v. State of Haryana, (2010) 4 SCC 450 that mere recovery of tainted money divorce from the circumstances under which it is paid, is not sufficient to convict the accused despite the presumption. 9. Besides the cogent and reliable evidence qua the demand and acceptance of illegal gratification by the accused, the prosecution case qua laying trap is also required to be witnessed and proved by the witnesses respectable and independent and not partisan or interested in the success of the prosecution case. I may refer here the ratio of the judgment of the apex Court in Ganga Kumar Srivastava v. State of Bihar, (2005) 6 SCC 211 , which reads as follows:- "20. I may refer here the ratio of the judgment of the apex Court in Ganga Kumar Srivastava v. State of Bihar, (2005) 6 SCC 211 , which reads as follows:- "20. We must not forget that in a trap case the duty of the officer to prove the allegations made against a Government officer for taking bribe is serious, and therefore, the officers functioning in the Vigilance Department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the Court is not left in any doubt whether or not any money was paid to the public servant by way of bribe. It is also the duty of the officers in the Vigilance Department to safeguard for the protection of public servants against whom a trap case may have been laid." 10. The apex Court has not approved placing reliance on the testimony of partisan and interested witnesses to prove the guilt of the accused. The evidence as has come on record by way of the own testimony of the complainant and shadow witness either related with each other or closely known should not be relied upon to record the findings of conviction against an offender. Reference in this behalf can be made to the judgment of the apex Court in Ram Prakash Arora v. State of Punjab, (1972) 3 SCC 652 and in Shantilal son of Rameshwar v. State of Rajasthan, (1976) 1 SCC 577 . 11. Adverting to the evidence available on record, the accused was appointed as Patwari vide office order Ex. PW-2/B. It is proved from Office Order Ex. PW-2/A that he was posted as Patwari in Patwar circle Jheera, Tehsil Nalagarh, District Solan. PW-1 Ved Prakash complainant allegedly was in need of Jamabandi and Fard qua average market value of the land of one Ram Rakha situated in village Tehliwal required for registration of sale deed thereof in the name of his father Bagaa Ram. He visited Patwarkhana on 27.7.2008 and asked the accused Patwari to supply him the said revenue record. Prior to that also, he allegedly visited the Patwarkhana for obtaining the said record and had even been in contact of the accused Patwari, over cellphone. He visited Patwarkhana on 27.7.2008 and asked the accused Patwari to supply him the said revenue record. Prior to that also, he allegedly visited the Patwarkhana for obtaining the said record and had even been in contact of the accused Patwari, over cellphone. The accused, no doubt, was Patwari, Patwar circle, Jheera on 27.7.2008, however, no evidence has been brought on record by the prosecution to show that Bagga Ram, father of the complainant had to purchase land of Ram Rakha resident of village Majholi, situated in village Tehliwal, Tehsil Nalagarh, District Solan. PW-9 Ram Rakha has also not uttered even a single word that the revenue record was required for effecting sale of the land by Ram Rakha of village Majholi in the name of Bagga Ram, the father of the complainant. 12. No evidence has brought on record to prove the visits of the complainant to Patwarkhana on 27.7.2008 and prior to that even the detail of calls, if any, made by the complainant to the accused Patwari over cellphone is obtained and produced in evidence. There remains only the own statement of PW-1, the complainant, which alone is not sufficient to form an opinion that Bagga Ram, his father had to purchase land from Ram Rakha and the Revenue record was required for execution of the sale deed. In order to establish this aspect of the matter, agreement, if any, entered into between Ram Rakha and Bagga Ram, should have been produced in evidence or at least said Shri Ram Rakha examined as a witness to prove this aspect of the prosecution case. Even the sale of land by Bagga Ram father of the complainant for a sum of Rs. 45,75,000/- to some one belonging to village Panjeda is also not proved because sale deed, if any, executed in this behalf has not been produced in evidence, which could have easily been produced. As a matter of fact, such evidence was essentially required to show that the father of the complainant have the money i.e. Rs. 41,28,000/- for being paid to Ram Rakha towards sale consideration of his land intended to be purchased. Withholding of such evidence, therefore, has rendered the entire prosecution case highly doubtful. 13. The prosecution case qua demand of Rs. 41,28,000/- for being paid to Ram Rakha towards sale consideration of his land intended to be purchased. Withholding of such evidence, therefore, has rendered the entire prosecution case highly doubtful. 13. The prosecution case qua demand of Rs. 20,000/- as illegal gratification by the accused Patwari on 27.7.2008 also seems to be not plausible as there is no evidence produced by the prosecution to corroborate the own version of the complainant in this behalf. Chowkidar, who as per own version of the complainant used to be present in Patwarkhana during his visits there, has also not been examined for the reasons best known to the prosecution. No doubt, the complainant, in his statement under Section 154 Cr.P.C. Ex. PW-1/A and while in the witness box, has stated that on 27.7.2008, when he went to the accused Patwari in Patwarkhana and asked him to make available Jamabandi of the land of Ram Rakha and Fard average market value thereof, the accused agreed to supply the same with average market price certificate at reduced rates, however, for that he demanded Rs. 20,000/- as illegal gratification. Own testimony of the complainant cannot be relied upon, more particularly when there is no evidence available on record to show that even prior to 27.7.2008 also he had visited the Patwarkhana and was in touch with the accused, over cellphone. 14. True it is that it is not possible to produce any direct evidence qua the demand of illegal gratification, as demand of bribe is generally made secretly, however, when it is the own case of the prosecution that the complainant had visited Patwarkhana prior to 27.7.2008 also on several occasions and even was in touch with the accused Patwari over cellphone. When the complainant has categorically stated in his statement Ex. PW-1/A that on 28.7.2008 around 3.00-3.30 p.m., when he inquired over cellphone number 98167-22101 from the accused Patwari about the readiness of the requisite revenue record the latter informed that he will keep the same ready for delivery, however, on payment of Rs. 20,000/- to him, the detail of the call so made should have easily been obtained to connect the accused with the commission of the offence. 20,000/- to him, the detail of the call so made should have easily been obtained to connect the accused with the commission of the offence. The evidence qua his visits more particularly the calls he made over cellphone to the accused Patwari, could have easily been produced to show that despite repeated requests, the accused Patwari failed to make him available the requisite revenue record and agreed to make available the same on receipt of Rs. 20,000/- as illegal gratification. Even the link evidence that such revenue record was required for effecting the sale of the land in question in the name of the father of the complainant has also not been produced. 15. True it is that the prosecution in order to show the presence of the Police party headed by PW-11, Basher Singh, the then Dy. S.P. (State Vigilance and Anti Corruption Bureau), Solan has relied upon the rapat Rojnamcha Ex. PW-4/A, which reveals that the said party was away to Nalagarh in connection with the inquiry on a complaint received against Karnail Singh of Rajpura. There is, however, no cogent and reliable evidence to prove that the complainant came to know about the presence of the vigilance police team in Rest House, Nalagarh and as such he accompanied by shadow witness went there. Nothing to this effect has come in his statement Ex. PW-1/A, which, as a matter of fact, contains the first version of the occurrence. Even his statement while in the witness box as PW-1 also not throw light to believe as to how he happens to come to know about the presence of the vigilance police team in the Rest House or that the shadow witness PW-9 was also with him and went to Rest House. As per his version on 29.7.2008, he went to PWD Rest House, Nalagarh with PW-11 with other officials, who were present and as according to him Madan Lal informed him in this behalf. Who is Madan Lal and where he met PW-1 remained unexplained. 16. True it is that according to PW-9, Ram Rakha, PW-1 Ved Prakash met him at Nalagarh. Also that PW-1 was accompanied by 2-3 more persons. He was taken to PWD, Rest House, Nalagarh by PW-1. Who was those 2-3 persons accompanying the complainant PW-1, remained unexplained. Who is Madan Lal and where he met PW-1 remained unexplained. 16. True it is that according to PW-9, Ram Rakha, PW-1 Ved Prakash met him at Nalagarh. Also that PW-1 was accompanied by 2-3 more persons. He was taken to PWD, Rest House, Nalagarh by PW-1. Who was those 2-3 persons accompanying the complainant PW-1, remained unexplained. Therefore, it is difficult to believe that the vigilance police team headed by PW-11 was present in the Rest House, Nalagarh and the complainant, on coming to know about it, went there to lodge the report. The real story, qua this aspect of the matter, seems to be concealed to the reasons best known to the police. 17. The investigation i.e. demonstration of mixing phenolphthalein powder in the clean water and then adding sodium carbonate therein and turning its colour into pink even if believed to be taken place in the manner as claimed by the prosecution, is not of much importance as the I.O. may have given such demonstration to the complainant PW-1 and shadow witness PW-9. The shadow witness may also have produced the currency notes worth Rs. 20,000/- and the same having been treated with phenolphthalein powder by the I.O. Further strategy that the complainant and shadow witness would first left the Rest House for Patwarkhana and they were to be followed by the vigilance police team may have also taken place in the manner as claimed by the police, however, the evidence as has come on record by way of own testimony of PW-9 and also the I.O., who has stepped in the witness box as PW-11, the Patwarkhana was not visible from the Rest House, where the vigilance team was present and the shadow witness had hidden himself. 18. On the other hand, the shadow witness had to pass on the agreed signal to the police party immediately on acceptance of treated currency notes worth Rs. 20,000/-. Meaning thereby that the shadow witness was required to witness the acceptance of the currency notes by the accused from the complainant and it is thereafter to pass on the agreed signal. The complainant and the Patwari admittedly were not visible from the place where the shadow witness had hidden himself; he has stated so while in the witness box as PW-9. The complainant and the Patwari admittedly were not visible from the place where the shadow witness had hidden himself; he has stated so while in the witness box as PW-9. Meaning thereby that he had not seen the accused Patwari while accepting the treated currency notes from the complainant. It is rather the complainant, who after delivery of the currency notes to the accused came outside and gave the signal to the shadow witness by raising his hand twice conveying thereby that he had handed over the currency notes to accused Patwari and the latter had accepted the same. As a matter of fact, this was not the agreed course of action, which as per the prosecution case was that the shadow witness had to give the agreed signal to the police party immediately on acceptance of the currency notes by the accused Patwari from the complainant. No such evidence has, however, come on record and to the contrary the shadow witness could not notice the acceptance of currency notes by the accused from the complainant himself. Therefore, there hardly remains any evidence, which can be termed as cogent and reliable to show that on demand the currency notes worth Rs. 20,000/- were paid by the complainant to the accused. 19. Admittedly the Chowkidar was present in the Patwarkhana, when the complainant went there. The I.O. to the reasons best known to him, however, not associated him in the investigation of the case. The evidence as has come on record by way of testimony of the shadow witness that on seeing the police party having apprehended the accused, the Chowkidar had fled away is neither plausible nor can be believed to be true because Chowkidar Shri Mohan Singh has been examined as DW-2 by the accused in his defence. He has stated that he was present in Patwarkhana and it is in his presence the search of accused Patwari was conducted by the Police, however, nothing recovered from him. No doubt, DW-2 tells us about the currency notes; however, according to him, he found the same lying on the table when he returned to the Patwarkhana with water sought to be brought by the Police. No doubt, DW-2 tells us about the currency notes; however, according to him, he found the same lying on the table when he returned to the Patwarkhana with water sought to be brought by the Police. The version of DW-2 that on 29.7.2008, when he was present in the Patwarkhana, 6-7 persons in civil dress entered there and put currency notes on the table of the accused Patwari, who picked up the same and further put the same in the pocket of his pants, however, as per the settled legal principles, the prosecution is required to plead and prove its case beyond all reasonable doubt by producing cogent and acceptable evidence and cannot take the benefit of the evidence, if any, produced by the accused in his defence. Therefore, when the prosecution has miserably failed to prove the demand of illegal gratification by the accused and acceptance thereof, the version of DW-2 that the currency notes kept on table by the police were picked up by the accused and put into his pants pocket cannot be taken to bring the guilt home to the accused. 20. Learned Special Judge while placing reliance on such evidence has committed grave illegality, which definitely has resulted in miscarriage of justice to the accused. As a matter of fact, as per own testimony of the complainant, the accused was not present in Patwarkhana and it is only the Chowkidar, who was present there. It is the complainant, who himself called the accused Patwari over his cellphone and requested him to come to Patwarkhana. It is, therefore, doubtful that Patwari had demanded illegal gratification from the complainant and was waiting for him in the Patwarkhana as had it been so, he would have present in the Patwarkhana and waiting for arrival of the complainant there with bribe money. No doubt, the jamabandi Ex. PW-1/J & Ex. PW-1/K and also the one year average sale price of the land in Mauza Tehliwal Ex. PW-1/L were prepared by the accused Patwari on 29.7.2008, however, it cannot be said that the same were prepared for being supplied to the complainant only on acceptance of Rs. 20,000/- as illegal gratification. Learned Special Judge, has misinterpreted, and misconstrued the same while recording the findings of conviction against the accused. 21. PW-1/L were prepared by the accused Patwari on 29.7.2008, however, it cannot be said that the same were prepared for being supplied to the complainant only on acceptance of Rs. 20,000/- as illegal gratification. Learned Special Judge, has misinterpreted, and misconstrued the same while recording the findings of conviction against the accused. 21. The other evidence as has come on record by way of remaining prosecution witnesses, who are officials, could have been used as link evidence, had the prosecution otherwise been able to bring the guilt home against the accused beyond all reasonable doubt. In a case Bal Krishan Sayal v. State of Punjab, (1987) 2 SCC 647 having more or less similar facts, the apex Court while giving benefit of doubt to the accused has acquitted him. This Court, therefore, finds the present a case where neither demand of illegal gratification from the complainant nor the acceptance thereof by the accused is proved beyond all reasonable doubt. 22. On the other hand, the prosecution story on account of non-joining of independent witnesses has rendered highly doubtful. Therefore, this Court is satisfied that the findings of conviction have been recorded against the accused on mere conjectures and surmises, hence required to be quashed and set aside because in Meena (Smt.) W/o Balwant Hemke v. State of Maharashtra, (2000) 5 SCC 21 has held as under:- "11. The fact that the judgments of the Courts below were rendered concurrently cannot dissuade us from interfering in a case like this where such findings and conviction have been recorded on mere conjectures and erratic evaluation of the evidence on record. Consistency for the mere sake of it is no virtue. It is an obligation of judicial conscience to correct errors, where the same are manifest. The judgments of the Courts below suffers from serious infirmities and manifest errors on account of unwarranted inferences liberally drawn by the Courts below against the appellant, overlooking the fundamental principle of presumption of innocence of an accused till the charge levelled and her guilt is established beyond all reasonable doubt. The Courts below have failed to consider the adverse impact on the prosecution case from the evidence of PW-2 and the withholding of the lady constable and Jagdish Bokade, two material witnesses. The appellant cannot be, on the basis of available evidence, held to have tacitly accepted the illegal gratification as alleged. The Courts below have failed to consider the adverse impact on the prosecution case from the evidence of PW-2 and the withholding of the lady constable and Jagdish Bokade, two material witnesses. The appellant cannot be, on the basis of available evidence, held to have tacitly accepted the illegal gratification as alleged. The materials on record in this case are not sufficient to bring home the guilt of the appellant. Consequently, the appeal is allowed. The conviction and sentence of the appellant is set aside and the fine, if any, paid shall be refunded to the appellant." 23. The reappraisal of the evidence available on record and also the legal position discussed herein above, lead to the only conclusion that the prosecution has miserable failed to prove its case against the accused beyond all reasonable doubt. He, therefore, is entitled to the benefit of doubt and deserves acquittal of the charge framed against him. 24. In the result, this appeal succeeds and the same is accordingly allowed. The accused is acquitted of the charge framed against him under Section 7 and Section 13 (1) (d) read with Section 13 (2) of the Act. The amount of fine, if deposited, be refunded to him as per procedure and under proper identification and receipt. Bail bonds stand cancelled and surety discharged. The appeal stands disposed of accordingly.