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2023 DIGILAW 266 (JK)

State (now UT) of J&K v. Abdul Aziz Mirza

2023-07-11

M.A.CHOWDHARY

body2023
JUDGMENT : 1. The above titled acquittal appeal has been filed by the Appellant-State against the judgment dated 29.01.2010 (‘impugned judgment’), passed by learned Special Judge Anti Corruption Jammu (‘Trial Court’) by virtue of which the respondent had been acquitted from the charge of the offences under Section 5(2) of the J&K Prevention of Corruption Act, 2006 and Section 161 RPC, in a case arising out of FIR No.57/1998, registered at Police Station Vigilance Organization (now ACB) Jammu. 2. The impugned judgment has been assailed on the following grounds : “(a) That order/judgment impugned in appeal is against the law and facts of the case, as such, is required to be set aside; (b) That the learned Trial Judge has mis-appreciated the evidence and misconstrued the law attracted to the facts of the present case, as such the judgment impugned is liable to be set aside on this score also; (c) That the learned Trial Judge by ordering acquittal of the accused (Respondent) has committed grave error in law, which has resulted in passing of the impugned judgment; and (d) That the prosecution has successfully proved the allegations leveled against the accused/respondent but even then the learned Judge has ordered his acquittal.” 3. Learned counsel for the appellant has argued that vide impugned judgment 29.01.2010, the trial Court had misdirected itself, both on facts and law, as the Trial Court has failed to appreciate the evidence of the prosecution in its right perspective ignoring the material and essential evidence led by the prosecution to unfold its case which has resulted into grave miscarriage of justice. It has been further argued that the impugned judgment is against the law and facts; the evidence has been mis-appreciated and law has been misconstrued; that it has been erred in holding the complainant as an accomplice as there was cogent and tangible evidence brought on record by the prosecution to prove that the accused had created such circumstances which compelled the complainant to pay bribe to him and there was no evidence in defence suggesting that the complainant at any point of time volunteered himself to pay bribe to the accused as wrongly held by the Court below; that the testimony of the complainant has been fully corroborated in material particulars by supportive evidence, led by the prosecution and the evidence in all possibility, foisted the criminal misconduct punishable under Section 5(2) of the J&K Prevention of Corruption Act; that the Trial Court had not appreciated the prosecution evidence just on presumptions, conjectures and insignificant discrepancies against the settled position of law that minor discrepancies in the statement of the witnesses are bound to agree with the passage of time and such discrepancies should not come in the way of conviction of the accused if the charge against the accused is otherwise proved and this principle of law has been ignored by the Court below; that the prosecution by leading cogent evidence has proved that the accused has demanded bribe of Rs.22,000/- from the complainant to secure a job for him as the statement of PWs namely, Yaar Mohammad, Mushtaq Ahmed and Mohammad Younas clearly pinpoint the guilty of the accused; that the Trial Court has observed that the gratification of Rs.20,000/- and Rs.2,000/- was made on the same day, thus, payment and acceptance of bribe was proved against the accused but still has given the benefit of doubt to the accused that there was no recovery of money overlooking this aspect that the prosecution story was not based on a trap case; that the Trial Court has also wrongly shown PW Mushtaq Ahmed a planted witness based on wrong facts, though he was a natural witness to the illegal acts of the accused; that the Trial Court had disputed the place of payment of bribe without any cogent reason concluding that the accused cannot dare, accept bribe in his office when other places were available. 4. Ms. Monika Kohli, learned Sr. 4. Ms. Monika Kohli, learned Sr. AAG further argued that the accused had misused his authority with the intention of causing wrongful gain to him and wrongful loss to the complainant which is a sheer abuse of his position or authority in doing that thing. She has further argued that the prosecution had proved its case, to prove the charges against the accused for the commission of offences punishable under Section 5(2) of the PC Act, besides Section 161 of the RPC. It was finally prayed that the impugned judgment, whereby the respondent had been acquitted, be set aside by allowing this appeal and the respondent be convicted for the commission of offences for which he was charged, in the interest of justice. 5. Learned counsel for the respondent, ex adverso, argued that the Trial Court, after a full-fledged trial on recording evidence for and against the charges and ultimately by a very reasoned judgment based on sound legalities and appreciation of evidence brought on record, the respondent had been acquitted of the charges. He has supported the impugned judgment stating that the prosecution had failed to lead the conclusive evidence so as to prove the ingredients of commission of the offences of receiving gratification by the respondent. It was further argued that the complainant who had been engaged as a Dealer in place of some other person, worked for a short time and then his services were disengaged in view of the stay order granted by the High Court in a petition filed by the earlier incumbent, as such, the complainant got disengaged, who under an impression that it was the respondent-TSO who had played a role in his disengagement, lodged a false complaint with the Vigilance Organization Jammu, alleging that the respondent had demanded an amount of Rs.22,000/- with an assurance to him that he would arrange the job of a Weighman for the complainant in the department and also that the said amount was received in his office by the respondent. He argued that it is not believe-able that the respondent would receive bribe in his office, that too in presence of the witnesses brought by the complainant, as such the Trial Court has rightly rejected this piece of evidence. He argued that it is not believe-able that the respondent would receive bribe in his office, that too in presence of the witnesses brought by the complainant, as such the Trial Court has rightly rejected this piece of evidence. PW Mushtaq Ahmed, who had supported the prosecution case, was an interested and partisan witness being in relation of the complainant and his statement has also been rightly discarded to record conviction by the Trial Court; that the other eye witness was not examined by the prosecution and who had sworn an affidavit that no such occurrence had taken place in his presence involving the respondent; that he was also examined by the defence as a defence witness who proved the contents of his affidavit in the Trial Court. 6. Mr. Sharma, learned counsel for the respondent has further argued that the Trial Court has concluded on the basis of the settled legal principles, with the evidence rendered by the complainant who is an accomplice cannot escape the rule of prudence and should not be relied upon unless corroborated on material particulars; and that the discrepancies of PW Mushtaq Ahmed the star witness of the occurrence and PW Mohammad Younas from whom the complainant had claimed to have borrowed the bribe money to be paid to the accused/respondent, were also disbelieved and found unreliable, incredible and unworthy of trust, as such the Trial Court had passed the impugned judgment perfectly in consonance with law and does not warrant any interference by this Court, while exercising the appellate jurisdiction. He has further argued that the appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal as an order of acquittal adds up, to the presumption of innocence in favour of the accused and that the initial presumption of innocence under criminal jurisprudence gets strengthened with the acquittal and such a double presumption, that enures in favour of the accused has to be disturbed only by the thorough scrutiny on accepted legal parameters. He has relied upon following citations ‘Jafarudheen & Ors. vs. State of Kerala’ 2022 SCC Online SC 495 and ‘Mohan alias Srinivas alias Seena alias Tailor Seena vs. State of Karnataka’ 2021 SCC Online SC 1233, in support of his arguments. He has relied upon following citations ‘Jafarudheen & Ors. vs. State of Kerala’ 2022 SCC Online SC 495 and ‘Mohan alias Srinivas alias Seena alias Tailor Seena vs. State of Karnataka’ 2021 SCC Online SC 1233, in support of his arguments. He has also submitted that this Court in a case reported as 2009 (1) SLJ 330 had held that it is unsafe to convict a person on the sole testimony of the sole accomplice when the other evidence on record is full of contradictions. 7. Heard, perused the record and considered. 8. Before adverting to the rival submissions made by learned counsel for the parties, it shall be relevant to refer to the factual matrix of the case. 9. One Yaar Mohammad S/o Ghulam Hussain resident of Marhote Tehsil Surankote District Poonch, moved a written complaint with the Vigilance Organization Jammu (now ACB) on 24.10.1997 alleging therein that while he was working as a ration dealer for village Marhote in the year 1997, the accused-Abdul Aziz Mirza was holding the post of TSO Surankote and the said officer promised him that he would arrange for his appointment as Class-IV employee in the Food & Supplies Department, in consideration of Rs.22,000/- as bribe, within a month’s time; that on this allurement he borrowed an amount of Rs.20,000/- from one of his relatives namely, Mohammad Younas and arranged Rs.2,000/- out of his own pocket and thus paid Rs.22,000/- to the accused in presence of PW Mushtaq Ahmed on 12.09.1997. 10. It was alleged by the complainant that the accused neither arranged employment for him nor returned money despite having been approached a number of times. On receipt of this complaint, a preliminary enquiry was conducted through SDPO Surankote who found the allegations having been ‘prima facie’ established and on receipt of his report along with enquiry papers in the office of Commissioner of Vigilance at Srinagar from the office of DIG of Police Poonch Rajouri Range, the approval was accorded for registration of a case, as such, a case was registered vide FIR No.57/1998 for the commission of offences punishable under Sections 5(2) of the PC Act and 161 of RPC, at Police Station, Vigilance Organization Jammu and the investigation was assigned to IO Nazir Ahmed Manhas. 11. During investigation, the statements of complainant PW Yaar Mohammad and witnesses, namely Tofail Hussain, Mushtaq Ahmed and Mohd. 11. During investigation, the statements of complainant PW Yaar Mohammad and witnesses, namely Tofail Hussain, Mushtaq Ahmed and Mohd. Younas were recorded who corroborated the version of the informant. On completion of investigation, the I.O found commission of offences punishable under Section 5(2) of the PC Act and Section 161 of RPC by the accused and also found that earlier also the accused had been prosecuted while he was serving as Cultural Assistant in the Information Department for demanding/accepting illegal gratification of Rs.1,000/- and subsequently retired from service prematurely and a writ petition filed by him against his dismissal had also been rejected by the High Court, as a result, chargesheet was laid against the respondent for the commission of above mentioned offences. 12. The accused was chargesheeted by the Trial Court vide order dated 26.08.2000 for the commission of offences punishable U/S 5(2) of J&K Prevention of Corruption Act and U/S 161 RPC who pleading innocence, denied the charges and claimed trial. The prosecution in order to prove its case, to bring home the charges, against the accused succeeded to examine Yaar Mohammad, Mushtaq Ahmed, Mohammad Younas, Surinder Kumar, Satish Khandarey, Nazir Ahmed Manhas and Kewal Krishan Gupta as prosecution witnesses. 13. Complainant Yaar Mohammad while being examined stated that the accused as TSO Surankote told him, while he was working as ration dealer, that he could get him appointed as Weighman and demanded an amount of Rs.22,000/- for securing this appointment; that he borrowed an amount of Rs.20,000/- from one of his relatives namely, PW Mohammad Younas and made the payment to the accused on 12.09.1997 in presence of PWs Mushtaq Hussain and Tufail Hussain Shah; that the accused demanded an amount of Rs.2,000/- more, for visiting Jammu to secure the order which he also paid to him; that the accused had assured him to secure the order within a period of one month and after a lapse of one month, he approached him again and the accused demanded an amount of Rs.10,000/- more which he, however, refused and demanded back his money, but the accused challenged him to do anything, as such, he moved an application (Ex.PW-YM) in Vigilance Organization and proved the contents of the application as well as the accompanying affidavit (Ex.PW-YM/I). He on his cross examination stated that he was appointed as dealer for village Marhote in the year 1996-97, after termination of earlier dealer Haji Hassan Mohammad, having been elected by the public, however, his dealership was cancelled in the year 1997 and he had been removed by the accused, after coming to know about the case against him, filed by the complainant. It is further deposed that PW Mohd. Younas from whom he had borrowed Rs.22,000/- was his cousin; that accused has told him money be paid to him in his office, he had made payment at 4 pm in the office of the accused in presence of two witnesses whom he had taken along when he made payment to the accused for securing employment. 14. PW Mushtaq Ahmed stated that a transaction of Rs.20,000/- had taken place between complainant Yaar Mohammad and the accused in the office of TSO Surankote, in his presence and that the accused had assured the complainant that he would get him appointed as Class-IV in the Food & Supplies Department; that he and the complainant are neigbourers and belong to same Gujjar brotherhood; that he had gone to the office of TSO for procuring a chit for obtaining kerosene, whereas the complainant was present there prior to his reaching. The complainant Yaar Mohd had counted the money and given it to the accused who had also counted the same. He stated that the moment he entered the office of TSO, three persons were already present there and he had also heard to their conversation. 15. PW Mohd. Younas stated that the complainant Yaar Mohammad is his cousin in brotherhood; that he had paid Rs.20,000/- to the complainant in the month of September, 1997 who had disclosed to him that this money was required to be paid to TSO Abdul Aziz Mirza as he has to secure order for his appointment as Weighman. Later the complainant had returned this money to him and told him that the accused had misappropriated his money and that he has not been given the appointment order. 16. PW Surinder Kumar stated that he as Junior Assistant in the office of Deputy Director, Food & Supplies Department, Jammu, had provided a photocopy of the transfer order marked as ‘SK’ of the accused to the I.O. and identified the same. 16. PW Surinder Kumar stated that he as Junior Assistant in the office of Deputy Director, Food & Supplies Department, Jammu, had provided a photocopy of the transfer order marked as ‘SK’ of the accused to the I.O. and identified the same. PW Satish Khandara stated that he as SDPO Surankote had enquired into the complaint against the accused, recorded statements of the complainant and his two witnesses and submitted a report to Senior Superintendent of Police, Poonch, he proved the contents of his report (Ex.PW-SK) as correct, besides the three statements marked as A, B and C recorded by him. He also identified the signatures of the then Senior Superintendent of Police, Poonch, R.S. Swain, on his forwarding letter to the DIG of Police. PW Kewal Krishan Gupta stated that on 28.08.1998 he as SP, Vigilance had registered FIR No.57/1998 after receiving the complaint and enquiry papers from DIG Rajouri-Poonch Range, vide communication No.737/CS dated 06.07.1998, he proved the contents of the FIR (Ex.PW-KK) as correct. He further stated that he has assigned the investigation of the case vide communication (Ex.PW-KK/1) to I& Ors., M.A. Manhas. 17. After recording of the prosecution evidence the accused was examined in terms of Section 342 of CrPC who again denied the incriminating evidence against him, taking a plea that the complainant had been engaged dealer temporarily by the Deputy Commissioner Poonch in place of one Hassan Mohammad who, however, obtained stay order from the High Court, as such, he removed the complainant and appointed Hassan Mohd at his place, in compliance with the stay order issued by the Court and due to this, the complainant lodged a false complaint against him. The accused had produced two witnesses Mohammad Din and Haji Mohammad Aziz in his defence and alongside produced two affidavits allegedly sworn in by PWs Mushtaq Ahmed and Tufail Hassain, in the face of affidavits produced, PW Mushtaq Ahmed was recalled for further cross examination and PW Tufail Hussain was called as defence witness. 18. DW Mohammad Din has proved contents of an affidavit (Ex.DW-MD) stated to have been sworn in by PW Mushtaq Ahmed, whereby the deponent had, inter alia, denied any knowledge about the case and the facts of the complaint. 18. DW Mohammad Din has proved contents of an affidavit (Ex.DW-MD) stated to have been sworn in by PW Mushtaq Ahmed, whereby the deponent had, inter alia, denied any knowledge about the case and the facts of the complaint. Likewise DW Haji Mohammad Aziz also proved a similar affidavit dated 07.03.1998 stated to have been sworn in by PW Tufail Hussain Shah, who was examined as a defence witness, having been given up by the prosecution. PW Mushtaq Ahmed however, when cross examined further by the defence denied to have sworn in affidavit (Ex.DW-MD) stating that signatures attributed to him on this affidavit, are not in his hand. PW Tofail Hussain, on the other hand, when examined as a defence witness, however, admitted to have sworn in the affidavit (Ex.DW-MA). 19. After hearing both the parties, the Trial Court vide impugned judgment acquitted the accused of the charges mainly on the ground that the complainant is a bribe giver, as such no credence can be given to his statement, in absence of any supportive corroborative evidence. PW Mushtaq Ahmed who was stated to be an eye witness to the receiving of the bribe amount by the accused and PW Mohammad Younas from whom the complainant is stated to have borrowed the bribe money were not relied upon, on the plea that both of them being from ‘same brotherhood’ as that of the complainant were not competent witnesses to credibly believe them, to record conviction, for the reason that they were interested and partisan witnesses. 20. Section 133 of the Evidence Act in positive terms provides that accomplice is a competent witness and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of any accomplice, therefore, in view of this provision, an accomplice is a competent witness and his testimony short of corroboration may be made basis of convicting a person. The Trial Court, however, while discussing illustration (b) to Section 114 of the Evidence Act recorded that the Section provides that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars and reading both these Sections 133 and 114 of the Evidence Act in juxtaposition, provide for a general rule, as well as a rule of prudence. The general rule as embodied in Section 133 of the Evidence Act permits the convictions on the basis of uncorroborated testimony of an accomplice, the rule of prudence embodied in illustration (b) to Section 114 of the Evidence Act strikes a note of warning cautioning the Courts that an accomplice does not generally deserve to be believed unless corroborated in material particulars and as to when the general rule or the rule of prudence are to be followed/ignored would depend upon, the facts and circumstances of a particular case and approach may differ from case to case but in every case, the Court has to be sensitive of both the rules. 21. The Trial Court while discussing the tendency and the personality of the complainant observed that the complainant in the case had claimed to have paid bribe readily and get his end served and was unhappy and angry, when agreed benefit is not provided and bribe money is not returned. The Trial Court has found faults of the complainant on some counts that he had taken two persons to the office of the accused for payment of money from the market whereas PW Mushtaq Ahmed stated that he had gone to the office of the accused, at his own and a transaction had taken place between the accused and the complainant in the office of the accused where the complainant paid him Rs.22,000/- in presence of him and one Tufail Hussain who was also present there. The statement of PW Mushtaq Ahmed, however, was not found credible for the reason that he had claimed to have gone to the office of the accused not with the complainant and at his own for obtaining a chit for getting kerosene which rendered the statement of the complainant as doubtful. The Trial Court also did not find the statement of PW Mohammad Younas a person living in neigbourhood and from the brotherhood of the complainant, being an interested and partisan witness, holding that his testimony requires scrutiny with care. 22. The Trial Court also did not find the statement of PW Mohammad Younas a person living in neigbourhood and from the brotherhood of the complainant, being an interested and partisan witness, holding that his testimony requires scrutiny with care. 22. It appears that the Trial Court has been swayed away by the contentions and the arguments of the defence that the statement of PW Mushtaq Ahmed who has corroborated the statement of the complainant to have made payment of the demanded bribe money by the accused in his office at Surankote and the statement of PW Mohammad Younas from whom the complainant had claimed to have raised a loan of Rs.20,000/- to make payment to the accused as a bribe, are from the brotherhood of the complainant and discarded their testimonies, being interested and partisan witnesses. Had their statement been believed, the same would have formed evidence having corroborated value to the statement of the complainant to be relied upon, for the conviction of the accused. 23. The contention of learned counsel for the respondent that an appellate Court, as held by the Apex Court in view of acquittal of an accused by the Trial Court, has to be relatively slow in reversing the order of the Trial Court on rendering acquittal, in view of the enhanced presumption of innocence is correct, however, when there is patent illegality, and apparent perversity, where miscarriage of justice has taken place, such a recourse cannot be justified and the appellate Court, if finds, illegality and perversity should intervene to correct the same. 24. Both the PWs Mushtaq Ahmed and Mohammad Younas have been ignored by the Trial Court simply on the contention that they were from the brotherhood of the complainant suggesting that all of them belong to one community. An interested or a partisan witness can be described as a witness who has some interest in the conviction of the accused and not merely be a relative of the complainant. I am afraid that such a proposition can be espoused to discard the statements of otherwise truthful witnesses. It is found that the Trial Court has adopted a very novel and a strange proposition to record acquittal in the case, firstly dubbing the complainant as an accomplice and secondly, the corroborative statements of the prosecution witnesses as interested and partisan. 25. It is found that the Trial Court has adopted a very novel and a strange proposition to record acquittal in the case, firstly dubbing the complainant as an accomplice and secondly, the corroborative statements of the prosecution witnesses as interested and partisan. 25. In the considered opinion of this Court, the statement of the complainant seems to be truthful, as an unemployed person under the assurance of being provided a government job by the accused, who was an officer of the department, cannot be stated to be just an accomplice as bribe giver to the accused. The reasoning given by the Trial Court in this behalf is thus erroneous. Similarly dubbing the prosecution witnesses Mushtaq Ahmed and Mohammad Younas simply for the reason that they belong to the same community of the complainant to be partisan and interested witnesses, also seems to be not only erroneous but absurd. If this contention is accepted then no witness from the vicinity or from the community of a complainant can be believed and relied upon. If a situation is there where only one community resides or its witnesses are available, then the trial of the accused may result into acquittal only, based on the approach adopted by the Trial Court. 26. The Trial Court has also very strangely observed in its judgment that it would have been improbable for the accused to have received the gratification amount in his office, instead of some other safe places, to receive the same. This also seems to be unsolicited piece of advice based on the wisdom of the Trial Court, to an accused, who was alleged to have received the gratification amount in his office. 27. For the foregoing reasons and observations made hereinabove, it is found that the Trial Court while acquitting the respondent had not taken a pragmatic approach and devised a method to record acquittal of the accused against whom the prosecution had proved its case by leading sufficient, cogent and credible evidence. 27. For the foregoing reasons and observations made hereinabove, it is found that the Trial Court while acquitting the respondent had not taken a pragmatic approach and devised a method to record acquittal of the accused against whom the prosecution had proved its case by leading sufficient, cogent and credible evidence. The minor discrepancies in the case have been relied upon to throw away, an otherwise proved case, against the accused, by the prosecution by leading credible evidence, to have proved the demand of gratification by the accused and receipt of the amount in presence of the witnesses, as such, the prosecution has succeeded to prove its case to bring home the charges against the accused/respondent to have committed criminal misconduct as a public servant, for the commission of offences punishable under Section 5(2) of the PC Act and Section 161 RPC. The Trial Court, for the aforestated reason, had decided the case, vide impugned judgment, on erroneous assumptions, in an arbitrary manner, discarding truthful statements of complainant and the prosecution witnesses. 28. Having regard to the aforestated discussions and the observations made hereinabove, the appeal of the appellant-State is allowed and the impugned judgment passed by the Trial Court is set aside. As a result, the respondent/accused is convicted for the commission of offences punishable under Section 5(2) of the PC Act and Section 161 RPC. 29. Since the respondent/accused was alleged to have committed the offence in the year 1997, now at this stage of the case, while appeal is being decided in the year 2023, it is recorded that for this inordinate delay in disposal of the case by the Trial Court in the year 2010 and by this court now, a lenient view has to be taken while imposing sentence of punishment. Though the offences of which respondent has been convicted are punishable with a minimum punishment of one year imprisonment and fine, but for special reasons to be recorded, punishment of imprisonment can be further lowered to six months. Thus for the aforestated reason of delay, the respondent/convict is sentenced to an imprisonment of six months and fine of Rs.20,000/- for the commission of offences punishable under Sections 5(2) of P.C. Act and Section 161 RPC each. In default of payment of fine, he shall undergo further simple imprisonment of one month. 30. Thus for the aforestated reason of delay, the respondent/convict is sentenced to an imprisonment of six months and fine of Rs.20,000/- for the commission of offences punishable under Sections 5(2) of P.C. Act and Section 161 RPC each. In default of payment of fine, he shall undergo further simple imprisonment of one month. 30. Trial Court record, alongwith a copy of this judgment is ordered to be sent down for information and compliance.