Research › Search › Judgment

Orissa High Court · body

2021 DIGILAW 467 (ORI)

State Of Odisha v. Pradeep Kumar Dash

2021-11-12

S.K.SAHOO

body2021
JUDGMENT S. K. Sahoo, J. - Heard Mr. Sangram Das, learned Standing Counsel for the Vigilance Department and Mr. Trilochan Nanda, learned counsel for the opposite party. 2. This leave petition under section 378(1)(3) of Cr.P.C. has been filed by the State of Odisha (Vigilance) seeking for eave to file an appeal against the impugned judgment and order dated 05.04.2017 passed by the learned Special Judge (Vigilance), Bolangir in C.T.R. No.14/62 of 2003-2007 in acquitting the opposite party Pradeep Kumar Dash of the charges under section 13(2) read with section 13(1)(d) and section 7 of the Prevention of Corruption Act, 1988 (hereafter 1988 Act'). 3. The opposite party faced trial for the aforesaid offences on the accusation that he accepted bribe money of Rs.500/- (rupees five hundred) from the informant Bhaskar Patra (P.W.3) for preparation of his G.P.F. bill. It is the case of the informant that he was working as a Junior Engineer in the office of the S.D.O., Bolangir, Hydrometer Sub-Division under Executive Engineer, Bolangir Investigation Division and applied for G.P.F. of Rs.97,000/- (rupees ninety seven thousand) for treatment of his mother and it was sanctioned by the S.E., Northern Investigation Circle, Burla on 11.11.2002 and communicated to the Executive Engineer, Bolangir Investigation Division, but the same was not drawn and though his periodical increment was due from 01.10.2002, the same was also not passed. The opposite party was working Senior Clerk in the office and was dealing with the matter and he demanded Rs.500/- (rupees five hundred) for the said purpose. P.W.3 agreed to pay he amount against his will and ultimately he reported the matter before the Vigilance. The Superintendent of Police, Vigilance, Sambalpur on receipt of the written report, directed the Officer in-charge, Vigilance police station, Sambalpur to register the case and to take up investigation and to lay the trap and then to hand over the charge of investigation to D.S.P., Vigilance, Bolangir. After the trap was laid and the formalities of preparation for laying the trap was over, they proceeded to the office of the opposite party and it is the prosecution case that the trap was successful and tainted note was recovered from the possession of the opposite party which he had kept in his pocket after accepting the same from the informant and the hand wash of the opposite party taken in sodium carbonate solution turned pink. Hand wash in sample bottles were collected and sealed which was sent for chemical analysis. On completion of investigation, sanction order to prosecute the opposite party was obtained and charge sheet was submitted against the opposite party. 4. During course of trial, the prosecution examined five witnesses. P.W.1 is a witness to the preparation inside the Vigilance Office and also at the spot but he did not support the prosecution case and was declared hostile, P.W.2 is the shadow witness, who has also not supported the prosecution case and eclared hostile by the prosecution, P.W.3 is the decoy and he is also the informant, P.W.4 is the T.L.O. and P.W.5 is the nvestigating Officer. The prosecution exhibited seventeen numbers of documents. Exts.1, 2, 3, 4 and 5 are the signatures of P.W.1 in a sheet of paper, Ext.6 is the sheet of paper containing number of notes, Ext.7 is the preparation report, Ext.8 is the detection report, Ext.9 is the signature of P.W.2 on the seizure list (Ext.3/1), Ext.10 is the F.I.R., Ext.11 is the zimanama, Ext.12 is the chemical examination report, Ext.13 is the sanction order of G.P.F., Ext.14 is the misc. acquittance roll, Ext.15 is the sanction order, Ext.16 is the statement of P.W.2 recorded under section 161 Cr.P.C. and Ext.17 is the statement of P.W.1 recorded under ection 161 Cr.P.C. The prosecution proved eight material objects. M.O.I is the brass seal, M.O.II and M.O.III are the sample bottles, M.O.IV is the bottle containing right hand wash of the opposite party, M.O.V is the bottle containing left hand wash of the opposite party, M.O.VI is the bottle containing pant pocket wash, M.O.VII is the tainted money and M.O.VIII is the pant of the pposite party. 5. The defence plea of the opposite party is that the informant (P.W.3) had taken Am-way articles worth of Rs.498/- rupees four hundred ninety eight) from his wife and it was paid to him by the informant on the day of trap and the amount in question was not the bribe amount. One witness i.e. D.W.1 Lambodar Hansa examined on ehalf of the defence. 6. During trial, the material witnesses like P.Ws.1 and 2 did not support the prosecution case. One witness i.e. D.W.1 Lambodar Hansa examined on ehalf of the defence. 6. During trial, the material witnesses like P.Ws.1 and 2 did not support the prosecution case. Though the decoy being examined as P.W.3 supported the prosecution case but in the cross-examination, he has specifically stated that he and the opposite party-accused were residing inside the Laltikra Colony and the wife of the opposite party was dealing with Am-way articles and that he had purchased S.A.-8 Jezjyme, Jlistel tooth paste and brush worth of Rs.498/- from the wife of the opposite party and had not paid the amount to the wife of the opposite party or to the opposite party till he lodged the report. He further stated that inside the room in question, he and the opposite party were present and one peon, namely, Lambodar Hans (D.W.1) was available on the verandah. The said Lambodar Hans being examined as D.W.1 specifically stated that the incident took place on a Friday in the year 2002 in the month of December and P.W.3 paid Rs.500/- to the opposite party towards purchase of Am-way products of Rs.498/- from the wife of the opposite party and requested him to pay the same to his wife. 7. The learned trial Court after carefully analyzing the materials on record and the evidence of all the witnesses, has been pleased to hold that the explanation offered by the opposite party with regard to possession of tainted money appears to be reasonable and the defence has established its case by preponderance of probabilities and the evidence adduced by the defence and the cross-examination of the prosecution witness is sufficient to rebut the presumption under section 20 of the 1988 Act and accordingly, held the opposite party not guilty. 8. Mr. Sangram Das, learned Standing Counsel for the Vigilance Department contended that the impugned judgment and order of acquittal is perverse and not sustainable in the eye of law. He further submitted that law is well settled that even if the shadow witness did not support the case of the prosecution but if the evidence of the decoy is clinching and believable, basing on the corroborative evidence of trap laying officer, the conviction can be sustained. Learned counsel further submitted that in the examination in-chief, the decoy has stated about the demand of money made by the opposite party and he lodged the report before the Vigilance. Learned counsel further submitted that in the examination in-chief, the decoy has stated about the demand of money made by the opposite party and he lodged the report before the Vigilance. He further stated about the preparation for the trap and also offering the money to the opposite party on the date of occurrence towards bribe and further stated about the recovery of the same from the ossession of the opposite party. He further argued that the hand wash of the opposite party which was taken in the sodium carbonate solution turned pink which justified the presence of phenolphthalein powder in the hands of the opposite party by touching the bribe money and when the evidence of the official witnesses are clinching, the order of acquittal which has been passed mainly basing on the defence plea is not sustainable. He placed reliance on the decision of the Hon'ble Supreme Court in the case of Vinod Kumar -Vrs.- State of Punjab reported in A.I.R. 2015 Supreme Court 1206. Mr. Trilochan Nanda, learned counsel for the opposite party, on the other hand, supported the impugned judgment and contended that when the decoy has made a statement in favour of the defence plea and other important witnesses like P.W.1 and P.W.2 have not supported the prosecution case, the learned trial Court has rightly considered the same and since by examining the defence witness, the opposite party has discharged his burden and his specific defence plea gets support from the prosecution witnesses, it cannot be said that there is any infirmity or illegality in the impugned judgment so as to call for any nterference. 9. Adverting to the contentions raised by the learned counsel for the respective parties and on careful analysis of the vidence on record and on going through the impugned judgment, the learned trial Court seems to have assessed the evidence on record carefully and here is a case where the shadow witness has not supported the prosecution case relating to the demand of bribe or acceptance of the bribe by the opposite party. P.W.3 is the decoy and though in the examination in-chief, he has supported the prosecution case but in the cross-examination, he has stated about the reason for which the payment was made to the opposite party on that particular day and such a plea is getting corroboration from the evidence of D.W.1. P.W.3 is the decoy and though in the examination in-chief, he has supported the prosecution case but in the cross-examination, he has stated about the reason for which the payment was made to the opposite party on that particular day and such a plea is getting corroboration from the evidence of D.W.1. The prosecution has not by way of re- examination of P.W.3 has tried to clarify the ambiguities, which have been brought down in cross-examination or seeking clarification in that respect. In the case of Vinod Kumar (supra), it is held that the testimony of a hostile witness cannot be brushed aside and both the prosecution and the defence can rely for their stand and stance. The Public Prosecutor has the freedom and right to put such question as it deems necessary in re-examination to elucidate certain answers from the witnesses. he evidence has to be read as a whole and merely because a witness stated something against an accused in the chief examination, the trial Court cannot pass an order of conviction gnoring the materials, which have been brought out in the cross-examination in favour of the accused. In the case of Kishore Kumar Swain -Vrs.- State of Odisha (Vigilance) reported in (2018) 69 Orissa Criminal Reports 925, it is held that mere receipt of the amount by the accused is not sufficient to fasten his guilt in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. The burden rests on the accused to displace the statutory presumption raised under section 20 of the 1988 Act by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in section 7 of the 1988 Act. In a case where the accused offers an explanation for receipt of the alleged amount, while invoking the provisions of section 20 of 1988 Act, the Court is required to consider such explanation on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. In a case where the accused offers an explanation for receipt of the alleged amount, while invoking the provisions of section 20 of 1988 Act, the Court is required to consider such explanation on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. Therefore, whether all the ingredients of the offences i.e. demand, acceptance and recovery of illegal gratification have been satisfied or not, the Court must take into consideration the facts and circumstances brought on the record in its entirety and the standard of burden of proof on the accused vis-a-vis the tandard of burden of proof on the prosecution would differ. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then burden of proving the defence shifts upon the accused. The proof of demand of illegal gratification is the gravamen of the offences under sections 7 and 13(1)(d) of the 1988 Act and in absence thereof, the charge would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would not be sufficient to bring home the charge under these two sections of the 1988 Act. The complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon. (Ref:- State of Punjab -Vrs.- Madan Mohan Lal Verma reported in A.I.R. 2013 S.C. 3368, State of Maharashtra -Vrs.- Dnyaneshwar reported in (2009) 44 Orissa Criminal Reports 425, Punjabrao -Vrs.- State of Maharashtra reported in A.I.R. 2002 S.C. 486, V. Sejappa -Vrs.- State reported in A.I.R. 2016 S.C. 2045, Panalal Damodar Rathi -Vrs.- State of Maharashtra reported in A.I.R. 1979 S.C. 1191, Mukhitar Singh -Vrs.- State of Punjab reported in (2016) 64 Orissa Criminal Reports S.C. 1016). The evidence of the complainant should be corroborated in material particulars and the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon. The evidence of the complainant should be corroborated in material particulars and the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon. Even if the trap witnesses turn hostile or are found not to be independent, if the evidence of the complainant and the other circumstantial evidence on record is found to be consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty for the Court in upholding the prosecution case. The Trial Court which has the occasion to see the demeanour of the witnesses is no doubt in a better position to appreciate it and the Appellate Court should not lightly brush aside the appreciation done by the trial Court except for cogent reasons. (Ref:- Sri Satyananda Pani Vrs.- State of Odisha (Vig.) reported in (2017) 68 Orissa Criminal Reports 795) 10. In the case in hand, the acceptance of Rs.500/- by the opposite party from the P.W.3 is not disputed. It is also not disputed that there was recovery of Rs.500/- from the opposite party. The only issue which arises for consideration is whether such amount was demanded by the opposite party from P.W.3 as bribe for preparation of the G.P.F. bill as per the prosecution case or P.W.3 had taken Am-way articles of Rs.498/- (rupees our hundred ninety eight) from the wife of the opposite party and it was paid on the date of trap and the amount in question was not the bribe amount as per the defence plea. Law is well settled as held in case of Babu -Vrs.- State of Uttar Pradesh reported in A.I.R. 1983 Supreme Court 308 that in appeal against acquittal, if two views are possible, the appellate Court should not interfere with the conclusions arrived at by the trial Court unless the conclusions are not possible. If the finding reached by the trial Judge cannot be said to be unreasonable, the appellate Court should not disturb it even if it were possible to reach a different conclusion on the basis of the material on the record because the trial Judge has the advantage of seeing and hearing the witnesses and the initial presumption of innocence in favour of the accused is not weakened by his acquittal. The appellate Court, therefore, should be slow in disturbing the finding of fact of the trial Court and if two views are reasonably possible on the evidence on the record, it is not expected to interfere simply because it feels that it would have taken a different view if the case had been tried by t. Thus, an order of acquittal should not be disturbed in appeal under section 378 of Cr.P.C. unless it is perverse or nreasonable. There must exist very strong and compelling reasons in order to interfere with the same. The right of appeal against acquittal vested in the State Government should be used sparingly and with circumspection and it is to be made only in case of public importance or where there has been a miscarriage of justice of a ery grave nature. In case of Bannareddy -Vrs.- State of Karnataka reported in (2018) 5 Supreme Court Cases 790, it is held as ollows:- '10.It is well-settled principle of law that the High Court should not interfere in the well- reasoned order of the trial court which has been arrived at after proper appreciation of the evidence. The High Court should give due regard to the findings and the conclusions reached by the trial court unless strong and compelling reasons exist in the evidence itself which can dislodge the findings itself'. In case of Ghurey Lal -Vrs.- State of Uttar Pradesh reported in (2008) 10 Supreme Court Cases 450, t is held as follows:- 75.The trial court has the advantage of watching the demeanour of the witnesses who have given evidence, therefore, the appellate court should be slow to interfere with the decisions of the trial court. An acquittal by the trial court should not be interfered with unless it is totally perverse or wholly unsustainable.' 11. After going through the impugned judgment and order of the learned trial Court, the reasoning assigned therein for acquittal of the opposite party of all the charges, I find no infirmity or illegality or perversity in the impugned judgment, rather the order of acquittal of the opposite party is quite justified in the facts and circumstances of the case and therefore, I am not inclined to grant leave to the State of Orissa (Vigilance) to prefer any appeal against the impugned judgment nd order of acquittal. Accordingly, the CRLLP petition stands dismissed.