Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 1233 (PAT)

Ram Kumar Himanshu v. State of Bihar

2014-12-15

GOPAL PRASAD

body2014
GOPAL PRASAD, J.:–Heard the learned counsel for the appellants and the learned counsel for the Vigilance. 2. All these three appeals have been heard together and are being disposed off by this common judgment as they arise out of same case being Vigilance P.S. Case No. 26 of 1992 (Special Case No. 40 of 1992). 3. The appellants have been convicted under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988, (hereinafter referred to as, ‘the Act’) and sentenced to undergo rigorous imprisonment for two years with a fine of rupees two thousand for offence under Section 7 of the Act and in default of fine, further, sentenced to undergo rigorous imprisonment for one month and has, further, been sentenced to undergo rigorous imprisonment for two years under Section 13(1)(d) read with Section 13(2) of the Act with a fine of rupees two thousand and in default of payment of fine further to undergo rigorous imprisonment for one month. 4. The prosecution case as alleged in complaint by complainant, Krishnadeo Tiwary, that Baliram Tiwary, the brother of complainant assaulted and injured by ante social element for which a case was instituted and the injured admitted to Koilwar Hospital and the injury report required. The Doctor, Ram Kumar Hemanshu, advised for x-ray by Ajanta x-ray, Bihta, on payment of Rs.300 as illegal gratification to the Compounder, Raj Nath Singh. On receipt of x-ray report a further demand of rupees nine hundred was made for issuing injury report. The complainant reported the matter to Vigilance. The complaint by Krishnadeo Tiwary was sent to verification. P.W. 10, Hari Shanker Singh, deputed as Verifier, who on verification reported the allegation true on which first information report was lodged and trap team was constituted which includes the complaint of Krishnadeo Tiwary, the complaint was sent for verification and after verification report by P.W. 10, Hari Shanker Singh,, the first information report was lodged and signature of Harihar Choudhary, Ajay Kumar Singh was deputed as Magistrate in the trap team and the trap team also constituted comprising of Dy.S.P., Inspector, Sub Inspector of Police and Constable. The pre memorandum trap was prepared along with GC note given to the complainant with a direction that he will give to the accused only on demand, made by accused. The demonstration of the pre memorandum trap conducted at the State Vigilance, Patna. The pre memorandum trap was prepared along with GC note given to the complainant with a direction that he will give to the accused only on demand, made by accused. The demonstration of the pre memorandum trap conducted at the State Vigilance, Patna. The trap team proceeded on the date of occurrence to Koilwar and the investigation proceeded, charge sheet submitted against three accused persons, Dr. Ram Kumar Himanshu, Rang Nath Singh @ Raghunath Singh and Biltu Singh, cognizance taken and charge sheeted submitted under Sections 7 and 13(1)(d) read with 13(2) of the Act. 5. During the trial, after framing of the charge, ten witnesses were examined, who are P.W. 1, Ajay Kumar, the Special Magistrate in Vigilance Investigation Bureau, P.W. 2, Lal Bahadur Singh, a member of the trap team, P.W. 3, Chandra Bhushan Kumar Singh, Constable of the Vigilance Bureau and member of the trap team, P.W. 4, Krishnadeo Tiwary, complainant, P.W. 5 Ram Nath Prasad, who has proved sanctioned report P.W. 6, Baikunth Prasad Yadav, who has proved the sanction, P.W. 7, Binay Kumar Pandey, In-Charge of the trap team, P.W. 8, Dr. Brajendra Narayan Prasad, P.W. 9, Satya Narayan Jha, the investigating officer, and P.W. 10, Hari Shanker Singh, the Verifier. The trial Court taking into consideration the evidence, both, oral and documentary, convicted and sentenced the appellants, as mentioned above. 6. The learned counsel for the appellants, however, have challenged the order of conviction and sentence recorded by the trial Court. It has been contended that there are two sets of evidences and there is variation in evidence of the complainant, P.W. 4, and the evidence of verifier, P.W. 10. It has, further, been contended that as per the pre trap memorandum there was clear instruction that the G.C. money given to the complainant shall be given to the accused only when a demand of bribe is made by the accused and the money shall not be paid unless the demand for alleged gratification is made by the accused person. However, it has been contended that there is no evidence at all that the bribe was demand by the appellants and the money was paid in consequence to demand for bribe. It has, further, been contended that from the evidence of the complainant that money was given on the table of the Doctor, Ram Kumar Hemanshu, and unless a demand and acceptance is proved. It has, further, been contended that from the evidence of the complainant that money was given on the table of the Doctor, Ram Kumar Hemanshu, and unless a demand and acceptance is proved. It has, further, been contended that the Verifier, P.W. 10, in his evidence has stated that bribe was given to the Dresser, Biltu Singh, who serve the test of phenolphthalein. Hence, there is contradiction in evidence of complainant, P.W. 4 and Verifier, P.W. 10 and, further, the acceptance of bribe can not be held as demand and acceptance has not been proved as the demand and acceptance of the demand on illegal gratification of the accused is a condition precedent to constitute an offence and has placed reliance upon various decisions reported in 2014(9) Scale, 528 (Satvin Singh Vs. State of Delhi through CBI) and 2014(4) Scale, 81 (B. Jayaraju Vs. State of A.P.). 7. It has, further, been contended that till the demand and acceptance is proved the conviction of offence of bribery is not proved and the accused presumed to be innocent for which reliance has been placed upon decision reported in (2011) 6 S.C.C., 450 (State of Kerala & Anr. Vs. C.P. Rao), (2010) 4 S.C.C., 450 (Banarsi Das Vs. State of Haryana), (2009) 15 S.C.C., 200 (State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede), (2009) 3 S.C.C., 779 (C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala) and (2009) 6 S.C.C., 587 (A. Subair Vs. State of Kerala). It has, further, been contended that the sanction has also not been duly proved. 8. The learned counsel for Vigilance, however, submitted that the prosecution has proved the charges beyond reasonable doubt though there is minor discrepancies, but, the discrepancy, pointed out, is minor and in view of the fact that there is long lapse of time, between time of occurrence, and the deposition that the probability that the memory might have fade, hence, the discrepancies may be ignored and it be hold that the prosecution has been able to prove the charges beyond reasonable doubt. 9. 9. The learned counsel for the appellants, however, contended that the occurrence alleged to be on 11.06.1992, when the bribe was alleged to have been given, but, the injury report has already been sent on 07.06.1992 and the same having been received in the Police Station on 07.06.1992, so there was no occasion to demand or accept the bribe when the report had already been sent on 07.06.1992. It is, further, asserted that the investigating officer in his evidence has stated that he enquired about the sending of the injury report in that case and also perused the report, bearing Special Case No. 40 of 1992 arising out of Vigilance P.S. Case No. 26 of 1992. The injury report was received in the Police Station on 07.06.1992. It was contended that the defence can prove his case by bringing the fact proved by cross examination of the prosecution witness or evidence adduced and defence is not required to be proved beyond reasonable doubt as required to the prosecution, but, when the prosecution witness himself has accepted the fact, then, this part of the evidence is stand proved. 10. Taking into consideration the respective submission the question for consideration whether the prosecution has been able to prove the charges beyond reasonable doubt. 11. However, prosecution case is that a demand was made for issuing injury report and it is alleged that rupees three hundred was given and, thereafter, on demand of rupees three hundred, an x-ray was called for and after receipt of the x-ray report a further demand of rupees nine hundred made and subsequently it was settled that injury report shall be sent on payment of rupees five hundred. However, the complainant alleged that the matter reported to the Vigilance and on which verification was ordered. The verifier, P.W. 10, went, along with the complainant and a demand was made by the Doctor, Ram Kumar Hemanshu, for rupees five hundred and, thereafter, verification report given. After the verification report the first information report was lodged, a trap team was constituted with P.W. 1 as the Magistrate and P.W. 7 as the In-Charge of the trap team and, thereafter, the trap team after showing the chemical test and phenolphthalein test to the members and the complainant. After the verification report the first information report was lodged, a trap team was constituted with P.W. 1 as the Magistrate and P.W. 7 as the In-Charge of the trap team and, thereafter, the trap team after showing the chemical test and phenolphthalein test to the members and the complainant. Thereafter, ten currency note of rupees fifty denomination was provided by complainant and the numbers of the notes written on the G.C. notes memo and, thereafter, phenolphthalein power was sprinkled on the notes and was handed over to complainant with an instruction to hand over the bribe money to the accused only on demand by the accused for illegal gratification and Inspector, Hari Shanker Singh, was directed to give signal only after acceptance of bribe money by wiping his mouth with a towel and then the members of the team shall rush and shall surrounded the accused, caught hold of his hand with bribe and, thereafter, the signature of the members of the trap team as well as the complainant was taken on the G.C. note memo. On the next day, i.e., 11.06.1992 the trap team proceeded from Patna to Koilwar. However, as per the memorandum the complainant and the verifier has to enter in the chambers of Doctor and to offer the money on demand and, thereafter, on the signal the party to have proceed and had to surround the accused. 12. However, the complainant in his evidence has stated that he along with the verifier went to the clinic of the Doctor and give the money on his table, there is no evidence that a demand was ever made by the Doctor and, more over, the money was not given in hand of the Doctor, but, it was put on the table, hence, neither the demand nor the acceptance has been prove by the evidence of P.W. 4, the complainant. The verifier, P.W. 10, Hari Shanker Singh, in his evidence stated that he went to the Hospital. There they met with Dresser, Bintu Singh, and the money was given to Biltu Singh and Biltu Singh said that he is coming along with the injury report written by the Doctor. The Doctor said to keep the money, he is writing the injury report and, then, on signal Chandra Bhushan Kumar Singh caught hold of Biltu Singh. The other witnesses supported the version of the verifier. 13. The Doctor said to keep the money, he is writing the injury report and, then, on signal Chandra Bhushan Kumar Singh caught hold of Biltu Singh. The other witnesses supported the version of the verifier. 13. However, the evidence of complainant and verifier is contradictory. There is major contradiction between the evidence of P.W. 4 and P.W. 10. The complainant and the verifier. According to the complainant the Doctor was in his private clinic where the money was put on his table, but, according to the verifier the money was given to Biltu Singh, the Dresser, in the Government Hospital. Hence, the place of occurrence is different. However, only one packet of ten notes of rupees fifty denomination besmeared with phenolphthalein power given to the complainant. According to the complainant, the money was put on the desk of the Doctor in his private clinic. However, the verifier said that the money was given to Biltu Singh, the Dresser, in the Government Hospital. However, the evidences of these two material witnesses is so contradictory, both in relation to place of occurrence and manner of occurrence, which can not be reconciled nor can it be said to be minor discrepancy as the argument advanced on behalf of the learned counsel for Vigilance that this is a minor discrepancy and it can be skipped, in view of the fact that the witnesses faded their memory due to long lapse of time in the time of occurrence and time of deposition, after eighteen years. If there is any discrepancy in the evidence, the benefit of doubt shall go to the accused and if two views are possible, even then, the view, which is to the benefit of accused, is to be taken. However, the further discrepancy that the injury report was sent by the Doctor on 07.06.1992 to the Police Station and was received at the Police Station on 07.06.1992 as per evidence of investigating officer so there was no occasion to demand or accept, but, the occurrence alleged and the verification alleged to be made on 10.06.1992 and the occurrence of demand and acceptance alleged on 11.06.1992. However, it is true that the defence has not adduced any evidence regarding his defence that the injury report has already been sent prior to the date of occurrence. However, it is true that the defence has not adduced any evidence regarding his defence that the injury report has already been sent prior to the date of occurrence. It is well settled principle of law that the defence has not to establish the case beyond all reasonable doubt, he has only to prove or create a doubt about the fact in his favour. However, the defence can establish it’s case by admission of the fact by the prosecution witnesses by putting the question in the cross examination in addition to adducing evidence. However, here on the facts and circumstances of the case, the investigating officer is P.W. 9 and investigating officer in his cross examination has accepted that he made verification with regard to the report issued by the Doctor and in his evidence he has accepted that he verified it and on his verification of the record of that case in which the said injury report was demanded has already been sent by the Doctor on 07.06.1992, if this is a fact or evidence, accepted that evidence is also material to be considered as this is the evidence on the part of the investigating officer and this is one of the modes of accepting the fact which is admitted by the prosecution. 14. However, taking into consideration the evidence of P.Ws. 4 and 10, the complainant and the verifier, there is contradiction in their evidence about demand and acceptance of bribe as according to the complainant he gave bribe by putting the money on desk of Doctor in his clinic where as according to Verifier, P.W. 10, the money was given to Dresser at Government Hospital and Dresser apprehended by trap team, but, neither the complainant, P.W. 4, nor the Verifier, P.W. 10, has stated in their evidence that either the Doctor or the Dresser demanded, hence, demand has not been proved and there is basic infirmities in evidence of P.Ws. 4 and 10 about place of occurrence, but, they have not stated that they demanded anything money. 4 and 10 about place of occurrence, but, they have not stated that they demanded anything money. There is no evidence to the fact that the Doctor or Compounder demanded the money, however, it is stated that the money was given to the Doctor on his table and on the other hand it was stated that the money was given to Biltu Singh in the Hospital, but, there is no evidence for a demand was made by any one. 15. The learned counsel for the appellants, however, relied upon catena of decisions reported in 2014(9) Scale, 528 (supra), (2011) 6 S.C.C., 450 (supra), (2010) 4 S.C.C., 450 (supra), (2009) 15 S.C.C., 200 (supra), (2009) 3 S.C.C., 779 (supra) and (2009) 6 S.C.C., 587 (supra) for the proposition in case of illegal gratification the prosecution must proof the demand and acceptance of the amount as demand and acceptance are a condition precedence for illegal gratification, i.e., there must be demand and voluntary acceptance by accused. The learned counsel for the appellants specially relied on paragraphs of 2014(9) Scale, 528 32 and 33 of the judgment, which are reproduced below :– “32 : This Court in K.S. Panduranga’s case (supra) has held that the demand and acceptance of the amount of illegal gratification by the accused is a condition precedent to constitute an offence, the relevant paragraph in this regard from the above-said decision is extracted hereunder : “39 . Keeping in view that the demand and acceptance of the amount as illegal gratification is a condition precedent for constituting an offence under the Act, it is to be noted that there is a statutory presumption under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than for the motive or the reward as stipulated under Section 7 of the Act.” “33: The learned senior counsel for the appellant has also placed reliance upon the case of Banarsi Das referred to supra wherein it was held that : “24. In M.K. Harshan Vs. State of Kerala this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge held as under : “8. …. In M.K. Harshan Vs. State of Kerala this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge held as under : “8. …. It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly, there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification.” 16. In paragraph 12 of the decision reported in (2011) 6 S.C.C., 450 (State of Kerala & Anr. Vs. C.P. Rao), it has been held as :— “12 : …… to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is proved to the contrary by proper proof of demand and acceptance of illegal gratification, which is the vital ingredient to secure the conviction in a bribery case…………….” 17. Hence, three facts are most relevant, there is no evidence of demand either by the Doctor, by the Compounder or by the Dresser, Biltu Singh, there is contradiction in the evidence of P.W. 4 and P.W. 10, the complainant and the verifier, the complainant has deposed in his evidence that he went to the private clinic of the Doctor and, then, put the money on the table of the Doctor, however, here neither the demand nor acceptance has been proved and, further, the verifier, P.W. 10, has deposed that he gave the money to Biltu Singh. However, there is no evidence that there was any demand by Biltu Singh. However, there is no evidence that there was any demand by Biltu Singh. More over, a contradiction between the evidence of P.W. 4 and P.W. 10 whereas P.W. 4 in his evidence has stated that he met the Doctor in his private clinic, which is more than 1000 yards from the Hospital whereas verifier has stated in his evidence that the complainant gave the money to the Dresser in the Hospital, hence, there is contradiction in the evidences of P.W. 4 and P.W. 10 and it can not be brushed aside mere it was a minor discrepancy due to fading of memory of the witnesses since after eighteen years. It is major contradiction which can not be reconciled, hence, taking into consideration the fact and material, I find and held that the prosecution has not been able to prove the charge beyond reasonable doubt and the learned trial Court did not took into consideration these material facts. 18. Hence, the order of conviction and sentence recorded by the trial Court is set aside and the appellants are acquitted of the charge. The appeals are allowed. ?