Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 99 (ORI)

Baishnab Charan Das v. State of Orissa

2015-02-13

D.DASH

body2015
JUDGMENT : The judgment of conviction and order of sentence passed by the learned Special Judge (Vigilance), Bhubaneswar in T.R. Case No. 34 of 1992 convicting the appellant of the charge under Section 7 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and sentencing him to undergo R.I. for a period of six months for payment of fine of Rs. 500/- in default to undergo R.I. for a period of one month for the offence under Section 7 of the Act and rigorous imprisonment for a period of one year with payment of fine of Rs. 500/- in default to undergo R.I. for one month for conviction under Section 13(2) of the Act; with stipulation that the sentences would run concurrently, have been called in question in this appeal. 2. Prosecution case is as under :- The appellant was working as an Amin during the settlement operation. The informant (P.W.2) found a reduction of area of 1 dec. in respect of his homestead land in the Parcha that he received during the settlement operation. So, he applied for correction of the same. It is stated that on 13.03.1991, the appellant took the measurement of the said homestead land and asked him to come to the office for further discussion. So, on the next date, when P.W.1 met the appellant in his office for the purpose of production of the documents in support of his case of illegal reduction of the area of his homestead land in the Parcha, the appellant demanded for a sum of Rs. 100/- to be paid to him for doing the said work and insisted for the said payment even after P.W.2 expressed his inability for the same. Thus, P.W.2 finding no other alternative paid a sum of Rs.20/- along with an application affixing Court Fees for such redressal of his grievance. It is next stated that the appellant told him to bring the rest amount on 30.03.1991 afternoon. So, P.W.2 approached the Vigilance Officials and accordingly a trap was laid and thereafter the appellant was caught on receipt of a sum of Rs. 80/- from the P.W.2 in the settlement camp at Dharmasala near Jagannath Temple. Finally, charge-sheet being placed and sanction being given for the said prosecution, the appellant faced the trial for the above offence. 3. So, P.W.2 approached the Vigilance Officials and accordingly a trap was laid and thereafter the appellant was caught on receipt of a sum of Rs. 80/- from the P.W.2 in the settlement camp at Dharmasala near Jagannath Temple. Finally, charge-sheet being placed and sanction being given for the said prosecution, the appellant faced the trial for the above offence. 3. During the trial the appellant specifically took the plea that the matter was no more with him concerning the redressal of grievance of P.W.2 as regards to the reduction of the area of his homestead land as alleged and, therefore, the appellant had no reason or occasion to make such demand. The factum of demand of bribe is denied. It is also stated that P.W.2 having already filed a review petition which had already been dismissed by then, the case has been foisted against him bearing grudge that it is the appellant who was instrumental in reducing the area of his homestead land to detrimental to his interest. 4. The prosecution during trial examined seven witnesses whereas defence examine none. P.W.1 is the Senior Clerk of Sub-Collector's Office, Jajpur and an overhearing witness giving signal about receipt of bribe money P.W.2 is the informant whereas P.W.3 is the magisterial witness and witness to preparation and trap who had compared the numbers of the seized notes. P.W.4 is the scientific officer of SFSL who examined the solution and found all the bottles A, B and C containing phenolphthalein. The peon of the office of Settlement who is a witness to seizure is P.W.5 when P.W.6 is the settlement officer who accorded sanction. The investigating officer is P.W.7. 5. The trial Court upon consideration and analysis of evidence has held the prosecution to have established its case beyond reasonable doubt that there was demand of bribe by the appellant and so also its receipt. The trial Court found that the evidence of P.W.2 that appellant had gone to measure his land and took Rs. 20/- from him to do his work is acceptable the appellant must have found that tenants of other two plots had to be made parties and therefore obtained two applications Exts.9 and 10 and therefore the evidence of P.W.2 that appellant demanded Rs. 20/- from him to do his work is acceptable the appellant must have found that tenants of other two plots had to be made parties and therefore obtained two applications Exts.9 and 10 and therefore the evidence of P.W.2 that appellant demanded Rs. 80/- more to do his work is plausible; that the evidence of P.W.2 when considered along with the evidence of P.Ws.1 and 3 proves beyond any reasonable doubt that the appellant demanded and accepted Rs. 80/- from P.W.2 as bribe to do his work pending in the office of Assistant Settlement Officer and that the sanction has been accorded by P.W. 6 upon due application of mind looking at, all the documents produced by the Investigating Officer and those being well apprised. With such finding, the appellant has been convicted and sentenced as afore-stated. 6. Learned counsel for the appellant submits that the appellant was not at all in a position to perform any such act or function so as to favour or disfavour in rendering any service or causing any disservice to P.W.2 as already prior to FIR, the appellant had submitted the adverse report against P.W.2 and P.W.2's prayer by then stood rejected as it reveals from case record of Objection Case No. 2595 of 1990 which has been proved by prosecution and that according to him, is to be taken as the reason for P.W.2 to falsely implicate the appellant in this case. He contended that the learned Special Judge erred in law by accepting the prosecution contention that the record of objection case was manipulated in connivance of Settlement Officer to help the appellant when no charge is there on that score and the conclusion on that score are nothing but surmises and conjectures. He next submitted that the trial Court ought to have held that the prosecution has failed to establish by clear cogent and acceptable evidence that there was demand by the appellant and the money recovered was so demanded. He next submitted that the trial Court ought to have held that the prosecution has failed to establish by clear cogent and acceptable evidence that there was demand by the appellant and the money recovered was so demanded. He also submitted that the Court below has committed illegality by overlooking the material contradictions in the evidence of prosecution evidence as regards recovery of tainted money when some witnesses stated that hand wash was taken before the appellant was asked by vigilance officer to bring out the so called tainted money, others including the decoy witness stated that hand wash was taken after he brought out the so called tainted money and that according to him is fatal to the prosecution case when no independent reliable witness has been examined. So, he urged that it is a fit case to set aside the conviction and sentence. 7. Learned counsel for the Vigilance Department refutes the submission. According to her, the trial Court on detail analysis of evidence has arrived at right conclusion of guilt of the appellant. She contended that the discrepancy as regards taking of hand wash has been rightly considered to be natural in view of examination of witnesses after 9 years and it is very natural to occur. She also submitted that the evidence of P.Ws. 1, 2, 3 and 7 as regards demand and acceptance of bribe are wholly reliable and there surfaces nothing to doubt their version. As regards the submission of learned counsel for the appellant that the fact stands proved that the appellant was not in a position to do anything in the matter of the grievance of the petitioner, her contention is that the same is immaterial in view of positive evidence of demand and receipt of bribe. Thus she contended the trial Court's judgment of conviction and order of sentence are to be confirmed. 8. On the aforesaid rival submissions, it is first of all necessary to answer the question as to whether the appellant was in a position to do or forbear to do such official act to perform to favour or disfavour, to render any service/disservice as stated by the prosecution. The application seeking enhancement of the area had already been made before the settlement officer and it was dismissed in view of the adverse report submitted by the appellant. The application seeking enhancement of the area had already been made before the settlement officer and it was dismissed in view of the adverse report submitted by the appellant. This was prior to the lodging of the F.I.R. The record of the Objection Case No, 2585 of 1990 (Ext.14) as proved by the prosecution during trial transpires so that the case was dismissed. So, it is said that the appellant had no such justifiable reason to even make a demand of bribe from P.W.2 being absolutely not in a position to render any assistance to him in that way. The learned Special Judge (Vigilance) is seen to have invented a third case by saying that "after detection of this case, the accused must have became nervous and gave a false report retrospectively on that P.W.2 was found absent when he went to measure the land and as a result of joint effort to rescue the accused, an order was passed retrospectively to maintain the area of his land." It is not the prosecution case nor hinted at by any of the witnesses examined on behalf of the prosecution. Next, learned Special Judge has gone to show that the record of the objection case was manipulated with the help of the Settlement Officer to rescue the appellant. But no charge has been framed on that score nor any material evidence is forthcoming to support the same. The conclusion thus does not appear to be well founded. 9. Now comes the question as to whether it has been proved beyond reasonable doubt that the money recovered was demanded and accepted by the appellant. It is the settled position of law that if substantive evidence in the case is not reliable mere recovery cannot form the basis of conviction. 10. In case of Surajmall v. Delhi Administration, A.I.R. 1979 S.C. 1408, the Apex Court has said:- "Mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when substantive evidence in the case is not reliable. 10. In case of Surajmall v. Delhi Administration, A.I.R. 1979 S.C. 1408, the Apex Court has said:- "Mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe." Also in case of Sitaram v. State of Rajasthan, A.I.R. 1975 S.C. 1432 it has been held :- "Mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money." In this connection, let's us now go to the evidence of the witnesses so far as the recovery of tainted currency notes is concerned. Here when some of the witnesses deposed that hand wash of the appellant was taken before he was asked by the Vigilance Officer to bring out the tainted money from the plastic box, witness, P.W.1 has deposed that hand wash was taken prior to the appellant's bringing out the tainted money from the plastic box as per the instruction of the Vigilance Officer. P.Ws.2 and 3 have deposed that after appellant brought out those currency notes, his hand wash was taken. Of course the Investigating Officer, P.W.7 has stated that hand wash was taken prior to his bringing out the currency notes from a rectangular yellow plastic box. The trial Court has not considered such discrepancies as vital in such a trap case as the witnesses are deposing long after and that according to him rather makes their evidence more worthy of credit. It is true that after lapse of about 8/9 years they deposed but in a case of this nature, the discrepancy when is on this material aspect, the same cannot be lightly brushed aside when their evidence on other aspect remain for consideration without being viewed with suspicion for such delayed examination. It is true that after lapse of about 8/9 years they deposed but in a case of this nature, the discrepancy when is on this material aspect, the same cannot be lightly brushed aside when their evidence on other aspect remain for consideration without being viewed with suspicion for such delayed examination. When the evidence on such vital aspect varies, then it cannot stand to be ignored with such explanation which can well then be urged as the ground to discard their version as the burden of proving the accusation when rests with prosecution, the blame has to be shouldered by it. 11. Learned counsel for the appellant has placed the decision in case of M.K. Hanshan v. State of Kerala, A.I.R. 1995 S.C. 2178 and Banarasi Dass v. State of Haryana, 2010(2) OLR(SC) 28, A.I.R. 2010 S.C. 1589, in support of his submission that significance of hand wash loses its value laying the trap, if the hand wash is not taken immediately after getting the signal that the smeared currency notes were accepted by the public officer. The statutory presumption thus appears in the present case to have been explained away by the appellant through the cross-examination of the witnesses. In that case of M.K. Hanshan (supra) the evidence being there that D.S.P. asked the accused to touch the currency notes and then made him deep his finger in the solution was held to be sufficient to give benefit of doubt to the appellant. The submission of learned counsel for the appellant thus found to be having force. 12. When again we go to the evidence, it is seen that P.W.1, the senior clerk in the office of the Sub-Collector has in clear term stated that the appellant took the currency note in his hand counted them and kept them in his plastic instrument box when he was present by the side of P.W.2, the appellant at that time. He has stated when he signaled the Magistrate and Vigilance Officer came and then the hand wash of the appellant was taken. This he has reiterated in cross-examination. Next coming to the evidence of P.W.2 the decoy himself. It is seen that he has stated on oath that being asked the appellant, produced money bringing out of the same from the diba and thereafter his hand wash was taken in some chemical which changed to red colour. This he has reiterated in cross-examination. Next coming to the evidence of P.W.2 the decoy himself. It is seen that he has stated on oath that being asked the appellant, produced money bringing out of the same from the diba and thereafter his hand wash was taken in some chemical which changed to red colour. The same is also the evidence of P.W.3, the Executive Officer that on being asked, the appellant produced the money and then his hand wash was taken in chemical solution which turned red. The I.O. has also stated that the hand wash bf the appellant was taken after he was admitted to accept Rs. 80/- and to have kept the same in the yellow plastic box. So, on this score there appears serious variation in the evidence of the prosecution and those are irreconcilable. The witnesses are not stating to have not the exact remembrance on that score. Therefore, the explanation of trial Court for brushing aside the above is not acceptable. In view of the above, it is difficult for the Court to hold that the prosecution has established the offence against the appellant that he accepted the money voluntarily as illegal gratification and the evidence on record is, thus, not found to be enough to prove beyond reasonable doubt the factum of acceptance of illegal gratification alleged to have been received by the appellant for favouring P.W. 2 by enhancing his area of homestead land as being reduced and noted in Parcha supplied during settlement operation. 13. For the aforesaid discussion and reason, this Court is of the considered view that the judgment of the learned Special Judge (Vigilance) convicting the appellant for the offences for which he stood charged is unsustainable in the eye of law and benefit of doubt squarely gets extended in acquitting the appellant of the charges. 14. The appeal is accordingly allowed.