Jharkhand High Court
Dilip Kumar Mukherjee Son Of Late D.N. ... vs State Of Jharkhand on 16 March, 2020
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 309 of 2008
Dilip Kumar Mukherjee son of Late D.N. Mukherjee, Health
Inspector, Medical, S.E. Railway, Rourkella under S.P. DRM/ROU
resident of Railway Qtr no. 561/8 Golpehari Colony, P.O. and P.S.
Golpehari, Tatanagar, Dist. Singhbhum (East)
... ... ... Appellant
Versus
State of Jharkhand, through C.B.I. ... ... Respondent
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellant : Mr. Jitesh Kumar, Advocate For the Respondent : Mr. Rohit Sinha, Advocate
---
06/16.03.2020
1. Heard Mr. Jitesh Kumar, learned counsel appearing on behalf of the appellant.
2. Heard Mr. Rohit Sinha, learned counsel appearing on behalf of the CBI.
3. This appeal is directed against the judgment and order dated 21.02.2008 passed in R.C. Case No. 8(A)/2005 A.H.D by the Court of learned 7th Additional Judicial Commissioner-cum- Special Judge, CBI, Ranchi whereby and whereunder he has convicted the appellant under Sections 7 and 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the P.C. Act) and sentenced the appellant to undergo rigorous imprisonment for a period of three years under Sections 13(2) read with Section 13 (1) (d) of the P.C. Act and to pay a fine of Rs. 6,000/- and in case of default the appellant will further undergo simple imprisonment for one year and half month and for the offence under Section 7 of the P.C. Act sentenced the appellant to undergo R.I. for two years and to pay a fine of Rs. 4,000/- in case of default, simple imprisonment for one month and directed all the sentences to run concurrently. The prosecution story
4. The prosecution story is that Shri R.S.P.V.S. Saibabu, Malaria 2 Khalasi (Medical), South Eastern Railway, Tatanagar, Distt. East Singhbhum, Jharkhand visited CBI, office Ranchi on 06.07.2005 with a complaint to the effect that Shri Dilip Kumar Mukherjee, Health Inspector, South Eastern Railway, Tatanagar, Distt. East Singhbhum, Jharkhand (hereinafter referred to as the appellant) has demanded illegal gratification of Rs. 3,000/- from him for showing favour in the matter of allotment of Railway Quarter to him. Since the complainant was semi-literate, Shri N.K. Jha, sub-inspector, on the request of the complainant, reduced the oral statement of the complainant into writing. He himself typed it on the computer of the branch. After it was reduced into writing, Shri Jha explained the contents of the complaint to the complainant in Hindi and after finding the contents of the complaint to be true, the complainant made his signature on it. Following the receipt of complaint, the Superintendent of Police directed Shri Dasrath Murmoo, Inspector of Police, CBI, AHD, Ranchi (P.W.8) to test the veracity or otherwise of the allegation levelled in the complaint. P.W.8 verified the demand by the appellant and confirmed that appellant has agreed to accept Rs. 1500/- as first instalment of illegal gratification from the complainant, after negotiation, as the complainant was not in a position to pay Rs. 3,000/- at a time. P.W.8 submitted verification report (Exhibit - 14) on 13.07.2005 recommending for registration of a regular case. Hence this case was registered as RC-8(A)/2005-AHD-R against the appellant under Section 7 of the PC Act, 1988 and Shri A.K. Jha, Inspector of Police, CBI, AHD, Ranchi (P.W.
11) was entrusted for investigation.
5. It was decided to get hold of the appellant red handed by laying a trap consequently Pre trap formalities, as detailed in Pre-Trap memorandum, were observed. It is the case of the prosecution that appellant was caught red handed in his office chamber at the office of Chief Health and Food 3 Inspector, South Eastern Railway, Tatanagar, Distt. East Singhbhum on 14.07.2005 while demanding and accepting a bribe of Rs. 1500/- from the complainant in the immediate presence of CBI officials constituting the trap team and two independent shadow witnesses namely Shri Samir Kumar Chakraborty, Asst. Manager, Union Bank of India, Jamshedpur (P.W.3) and S.S. Das, Lead District Manager, Bank of India, Kadma, Jamshedpur (P.W.5). It is alleged that on being disclosed by the appellant, the tainted GC Notes of Rs. 1500/- were recovered from Shri Dhaneshwar, Safaiwala (P.W.7) posted in the office of appellant in presence of the members constituting the trap team, the aforesaid two independent witnesses and Shri Parimal Kumar Chakraborty, the Chief Health and Food Inspector, S.E. Railway Tatanagar (P.W.6). The post trap formalities, as detailed in the Recovery memorandum, were observed. The statement of P.W.7 and P.W.6 was also recorded u/s 164 Cr.P.C before the Magistrate.
6. It is alleged that the investigation revealed that the appellant was functioning as Health Inspector in the South Eastern Railway, Tatanagar during the relevant period as such he was a public servant. Appellant was a member of Quarter Allotment Committee of Medical Pool S.E. Railway, Tatanagar until 14.07.2005 and as such he was in a position to favour the complainant in the matter of allotment of quarter. It is the case of the complainant that after his posting in the office of Chief Health and Food Inspector, SE, Railway, Tatanagar, he had applied for a quarter in the Railway Colony in the month of May 2005 and subsequently in the first week of July 2005. The Medical Superintendent, SE Railway, Tatanagar had issued notification for vacancy of quarters in the medical pool of South Eastern Railway, Tatanagar on 08.03.2005 and also on 16.06.2005. As such, the appellant had motive to obtain illegal gratification from the 4 complainant.
7. During investigation, the Investigating Officer recorded the statement of the witness, seized the documents, send the material exhibit for examination and also obtained the sanction for prosecution against the appellant from competent authority. After completion of the investigation, charge sheet was submitted and cognizance of the offence U/s 7 and 13(2) r/w 13(1)(d) of the P.C. Act was taken on 06.10.05. Charge u/s 7 and 13(2) r/w 13(1)(d) of the P.C. Act was framed on 22.5.06. Charges was read over and explained to the appellant in Hindi to which he pleaded not guilty and claimed to be tried.
8. Altogether 11 witnesses have been examined on behalf of prosecution.
P.W.-1 R.S.P.V.S. Saibabu is the Complainant. P.W.-2 Dr. Suravi Mahapatra is the authority who has granted sanction for prosecution of the appellant. P.W.-3 Sameer Chakraborty is the shadow witness and a member of trap team.
P.W.4 Binod Chandra Purkait (Expert witness from CFSL, Kolkata who did chemical examination of material exhibits.) P.W.5 S.S. Das is shadow witness and a member of the trap team.
P.W. 6 Parimal Kumar Chakraborty is an independent witness particularly with respect of recovery of tainted money. He is Chief Health and Food Inspector. P.W.7 Dhaneshwar Mukhi is the witness who had produced the tainted money when asked to do so by P.W-6. P.W.8 Dashrath Murmu is the C.B.I Officer and a part of the trap team and officer who verified the complaint. P.W.9 J.V. Raju is the Typist of Medical Superintendent Office, South Eastern Railways, Tatanagar. P.W.10 Kishore Chandra Hembram is the office 5 Superintendent in the office of Assistant, Personnel Officer South East Railways Tatanagar and, P.W.11 Ajay Kumar Jha is the Investigating Officer of the case and an Officer of C.B.I.
9. The prosecution evidence was closed and statement of the appellant was recorded U/s 313 Cr.P.C. The appellant denied the allegation and has stated that he has been falsely implicated in this case. No explanation in connection with demand, acceptance and recovery of the tainted money was furnished by the appellant in his statement under section 313 of Cr.P.C. No defence witness has been adduced on behalf of defence. After closing the defence, the argument of the parties was heard and the impugned judgment has been passed.
Arguments of the appellant
10. The learned counsel appearing on behalf of the appellant submits as under: -
a. P.W.-1 is the informant of the case. During his cross- examination, he has admitted that he has been witness for C.B.I in connection with three complaint cases of similar nature and that he has clarified that nothing was recovered from the place of occurrence, much less, to the extent of bribe money to the tune of Rs. 1,500/-.
b. The learned counsel further submits that so far as the P.W.-8 is concerned, he has specifically stated in his evidence that the hands and pocket of Dhaneshwar, who produced the tainted money, was not washed, which creates doubt in the prosecution story leading to the solitary conclusion that the C.B.I Officials forcibly planted Rs. 1,500/- bribe money in the instant case.
c. The learned counsel has also referred to the evidence of P.W.-3 (Sameer Chakraborty) and P.W.-5 (S.S. Das), who are the shadow witnesses of the trap proceedings and submits that these witnesses have specifically stated that the tainted 6 money was produced by Dhaneshwar and not by the present appellant.
d. The learned counsel refers to the evidence of P.W.-5 (S.S. Das) and submits that at Para-24 of his cross-examination, he has stated that he has not heard the conversation between the informant and the appellant.
e. The learned counsel further refers to the evidence of P.W.-6 (Parimal Kumar Chakraborty) and submits that P.W.- 6 has clearly stated in his evidence that the bribe money was not recovered from the possession of the appellant rather it was recovered from Dhaneshwar, upon his instruction, after ½ hour of raid. The learned counsel has also referred to the statement of this witness to the effect that the application of the complainant was not forwarded by him and no dispatch number was given which makes whole prosecution story doubtful.
f. The learned counsel further refers to the evidence of P.W.-7 (Dhaneshwar Mukhi) and submits that he had produced the tainted notes, but was not made an appellant. The learned counsel submits that P.W.-7 in his evidence has stated that he did not know anything about the tainted money in question.
g. The learned counsel further refers to the evidence of P.Ws.-8 and 11 and submits that they have deposed that they had not verified the job of the appellant and whether the appellant was in a position to allot the quarter in question. He submits that P.W.-11 in Para-17 of his cross-examination has accepted that during pre-trap demonstration hand wash of his officers were not taken and this indicates conspiracy against the appellant.
h. So far as the evidence of P.W.-10 is concerned, the learned counsel submits that P.W.-10 has not stated anything about the appellant.
i. The learned counsel further submits that no independent 7 witness has been examined by the prosecution, except the shadow witnesses, though there was too much crowd at the time of raid, which shows suspicious story of the prosecution. He further submits that the shadow witnesses i.e. P.Ws -3 and 5 did not prove the demand, acceptance and recovery of the bribe money from the appellant and merely recovery of pin box does not constitute an offence. The learned counsel submits that it is clear from the statement of P.W.-6 that when he entered into the room, the hands of the appellant was caught hold by the C.B.I Officials and even then nothing was recovered from the possession of the appellant and the entire room after searching of 10 to 15 minutes, except pin box. He submits that there should be demand, acceptance and recovery in the case of trap under Prevention of Corruption Act, 1988 and in the instant case demand, acceptance and recovery has not been proved by the prosecution beyond all reasonable doubts and hence the learned trial court has erred in convicting the appellant. j. The learned counsel submits that otherwise also there is no proper sanction from the competent authority to prosecute the appellant. He submits that the learned trial court while dealing with the question of sanction for prosecution at Para-24 of the impugned judgment under appeal has ignored the evidence of P.W.-2 Dr. Suravi Mahapatra who during cross-examination has clearly admitted that she is not the appointing authority of the appellant as such she was not the competent authority to grant sanction for prosecution. It is further submitted by the learned counsel for the appellant that P.W.-2 has not brought any notification or rule which empowered her to be the sanctioning authority as such sanction is bad in the eyes of law. The learned counsel submits that if the sanction for prosecution is bad in the eyes of law, the entire prosecution has to fail. The learned counsel for the appellant has relied 8 upon two judgments on the point of sanction for prosecution. One reported in 2002 (4) PLJR 205 (Lakshmi Roy @ Laxmi Roy vs. State of Bihar and Others) and also the judgment passed by the Hon'ble Supreme Court in the case of Parmanand Dass vs. State of Andhra Pradesh reported in AIR 1978 SC 1745. While referring to these judgments, it has been emphasized that absence of proper sanction by the competent authority is fatal to the prosecution.
k. The learned counsel has also submitted that the statement recorded under Section 313 of Code of Criminal Procedure is for the purposes of giving chance to the appellant to defend himself and the prosecution cannot use the evidence which was not put to the appellant under Section 313 Cr.P.C and as such non-response to any question cannot be used against the appellant taking into account the settled principle of criminal jurisprudence that it is the prosecution who has to prove the case beyond all reasonable doubts before securing any conviction.
Arguments of the opposite party (CBI)
11. The learned counsel for the opposite party has submitted that the appellant was caught red-handed while demanding and accepting the bribe money from the complainant and the learned court below has rightly convicted the appellant after considering the entire evidences on record. He submits that the prosecution sanction was also given by the competent authority (P.W-2) who has deposed that she was competent to remove the appellant and the statement made in cross examination that she was not the appointing authority of the Health Inspector and they were appointed by the Railway Recruitment Board, has no bearing in the matter. He has also submitted that the judgements relied upon by the appellant do not apply to the facts and circumstances of this case and that the sanction for 9 prosecution was passed without any objection from the side of the appellant.
Findings of this Court
(a) On the point of sanction for prosecution of the appellant
12. P.W.-2 is Dr. Suravi Mahapatra who is Senior Divisional Medical Officer, South Eastern Railway and she had granted the sanction for prosecution of the appellant. She has stated that on 29.01.2005, she was posted in South Eastern Railway Hospital, Tatanagar as Senior Divisional Medical Officer and she exhibited the sanction order for prosecution of the appellant who was the then Health Inspector, South Eastern Railway, Tatanagar as Exhibit-6 without any objection from the side of the appellant. She has stated that by virtue of her post as Senior Divisional Medical Officer, she was competent to remove the appellant from his service. She has further deposed that the sanction was granted after carefully perusing the documents, statement of witnesses and the materials placed before her and she found that prima-facie case was made out against the appellant and after being satisfied, she accorded the sanction.
13. Learned counsel for the appellant has referred to the statement of P.W.2 made during her cross-examination, where she has stated that she is not the appointing authority of Health Inspector and that Railway Recruitment Board appoints Health Inspector and has stated that she does not remember from which notification, rule or order she is the sanctioning authority and that she had not referred the matter to the Secretary, Railway Board. On the basis of her statements made during cross examination, it is submitted that P.W-2 was not competent to accord sanction for prosecution. However, she has denied the suggestion during cross-examination by stating that it is not a fact that she is not competent to accord sanction.
1014.In the judgement relied upon by the appellant reported in 2002 (4) PLJR 205, it has been held that the authority who is competent to remove the employee from the post, is competent to grant sanction for prosecution. In the said case, the sanction for prosecution was granted by the Chairman of Regional Institute of Technology, Jamshedpur who under the rules was held to be not competent to sanction prosecution as he was neither the appointing authority nor had the power to remove the appellant.
15.In the judgement relied upon by the appellant reported in AIR 1978 SC 1745 (Parmanand Dass vs. State of A.P.), the Special officer, who was entitled under the Act, namely, Hyderabad Municipals Corporations (Amendment Act) 11 of 1970, had not given the sanction as a Special officer or by himself exercising the power of standing committee, but issued the sanction order in pursuance of the sanction given by the standing committee. The Hon'ble Supreme Court was of the view that the plea that the standing committee and the Special Officer are one and the same was difficult to accept in the circumstances of the case and accordingly, the Hon'ble Supreme Court held that the sanction order was not valid and the appeal was allowed.
16.The judgement reported in 2002 (4) PLJR 205 does not apply as in the present case, the sanctioning authority i.e. P.W.-2 has clearly deposed that she was competent to remove the appellant from his post and was competent to grant sanction for his prosecution and had applied her mind on the materials produced before her for the purposes of grant of sanction for prosecution, therefore, this Court is of the considered view that there is no illegality in the order granting sanction for prosecution of the appellant. So far as the argument of the appellant by referring to cross examination of P.W-2 is concerned, this Court is of the considered view that the same has no bearing in the matter as power to remove the appellant, is sufficient to empower P.W-2 to grant prosecution sanction.
11Moreover, the sanction for prosecution has been marked exhibit without any objection from the side of the appellant.
17.. The aforesaid judgment which is reported in AIR 1978 SC 1745 (supra) also does not apply to the facts and circumstances of this case considering the evidence of P.W.-2, wherein she has clearly deposed in paragraph-2 that by virtue of her post as Senior Divisional Medical Officer, she was competent to remove the appellant from the post and that the sanction order for prosecution against the appellant was issued by her after perusal and carefully examining the documents, statements, witnesses and materials placed before her.
18.The learned court below has considered the point of sanction after scrutinizing the evidence of the P.W-2 by a well-reasoned finding which does not suffer from any illegality or perversity. The findings of the learned court below on the point of sanction is as follows: -
"From perusal of exhibit-6, it appears that Dr. Mrs. Sirohi Mahapatra, Senior Divisional Medical Officer, South Eastern Railway, Tatanagar after perusal of all the documents and after application of his mind accorded the sanction. She has stated that she was competent enough to remove Dilip Kumar Mukherjee from service and she was competent authority to accord sanction for prosecution against Dilip Kumar Mukherjee. Nothing has been produced against the authority of the sanctioning authority. From perusal of exhibit-6, the learned court below found that there is no any illegality or irregularity in the sanction order. Accordingly, the learned court below found that the sanction was accorded legally after perusal of documents and application of mind after finding the prima-facie case against the appellant by the competent authority."
19.In view of the aforesaid findings by this Court, this Court does not find any merits in the submissions advanced by the learned counsel for the appellant on the point of sanction for prosecution. Hence, the point regarding validity of sanction for prosecution is decided against the appellant.
(b) On the point of demand, acceptance of bribe money by the appellant and its recovery.
The evidences on record 12
20. P.W.-1 is the complainant. He has stated that he was working as Maleria Khalasi on 07.05.2005 in South Eastern Railway and appellant was the Health Inspector. He met the appellant and requested him to allot a quarter and gave an application (Exhibit-1). On 02.07.2005, he again met the appellant, who was also a member of the Quarter Allotment Committee, and the appellant asked him to pay Rs. 3,000/-, then the work of the complainant will be done. The complainant has deposed that as he did not want to pay the amount, he came to C.B.I Office and told the facts to the sub-inspector Niraj Kumar Jha and on his dictation, a complaint was typed in English in the computer which was read over to him in Hindi and after finding it correct, he put his signature. The complainant has identified his complaint as Exhibit-2. He has deposed that thereafter he handed over the complaint to the Superintendent of Police who entrusted the matter to Sri D. Murmu, Inspector (P.W.8) for verification with the complainant. The complainant has deposed that when Sri D. Murmu came to Tata with him, the appellant was on leave on that day and the complainant was asked to inform Mr. D. Murmu by telephone after the appellant joins. On 11.07.2005, the appellant joined his service, about which information was given to Sri. D. Murmu through phone and Sri. D. Murmu came on 12.07.2005, but he could not meet the appellant on that date and thereafter he again came on 13.07.2005. The complainant has stated that on 13.07.2005, he along with Sri. D. Murmu had gone to the appellant and met him and talked about the quarter and on that day, the appellant again demanded Rs. 3,000/- and told the complainant that if the complainant is not in a position to pay Rs. 3,000/-, then Rs. 1,500 be paid and rest amount be paid later on. The report was submitted by Sri. D. Murmu on 13.07.2005 to the Superintendent of Police and thereafter the First Information Report was 13 instituted which has been marked as Exhibit-3. The complainant was asked to come again on 14.07.2005 at 5:00 a.m in the morning at Circuit House, Bistupur. On 14.07.2005 at about 5:00 a.m., the complainant had gone to the Circuit House where the complainant was introduced with two officers of the Bank Sri. S. S. Das and Sri Sameer Chakraborty and his complaint was shown to both the witnesses who read the complaint and interacted with him. Thereafter a piece of paper was treated with white powder and on being asked, Sri. Sameer Chakraborty, touched the piece of paper with his right-hand finger. A solution was prepared in a glass. On being asked, Sri. Sameer Chakraborty washed in right hand finger in the said solution, thereafter, the colour of the solution turned pink. This pink solution was transferred in a clean glass bottle which was sealed and signed by all. The complainant has identified the said bottle as material Exhibit-I and his signature as Exhibit-4. The complainant has further stated that he was asked to produce the rupees to be given to the appellant, upon which he produced three numbers of 500 denomination G.C notes which was treated with powder and given back to the complainant and the complainant was directed to give the G.C notes to the appellant only on demand. The complainant kept the G.C notes in left side upper pocket and the number of G.C notes were recorded in the memorandum. He has deposed that thereafter all the persons washed their hands and mutual search of all the persons was taken and nobody was allowed to keep anything except I-card and the complainant was allowed to keep Rs. 1,500/- G.C. notes. The complainant has further deposed that the piece of paper was kept in a sealed envelope and all the persons had put their signatures over the envelope. He has identified the envelope as material Exhibit-II and put his signature on the same as Exhibit-4/1.
14The complainant has also stated that he was directed to give signal by scratching his head after acceptance of the bribe amount by the appellant on demand. The complainant has stated that after completing the pre-trap procedure, a memorandum was prepared and all persons had put their signatures. He has identified his signature on the pre-trap memorandum as Exhibit-4/2 to 4/8.
Thereafter, all the persons proceeded from Circuit House. Sri Sameer Chakraborty, the shadow witness, was directed to accompany the complainant and other persons were directed to keep themselves near the place of occurrence and try to hear the conversation and see the transaction. The complainant has deposed that he along with Sri. Sameer Chakraborty entered into the office and other persons remain in Verandah in the near vicinity. The complainant offered "PRANAM" to the appellant and told him as he has demanded yesterday, the complainant has brough the money and upon demand by the appellant the complainant took out the money from his upper left pocket and gave in the right hand of the appellant who counted the notes and kept the notes beneath the pin box. Thereafter, the complainant gave the pre fixed signal, upon which, Sri. N. K. Jha and Mr. Khan, who were members of the trap team, caught hold the hands of the appellant from his wrist and all the persons of the C.B.I entered and challenge the appellant for having demanded and accepted the bribe and when the appellant was asked about the money, at that time, the bribe amount was not there.
It is further deposed by the complainant that Sri. P.K. Chakraborty, Chief Health Inspector, was called and, in his presence, C.B.I. Officials asked the appellant about the bribe amount, then the appellant told that he had given the amount to Dhaneshwar (P.W.7) and thereafter Dhaneshwar was called.
15The P.W.-1 has deposed that solution was prepared and right hand of the appellant was washed in the said solution which turned pink. The pink solution was transferred in a clean glass bottle. He has identified the bottle as material Exhibit-III and his signature upon the same has been marked Exhibit-4/9. He has further deposed that thereafter a fresh solution was prepared and left hand of the appellant was washed, thereafter, the colour of the solution turned pink and this pink solution was also transferred in a clean glass bottle and all the persons put their signatures. He has identified the bottle as material Exhibit-IV and his signature has been marked as Exhibit-4/10. The complainant has further deposed that again a fresh solution was prepared and the pin box, beneath which the rupees was kept, was dipped in the solution, thereafter, the colour of the solution turned pink and this pink solution was also transferred in a clean glass bottle which was sealed and signed by all the persons. He has identified the bottle as material Exhibit-V and his signature has been marked as Exhibit-4/11. The pin box was also kept and all the persons had put their signatures. He has identified the envelope as material Exhibit-VI and his signature has been marked as Exhibit- 4/12. The P.W.-1 has further stated that Dhaneshwar (P.W.7) brought and produced the G.C. notes which was compared by Sri. Sameer Chakraborty and Sri. Sameer Das, the shadow witnesses from pre-trap memorandum, which tallied in toto with the recovered amount of Rs. 1,500/- and the said G.C notes were kept in the envelope and signed by all. He has identified the envelope as material Exhibit-VII and his signature has been marked as Exhibit-4/13. The witness has also identified the G.C. notes which have been marked as material Exhibit-VIII to VIII/2.
The P.W.-1 has further deposed that at that point of time crowd had assembled, then the team along with the 16 appellant came to Circuit House where a memorandum of all the proceeding was prepared which was read over and explained to all and all the persons had put their signatures on the same. He has identified his signature over all the six pages of the memorandum as Exhibit-4/14 to 4/19. The P.W.-1 has also stated that Dhaneshwar (P.W.7) has put his L.T.I. over all the pages of the memorandum and a copy of the memorandum was also given to the appellant and he has identified his signature and endorsement as Exhibit-5.
21. P.W- 8 is Dasrath Murmu, who was an Inspector of C.B.I. He is the person who had verified the complaint of the complainant and had submitted the verification report and was also a part of the trap team. He has stated that during verification, he went with the complainant to the appellant on 07.07.2005 on which date the appellant was not present and on the next date again an attempt was made and, on that date, they came to know that appellant will join his duty on 11.07.2005. Thereafter the complainant informed him that the appellant has joined the duty. Thereafter on 13.07.2005, the verification was made during verification, he came to know that the appellant had demanded Rs.3000/- from the complainant for allotment of quarter in Railway Colony and the complainant told him that he cannot give such amount. Upon this, the appellant asked him to pay Rs.1500/- to which, the complainant agreed to be paid on 14.07.2005 and consequently the verification report was exhibited which was marked as Exhibit 14. He has further deposed regarding registration of the F.I.R and the fact that Sri. A.K. Jha, Inspector was directed to be the investigating officer and on the direction of the Superintendent of Police, Sri Jha constituted a trap team in which he was a member. He has given the details about the pre-trap procedure and the presence of two independent witnesses and also about the pre-tap demonstration and exhibited his signature on 17 material exhibits. He also clearly stated that the complainant had produced Rs.500 notes totalling Rs.1500 whose number and denomination were recorded in the pre-trap memorandum. The G.C. notes were treated with phenolphthalein powder and was given back to the complainant who kept it in his left side pocket and he was instructed to give G.C note to the appellant only on the demand and was also instructed to give signal by scratching his head after acceptance of the bribe amount. The shadow witness Samir Chakroborty was asked to be with the complainant. He has also mentioned that a pre-trap memorandum of the proceeding was prepared and the pre- trap memorandum has been exhibited as Exhibit 15 and thereafter all the persons washed their hands with soap and water and were asked not to keep any money with them and the shadow witness Samir Chakroborty was directed to overhear the conversation between the complainant and the appellant and to see the transaction between them. He has further deposed that the trap team members proceeded towards the office of the appellant and the complainant met the appellant and after some time came out and gave pre- fixed signal and thereafter the trap team members entered the office where the appellant was found sitting. They challenged the appellant for having demanded and accepted the bribe money the hands of the appellant were caught hold by the two members of the trap team. Thereafter, both the hands of the appellant were dipped in separate solution which turned pink and were kept in two separate bottles which were already marked as materials and he has exhibited his signatures as Exhibit 4/69 and Exhibit 4/70. He has further stated that the appellant was asked about the money which the appellant had accepted as bribe from the complainant. The pin box was washed in solution which turned pink and the solution was kept in a bottle marked as 18 material exhibit and his signature was exhibited as Exhibit 4/71. The pin box was also sealed in an envelope which was marked as material exhibit and his signature was marked as exhibit 4/72. He has stated that when the G.C note was not found, P.W. 8 was called and the appellant disclosed that the money was given to P.W. 7 and thereafter when P.W. 7 was called who handed over the bribe amount and told that he was handed over the same by the appellant but he did not know for what the amount was taken. The number of the G.C notes exactly tallied with the numbers mentioned in pre trap memorandum. This witness has also mentioned about material exhibits already marked as exhibited his signatures as well as post trap memorandum and his signatures have been exhibited. He has also stated that copy of the post trap memorandum was given to the appellant and the receipt has been marked as exhibit 5. This witness has fully supported the prosecution case.
22. P.W.-3 is a member of the trap team and the shadow witness, namely, Sri Sameer Chakraborty. He has stated in his evidence that on 14.07.2005, he was working as Assistant Branch Manager of Union of India at Jamshedpur and on 14.07.2005 under the instructions of Inspector of Police, C.B.I., he went to the Circuit House at 5:00 a.m. in the morning and he was introduced to Sri S. S. Das, the complainant and Inspector Murmu. He has stated that Sri. S. S. Das was from Bank of India. He has further deposed that after introduction, he was told about the complaint against the appellant and that the appellant is required to be trapped. He was also told about the reasons for the demand of the bribe money. He has given the entire description in connection with the pre-trap memorandum and has fully supported the prosecution case in that regard. He has also mentioned about the material exhibits already exhibited and has exhibited his various signatures in connection with pre 19 trap procedures and memorandum. He has also referred to the treatment of three G.C notes of Rs. 500/- denomination each produced by the complainant and that the same was treated with phenolphthalein powder and handed over to the complainant with an instruction that the same is required to be handed over to the appellant only on demand. He has also stated that the complainant had put the G.C. notes after treatment with phenolphthalein powder in his left pocket in the shirt. He has clearly stated that he was instructed to remain with the complainant and hear the communication between the complainant and the appellant and was instructed to give signal after acceptance of the bribe amount by the appellant. He has also stated that the trap team got themselves searched, wash their hands and it was instructed that the complainant should not carry any money apart from total amount of Rs. 1,500/- which was to be handed over to the appellant on demand. He has stated that after completing the pre-trap formalities, they proceeded towards the office of the Health Inspector. The P.W.-3 has deposed that he accompanied the complainant and the other persons remained outside wating for the signal. He has stated that upon reaching the office of the appellant, the complainant wished the appellant and stated that the money which was asked by the appellant has been brought and the remaining amount will be paid later and upon this, the appellant demanded the money and the complainant took out the money from his pocket and handed it over to the appellant who took the money and kept it under the pin box. This witness has deposed that he was right at the door and he could see and listen to the conversation and the transaction of the money. Thereafter, upon receiving the signal, the trap team members entered the room and held both the hands of the appellant and asked the appellant to hand over the money to which the appellant 20 said that the money was not with him. Separate solutions were prepared for dipping the right hand and left hand and upon dipping, the solutions turned pink which were kept in separate bottles. He has further stated that the pin box was also dipped in the solution and the solution turned pink which was kept in a clean bottle and the pin box was kept in an envelope. He has identified his signature on the pink solution kept in the three bottles as Exhibit-4/29, 4/30 and 4/31 respectively and the signature on the envelope, in which, the pin box was kept has been marked as Exhibit- 4/32. He has mentioned about the material Exhibit-III, IV, V and VI which was already marked. He has further deposed that upon asking from the appellant, he informed that the money is with Dhaneshwar (P.W 7) and thereafter, the Chief Inspector Sri. P. K. Chakraborty (P.W-6) was called who in turn called Dhaneshwar (P.W -7) who produced the money which tallied with number of notes recorded in the pre-trap memorandum. He has also stated that the money was kept in the envelope already marked as material exhibit VII which contained his signature exhibited as Exhibit-4/33 and the money recovered was already marked as material Exhibit-VIII to VIII/2. He has further stated that post-trap memorandum was prepared in the Circuit House and he has put his signature on all the pages on the post-trap memorandum which has been exhibited and marked as Exhibit-4/34 to 4/39. He has identified the appellant in the Court. During his cross-examination, the P.W.-3 inter alia has stated in Para-27 that he was standing near the window and when one or two persons entered the room, he also entered the room. He has stated that he had seen the appellant in the room and when the appellant had taken the money, at that point of time, the appellant was sitting. He has denied the suggestion by stating that it is not correct to say that he could not hear the conversation between the appellant and 21 the complainant and that he had given incorrect evidence under the instructions of C.B.I. officials. He has stated in his cross-examination that at the time of search of the appellant, the money was not found in his possession and the search continued for around ten minutes. He has stated in cross examination that the pocket of the shirt of the appellant was not washed in the Sodium Carbonate solution and that his shirt was not even seized. He has stated in his cross examination that Sri. P. K. Chakraborty (P.W-6) had asked Dhaneshwar (P.W -7) to hand over the money to C.B.I. officials and thereafter Dhaneshwar (P.W-7) produced the money. He has stated that he had not seen the place from where Dhaneshwar (P.W -7) has taken out the money and that the hands of Dhaneshwar (P.W -7) was not washed in his presence. Upon perusal of the evidence of this witness, this Court finds that he has fully supported the prosecution case and is an eye witness to the demand and acceptance of bribe money by the appellant and also eye witness to the recovery of the tainted money produced by P.W.7 upon disclosure by the appellant in presence of another independent witness P.W.6 which tallied with the pre trap memorandum. He has also stated about the post trap memorandum.
23. P.W.-5, Sri S. S. Das is also a member of the tram team and is a shadow witness. He has stated in his evidence that on 14.07.2005, he was posted in Jamshedpur as Lead District Manager, Singhbhum East, in Bank of India and under the instructions of zonal manager, he reached the Circuit House, Jamshedpur at 5:00 a.m. in the morning and upon reaching, he met Sri. A. K. Jha, Inspector C.B.I. who introduced him to the complainant as well as Sri. Chakraborty (P.W.3) and other members of the team. This witness came to know upon meeting the complainant about the complaint against the appellant. This witness has deposed that he was told by the 22 complainant that the appellant was asking an amount of Rs. 3,000/- for allotting the quarter and out of that Rs. 1,500/- was to be paid and remaining was to be paid later. He has also given the detailed description in connection with the preparation of pre-trap memorandum. He has referred to the exhibits in connection with the pre-trap memorandum and has also exhibited his signature on the bottles already marked as material Exhibit-I and II and his signature on the bottles were marked as Exhibit-4/40 and 4/41 respectively. He has also stated that the complainant was directed to produce three notes of Rs. 500/- each, whose number was also noted and the said notes were treated with phenolphthalein powder and was handed over to the complainant. He has mentioned about the various formalities, and demonstration in connection with pre-trap formalities and has also exhibited his signature on the pre- trap memorandum which have been marked as Exhibit-4/42 to 4/48. He has also stated that before departure, the members of pre-trap team had washed their hands. He has stated in his evidence that as per instruction P.W.3 was to accompany the complainant and this witness was to remain outside along with other team members. He has deposed that although he could not hear the conversation, but he could see the transaction between the appellant and the complainant. He has stated that when the complainant met the appellant, he had seen that the complainant wished the appellant and the appellant has extended his right hand and the complainant took out the money from his pocket and handed over it to the appellant. He has also stated that the appellant has taken money and used both his hands to count it and then he had put the money under the pin box. Thereafter, the complainant came out and gave the pre fixed signal and thereafter, the trap team members entered into the room of the appellant and challenge the appellant. He 23 has also stated that upon challenging the appellant his personal search was taken and table was also searched, but no money was found. The team member had held both the hands of the appellant. Thereafter, his right hand, left hand and pin box were dipped in different solutions of Sodium Carbonate and each turned pink and kept in separate bottles already marked as material Exhibit-III, IV and V which contained his signature as Exhibit-4/49, to 4/51 respectively. The pin box was also kept in an envelope which was already marked as material Exhibit-VI and his signature was marked as Exhibit-4/52. He has deposed that the appellant was physically searched and his table, drawer and almirah were also searched, but the money could not be recovered and upon asking, the appellant told that the money has been given to Dhaneshwar (P.W - 7) who has gone out. Upon this, the Chief Health Inspector was called for, who in turn called Dhaneshwar (P.W -7) and asked him to produce the money and thereafter, Dhaneshwar (P.W -7) handed over the money to C.B.I. He has stated that the number of the currency notes tallied with pre-trap memorandum and the notes were kept in an envelope which was sealed and already marked as material Exhibit-VII and he has also put his signature on the same which was marked as Exhibit- 4/53. He has stated that the notes were marked as material Exhibit-VIII to VIII/2. He has further stated that there was crowd around and the appellant was taken to Circuit House along with the team and the post-trap memorandum was prepared which was read over to all the persons and thereafter everybody had put their signatures on the post-
trap memorandum and the thumb impression of Dhaneshwar (P.W -7) was also taken on the post-trap memorandum. This witness has exhibited his signature on the pages of post trap memorandum as Exhibit-4/54 to 4/59.
24. P.W.-6 is P.K. Chakraborty who has stated that at the 24 relevant point of time, he was posted as Chief Health and Food Inspector and he knew the complainant who was working as Malaria Khalasi. He has stated that the complainant had given an application for quarter and the appellant was a member of quarter allotment committee. He has clearly stated that on 14.07.2005 at about 6.30 a.m. the P.W. 11 on telephone asked him to come immediately and upon reaching everything was narrated to him and ultimately upon disclosure by the appellant the tainted money was handed over by P.W.7 at Circuit House where post trap memorandum was prepared. This witness is an eye witness to the recovery of tainted money and is an independent witness.
25. So far as evidence of P.W. 7 is concerned, he is a sweeper in North Eastern Railway, Tatanagar and the tainted money has been produced by P.W. 7. He has explained as to how the money had come into his possession. He has stated that on 14.07.2005, he was standing outside for taking duty and the appellant came out and gave some money in his hand and at that point of time, 4 to 6 persons came and kept the money on the table. He has further stated that when P.W 6 called him and asked him to bring the money then he took out the money from the table and produced it and saw that there were three in numbers of 500 denomination totalling to Rs.1500/-. He has also stated that his statement was recorded under Section 164 Cr.P.C. He identified the appellant in the court. During his cross examination, he has stated that P.W 6 had called him at Circuit House and asked him to produce the G.C Note and he brought the money and gave to C.B.I. He has further stated that his hands were not washed.
26. Evidence of P.W- 9 is J.V. Raju. He is a Typist of the Medical Superintendent Office. He has deposed regarding the availability of quarter, minutes of meeting regarding quarter 25 allotment as well as fact that the appellant was a member of quarter allotment committee. He has exhibited certain documents in support of his statement. He has also exhibit document to show that two 'A' type quarters were vacant.
27. Evidence of P.W- 10 is the office superintendent in the office of assistant personal officer South Eastern Railway Tatanagar and he has stated that the appellant was posted as maleria inspector in South Eastern Railway and his personal file was maintained in personal office.
28. Evidence of P.W- 11 is the Investigating officer of the case and he has fully supported the prosecution case right from the stage of filing of the complaint by the complainant on 06.07.2005, verification of the complainant, constitution of the trap team and pre-trap formalities as well as preparation of pre-trap memorandum including recording of the number of G.C note and its treatment with phenolphthalein powder and handing over the same to the complainant with instruction that the same is to be given to the appellant only on demand and thereafter to give signal. He has deposed that the complainant after reaching the appellant informed him that he has brought Rs.1500 for giving him bribe and also told that he will arrange the remaining amount. On this the appellant extended his right hand and received the demanded amount of Rs.1500 and counted the note with the help of both his hands and kept over his office table beneath the pin box and thereafter appellant told the complainant thik hai and complainant came outside the office with the shadow witness Samir Chakroborty and gave pre-fixed signal and upon receiving signal the members of the trap team entered into the office room. He has also stated about the appellant being caught, both his hands were dipped in two different solution which turned pink. He has also stated that the pin box was also dipped into solution which turned pink. He has also stated that the appellant upon being 26 caught tried to explain that the money was given to him for the purposes of insurance as his daughter is an agent of L.I.C. He has also deposed that during search the bribe amount could not be recovered. He has also deposed that the bribe amount was recovered when produced by P.W.7. This witness has also made similar statement regarding recovery of bribe money when produced by P.W.7 upon disclosure made by the appellant himself that he had handed over the bribe money to P.W.7. He has also deposed that the concerned material exhibit was sent for examination by expert at CFSL, Kolkata and the examination report has been found supporting the case of the prosecution. He has also stated that the competent authority had already granted sanction for prosecution. He has stated that the two independent witnesses have also supported the case of the prosecution.
29. P.W.-4 is the Junior Scientific of CFSL (Central Forensic Science Laboratory) at Kolkata who had exhibited the four bottles in sealed condition which was received by the Director, CFSL in connection with the case for conducting the chemical examination and that he had examined the liquid in the bottles and re-sealed it and he has exhibited the test report marked as exhibit-8 (without objection) and has stated that the solutions contained phenolphthalein powder and Sodium Carbonate. He has also identified the bottles already marked as Exhibit-I, III, IV, and V and has exhibited his signature with stamp on the same as Exhibit-7 to 7/3 respectively. He has also identified the forwarding letter by which the bottles and the report was sent to the S.P CBI which has been marked as exhibit- 9. The evidence of this witness leaves no doubt in the mind of this court that his evidence fully supports the prosecution case. This witness has supported the fact that the Phenolphthalein and Sodium Carbonate were found in the contents of the liquid in all the 27 four bottles sealed during pre-trap and post-trap proceeding. This fact also gets support from report Exhibit-8. Moreover, no arguments have been advanced by the appellant regarding the evidence of this witness.
30. Upon consideration of the materials on record and the arguments advanced on behalf of the appellant, this Court finds that it is not in dispute that the appellant, at the relevant point of time including on 14.07.2005 (date of occurrence) was working as Health Inspector, South Eastern Railway, Tatanagar. This fact has been supported by prosecution witnesses and also supported by the F.I.R.- Exhibit-3, written complaint Exhibit-2, verification report Exhibit-14 and sanction order Exhibit-6. This fact has been admitted by the appellant even in his statement recorded under Section 313 of Code of Criminal Procedure.
31. So far as the demand of money by way of illegal gratification is concerned, the P.W.-1 is the complainant who has clearly deposed that on 07.05.2005, he was working as Malaria Khalasi in South Eastern Railway and the appellant was the Health Inspector. He has deposed that on 07.05.2005, he met the appellant and requested for allotment of quarter and gave his application (Exhibit-1). On 02.07.2005, he again met the appellant who was a member of the quarter allotment committee and the complainant was told by the appellant that for that purpose Rs. 3,000/- was to be paid and upon payment, the work of the complainant will be done. The complainant has stated that since he did not want to pay the money, he lodged a complainant with C.B.I. and met Sri. N. K. Jha, Sub-inspector, C.B.I. who had typed his complaint in English and explained it to the complainant in Hindi and the complainant finding it to be correct, put his signature and the complaint has been marked as Exhibit-2. Thereafter, the complaint was given to the Superintendent of Police, C.B.I. who entrusted Sri. D. Murmu(P.W- 8) for verification of the 28 complaint. Thereafter, Sri. D. Murmu (P.W- 8) and the complainant met the appellant in his Office on 13.07.2005 and upon meeting, the appellant again demanded Rs. 3,000/- for allotment of quarter, but the complainant expressed his inability to pay, upon which, the appellant asked the complainant to pay Rs. 1,500/- and remaining Rs. 1,500/- was to be paid later. This all happened in presence of Sri. D. Murmu (P.W- 8) who made his verification report (exhibit-14) upon which Superintendent of Police, C.B.I. directed to institute the First Information Report (exhibit-3).
32. Sri. D. Murmu has been examined as P.W.-8 and he has fully supported the aforesaid fact narrated by the complainant and is a witness to the communication and verification between the complainant and the appellant on 13.07.2005 and had accordingly prepared the verification report which has been exhibited and marked as exhibit-14 ,on the basis of which a direction was issued to lodge the F.I.R.
33. Even the independent witnesses in the trap team i.e. P.W.-3 and P.W.-5 have stated that upon interaction with the complainant at the time of pre-trap meeting and the preparation of pre-trap memorandum on 14.07.2005, the complainant had told them about the demand by the appellant and that Rs. 1,500/- was to be paid immediately and the remaining was to be paid later.
34. P.W-11, the Investigation Officer has also fully supported the prosecution case on the point that at the stage of verification of the complaint also the appellant had demanded the money of Rs.15,00/- immediately and remaining 15,00/- to be paid later as illegal gratification for allotment of quarter to the complainant.
35. It has come in the evidence of the P.W-6, the chief health and food inspector , South Eastern Railways, Tatanagar that the appellant was a member of the quarter allotment committee and he has stated that he knew the complainant who had 29 submitted application before him for allotment of quarter. P.W-9 has also stated that the appellant was a member of quarter allotment committee and has deposed that five quarters were allotted to medical department and out of them two quarters of 'A' type were vacant.
36.So far as the argument of the learned counsel for the appellant that P.Ws. 8 and 11 had not verified the job of the appellant as well as whether he was in a position to allot a quarter to the complainant is concerned, this Court finds that the said argument has no bearing in view of the evidence of P.W-6 and 9 which clearly establishes that the appellant was a member of quarter allotment committee and vacant quarter was available and that the complainant had applied for allotment of quarter. Upon consideration of the evidence on record, this Court finds that the appellant definitely had a role in the matter of allotment of quarter.
37.The above evidences on record clearly establishes beyond any reasonable doubt that the appellant had made demand of money by way of illegal gratification to the extent of Rs.1500/- to be paid immediately and remaining Rs.1500/- to be paid later for the purposes of allotment of quarter which has been supported not only by the complainant but also other witness including P.W-8 who had verified the complaint and is an eyewitness to the demand at the stage of verification of the complaint.
38.So far as the demand and acceptance of illegal gratification by the appellant at the time of the trap is concerned, this court finds that the same is fully supported by the evidence of the prosecution witnesses who were a part of the trap team as indicated above while dealing with their evidence, including the complainant and two independent shadow witnesses i.e P.W-3 and 5. Upon perusal of the evidence of P.W.3 and 5, this Court finds that they have fully supported the entire prosecution case and has given all the necessary details with 30 particular reference to the pre-trap procedure, demand and acceptance of tainted money by the appellant and are eye witnesses to the entire transaction of demand and acceptance during trap. It has come in the evidence that P.W. 3 had accompanied the complainant and as an independent witness with a view to see the entire transaction of demand and acceptance during the trap. P.W. 3 had not only heard the conversation between the appellant and the complainant while demanding illegal gratification and accepting the same when the complainant gave the money on demand, but had also seen the entire transaction. So far as P.W. 5 is concerned, he is also an eye witness to the entire transaction of demand and acceptance of illegal gratification by the appellant on the date and time of trap though he could not hear the conversation but could also see the transaction.
39.Thus, from the evidences on record, this Court is of the considered view that it has been established beyond all reasonable doubts that the appellant, at the time of trap also i.e on 14.07.2005, had demanded and accepted an amount of Rs. 1,500/- from the complainant by way of illegal gratification for allotment of quarter.
On the point of recovery of tainted money
40.With regards to the recovery, the witnesses have stated as follows:-
(a) P.W.-1 has stated that after receiving the bribe money the appellant had counted the money and kept under the pin box. When the appellant was asked about the money, the money was not there. Sri. P.K. Chakraborty, Chief Medical Officer (P.W.-6) was called and in his presence C.B.I. Personnel asked the appellant about the bribe amount and in response, he said that he had given the amount to Dhanewar (P.W.7). Thereafter, P.W.-7 was called who brought and produced the G.C. notes which was compared by the shadow witnesses from pre-trap 31 memorandum and tallied in toto. The G.C. notes were kept in a sealed envelope signed by all and was marked as material Exhibit-VII and his signature as Exhibit-4/13.
The P.W.-1 also identified the G.C. notes which were marked as material Exhibits-VIII to VIII/2. He has deposed that the crowd had assembled, then the team along with the appellant came to Circuit House when a memorandum was prepared and signed by all in six pages and his signatures have been named as Exhibits- 4/14 to 4/19. He has also deposed that P.W.-7 had put his L.T.I. on all the pages.
(b) P.W- 3 and 5, the shadow witnesses have also fully supported the prosecution case and also the evidence of the P.W-1 on the point and they have also narrated the fact about the recovery of the tainted money produced by the P.W-7 which exactly tallied with the pre-trap memorandum and that the post trap memorandum was also prepared.
(c) P.W.-7 has stated that he was the sweeper in south Eastern Railway, Tatanagar. He has stated that on 14.07.2005, he was standing outside for taking duty and the appellant came out and gave some money in his hand and at that time four to six persons came and he kept the money in the table. He has deposed that when he was called by P.W.-6, who asked him to bring the money, he took out the money from the table and produced it and found that there were 3 notes of denomination Rs. 500/- which tallied exactly with the numbers mentioned in the pre-trap memorandum. He has stated that his statement was also recorded under Section 164 of Code of Criminal Procedure and identified the appellant in the court.
(d)P.W.-6 has also stated that his statement was recorded under Section 164 of Cr.P.C. He has stated that on 14.07.2005 at about 6.30 A.M. Sri Jha, Inspector asked me 32 on telephone to come immediately in the office. At about 6.40 a. m., he came office and asked about the matter and ultimately the appellant disclosed that the money is with Dhaneshwar Mukhi, Sweeper (P.W-7) and then P.W-7 was called and he produced the money which exactly tallied with the description mentioned in the pre-trap memorandum. He has identified the recovery memo and his signature over all the six pages of the post trap memorandum which has been marked as exhibit 4/61 to 4/66. He has identified his statement u/s 164 Cr.P.C as Exhibit 12.
(e) P.W-8 and 11 has also fully supported the case of the prosecution on the point and has narrated the entire fact regarding recovery of the tainted money which was produced by P.W-7 in front of independent witnesses.
41.P.W-3 and 5 are eye witness to the fact that the money was initially kept under the pin box by the accused but upon search it was not found and was produced by P.W-7, when disclosed by the appellant himself that he had given the money to P.W-7 and when P.W-7 was called for by his superior P.W-6 (independent witness but not a part of the trap team) and asked to produce the tainted money. Thus, these witnesses have fully supported the case of the prosecution on the point of recovery of the tainted money. The learned counsel has argued that the shadow witnesses of the trap proceedings have specifically stated that the tainted money was produced by P.W-7 and not by the present appellant and merely recovery of pin box does not constitute an offence. This Court finds that there is no doubt that during the trap, the tainted money was not found with the appellant but was produced by P.W-7, but this Court is of the considered view that aforesaid fact is not fatal to the prosecution case as the same was recovered upon disclosure made by the appellant himself in presence of shadow witnesses i.e P.W-3 and 5 as well as those witnesses 33 who were part of the trap team. The recovery was made also in presence of independent witness P.W-6, who, upon disclosed by the appellant had called P.W-7 and asked him to produce the tainted money. The tainted money was produced by the P.W-7 which tallied exactly with the pre-trap memorandum. P.W-7 has deposed that the money was handed over to him by the appellant when few persons entered into the room. It has also come in evidence of eye witnesses P.W-3 and 5 as well as the P.W-1 that the money was taken and accordingly touched by the appellant and was initially kept under the pin box. This is supported by the fact that both the hands of the appellant, as well as the pin box, upon being treated in the solution turned pink. The appellant has also argued that the P.W-7 should have been made an accused in the case. This argument has no merits as the allegation of demand and acceptance is between the appellant and the complainant and the P.W-7 had no role to play in the commission of the alleged offence.
42.Thus, this Court finds that it has been proved beyond all reasonable doubts that the tainted money was given by the complainant to the appellant on demand who kept it under the pin box and when he saw persons around, he handed it over to the P.W.-7 who produced the money when directed by P.W.-6. In the deposition, P.W.-7 has explained the manner, in which the money was handed over to him. It has also come in evidence of all the witnesses in connection with the trap that the accused had himself disclosed in their presence that bribe money was handed over to P.W.7. It has also come in evidence that P.W.-7 had no idea that the said money was bribe money and all the witness of the trap have deposed before the learned court below that the recovered money tallied exactly with the details mentioned in pre-trap memorandum. This Court is of the considered view that the chain of events in connection with the recovery of tainted money received by the appellant as 34 illegal gratification (though the recovery is through P.W.-7) has been established beyond all reasonable doubts.
43.So far as the arguments made by the appellant on the point of statement recorded under section 313 of Cr.P.C is concerned, the learned counsel for the appellant has not made any specific argument on this point and has simply stated that the prosecution cannot use the evidence which was not put to the appellant under Section 313 Cr.P.C and as such non-response to any question cannot be used against the appellant. This court finds that the appellant denied the allegation and has stated that he has been falsely implicated in this case. No explanation in connection with demand, acceptance and recovery of the tainted money was furnished by the appellant in his statement under section 313 of Cr.P.C..
44.Thus, from the evidences on record, this Court is of the considered view that recovery of tainted money, at the instance of the appellant, which was produced by P.W-7 when called upon to do so, has also been proved by the prosecution beyond all reasonable doubts. Accordingly, the basic ingredients of a trap case i.e. demand of money by way of illegal gratification, its acceptance and recovery are fully satisfied against the appellant to sustain the conviction and sentence of the appellant passed by the learned court below.
45.The learned court below has held as follows in para 22 of the impugned judgement: -
"From the evidence, it is evident that the complainant Saibabu after joining at South Eastern Railway, Jamshedpur had applied for allotment of quarter. This fact has been supported by the complainant Saibabu and Sri P.K. Chakraborty, Chief Health Inspector. It is also evident from exhibit-1 application for allotment of quarter, exhibit-2 the complaint petition of the complainant, exhibit-10 letter of Chief Health Inspector to the Superintendent of Police, C.B.I./A.H.D. It also get support from the verification report exhibit-14 and the statement of verifying officer P.W.8.35
From the evidence, it is also evident that the appellant had demanded illegal gratification of Rs. 3,000/- from the complainant for allotment of quarter and during course of verification when the complainant requested the appellant, he agreed to accept Rs. 1,500/- and also asked the complainant to pay the remaining amount later on. This fact has also been supported by the complainant and the verifying officer who had verified the complaint after visiting at the spot. The witnesses have further supported the pre-trap and post-trap formalities. The witnesses have further supported that on demand, the bribe amount was paid to the appellant. Appellant was caught at the spot. The bribe amount was produced by Dhaneshwar Mukhi who has also supported that Sri Dilip Kumar Mukherjee had given him the said bribe amount. The hand wash of the appellant and the pin box wash was sent to the C.F.S.L. for examination. The C.F.S.L. expert found the presence of phenolphthalein and sodium carbonate in the solution which is also evident from his report exhibit-8. The witnesses have fully supported the case of the prosecution. From the evidence oral and documentary available on record, the learned court below found that the prosecution has been able to prove that the appellant had demanded illegal gratification of Rs. 3,000/- from Saibabu for allotment of quarter and became agree to accept Rs. 1,500/- at first and the remaining amount later on and the appellant was caught red handed while demanding and accepting the illegal gratification and at the instance of the appellant the bribe amount was produced by Dhaneshwar Mukhi. The number and denomination of the produced note tallied in toto from the number and denomination recorded in pre-trap memorandum. From the evidence, it is also evident that the appellant was a public servant and being a public servant, he had demanded and accepted the illegal gratification other than his legal remuneration as motive or reward and he committed criminal misconduct."
46. This Court has also gone through the entire judgement passed by the learned court below and finds that the learned court below has discussed the evidences and has elaborately 36 and correctly appreciated the materials on record and has convicted the appellant by a well-reasoned judgement. This Court has also come to the same conclusion after considering the materials on record.
47. Thus, this Court finds no merits in the present appeal, which is accordingly dismissed.
48. The bail bond furnished by the appellant is hereby cancelled.
49. The office is directed to immediately send the records to the learned court below along with a copy of this judgement.
(Anubha Rawat Choudhary, J.) Binit/Saurav