Bansidhar Sahu (Dead) Through His Lrs. Kamala Sahoo v. State of Orissa
2023-11-22
G.SATAPATHY
body2023
DigiLaw.ai
JUDGMENT G. Sataoathv, J. The legal representatives of deceased-appellant through this appeal U/S. 374(2) of the Cr.P.C. impugns the judgment of conviction and order of sentence passed on 10.03.1995 by learned Special Judge (Vigilance), Bhubaneswar in T.R. Case No.06 of 1987 convicting the appellant-Bansidhar Sahu since deceased for commission of offences punishable U/Ss.5(2) read with 5(1)(5) of the Prevention of Corruption Act, 1947 (in short the 'Act') and Section 161 of the Indian Penal Code, 1860 and sentencing him to undergo Rigorous Imprisonment (RI) for one year with fine of Rs.500/- in default whereof, to undergo RI for a further period of two months, but no separate sentence was passed against the convict for offence U/S.161 of IPC. 2. Be it noted, the original appellant died during the pendency of this appeal and was substituted by his legal heirs vide an order passed on 20.10.2003 in an application made U/S.394 of Cr.P.C. Since the appellant had already expired, the substantive sentence imposed against him remains unworkable, no matter the LRs of the deceased-appellant is permitted to challenge the conviction of the appellant and the sentence of fine against him in view of the decision in Ramesan(Dead) through L.R. Girija A v. State of Kerala; (2020) 3 SCC 45 . 3. The prosecution case in gist was that in the month of April and May, 1983, the deceased-appellant was working as a Head Clerk in the office of Sub-Registrar, Khandapara and on 15.04.1983, PW3-Bimbadhar Behera and his brothers executed a sale deed in favour of PW7-Bhramar Parida who requested his cousin Informant-PW2-Ramachandra Parida to receive the sale deed and, thereby, PW7 had authorized PW2 to receive the aforesaid sale deed. Accordingly, on 02.05.1983, PW2 produced the receipt before the deceased-appellant to give the original sale deed, but the later demanded Rs.50/- as bribe for the same by cautioning that if the bribe was not paid, the sale deed would be sent to Collector, Puri for undervaluation and accordingly, asked PW2 to come on 04.05.1983 with the bribe money.
Accordingly, on 02.05.1983, PW2 produced the receipt before the deceased-appellant to give the original sale deed, but the later demanded Rs.50/- as bribe for the same by cautioning that if the bribe was not paid, the sale deed would be sent to Collector, Puri for undervaluation and accordingly, asked PW2 to come on 04.05.1983 with the bribe money. Finding no way out, PW2 reported to the AIG (Vigilance), Cuttack by way of an FIR vide Ext.1 to take action against the deceased-appellant and such FIR was registered vide Cuttack Vigilance PS Case No.16 of 1983 and, accordingly, a trap was laid with assistance of DSP, Vigilance-PW15 Sunil Kumar Pradhan and investigating officer, PW16-Arjun Pradhan with others and the deceased-appellant was caught while receiving the bribe of Rs.50/- from PW2, whereafter PW16 conducted investigation and submitted charge-sheet against the deceased-appellant for commission of offence punishable U/Ss.5(2) read with 5(1)(5) of the Act and Section 161 of the IPC resulting in trial in the present case after the deceased-appellant abjured the charge. 4. In support of the charge, the prosecution examined all together 16 witnesses PW1 to 16, proved 19 documents under Exts.1 to 19 and identified Material Objects vide MO.I to I/4 and MO.II to VI as against no evidence whatsoever by the defence. The plea of the deceased-appellant in the course of trial was denial simplicitor, in addition to the plea in his statement U/S.313 of Cr.P.C. that he was not in charge of delivery of document and the document was in custody of the Sub-Registrar and that on 04.05.1983, while he was working, a person came and showed a receipt and he gave that receipt to Balunkeswar Mohanty to verify whether the document has been made ready and that the aforesaid person kept some money on his table and at that time, three persons caught hold of his hands and giving their identity as Vigilance Officers challenged him for accepting the bribe and that he denied to have taken bribe, but he was asked to count the money and accordingly, he counted the money and thereafter his hand wash was taken and detection report was prepared. 5. After appreciating the evidence on record upon hearing the parties, the learned Special Judge (Vigilance), Bhubaneswar convicted the deceased-appellant by the impugned judgment and sentenced him to the punishment indicated supra. 6. In the course of hearing, Ms.
5. After appreciating the evidence on record upon hearing the parties, the learned Special Judge (Vigilance), Bhubaneswar convicted the deceased-appellant by the impugned judgment and sentenced him to the punishment indicated supra. 6. In the course of hearing, Ms. S. Das, learned counsel for the LRs of the deceased-appellant by taking this Court through the evidence of witnesses has submitted that there is absolutely no evidence available on record to infer any demand and acceptance of bribe by the deceased-appellant and the accompanying witness-PW6 having been declared hostile, his evidence would remain not helpful to a prosecution and, thereby, the demand having not proved by the prosecution through independent witness, the conviction of the deceased-appellant demanding and accepting the bribe cannot be said to have been established by the prosecution beyond all reasonable doubt and, therefore, the impugned judgment of conviction and order of sentence as recorded against the deceased-appellant being unsustainable in the eye of law are required to be set aside by allowing the appeal. 7. On the other hand, Mr. M.S. Rizvi, learned ASC-Vigilance, however, by taking this Court through the evidence has submitted that there is no infirmity in the judgment of conviction and order of sentence since the deceased appellant was found demanding and accepting the bribe, his conviction cannot be legally questioned. 8. After having considered the rival submissions upon perusal of record, this Court considers it apt to examine the sustainability of the impugned judgment of conviction and sentence of fine imposed on the deceased-appellant, which can only be done by scrutinizing and re-appreciating the evidence available on record. Admittedly, P.W.2 being the decoy had testified in the Court that he was authorized by PW7 to take delivery of the registered sale deed from the office of Sub-Registrar, Khandapara, but when he went on 02.05.1983 to the deceased-appellant and asked him to deliver the registered sale deed by producing the receipt, the deceased-appellant insisted to pay Rs.50/- as bribe to settle the matter, otherwise he would send the sale deed to Collector, Puri for undervaluation and the deceased appellant had accordingly, asked him to come on 04.05.1983 with the bribe money to take back the registered sale deed, but as he was not willing to pay the bribe, he went to AIG Vigilance, Cuttack and lodged a report vide Ext.l(FIR). 9.
9. According to PW2, on receipt of Ext.l, there was a preparatory meeting and thereafter, he along with Vigilance staff proceeded to the office of deceased-appellant on 04.05.1983 and he along with PW6 went to the office room of the deceased-appellant with PW6 staying back outside the door of the room in which the deceased-appellant was working on his seat and he thereafter, proceeded to the seat of the deceased-appellant for taking delivery of the sale deed, but the deceased-appellant asked him, if he had brought the money earlier told, to which he said yes, and thereafter the deceased-appellant took the receipt from him and handed over the same to the peon and then he(PW2) brought out the notes kept in a paper from his pocket and handed over the same to the deceased-appellant. It was the further evidence of PW2 that the deceased-appellant took the money and counted the same and kept it on his table and put a paper weight on the currency notes and thereafter, DSP and Inspector Vigilance-PW15 & PW16 by giving their identity caught hold the hands of the deceased-appellant and thereafter, hand wash of the deceased-appellant was taken, which turned into pink colour and the liquid was sealed in a bottle. It was the specific evidence of PW2 that the appellant did not make any statement or explanation, but remained silent. 10. The defence had made a lengthy cross-examination of PW2, but it could not demolish the evidence of PW2 in respect of demand and acceptance of bribe by the deceased-appellant, rather the acceptance of bribe was reaffirmed in paragraph-22 & 24 of cross-examination of PW2 in the following words 'after I gave the money, the accused asked the peon by giving him the receipt to bring out the documents from the Almirah' and 'the accused told in normal voice, if I had brought the money'.
At this stage, in order to address the contention of the learned counsel appearing for the LRs of the deceased-appellant with regard to demand and acceptance of bribe by the deceased-appellant, this Court now adverts to the accompanying witness PW6 who of course had not supported the prosecution fully, but in the cross-examination by the prosecution, P.W.6 had admitted that he saw the complainant paying Rs.50/- to the accused(deceased-appellant) and the accused (deceased-appellant) kept the same on his table and placed a paper weight on the same, which evidence corroborated the evidence of PW2 in this regard. Further, PW6 in his cross-examination by prosecution had also admitted that he gave signal by rubbing his forehead and others came inside the office and the hand wash of the accused(deceased-appellant) was taken with sodium carbonate solution which turned into pink and was duly sealed in a bottle. Hence, the evidence of PW6 in essence corroborated the evidence of PW2 with respect to acceptance. The defence was, of course, right that PW6 had not supported the prosecution case with respect to demand of bribe by the deceased-appellant. 11. A comparative look to the testimony of PWs.2 & 6, it transpired that their evidence corroborated to each other in respect of acceptance of bribe, but the evidence of PW2 clearly disclosed demand of bribe by the deceased-appellant which could not be demolished by the defence in cross-examination. Besides, the testimony of PWs. 5, 6 & 15 disclosed convincingly the prior demand made by the deceased-appellant as narrated by PW2 in the preparatory meeting. In addition, the evidence on record disclosed recovery of the currency notes from the possession of the deceased-appellant and the hand wash of the deceased-appellant turning into pink which was collected in a sealed bottle and sent for chemical examination and the chemical examination report under Ext.9 disclosed the presence of phenolphthalein in the hand wash of the deceased-appellant. 12.
In addition, the evidence on record disclosed recovery of the currency notes from the possession of the deceased-appellant and the hand wash of the deceased-appellant turning into pink which was collected in a sealed bottle and sent for chemical examination and the chemical examination report under Ext.9 disclosed the presence of phenolphthalein in the hand wash of the deceased-appellant. 12. It is strange, but true that the deceased-appellant had come up with a plea for the first time in his statement U/S. 313 Cr.P.C that he was never in charge of delivery of document and one person tendered some notes on his table and at that time, three persons forcibly caught hold of his hand by identifying themselves as vigilance officer challenged him to have accepted the bribe, but he refused and thereafter they asked him to count the GC notes and he accordingly counted five ten rupees GC notes and thereafter, his hand was washed. It appears that the deceased-appellant had earlier answered to question No.22 in his statement U/S. 313 Cr.P.C. 'his hand wash turned into pink' as false, but subsequently took the above plea which was neither taken by him during trial nor before the time of detection of the bribe and thereby, this Court is of the considered opinion that the deceased-appellant had failed to offer any explanation as to how his hand came in contact with phenolphthalein powder. The above unambiguous evidence attracts the presumption as mandated U/s. 4 of the Act which the accused(deceased-appellant) was supposed to explain by way of rebuttal evidence in view of the prosecution establishing acceptance of the bribe by the deceased-appellant. 13. On a conspectus of the evidence on record, it quite appears that the evidence of PW2 was not only clinching, credible and reliable, but also beyond all shadow of doubt with regard to demand and acceptance of bribe by the deceased-appellant and the evidence of PW2 was clearly corroborated by the evidence of PWs. 6 and 14 so also by the document under Ext.19 with regard to acceptance of bribe by the deceased-appellant who had failed to discharge the burden as required U/S. 4 of the Act to rebut the presumption for acceptance of the bribe. It is, therefore, quite evident that the prosecution had established the charge against the deceased-appellant for demanding and accepting the bribe from PW2 beyond all reasonable doubt. 14.
It is, therefore, quite evident that the prosecution had established the charge against the deceased-appellant for demanding and accepting the bribe from PW2 beyond all reasonable doubt. 14. On a careful analysis of the impugned judgment by way of Marshalling and re-appreciating the evidence on record, this Court does not find any error apparent in the impugned judgment passed by the learned Special Judge(Vigilance), Bhubaneswar so as to warrant interference in this appeal. 15. In the result, the appeal stands dismissed on contest being devoid of merit, but in the circumstance there is no order as to costs. Consequently, the judgment of conviction and order of sentence passed on 10.03.1995 by learned Special Judge (Vigilance), Bhubaneswar in T.R. Case No.06 of 1987 are hereby confirmed, but the substantive sentence of imprisonment imposed against the deceased-appellant remains unworkable.