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2017 DIGILAW 1660 (RAJ)

RAMDAS KHATANA v. STATE OF RAJASTHAN

2017-07-26

DEEPAK MAHESHWARI

body2017
JUDGMENT : Deepak Maheshwari, J. Accused-appellant Ramdas Khatana has preferred this appeal to challenge the judgment dated 8.10.2014 passed by the learned Special Judge (Prevention of Corruption Cases) No. 1, Jaipur Metropolitan in Cr. Case No. 12/2005, whereby the accused-appellant has been convicted for the offence punishable under section 7 of the Prevention of Corruption Act, 1988 ('the Act of 1988') while acquitting him for the offence under Section 13(1)(d)(ii), while extending benefit of doubt. The accused has been sentenced with rigorous imprisonment for one year and a fine of Rs. 10,000/- has been imposed upon him. Simple imprisonment for 03 months has been awarded in default of payment of fine. 2. Heard learned counsel for the appellant and learned Public Prosecutor for the State. 3. Briefly stated, facts giving rise to this appeal are that a written report (Ex.-P/6) was lodged by the complainant Kamod Gurjar before the Additional Superintendent of Police, ACB, Jaipur stating that Mool Chand, Prahalad and 15-20 other persons assaulted on the family members of the complainant whereby grievous injuries were caused to his brother Angad, his wife and daughter by lathal weapons like 'axe'. The complainant filed an FIR on 15.4.2003 at P.S. Manpur. The SHO, PS Manpur-Mr. Indra Raj Singh registered a false FIR against the complainant and his family members after taking bribe from the opposite side. Both the matters were investigated by ASI Ramdas Khatana. When the complainant met the SHO - Mr. Indra Raj Singh, he threatened the complainant for implicating him in the false cross case. 4. On the condition of paying Rs. 20,000/-, he assured the complainant to remove the allegations of theft made against him and to file charge-sheet involving all persons against whom FIR was lodged by him. On bargaining, Indra Raj Singh asked the complainant to give Rs. 10,000/- to Ramdas. Being not agreed to the proposal, the complainant contacted Additional Superintendent of Police, ACB in this regard and then the trap proceeding was conducted. 5. On 29.4.2003, the complainant informed at 1:40 p.m. to Additional Superintendent of Police, ACB that ASI Ramdas told him that now since SHO is doing the investigation, nothing is in his hands. He told to accept the money only after consulting SHO. The SHO came at about 5:00 p.m. in the police station, then Ramdas asked the complainant to come to his Quarter No. 14, accordingly he went there. He told to accept the money only after consulting SHO. The SHO came at about 5:00 p.m. in the police station, then Ramdas asked the complainant to come to his Quarter No. 14, accordingly he went there. At about 5:30 p.m., Additional Superintendent of Police got the signal of the complainant and went inside the Police Station, Manpur. The complainant indicated him that ASI Ramdas has taken Rs. 5,000/- in presence of Omprakash in his quarter. Ramdas then put the amount beneath register lying in almirah of H.M. room after taking it out from left pocket of his pant. On being interrogated, Ramdas gave his explanation after thinking for a while that the complainant Kamod forcibly put some money in left pocket of his pant, which he did not even see. He stated that he has put that money beneath the register after taking out from the pocket. On getting his hands and left pocket of the pant washed, colour of the wash turned pink. Seizure memo was prepared of the money recovered and wash. After completing investigation and getting the prosecution sanction, charge-sheet was filed against Ramdas for the offence under Section 7, 13(1)(d)(ii) of the Act of 1988. 6. Charges were framed against accused Ramdas for the offence under Section 7 as also under Section 13(1)(d) r/w Section 13(2) of the Act of 1988 to which he denied and claimed trial. The prosecution got as many as 12 witnesses examined during trial and also got 27 documents exhibited. 7. On being examined under Section 313 Cr.P.C., 1973 accused denied the prosecution evidence and stated that he neither demanded any money nor accepted. No work of the complainant was pending with him on that point of time. Complainant forcibly put some money in his pocket which he resisted and immediately took out from the pocket, this is why colour of the wash of his hands and that of the pocket turned pink. It has been stated by him that no money was recovered from him. He has been falsely implicated. The prosecution sanction has been issued without any application of mind. 8. No witness was got examined by him in defence evidence but three documents were proved. After concluding the trial, learned trial court convicted the accused-appellant and awarded sentence as mentioned above vide judgment dated 8.10.2014. 9. He has been falsely implicated. The prosecution sanction has been issued without any application of mind. 8. No witness was got examined by him in defence evidence but three documents were proved. After concluding the trial, learned trial court convicted the accused-appellant and awarded sentence as mentioned above vide judgment dated 8.10.2014. 9. Learned counsel appearing for the accused-appellant submits that the impugned judgment suffers from so many infirmities. The learned trial court has not taken into consideration this aspect that no demand of any gratification has been proved against the accused. No tainted money, as alleged, has been recovered from him. There was no work pending with the accused at the time of alleged demand and recovery of money. The trap proceedings were initiated on 26.4.2003, whereas the investigation had already been completed by the accused uptill 16.4.2003 and the case diary was forwarded to the Additional Superintendent of Police. Investigation in FIR No. 117/2003 was also completed and the case diary was submitted to SHO Indra Raj Singh. The case diary was also recovered from SHO through seizure memo dated 29.4.2003. It has also been argued that the complainant Kamod PW-3 has turned hostile and did not support any allegation against the complainant. Other material witnesses Omprakash Kumawat (PW-4) and Mool Chand Sharma (PW-6) have also turned hostile, who were independent witnesses of the trap proceedings. Even the transcript has not been verified by relevant witnesses. Seizure memo of the tainted money has also not been proved. Learned counsel thus submits that none of the necessary ingredients of the alleged offence has been proved against the appellant. He prays that in view of above the impugned judgment is liable to be quashed and set-aside. 10. Learned counsel for the appellant has also placed reliance on the following judgments :- (I) N. Sunkanna v. State of Andhra Pradesh, reported in 2016(1) WLC (SC) Cri. 49. (II) P. Satyanarayana Murthy v. The Dist. Inspector of Police and Anr., reported in 2016(1) WLC (SC) Cri. 89. (III) Sejappa v. The State by Police Inspector Lokayukta, Chitradurga, reported in 2016(1) WLC (SC) Cri. 744. (IV) Nanjappa v. State of Karnataka, reported in 2015(2) WLC (SC) Cri. 518. (V) State of Rajasthan v. Murlidhar Gaur, reported in 2013 WLC (Raj.) UC 448. 11. Inspector of Police and Anr., reported in 2016(1) WLC (SC) Cri. 89. (III) Sejappa v. The State by Police Inspector Lokayukta, Chitradurga, reported in 2016(1) WLC (SC) Cri. 744. (IV) Nanjappa v. State of Karnataka, reported in 2015(2) WLC (SC) Cri. 518. (V) State of Rajasthan v. Murlidhar Gaur, reported in 2013 WLC (Raj.) UC 448. 11. Per contra, learned Public Prosecutor has vehemently opposed the prayer stating that the judgment impugned is perfectly in consonance with the material available on record. It does not suffer from any infirmity. The benefit of doubt has been extended to the accused by learned trial court while acquitting him for the offence under Section 13(1)(d)(ii) as charge of this offence was not proved. The conviction recorded for the offence under Section 7 of the Act of 1988 is perfectly legal and hence, the appeal is liable to be dismissed. 12. I have scanned the judgment impugned in light of arguments advanced by both the sides and also the material available on record. 13. On perusal of the judgment dated 8.10.2014, it appears that the learned trial court has recorded conviction against the accused-appellant on the premise that even if no work was pending with the accused at the relevant point of time, it can be inferred that the tainted money was accepted by him as reward. Learned trial court has come to the conclusion that the amount of Rs. 5,000/- which was given by the complainant Kamod to the accused in his Quarter No. 14 was recovered from the room of Head Moharrir situated in Police Station, Manpur. It is not the case of defence that the complainant has put the above said amount beneath the register lying in almirah of that room of Head Moharrir. Thus, it is clear that the accused Ramdas himself brought the money from his Quarter No. 14 to that room after accepting the same in his quarter. 14. In my considered view, the inference drawn by the learned trial court, when examined in the light of the prosecution evidence available on record, does not appeal to the logic. Thus, it is clear that the accused Ramdas himself brought the money from his Quarter No. 14 to that room after accepting the same in his quarter. 14. In my considered view, the inference drawn by the learned trial court, when examined in the light of the prosecution evidence available on record, does not appeal to the logic. The complainant-Kamod (PW-3) has stated that when he went to give the money to in-charge of Police Station Indra Raj Singh, on the first day, he could not find him in the police station till 5:00 p.m., then the ACB team asked him to make an attempt on the next day. Then again, he came to the police station on the next day and waited for in-charge Indra Raj Singh till 5:00 p.m. Then he came there but immediately thereafter went away. PW-3 has stated that then the ACB team told him that they had been waiting for two days for the trap and now he should give the money to somebody else. The complainant resisted the proposal, but then went again into the police station where he found Ramdas. When he talked to him regarding this case, Ramdas told that he had no concern in the matter and asked him to contact Indra Raj Singh. But the complainant put the amount of Rs. 5,000/- into the pocket of the pants worn by Ramdas. But Ramdas resisted the complainant while holding his hand. Then, the complainant put that amount beneath the register. Ramdas rebuked and asked him to go out and told that he was not concerned with his case and not having any investigation of that case. PW-3 Kamod has stated that thereafter he came out and informed the ACB team that he had put the money. Then ACB team rushed into the room and Kamod remained outside the room. 15. In light of the above statement, it is found that the complainant Kamod waited for two days to give the money, but did not find Indra Raj Singh on the next day also. He then handed over the money to Ramdas despite his resistance. It is pertinent to note that the complainant has been declared hostile by the prosecution and even during cross-examination conducted by learned Public Prosecutor, nothing has come out in his statement which may be taken as an incriminating evidence against the accused. He then handed over the money to Ramdas despite his resistance. It is pertinent to note that the complainant has been declared hostile by the prosecution and even during cross-examination conducted by learned Public Prosecutor, nothing has come out in his statement which may be taken as an incriminating evidence against the accused. On the contrary, he has stated that the room was situated within the boundary wall of police station where he tried to put the money. It is thus clear that the complainant did not mention that he gave the money to accused Ramdas in his quarter. 16. Other material witness in this respect is PW-4 Omprakash, who was a shadow witness of ACB to prove the handover of the currency notes by the complainant to the accused. He has stated that he was sent along with the complainant into the police station where accused Ramdas was found present. He has also stated that accused told the complainant that he was not concerned with his case and it was only in-charge of police station, who was the concerned person. Thereafter, the accused asked them to come to his quarter. When the complainant and PW-4 Omprakash went to his quarter, he was putting down his payjama. PW-4 Omprakash has stated that out of hesitation he came to side and therefore, he did not come to know what transpired between accused and complainant. But he has stated that while returning from there, the complainant told him that he had handed over the currency notes to the accused. Thus, PW-4 Omprakash has supported the prosecution story to some extent by quoting the complainant to have given the amount to the accused in his quarter. 17. But so far as the question of recovery of those currency notes is concerned, he has denied that any recovery was effected by the ACB team in his presence. On being declared hostile, he has been cross-examined by the Public Prosecutor wherein he has specifically denied to have seen the complainant giving tainted money to the accused. He has also denied the facts mentioned in part 'C' to 'D' and 'E' to 'F' of Ex.-P/8, which is recovery memo of the tainted money wherein the description of currency notes of Rs. 5,000/- given by the complainant to the accused has been mentioned. 18. He has also denied the facts mentioned in part 'C' to 'D' and 'E' to 'F' of Ex.-P/8, which is recovery memo of the tainted money wherein the description of currency notes of Rs. 5,000/- given by the complainant to the accused has been mentioned. 18. Complainant PW-3 Kamod and the shadow witness accompanying him, PW-4 Omprakash were most vital witnesses with regard to handing over the tainted money to the accused and its recovery. Both of them have given contrary version of this fact. The complainant has not at all corroborated the prosecution story whereas PW-4 Omprakash has corroborated to some extent by saying that the complainant informed him to have given the money to Ramdas. In view of the contradictory statements given by them, the prosecution cannot be said to have proved this fact that the currency notes on which phenolphthalein powder was applied, were handed over by the complainant to the accused Ramdas in his quarter. 19. Now, the second important aspect is with regard to the recovery of the tainted money from possession of the accused. It is an admitted case that the tainted money was not recovered from the possession or body of the accused. Learned trial court has also mentioned this fact in its judgment. But the inference of accepting and having the money recovered from his possession has been drawn by the learned trial court on the premise that the money given to him in his quarter was carried by him to the room of Head Moharrir, from where it was recovered. But in my view, the fact of recovery of the tainted amount at the instance of accused is also not found proved from the prosecution evidence. PW-3 Kamod has stated that he remained outside the room in which the ACB team entered and recovered the money. Thus, he does not say to have witnessed the recovery of the tainted money. During cross-examination also, he has negated the suggestion of recovery of money in his presence and also that the accused took the money out of his pocket and put it beneath the register. He has also denied the suggestion that Ex-P/8 was read over to him. Another witness of Ex.-P/8, PW-6 Moolchand has stated that Additional Superintendent of Police informed that money was lying at the place indicated by him. He has also denied the suggestion that Ex-P/8 was read over to him. Another witness of Ex.-P/8, PW-6 Moolchand has stated that Additional Superintendent of Police informed that money was lying at the place indicated by him. He was also declared hostile and during cross-examination conducted by the Public Prosecutor, he has denied the suggestion that accused Ramdas himself indicated that the money was lying beneath the register. Thus, it appears from the statements of PW-6 that the money was not recovered at the instance of accused Ramdas, but the Additional Superintendent of Police of ACB team indicated that money was lying at a particular place from where it was recovered. In view of this evidence, the prosecution has failed to prove beyond doubt that the tainted money was recovered at the instance of accused Ramdas in the room of Head Moharrir. As the fact of handing over money by the complainant to accused in his quarter and also the fact that the same was recovered at the instance of accused from the room of Head Moharrir has not been proved beyond doubt by the prosecution, the assumption drawn by the learned trial court against the accused to have accepted the same is found to be baseless and cannot be sustained. 20. Another inference drawn by the learned trial court is that the amount might have been accepted by the accused as a reward for doing or fore bearing to do an official act and for showing or fore bearing to show any favour or dis-favour to the accused. In this regard, it is important to note that the learned trial court has acquitted the accused of the offence punishable under Section 13(1)(d)(ii) of the Act of 1988 on the ground that demand made by the accused has not been proved. 21. Now, so far as the question of accepting money as reward is concerned, it is important to note that PW-3 and PW-4 both have stated that the accused informed the complainant that he had nothing to do with his case and the in-charge i.e. Indra Raj Singh is the person concerned to take any action. PW-3 Kamod has also stated that he did not know who was the investigating officer in his case. He also stated that Indra Raj Singh did not call any other police official along with the file when he demanded Rs. 20,000/- from him. PW-3 Kamod has also stated that he did not know who was the investigating officer in his case. He also stated that Indra Raj Singh did not call any other police official along with the file when he demanded Rs. 20,000/- from him. Thus the prosecution story is completely negated by him. It has also been stated by him that when even on the next day till 5:00 p.m. Indra Raj Singh did not turn up, ACB personnel suggested him to give the money to any other person. In light of these statements, it does not appear justified to infer that the money might have been given to the accused by complainant as a reward. Thus, the inference drawn in this regard by the learned trial court cannot be said to be justified. 22. Learned counsel for the accused-appellant has placed reliance on the judgment in State of Rajasthan v. Murlidhar Gaur (supra), wherein the Co-ordinate Bench of this Court has inferred the possibilities that the complainant might have planted the tainted currency notes through decoy, as the same were recovered from tray under the table and were not removed by the accused immediately. Such inference was drawn to indicate the innocence of the accused. In the case in hand also, the money was not recovered from the body of the accused. Moreover, the money is not proved to have been recovered at the instance of the accused. On the contrary, Additional Superintendent of Police of ACB team is said to have indicated where the money was lying. In such circumstances, it cannot be said that the money was recovered from the accused or at his instance. Thus, no liability can be fastened upon him with regard to that tainted currency on the ground of recovery from him. 23. The other judgments mentioned above and relied upon by learned counsel for the appellant have laid down the principle that absence of proof of demand is fatal to the prosecution case and the accused cannot be convicted for the offence under Sections 13 (1)(d)(ii) and Section 7 of the Act of 1988. 23. The other judgments mentioned above and relied upon by learned counsel for the appellant have laid down the principle that absence of proof of demand is fatal to the prosecution case and the accused cannot be convicted for the offence under Sections 13 (1)(d)(ii) and Section 7 of the Act of 1988. In this case, learned trial court has itself come to the conclusion that the fact of demand made by accused has not been proved and therefore, the accused has already been acquitted of the offence punishable under Section 13(1)(d)(ii) of the Act of 1988, so the judgments relied upon by the accused-appellant do not lend support to him in this appeal. 24. As per the discussion made above, the inference drawn by the learned trial court with regard to recovery of the tainted money at the instance of the accused and its acceptance by him as reward is not established in view of the evidence available on record. Thus, the assumption drawn by the learned trial court is neither in consonance with the evidence nor appeals to the logic. 25. Resultantly, the conviction held by the learned trial court in respect of the offence under Section 7 of the Act of 1988 qua the accused-appellant cannot be sustained. 26. In the result, the appeal is allowed. The judgment passed by the learned trial court convicting the accused-Ramdas Khatana for the offence under Section 7 of the Act of 1988 and sentence imposed upon him along with the fine is quashed and set aside.