Allahabad High Court
Jwala Prasad vs State Of U.P. on 30 April, 1996
Equivalent citations: 1997CRILJ1103
Author: B.K. Sharma
Bench: B.K. Sharma
JUDGMENT B.K. Sharma, J.
1. This is an appeal against the judgment and order dated 28-1-1984 passed by Shri S. K. Jain, the then Sessions Judge, Lalitpur in Special Case No. 2 of 1982, State v. Jwala Prasad, whereby he convicted the accused-appellant of the offence under Section 161, I.P.C. and under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act and sentencing him to undergo R.I. for 18 months for the offence under Section 161, I.P.C. and to suffer R.I, for 18 months for the offence under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947. Both the sentences were made to run concurrently.
2. Heard learned counsel for the accused-appellant and the learned Addl. Govt. Advocate.
3. At the relevant time the accused-appellant was the Lekhpal of Village Rajpura and complainant Daula was Harijan and was a resident of the said village.
4. The prosecution case was that the accused-appellant called several months before the date of the trap landless labourers of the village and had noted their names for the purposes of Patta of the land to be given to them, that then 3-4 days before 10-3-81 the accused-appellant came to the village to give patta to those to whom the land was allotted, that Daula complainant enquired from him about the proposed Patta in his favour, whereupon the accused-appellant told him that the land would be given to him only if he pays him a bribe of Rs. 100/-, that on this Daula complainant told him that he had no money to pay but later on he agreed to it and then the accused-appellant told him that he should come to his house in Talbehat with the money on 10-3-1981, that the complainant then went to Mathura Das Litoria in Talbehat and told him about the demand and got a complaint, Ex. Ka-6, scribed from him narrating the facts and praying that the accused-appellant be trapped, that then he went along with Mathura Das Litoria to Jhansi and met the Superintendent of Vigilance and submitted the complaint to him, who endorsed the complaint to Deputy S. B. (Vigilance) Sri Satish Kumar Chaturvedi and Sri Chaturvedi told him that he will come to the house of Mathura Das Litoria along with force, on the next date, that on the next date i.e. 10-3-1981 the complainant happened to meet the accused-appellant Jwala Prasad at the Bus Stand whereupon, the accused-appellant demanded the bribe amount, whereupon the complainant told the accused-appellant that he would bring the money within 2-3 hours, that on this the accused-appellant told him that he was going somewhere out of station and he should come to him with the money on 18-3-1981, that on this the complainant went to the house of Mathura Das Litoria, where the Deputy S. P. Sri Chaturvedi along with others was present, that he told the Dy. S. P. about the conversation he had with the Lekhpal and gave an application Ex. Ka-7, narrating the same and then Sri Chaturvedi went away directing Daula to meet him on 18th of the month at that place, that on 18-3-1981 Dhola complainant reached the house of Mathura Das Litoria, where after about 2-3 hours Dy. S. P. (Vigilance) Sri Chaturvedi along with another Dy. S. P. Sri Balak Ram, an Inspector and two constables came there, that thereafter Daula complainant, as per instructions of Sri Chaturvedi, Dy. S. P., reached the house of Mathura Das on 18-3-1981, that at about 1 or 1.30 p.m. Dy. S. P. Sri Chaturvedi along with another Dy. S. P. Sri Balak Ram, Inspector Lal Singh, two constables, Ram Adhar Pal and Gopal Behari and two public witnesses Munna Lal and Prem Narain, who were taken from the Bus stand, came there, that Daula affirmed the accused-appellant in the presence of all of them and produced a currency note of Rs. 100/- (Ex. 3) which was to be given as bribe to the accused-appellant, that Dy. S. P. Sri Chaturvedi noted down the serial number of the currency note and Constable Ramadhar Pal applied phenophthalein powder on the currency note and then the currency note was returned to Daula for being handed over to the accused appellant as bribe, that the hands of constable Ramadhar Pal and Daula were dipped in sodium carbonate solution, whereupon the solution which was previously colour less, turned into pink, that the solution was put in separate bottles (Exs. I and II) and sealed and memo (Ex. Ka-3) was prepared in respect of the same, that Dy. S. P. Sri Chaturvedi gave necessary instructions to the raiding party that Constable Ramadhar Pal would go along with Daula inside the room of accused-Lekhpal posing himself as Dhola's cousin, while all others would stay outside, that thereafter the raiding party proceeded towards the house of accused Jwala Prasad in Talbehat, that thereafter Daula complainant and Constable Ramadhar Pal went inside the room of the accused-appellant Jwala Prasad, while Dy. S. P. Chaturvedi and others stayed outside, that the accused-appellant was sitting inside the room on the ground scribing something, that the accused-appellant enquired from the complainant Daula about the identity of Constable Ramadhar Pal, that the complainant introduced Constable Ramadhar Pal as his relation and also assured that there was nothing about him which was hidden from him, that thereupon the accused-appellant enquired from Daula complainant if he had brought the money, whereupon Daula complainant replied in the affirmative, that Constable Ramadhar Pal asked the accused-appellant if he had taken any steps for getting the land allotted in the name of Daula complainant whereupon the accused appellant took out a sheet of paper and told him that he would be allotted 3.58 acres of land and his name would be sent, that thereupon Daula complainant handed over the currency note (Ex. 3) to the accused-appellant was took it and put it inside the right hand pocket of his Baniyan, that thereupon Dy. S, P. Sri Chalurvcdi along with others who were seeking and hearing from out side went inside the room, disclosed his identity and made search of the accused-appellant and recovered a currency note Ex. 3 from his pocket in the presence of the witnesses, that he also took in his possession from him a list of persons whom land was to be allotted Ex. 8 with a diary, Fix. IX, that on perusal he found that the number of the currency note, Ex. 3 tallied with the number of the currency note noted earlier by him, that then he dipped the right hand of the accused-appellant and his Baniyan in sodium carbonate solution and the solution turned pink, that then the hands of Daula complainant were also got washed in sodium carbonate solution and the said solution, also turned pink that the washed liquids were put in separate bottles and sealed, that then Dy. S. P. Sri Chaturvedi made a written report, Ex. Ka-5, at the police station and deposited all the recovered articles as also the complaint and the application made by Daula complainant to Superintendent of Police and to him there along with it, that he also lodged the bottles of solutions aforesaid with the police station.
5. On the basis of the written report, Ex. Ka-5, a chick report was prepared and a case was registered against the accused-appellant for offences under Section 161, I.P.C. and Section 5(2) of Prevention of Corruption Act, 1947 and the investigation followed. During the investigation the specimen of the writing of the accused-appellant was taken for comparison with the writing on the list, Ex. 8. The bottles of solution were sent to Chemical Examiner. The opinion of the handwriting expert and the opinion of the Chemical Examiner came in the affirmative and then after obtaining necessary sanction from the Sub-Divisional Magistrate concerned a charge-sheet was submitted by the Investigating Officer against the accused-appellant. The accused-appellant pleaded not guilty to the charges under Section 161, I.P.C. and Section 5(2) Prevention of Corruption Act, 1947.
6. At trial the complainant Daula narrated the entire prosecution story aforesaid on oath. His testimony is corroborated by the evidence given by Dy. S.P.S.K. Chaturvedi (PW1) about the making of complaint to him, the informing him on 10-3-1981 about the fixation of 18-3-1981 for the payment of the bribe and also about his affirmation of the complaint in the presence of the public witnesses and the raiding party, the production of the currency note of Rs. 100/- and the formalities of its treatment with phenolphthalein powder and the demonstration relating thereto. He has also testified to the going of the complainant Daula and Constable Ramadhar Pal into the room of the accused-appellant Jwala and positioning of the trap party including the public witnesses just outside the room, the conversion between him (the complainant), Ramadhar and the accused-appellant, the payment of the money of bribe and the arrest and the recovery of the currency note. His evidence was also that the right hand of the accused-appellant through which he accepted the currency note and his Baniyan were dipped in sodium carbonate solution and the solution turned pink and that when the hands of Daula complainant were got washed in sodium carbonate solution, the solution turned pink. The currency note, Ex. K.a-3, and Baniyan, Ex. Ka-7, and the bottles in which these solutions were sealed were produced at the trial. There was also the report of Director, Forensic Laboratory, U. P., Lucknow, Ex. Ka-16, to the effect that the currency note aforesaid was found soiled in Phenolphthalein powder and above-mentioned solutions were found containing Phenolphthalein powder and sodium carbonate solutions. The genuineness of this report was not disputed by the learned counsel for the accused-appellant. Consequently, it was exhibited at the trial. There is also the evidence of Munna Lal (PW 3), a public witness of the trap. In his examination-in chief he supported the prosecution story about the payment of the bribe money and also the recovery but in his cross-examination he made discrepant statement in as much as he disclaimed the payment and acceptance of bribe money having been done in his presence. However, the basis prosecution story was adhered by him even in his cross-examination in respect of arrest and recoycry. Then there is evidence of Constable Ramadhar Pal (PW 5) about his accompanying the complainant Daula into the room of the accused appellant, the conversation, the payment and acceptance of bribe money, the arrest and recovery and also the demonstration with sodium carbonate solutions etc.
7. Learned counsel for the accused-appellant has argued that the complainant cannot be placed on any better footing than that of an accomplice and in this regard relied on the authority Panna Lal v. State of Maharashtra 1980 SCC (Cri) 121 : AIR 1979 SC 1191. He also cited another authority Som Prakash v. State of Punjab 1992 Cri LJ 490 : AIR 1992 SC 665, where the prosecution evidence was thrown out on the facts of the case. On the subject of corroboration, the prosecution of the apex Court in M.O. Shamshuddin v. State of Kerala 1995 AIR SCW 2717 at p. 2728, are relevant.
Now coming to the nature of corroborating Evidence that is required, it is well settled that the corroborating evidence can be even by way of circumstantial evidence. No general rule can be laid down with respect to quantum of evidence corroborating the testimony of a trap witness which again would depend upon its own facts and circumstances like the nature of the crime, the character of trap witness etc. and other general requirements necessary to sustain the conviction in that case. The Court should weigh the evidence and then see whether corroboration is necessary. Therefore, as a rule of law it cannot be kind down that the evidence of every complainant in a bribery case should be corroborated in all material particulars and otherwise it cannot be acted upon. Whether corroboration is necessary and if so to what extent and what should be its nature depends upon the facts and circumstances of each case.
8. Applying the above ratio to the facts of this case there is absolutely no reason to doubt or discard the prosecution case and the prosecution evidence in the present case. It has been said that Dy. S. P. Sri S. K. Chaturvedi (PW 1) was the architect of the raid and as such interested in the success of the trap. But nothing has been suggested by the accused-appellant to show that he had any personal enmity with the accused-appellant. Ramadhar Pal (PW 5) who accompanied the complainant to the inside of the room of the accused-appellant was a constable of the Vigilance Departmental but against him also there is no allegation that he had any friendship with the complainant or Mathuradas Litoria or enmity with the accused-appellant. The police officers associated with trap are not accomplices. Their testimony is not to be uncermoniously ruled out as tainted without scrutiny. Such testimony deserves consideration by the Courts in the light of surrounding circumstances and if it impresses the Court as credible it can safely be accepted for basing conviction thereon. It is to be noted that in his statement recorded by the trial Court before framing of the charge the accused-appellant did not dispute the date, time and place of his arrest. He also admitted the recovery of some cash, a diary and a fountain pen from his possession as found on his personal search being taken. He, of course, denied the demand and acceptance of . bribe money, the recovery of this money the demonstration and preparation of recovery memos etc. In the cross-examination of Dy. S. P. Chaturvedi (PW I) there was no dispute made about the date, time and place of the arrest of the accused appellant by him. There was also no suggestion made to him that no demonstration was made with sodium carbonate solutions. When the complainant Daula was in the witness box, no suggestion was made to him in the cross-examination disputing the date, time and place of the arrest of the accused-appellant or disputing the demonstration. No such suggestion was made even to the other witnesses of facts. In his statement under Section 313, Cr. P.C. also the accused-appellant did not specifically dispute the date, time and place of his arrest. He made only a general denial.
9. Ram Singh (DW 1) was examined from the side of defence. He too did not dispute the date, time and place of the arrest of the accused-appellant. He slated that he was present in the room of Sukhpal with him (J wala Prasad accused), that Sri Mathuradas (scribe of the complaint, Ex. Ka-6) followed by 4-5 other persons including Daula complainant and also a. police officer in plain dress came there. Then he said that he and Sukhpal were sitting on a cot in the Verandah, that Jwala Prasad, accused-appellant sitting on the Dari on the ground was doing Likhapadhi, that Mathuradas Litoria asked Jwala Prasad accused "KHARE HO JAWO, TUMNE RISHWAT LEE THEE AB PAKRIJA RAHIHAI", that the person accompanying Mathuradas took out the shirt of the ac-cused-appellant and took out the money from his under Baniyan and then he took him to the police station. He further stated that they did not have any talk with Jawala Prasad accused-appellant. He further stated that the accused-appellant did not demand any bribe from the complainant Daula in his presence,- nor the accused-appellant told anything to complainant Daula about giving him a Patta. He further stated that no Likhapadi took place at the spot. So far as the presence of this witness on the spot is concerned, it is not disputed but there is difference about the stage when he reached at the spot. Trap Officer Dy. S. P. Sri Chaturvedi (PW I) stated in the recovery memo prepared by him and claimed in his testimony at the trial that Sukhpal Singh and Ram Singh had come at the time of arrest and recovery. Ram Singh (DW 1) on the other hand claimed that he was present there from before. The recovery memo corroborated the testimony of Sri Chaturvedi (PW 1). At the stage when the recovery memo was prepared he (Sri Chaturvedi PW 1) could not have any chance of knowing that Ram Singh would be produced at the trial as a defence witness. Obviously, in all good faith he named in the recovery memo all the persons who happened to arrive at the spot at the time of arrest and recovery. He has recorded in the memo that he called upon these persons to assist him as witness of arrest and recovery but they declined. This mention in the recovery memo is an important circumstance in his favor that he did try to associate with the search and recovery the public persons who came to the spot at the time of the occurrence. In the very nature of things while going to make the raid he had to associate with him a few persons from before and carry them with him after making before them due demonstration of the technique of using phenophthalein powder that if any hand which has handled any currency note soiled with this powder is washed with or dipped in sodium carbonate solution, the solution which was colourless turned pink.
10. Ram Singh (DW 1) did not say that he offered to become a witness of this recovery and also did not say that he was not asked to become a witness of the arrest and recovery. He also did not say that he made any complaint to any authorities that there had been no recovery of bribe money from the accused-appellant but a false case was fastened upon him.
11. It is .significant to note that the defence suggestion to Trap Officer Chaturvedi (PW. 1) in his cross-examination was that Ram Singh (DW 1) along with Sukhpal, Lekhpal, were present inside that room where the accused-appellant was at that time and where, as per prosecution case, the demand and acceptance of bribe money by the accused- appellant took place. If they were present inside that room it ruled out any demand and acceptance of bribe by the accused appellant in that room. However, Ram Singh (D.W. 1) in his testimony did not make any such claim that he was inside the room in which the accused-appellant was sitting on the floor and doing his Likhapdhi. He only claimed that he was in the outside Verandah. It was consistant with the version including the demand and acceptance of bribe inside the room of the accused-appellant. He did not say that complainant Daula and witness Constable Ramadhar Pal did not enter inside the room where the accused-appellant was doing Ljkhapadhi sitting on the floor. There was a suggestion in his cross-examination that he was not a witness of payment of bribe money to the accused-appellant (because he arrived there subsequently) at the time of arrest and recovery). He made a denial to the suggestion that he had not seen the occurrence of payment of bribe to the accused-appellant. The suggestion of the prosecution to him was that he is giving a false statement because he keeps good relations with Lckhpals. But from his statement itself it is obvious that his denial is not true. He happened to be the Village Pradhan of village Sunet a. He himself said that he used to visit Sukhpal off and on. On his own saying Sukhpal, Lekhpal and Jwala Prasad accused-appellant lived jointly in one and the same room. As such it is not surprising that on the date of occurrence he rushed to the spot seeing some trouble to the accused-appellant and at the trial came forward as a defence witness. Considering all the circumstances his statement could not help the defence case.
12. It has further been argued that independent persons were not associated by trap officer Sri Chaturvedi (PW 1) with the trap and in support of this plea he referred to the admission of Munna Lal (PW 3), a trap witness, that he had close relations with Sri Mathuradas Litoria. But this admission by this hostile witness cannot be taken at its face value. If Munna Lal was in the pocket of Mathuradas Litoria, he would not have turned hostile and made statements in his cross-examination which contradicted his testimony in his examination-in-chief. It is common these days that defence wins over a prosecution witness and manages a few contradictions in his evidence to give an ugly shape to his testimony at the trial. It is also noteworthy that even though he is a hostile witness, he has denied the defence suggestion that no proceedings were taken at the spot and that on the memos his signatures were obtained subsequently.
13. It has been elicited from the complainant that one Gulab Singh was an influential man of the locality. Me was suggested that Gulab Singh had encroached upon land of Gaon Sabha and that the accused-appellant had made a report against him but there was no documentary material placed on record in support of the plea. The witness has pleaded ignorance in the subject. He has emphatically denied the suggestion that he was servant of Gulab Singh and there is no evidence on record from the defence side to show the alleged employment.
14. It has been argued by the learned counsel for the accused -appellant that Mathuradas Litoria was an influential man of the locality and he (Mathuradas) had a grudge against the accused-appellant because he did not oblige him (Mathuradas) who wanted Patta to be given to his own man. It has been claimed relying on Ram Singh (the complainant Daula has been a servant of Mathura Das Litoria. It has been pointed out that Daula complainant was an illiterate person and it was Mathura Das Litoria who had scribed the complaint of Daula (Ex. Ka-6) and had also taken complainant Daula to Vigilance Office and got the complaint filed there and then the application, Ex. Ka-7, about the postponement of the date of payment of bribe to the accused-appellant too was scribed by Mathura Das Litoria and then Dy. S. P. L. Vigilance and the force had collected at the house of Mathura Das Litoria and it was there that the affirmation of the complaint and demonstration with Phenophthalin powder and sodium carbonate solution was made. It has also been elicited from Kailash Narain (PW 10) Assistant Registrar Kanoogo in his cross-examination that in the file of land allotment case of the Tehsil, there was an application of Mathura Das Litoria against Jwala Prasad Lekhpal-accused-appellant. on which there was an order passed by the Sub-Divisional Officer for the Tehsildar to make an enquiry and that there was a report of an official on his application that the Patta have been given according to possession. A certified copy of the said application and the report thereon is Ex. Kha-3.
15. It has been argued by the learned counsel for the accused-appellant that Mathura Das being inimical with the accused-appellant made complainant Daula a tool in his hands and got a false complaint lodged against the accused-appellant. It did appear from the complaint of Mathura Das Litoria against the accused-appellant that the relations between the two were uneven. It is also evident that but for the assistance given by Mathura Das Litoria Daula complainant (PW 2) who was an illiterate villager could not have brought the complaint to the doors of the Vigilance Department. However, it is not possible to go a trap further and hold that the complaint was false and that a false trap was laid and also that a false payment and acceptance of bribe money was shown. This could be possible only if it could be said that Dy. S. P. Sri Chaturvedi was a party to a conspiracy to nab the accused-appellant. As noted earlier, Dy. S. P. Vigilance Sri Chaturvedi had no axe to grind against the accused-appellant so as to go out of his way to show a false payment of bribe and a false recovery. There is no apparent reason to doubt the testimony of the Dy. S. P. Vigilance Sri Chaturvedi. In fact, there is material to corroborate his evidence about the transaction of the payment and recovery of the bribe money from the accused-appellant. The prosecution case from the very beginning is that the accused-appellant on being enquired if he had taken any step for getting the land allotted in the name of Daula complainant took out a sheet of paper and told him that he would be allotted 3.58 acres of land and his name would be sent and that at the time of arrest and recovery, he also took in custody from the accused-appellant a list of persons Ex. 8 to whom the land was to be allotted. There was a mention about it in the recovery memo (Ex. Ka-4) which was filed at the police station along with the written report (Ex. Ka-5). The sample hand writing of the accused-appellant was taken during the investigation and the same were sent to the Director, Forensic Laboratory, U. P. Lucknow for comparsion with the hand-writing on the said list. The said list was Ex. Ka-8. "8" The Report of the Forensic Expert, Ex. Ka-17 was in the affirmative that the writing on the list Ex. 8 was written by the same person whose specimen writing was sent for comparison. The genuine-ness of this report was not disputed by the learned counsel for the accused-appellant but he made an endorsement on 7-10-1983 on this report Ex. Ka-17 that the genuineness of this document is not disputed subject to the condition, that writing was obtained under duress. As held by the apex Court in the Authority Ram Kishore v. State of Madhya Pradesh 1994 SCC (Cri) 1136 in a trap case the explanation of the accused also becomes relevant and is to be examined and it is to be seen whether it can be accepted. In this case the statement of the accused-appellant was recorded before framing of the charge and in that statement he was put question No. 5, in which there was a mention of recovery of the said list pointing out that it was in his hand-writing and that in it against serial No. 57 the name of Daula and against it the number of the plot and area 3.58 acres are entered. There was also put in the same question the fact that at the time of recovery Karyawahi Register of the Gaon Sabha was also recovered from his possession. His reply to both these facts was "Jee Nahi". This statement was recorded on 9-6-1982. At that stage he did not take the plea that the whole or any part of this list was got written by the police from him under duress, what to say of stating the date, time and place when this scribing was got done from him under duress. The endorsement of the counsel made on the report was no doubt there but it was dated 7-10-1983. In the cross-examination of Dy. S. P. Sri S. K. Chaturvedi (PW 1) this document was touched by the defence and it was suggested that the entry was got done from the accused-appellant by force, and that previously the witness wanted to get this entry done in front of serial No. 57 but he did not because there was no space and prior to it there is entry of two names which has been out. However, even at this stage it was not suggested as to at what date, time and place this entry was forcibly got written by him. The statement of the accused-appellant under Section 313, Cr. P.C. was recorded on 3-1 -1984 after the conclusion of the prosecution evidence and therein he was put the report of the Forensic Expert in Question No. 7 specifically mentioning that the expert opined that the person, who scribed the sample writing also scribed the disputed writing. His reply to this was "Jee Nahi". In question No. 9, under Section 313, Cr. P.C. he was suggested that he had shown the name of Daula and the plot No. and the area in this list to the complaint Daula and Constable Ramadhar Pal (PW 5) and that this list was recovered from his possession at the time of his arrest and recovery, and that this name of Daula, plot No. and the area were found to have been scribed by him. He made a denial in the following words, "Galat hai". He nowhere stated in reply to any question under Section 313, Cr. P.C. on 3-1 -1984 that the list, Ex. 8 was taken from him in custody and that it did not contain the name of Daula and also that the Dy. S. P. Chaturvedi forced him to write down the name of Daula complainant in this list. It is not clear from the judgment of Sessions Judge, whether a specific plea of getting the name etc. of complainant Daula scribed under duress was taken before him at the time of the argument at the trial but he has referred to the endorsement and observed, ". .. .there is nothing to indicate that the accused was forced to write the name of Daula on this sheet of paper" and noted that the accused-appellant himself did not say, this in his statement under Section 313, Cr.P.C. That being the position, it is not possible to give any credence to the argument made by the learned counsel for the accused-appellant before me that this name of Daula was got scribed from the accused-appellant on this document by the Dy. S. P. Vigilance under duress. In the list, Ex. 8, on one side of the sheet the names of 56 allottees, plots of land and the area are mentioned and on the top of it is mentioned that the resolution was passed on 10-9-1980 and on the back of the sheet few more names are mentioned and the writing of serial No. 57 is to the effect 'Munna bewa Chunna Chamar, Ni. Gram, Dhani Ram Tanay Daula, Daula Tanay Chunna 1817/1.11, 1833/1.16, 1835/1.00, 1831/31-3.58. The writing "Munna bewa Chunne Chamar, Ni. Gram, Dhani Ram Tanay Daula" has been scored out. It would thus appear that in this list the name of Daula with details of certain plots also finds places. It appears that the name is not written in the same ink as the names of certain other persons ' and seems to have been written at the time of offering of the bribe money when Constable Ramadhar Pal (PW 5) enquired from the accused appellant if he had taken any step for the allotment of land to Daula complainant and that then the accused-appellant showed him the list. The existence of name of Daula with plot No. and area in the sheet of paper in different ink is indicative of the fact that it was written with a view to impress Daula complainant and Constable Rainadhar Pal (PW 5) that he (accused-appellant) would proceed further for the allotment of land to Daula complainant if the bribe money was paid to him. It has been elicited by the learned counsel for the accused-appellant from the complainant Daula in his cross-examination that about the Pallas of the land of the Gaon Sabha proclamation is made by beat of drum by the said Gaon Sabha and the applications are invited from the landless persons and further elicited from him that he never moved any application to the Village Pradhan for allotment of land to him and argued that these facts render the prosecution story improbable. However, what was elicited was the knowledge of the complainant at the time of the trial and not his knowledge at the before the time of the demand of bribe. The complainant Daula has slated that the Lekhapal had come and he had given his name to the Lekhapal slating that he required land to be allotted in his name. So it does not follow from the fact that he has not moved an application for allotment of land that there could be no occasion for demand of bribe. It has to be kept in mind that the complainant was an illiterate person and at the relevant time he could have been ignorant of the procedure.
16. Learned counsel for the accused-appellant made a reference to Ex. Kha-6, which was the copy of Mathurdas Litoria's complaint dated 22-6-1980, on which complaint the order dated 23-6-1980 was made by the Sub-Divisional Officer to the Tehsildar to make an enquiry and there was the report of the Lekhpal that land has been allotted by the Gaon Sabha in village Rajpura and the possession has been delivered by him on the spot and no dispute was left. It also contains a report dated 27-6-1980 to the effect that possession has been delivered to the allottees and Pallas have been given in accordance with the possession. It has been argued on the basis of this document that when the process of allotment was already over, there was no question of the complainant Daula approaching the accused-appellant for allotment of land. In my view, this argument is misconceived for the simple reason that the allotment of land of Gaon Sabha to person having been made once does not mean that no Gaon Sabha land was left unallotted and that in future there will be no occasion for allotment of other Gaon Sabha land to other persons. Moreover, it is not the question whether actually any land was available for allotment and whether the same could have been al lotted at the time the demand of bribe was made.
17. It has been next argued that on the prosecution evidence itself there was the office of Talbehat Khadya Sadhan Sahkari Samiti, Vikas Khand, Talbehat adjacent to the room when the demand and acceptance of bribe took place and that there must be many persons present there all the time and so it was highly improbable that in the adjacent room the demand and acceptance of bribe would have been made by the accused-appellant.
18. It has further been argued that if the trap officer was laying his trap he ought to have called persons from the office of the said Sahkari Samiti to join in the trap. Trap Officer Dy. S. P. Sri S. K. Chaturvedi (PW 1) admitted that there was a office of Sahkari Samiti adjoining the room in which the trap was laid. His statement further was that the office was open but he did not notice any employee there. This statement of Sri Chaturvedi ought to be taken at its face values, particularly when even Ram Singh (DW 1) did not claim that any member or employee of the said Sadhan Sahkari Samiti was present at the time of the arrest. It may be that admittedly he did not make efforts to take witnesses from adjoining areas but that alone cannot be a reason to discard his testimony at the trial in the background of the facts and circumstances of this case.
19. It has been further argued that: the prosecution story was in probable in as much as Constable Ramadhar Pal (PW 5) claimed to be present along with the complainant Daula in the very room at the time the bribe was demanded and paid there. This argument is not acceptable for the simple, reason that on the prosecution story the accused-appellant did question him (Daula) about the presence of this witness there and it was given out that he and Constable Ramadhar Pal were so close to each other that all his affairs were in the know of the latter. So there is nothing improbable in the prosecution story.
20. It has then been argued that as per prosecution story as many as seven persons were present on the Chabutra outside the room where the demand and aeceptance of bribe took place and that presence of so many persons could not go unnoticed to the accused-appellant who was a Lekhpal. In other words, he could not remain unaware of the presence of so many persons on the Chabutra and could not have demanded and accepted the bribe.
21. The learned Standing Counsel has given a befitting reply that since there was a Sadhan Sahkari Samiti Office adjacent to the room, the presence of so many persons outside could have been taken to be normal, thinking that they might have come to the said Sadhan Sahkari Samiti Office for their own work.
22. Moreover every one minds his own business. It has been argued that it is improbable that the accused-appellant would have asked the complainant if he had brought the bribe money. It is difficult to attach any importance to this plea as one who demands bribe does become oblivious to the surroundings and whether anybody was likely to be around and over hear the conversation. Even if we take that the use of the work 'bribe' was an exaggeration and only money was asked for, it does not make any difference because the nature of the demand and the nature of the payment would nonetheless remain the same.
23. It has been argued that about the date of occurrence no lime had been fixed as per prosecution case. But this is not an infirmity. Non-fixation of time could have led to frustration of the trap but not necessarily. Here accused-appellant was present and complainant Daula went there and the trap party was around and the demand and acceptance of bribe took place followed by arrest and recovery.
24. It has further been argued that the hands of the trap officer Sri Chaturvedi were not washed with sodium carbonate solution. But in the background of his total evidence this is wholly immaterial. There is no explanation forthcoming from the accused as to how the currency note, Ex. 3, was put inside the clothes worn by him and was recovered from there by the trap officer. He did not say that the currency note was thrust into his pocket by the trap officer or by the complainant or by any body else at the place of recovery or at the police station. He did not explain how the sodium carbonate solution turned pink when his hand and his banyans were dipped into it after his arrest and the recovery.
25. In Rup Singh v. State of Punjab 1991 Cri LJ 1345 : AIR 1991 SC 1125 the prosecution story was that on seeing the trap party the accused had thrown away the currency notes in the adjoining compound and the accused was arrested and searched and the prosecution evidence was that the raiding party had picked up the currency notes from the adjoining compound, the number whereof tallied with the numbers noted in the memo prepared while laying the trap and the Supreme Court accepted the prosecution case drawing an adverse inference from the failure of accused to explain presence of phenolphthalein powder on his hand and other circumstances against the accused.
26. It may be that while recording the statement of the accused-appellant under Section 313, Cr.P.C. the accused-appellant was not specifically questioned about the demand and postponement of the previous date 10-3-1981. But this omission has not prejudiced the defence and did not adversely effect the correctness of the prosecution case.
It has been argued that F.I.R. is highly delayed. The F.I.R., no doubt, was lodged with delay but every delay in lodging of the F.I.R. is not fatal. There is absolutely nothing to show that the time gap has been utilized to concoct a story or to twist the facts or for any other ulterior motive. Not a word has been said to the trap officer to give him a chance to explain the time gap between 3 p.m. to 8.30 p.m. when the F.I.R. was lodged. This much is definite that sufficient time would have been spent in the demonstration and preparation of the memos etc.
27. It may be that the village Lekhpal himself did not have any authority as such to allot any Gaon Sabha land in favour of any villager. The land Management Committee alone could admit any person to certain land of the Gaon Sabha under Sections 195 and 197 of the U.P.Z.A. & L.R. Act in that the order of reference under Section 198 of the Act was also to be followed and then the procedure under Rules 173 to 176 of the Rules framed under the Act was also to be followed. But the fact remains that the Lekhpal is Secretary of the Land Management Committee and he has a vital role to play in the functioning of the Land Management Committee. Very often he is the only person of the Gaon Sabha who is conversant with the procedure and the rules and he has opportunity to oblige a person by placing or suppressing material before or from the Land Management Committee in the manner that the land could be allotted to him. It is common knowledge that the landless persons arc usually illiterate and they have to depend on the village Lekhpal, if they want their names entered in the list and get the application for allotment of land prepared to secure allotment of land in their favour. They are bound to have an impression in their mind that the Lekhpal is the pivot in the matter and he alone could be instrumental in the allotment of land of the Land Management Committee. It is equally well known that more often than not the rules of the procedure prescribed for the allotment of land by the Land Management Committee are flouted and allotments are made. Therefore, it cannot be said that it was unlikely that the accused-appellant could demand the bribe for the allotment of land because he had no legal authority to do so.
28. It has been admitted by Ram Singh (DW 1), who happened to be a Village Pradhan, and so he was conversant with the procedure of the allotment in respect of the Gaon Sabha land by the Land Management Committee that the Lekhpal has a leading hand in getting the Pattas accepted "PATTE SWEEKAR KARANE MEIN LEKHPAL KA PRAMUKH HAATH RAHTA HAI".
29. Now taking an over all view of the evidence on record and the circumstances and probabilities inherent in the situation it can safely be inferred that prosecution has succeeded in establishing beyond doubt the acceptance of the amount of Rs. 100/- as gratification by the accused-appellant at the date, time and place as claimed by the prosecution. This gives rise to the presumption under Section 4 of the Prevention of Corruption Act 1947 that the accused-appellant obtained and accepted from the complainant Daula the gratification of Rs. 100/- as a motive for getting the land allotted to him from the Land Management Committee. This presumption is, of course, a presumption which may be rebutted by the accused. The presumption may be rebutted by defence evidence or by the circumstances elicited from the prosecution witnesses as a result of cross-examination or otherwise, and this burden may stand discharged if the evidence and material brought on record in its totality renders the existence of the fact presumed improbable. In the present case the total failure of the accused to discharge this burden is evident.
30. It has been argued that since the Lekhpal had no authority to allot any land of the Gaon Sabha to the complainant it could not be said that the alleged demand constituted an offence punishable under Section 161, I.P.C. though it is not disputed that it could fall within the definition of the offence punishable under Section 5(1)(d) of the Prevention of Corruption Act, 1947. In this regard it is enough to refer to an authority of the apex Court in Mahesh Prasad v. State of Uttar Pradesh AIR 1955 SC 70. In this authority the accused was a clerk in the railways and the bribe was taken as a motive for testing the complainant re-employed in the railways by arranging with some superior officer. The apex Court said as follows:
...It may be that the receiver of the money is in fact not in a position to render such assistance and is even aware of it. He may not even have intended to do what he holds himself out as a capable of doing. He may accordingly be guilty of cheating. Nonetheless he is guilty of the "offence under Section 161 of the Indian Penal Code. This is clear from the fourth explanation to Section 161,I.P.C. which is as follows :
'A motive or reward fordoing'. A person who receives a gratification as a motive for doing what he does not intend to do (or as a reward for doing what he has not done) comes within these words.
31. Illustration (c) to Section 161,I.P.C.which runs as follows also elucidates this:
A, a public servant, induces Z erroneously to believe that A's influence with the Government has obtained a title for Z and thus induces Z to give A money as a reward for this service. A has committed the offence defined in this section.
32. Thus where a public servant who receives illegal gratification as a motive for doing or procuring an official act whether or not he is capable of doing it or whether or not he intends to do it he is quite clearly within the ambit of Section 161, I.P.C.
33. To sum up the verdict of guilt rendered by the trial Court is to be upheld.
34. Coming to the question of sentence the learned counsel for the accused-appellant urged this Court to take a lenient view. It has been urged that the accused has retired and a long time had passed since the occurrence took place. He has not lost the service being on bail and now since he has retired he would not lose his job on account of his conviction. Of course, the case relates to the year 1981. But then in case of corruption too lenient a view would be counter-productive. The trial Court has given punishment of imprisonment for 18 months for each offence and both the sentences had been made to run concurrently. In my view, considering all the circumstances the ends of justice would be met if the sentence of R.I. for each offence is reduced to six months.
35. Accordingly the appeal is dismissed. The conviction of the accused-appellant for the offences under Section 161, I.P.C. and Section 5(2) of the Prevention of Corruption Act is upheld. However, the sentence of imprisonment awarded by the trial Court for each offence is reduced from 18 months to 6 months. The accused-appellant is on bail. His bail bonds are cancelled. He shall be taken into custody and sent to the District Jail concerned to serve out the sentence according to law.
36. Let a copy of this judgment be sent to the learned Sessions Judge, Lalitpur in a week from today for information and compliance. The compliance report shall be submitted to this Court by the learned Sessions Judge, Lalitpur within a month from today.