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2017 DIGILAW 1309 (RAJ)

Pukhraj Meena v. State of Rajasthan

2017-05-23

PANKAJ BHANDARI

body2017
JUDGMENT : Pankaj Bhandari, J. 1. The accused-appellant has preferred this appeal against the judgment dated 19.06.2006 passed by the Special Judge (Prevention of Corruption Cases), Jaipur whereby he has convicted and sentenced the appellant under Section 7 of the Prevention of Corruption Act (hereinafter to be referred as ‘the Act’) and sentenced for six months rigorous imprisonment and a fine of Rs. 500/- and for offence under Section 13(1)(d) read with Section 13(2) of the Act and sentenced for one year rigorous imprisonment and fine of Rs. 500/- and in default of payment of fine to further undergo one month simple imprisonment. The sentences, however, were directed to run concurrently. 2. Briefly state the facts of the case that the complainant-Hukum Chand lodged a written report Ex.P-3 to the Police Station Anti-Corruption Bureau, Jaipur (First) alleging therein that his Tata Sumo bearing registration No. RJ-17-C-0891 collided with a camel cart on 23.4.1999 when he was going from Jaipur to Mehandipur Balaji. It was alleged in the FIR that his vehicle was seized by the police and the investigation of the FIR was handed over to the appellant-Pukhraj. It was further mentioned in the FIR that Pukhraj demanded Rs. 5,000/- for release of the vehicle and the complainant gave Rs. 1,000/- on 24.5.1999, thereafter case diary was not sent and he had to give Rs. 2,400/-. It was alleged that till balance Rs. 1,600/- is given mechanical inspection would not be conducted. The Anti- Corruption Bureau for secret verification of the demand gave a tape recorder to the complainant and Sultan Singh was sent with the complainant for demand verification. A raid was conducted on 5.5.1999 and the amount of Rs. 1,600/- were recovered from the Quarter belonging to the accused-appellant. The Bureau after investigation submitted charge-sheet against the appellant. 3. Appellant was charged under Section 7 and 13(1)(d) of the Act. As many as 15 witnesses were examined on behalf of the prosecution, Accused-appellant was examined under Section 313 Cr.P.C. and five witnesses were examined as DW-1 to DW-5 in defence by the appellant. 4. The Court below after hearing the arguments, convicted the accused-appellant, aggrieved by which the present appeal has been preferred. 5. As many as 15 witnesses were examined on behalf of the prosecution, Accused-appellant was examined under Section 313 Cr.P.C. and five witnesses were examined as DW-1 to DW-5 in defence by the appellant. 4. The Court below after hearing the arguments, convicted the accused-appellant, aggrieved by which the present appeal has been preferred. 5. It is contended by the counsel for the appellant that decoy-Hukum Chand PW-2 and the witnesses to the trap proceeding PW-3 Ratan Verma and PW-5 Heera Lal have been declared hostile and as such the Court below has erred in convicting the appellant. 6. It is also contended that the demand verification transcript was not proved by any witness and the Court below has also not relied upon the demand verification and as such there was no material against the accused to bring home the conviction. It is also contended that no work was pending with the appellant and in the case diary it was mentioned that the mechanical inspection has been done and the police has no objection if the vehicle is released on Supurdginama. 7. Counsel for the appellant has placed reliance on Krishan Chander vs. State of Delhi, 2016 (1) WLC (SC) Cri. 400 : 2016 RCC (SC) 32 wherein the complainant turned hostile and the panch witnesses were at some distance so they were not able to hear the conversation between the complainant and the accused. The Apex Court held that mere production of the tainted money recovered from the accused, sans the proof of demand no guilt in the offence can be established. 8. Reliance has also been placed on P. Satyanarayana Murthy vs. District Inspector of Police State of Andhra Pradesh and Another, 2016 (1) WLC (SC) Cri. 895 : 2015 (10) SCC 152 wherein the Apex Court held that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, the proof of demand, ipso facto, reiterated, would not be sufficient to bring home the charge under Sections 7 and 13 of the Act. 9. Reliance has also been placed on B. Jayaraj vs. State of Andhra Pradesh, 2014 (1) WLC (SC) Cri. 792 : 2014 (13) SCC 55 wherein the complainant turned hostile, there was no other independent witness at the time of transaction. 9. Reliance has also been placed on B. Jayaraj vs. State of Andhra Pradesh, 2014 (1) WLC (SC) Cri. 792 : 2014 (13) SCC 55 wherein the complainant turned hostile, there was no other independent witness at the time of transaction. The Apex Court held that in absence of proof of demand for illegal gratification, mere recovery of tainted currency notes from the accused did not establish commission of offence. 10. Banarsi Dass vs. State of Haryana, 2010 (1) WLC (SC) Cri. 654 : 2010 (4) SCC 450 has also been relied upon by the counsel for the appellant wherein the Apex Court held that mere recovery of money from the accused by itself is not enough and in absence of substantive evidence of demand and acceptance, accused cannot be convicted. It was held that as per settled canon of criminal jurisprudence conviction of accused cannot be founded on basis of inference. 11. Reliance has also been placed on State of Rajasthan vs. Mohan Lal, 2009 (1) WLC (SC) Cri. 754 : AIR 2009 SC 1872 wherein recovery was made from an open almirah. The Apex Court in that case upheld the judgment of the Court below whereby the accused was acquitted due to lack of evidence. 12. Laxmi Narain Goyal vs. State of Rajasthan, 1997 (3) Crimes 541 was a case where the decoy witness and the two motbir witnesses did not support the prosecution case on two important facts of making demand of money and passing of currency notes to the accused as illegal gratification. Since the currency notes were recovered from an open almirah having no doors and complainant had sufficient time to and opportunity to place them in almirah in absence of appellant, accused was acquitted. 13. Reliance has also been placed on M.K. Harshan vs. State of Kerala, 1995 Cr. L.J. 3978 where the recovery of tainted money was from the drawer of accused, the trap witness deposed that accused did not touch currency notes but told him to keep the same in his drawer. The accused pleaded that the tainted money was planted in his drawer without his knowledge. The Court held the defence of the accused was more probable and acquitted the accused. 14. Learned Public Prosecutor has opposed the appeal. 15. The accused pleaded that the tainted money was planted in his drawer without his knowledge. The Court held the defence of the accused was more probable and acquitted the accused. 14. Learned Public Prosecutor has opposed the appeal. 15. His contention is that the vehicle of the complaint was not being released on Supurdginama because the file was withheld by the accused-appellant and the accused- appellant made it clear to the complainant that the vehicle would be released on Supurdginama only when the demand of illegal gratification of Rs. 5,000/- is made. 16. It is contended by the learned Public Prosecutor that the trap was laid after demand verification and the appellant himself went with the complainant to his quarter and asked the complainant to place the money on the table in his quarter. It is contended that the hands of the appellant were found to contain the contents of the powder and as such the prosecution has proved the fact of demand of money and receipt of money by the appellant. 17. Learned Public Prosecutor has placed reliance on Attar Singh vs. State of Maharashtra, 2013 (11) SCC 719 wherein the Apex Court has held that even testimony of witness who has been declared hostile can be relied upon if it is not shaken on material points in cross-examination and statements of a hostile witnesses cannot be rejected in toto. If some portion of statement of hostile witness inspires confidence, the same can be relied upon. 18. I have considered the contentions and have carefully perused the record and evidence adduced before the Court below. 19. As far as the demand of illegal gratification is concerned, immediately after receipt of the complaint PW-13 Sultan Singh was sent with the complainant for demand verification, the transcript of the demand verification has been exhibited as Ex.P4, PW-2 Hukum Chand has turned hostile and has specifically stated that he had a talk with the police-men at the Police Station and the owner of the camel cart and he did not talk with Pukhraj and tape recorder did not contain the voice of Pukhraj. 20. 20. PW-13 Sultan Singh, who accompanied the complainant has in his cross-examination, admitted that when the complainant went to the quarter of the accused, he was standing at the main-gate of the Police Station which was at a distance of 100 meters meaning thereby that he did not personally hear the dialogue between the accused and complainant. The witness has stated that the complainant handed the tape recorder to him and he handed the same to the Investigating Officer. The witness has also stated that when he gave the tape-recorder to the C.I. no transcript was prepared in his presence. There is not an iota of evidence to the effect that the voice contained in the tape recorder was that of the accused-appellant. The demand of illegal gratification by way of demand verification has not been established by the prosecution. The Court below in the impugned judgment has observed that the prosecution has failed to establish the demand of illegal gratification in the transcript dated 4.5.1999. 21. Now coming to the trap proceedings. The trap proceedings were held on 5.5.1999 Decoy-Hukum Chand with Rs. 1,600/- entered the Police Station Manpur. He went to the quarter of the accused-appellant and placed the money on the table lying in his room. PW-2 Hukum Chand has stated that when he went to the police and inquired about the appellant, the guard told him to go to Quarter No. 3. He went to the quarter, the quarter was open and there was no one inside the quarter. He left the money on the table and came out. The witness further stated that when the Bureau people asked Pukhraj about the money, he told them that he has not taken any money. The witness has also stated that Pukhraj was not aware that the money has been kept in his quarter as he was not there. This witness has not supported the prosecution and was declared hostile. 22. PW-3 Ratan Verma has also stated that accused did not take the complainant to his quarter and some other Constable took him to the quarter and Pukhraj was not present at that time. The witness has stated that Pukhraj came after the complainant had placed money on the table in the quarter of Pukhraj. 22. PW-3 Ratan Verma has also stated that accused did not take the complainant to his quarter and some other Constable took him to the quarter and Pukhraj was not present at that time. The witness has stated that Pukhraj came after the complainant had placed money on the table in the quarter of Pukhraj. This witness has specifically stated that the accused did not talk with Pukhraj and the accused specifically denied receiving any amount from the complainant. This witness was also declared hostile by the prosecution. 23. PW-5 Heera Lal is the other independent witness. This witness has also stated that the complainant did not tell the raiding party that he has kept the money in the quarter of Pukhraj on his demand. The witness has stated that the appellant was denying having received any money and was not aware as to how this money was found in his quarter. The witness has also stated that the quarter from which the money was recovered was not locked. 24. There is no evidence to the effect that the appellant told the complainant to keep the money in his quarter, as to who accompanied the complainant to Pukhraj's quarter is also not clear from the evidence adduced by the prosecution. 25. The Court below came to the conclusion that Rs. 1,600/- were found from the quarter of the accused- appellant and the amount was the same which was handed over to the complainant to give to the accused. The fact of recovery of the amount from the quarter of the appellant is not disputed by the counsel for the appellant but the only contention is that the same was planted by the decoy and the appellant was not having any knowledge of the same. The Court below has come to the conclusion that the person who accompanied the complainant to the quarter of appellant was Pukhraj, on that the basis that Pukhraj was known to the complainant and if the person who accompanied the complainant was not Pukhraj. There was no reason why the complainant would have asked the person accompanying him about the status of his file. 26. To my mind, there has to be direct evidence to come to any conclusion and on assumptions the Court cannot convict any accused. There was no reason why the complainant would have asked the person accompanying him about the status of his file. 26. To my mind, there has to be direct evidence to come to any conclusion and on assumptions the Court cannot convict any accused. There is no direct evidence that Pukhraj accompanied the complainant to his quarter and asked the complainant to place the money in his quarter and decoy and the witness having turned hostile and the recovery is not from the person of the accused-appellant, the demand verification have not being established, hence, there was no justification for convicting the accused. 27. As held in Krishan Chander vs. State of Delhi (supra), P. Satyanarayana Murthy vs. District Inspector of Police State of Andhra Pradesh and Another (supra), B. Jayaraj vs. State of Andhra Pradesh (supra), Banarsi Dass vs. State of Haryana (supra) and State of Rajasthan vs. Mohan Lal (supra) the recovery not being from the person of the accused, the demand verification having not been established and the witnesses including the decoy having turned hostile, the conviction order cannot be sustained. 28. Appeal preferred by the appellant is allowed. The judgment of sentence dated 19.06.2006 passed by the Court below is quashed and set aside. Appellant is directed to furnish personal bond and surety of Rs. 25,000/- before the trial Court within two months to the effect that he will appear before the Supreme Court as and when Supreme Court issues notices in respect of any appeal or petition filed against this judgment. Record of the trial Court be returned forthwith.