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2019 DIGILAW 143 (ORI)

State Of Orissa v. Nilakantha Mishra

2019-02-19

D.DASH

body2019
JUDGMENT D. Dash, J. - This appeal at the behest of the State questions an order dated 19.3.1996 passed by the learned Special Judge, (Vigilance), Sambalpurin T.R. No.4 of 1992, acquitting the respondent of the charges under Sections 13(1 )(d) read with section 13 (2) and 7 of the pC. Act, 1988. 2. Prosecution case in short is that one Gopinath Sira (P.W.3) was serving as a primary teacher at Malkangiri Poteru Village No.81 and he resigned from his service as he was not paid with the salary regularly. It is stated that as he had not received the salary from 01.01.1980 till 31.08.1989, he approached one Mr. Tarasia then serving as a clerk in the billing section of the Office of Dist. Inspector of Schools, Malkangiri, who in turn asked him to meet the accused who was then the District Inspector of Schools in connection with the payment of the unpaid salary. It is stated that when he met the accused on 25.01.1990, a demand was made by the accused to pay Rs. 1,000/- as bribe, P.W.3 being then aggrieved reported the matter to the D S P, Vigilance Jeypore and accordingly preparation for a trap was made. It is further stated that the accused was caught redhanded after acceptance of the bribe of Rs. 1,000/- from P.W.3. Sanction having been obtained from the concerned Authority, the accused faced the trial. 3. The plea of the accused is that the trap having actually being arranged against that clerk in view of his absence on that day, the vigilance people in order to satisfy their ego have falsely implicated him in the said trap. It is his case that he had neither demanded any bribe nor had accepted the same from P.W.3. It is further claimed that P.W.3 forcibly thrust the tainted money in his right side pant pocket for which he had immediately threw those currency notes and chased that P.W.3 hurling the abusive words at him. 4. The prosecution in order to establish its case against the accused has examined in total seven witnesses as against one from the side of the defence. The documents, such as, seizure list, F.I.R:, sanction order and others have also proved from the side of the prosecution. 5. Heard the learned standing counsel for vigilance as also the learned counsel for the accused. I have carefully read the impugned judgment. 6. The documents, such as, seizure list, F.I.R:, sanction order and others have also proved from the side of the prosecution. 5. Heard the learned standing counsel for vigilance as also the learned counsel for the accused. I have carefully read the impugned judgment. 6. The Trial Court, as it appears having gone to found out as to whether the prosecution has discharged the initial burden of proving that accused as a public servant has accepted the illegal gratification of Rs. 1,000/- from P.W.3 as a motive or reward for doing his official work in his favour has examined the evidence of all the witnesses in great detail. 7. First of all going to analyze the evidence of the decoy P.W.3, it has taken note of the fact that the very evidence of this P.W.3 as to the demand made by the accused has not been corroborated by anyone and none of the staff of the office of the accused has come forward to support the same when the fact remains that P.W.3 did not report about it to the higher authority of the accused or even any of the employees in the office. It has been clearly admitted by him that the very purpose of coming to the Office of the D.S.P, Malkangiri on 19.01.1990 was to lay a trap against that clerk attached to the Office of the accused who used to deal with the pay bills of the teachers working in that education district. He further stated that the trap in his absence had failed. When it is the evidence of P.W.3 that accused demanded the bribe from him, P.W.4 the Small Savings Officer who is the other witness to the trap has not supported the version. He has also not stated anything about the payment of the bribe said to have been made by the P.W.3. It is his evidence that when he reached the office of accused, he was asked to come away and so he being outside the office had no occasion to observe as to what happen inside when P.W.3 was there with the accused. It has also been stated by him that when he was going out, the members of the trap party went inside the office of the accused and so he again followed them and then he had also not seen the passing of the tainted money to the accused. It has also been stated by him that when he was going out, the members of the trap party went inside the office of the accused and so he again followed them and then he had also not seen the passing of the tainted money to the accused. Reference when is made to the evidence of P.W.5, another Government Official, it is seen that the defence version rather finds support from that. He has stated that when he entered into the room, he found the accused scolding that P.W.3. When the evidence of P.W.6 the Investigating Officer goes to show that to his sight the accused took out the tainted money and in a very clever manner placed those on the floor, no other witness examined on behalf of the prosecution has gone to say anything in that light so as to provide corroboration. The evidence on record goes to show that rather the accused was encircled by members of the trap party and then the tainted money was lying scattered on the floor. This lends support to the version of the accused that no sooner did P.W.3 put those currency notes in his pocket, he had thrown those. At this juncture, the evidence of P.W.3 on the score that he could not see if any of the members of the trap party had caught hold the hands of the accused for having remain outside the circle is of great significance and the accused if was encircle in that manner at the corner of the room outside located in from of his office room within the precincts of his office when the tainted currency notes were lying near the right side of the entrance door of the office of accused inside his office premises, a doubt arises as to the version of the I.0. that accused stealthily dropped those on the floor. It is stated that the accused then gave a chit (Exit.4) to the S.I. of Schools to go ahead with payment. 8. The Trial Court has taken an adverse view as to why the prosecution failed to send that chit (Ext.4) given by the accused to the Forensic Laboratory to ascertain whether there was traces of phenopthalein on it or not. 8. The Trial Court has taken an adverse view as to why the prosecution failed to send that chit (Ext.4) given by the accused to the Forensic Laboratory to ascertain whether there was traces of phenopthalein on it or not. It has also adversely viewed the circumstance that when Vigilance official had caught hold the accused, it is natural that phenopthalein traces must have passed from their hands to the hands of the accused showing the presence of such traces on his palm washes. The investigating officer during his examination having not stated to have raised his voice when the accused was dropping the tainted money on the floor, the said conduct has been taken as a circumstance to view the evidence of the said Officer in a suspicious manner. Had it been done, it could have attracted the others including the Magistrate (P.W.7) who does not claim to have seen it. 9. When the stand of the accused has been one from the beginning that the tainted money being thrust on the right side pant pocket, he threw the same and chased P.W.3 hurling abuses, the same finds mention in the detection report (Ext. 10) proved from the said prosecution. Prosecution has not sent that chit written by the accused for chemical test to ascertain presence of phenonpthalein even though it is the evidence that the accused on receipt of the money had written that letter, which shows that the prosecution has not approached the Court with clean hands. So, it being that case that the accused having received the money went to write the letter, the Trial Court has rightly viewed it as adverse circumstance to the case of the prosecution that had it been so that letter might have contained the traces of phenonpthalein, the proof of that would have clinched the issue. In view of all those, the Trial Court has arrived at a conclusion that here is a case where the story projected by the defence appears to be probable and the prosecution has failed to establish his case beyond reasonable doubt. 10. In view of all those, the Trial Court has arrived at a conclusion that here is a case where the story projected by the defence appears to be probable and the prosecution has failed to establish his case beyond reasonable doubt. 10. For the aforesaid discussion of evidence on record, this Court in seisin of the appeal filed against the order of acquittal within the scope and ambit of the same is not in a position to accord any difference with the finding of the Trial Court so as to set aside the impugned order of acquittal. 11. In the result, the appeal stands dismissed.