Rajasthan High Court - Jodhpur
Madan Gehlot vs State (2023:Rj-Jd:19288) on 29 May, 2023
Author: Farjand Ali
Bench: Farjand Ali
[2023:RJ-JD:19288] (1 of 36) [CRLA-28/2016]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 28/2016
Madan Gehlot S/o BhuwaRam Ji, resident of village Rukhara
Post- Posaliya, Police Station Shivganj, District Sirohi, Police
Inspector at relevant time.
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr. Nishant Bora
Ms. Heli Pathak
For Respondent(s) : Mr. Ramdev Rajpurohit
Mr. Anda Ram Choudhary, PP
HON'BLE MR. JUSTICE FARJAND ALI
Judgment
RESERVED ON ::: 29/05/2023
PRONOUNCED ON ::: 04/08/2023
BY THE COURT:-
1. The instant criminal appeal has been preferred by the appellant under Section 374 Cr.P.C. against the judgment dated 22.12.2015 passed by the learned Session Judge, Special Court, Prevention of Corruption Act Cases, Udaipur in Sessions Case No. 32/2013 whereby the accused-appellant was convicted for the offences under Section 13(1)(d) read with Section 13(2) and Section 7 of Prevention of Corruption Act, 1988 and was sentenced to suffer maximum punishment of three years' rigorous imprisonment along with fine of Rs. 20,000/-. (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (2 of 36) [CRLA-28/2016]
2. The brief facts of the case are that the complainant PW-1 Dheeraj Bhadwiya submitted a written complaint Ex.P-1 before the Additional Superintendent of Police, Anti Corruption Bureau, Rajsamand alleging therein that the accused-appellant Madan Gehlot, the then SHO, Bhupalpura called the complainant on his mobile around 15-20 days ago and asked him to come and meet him near the agricultural college. Upon reaching there, the complainant claimed that Madan Gehlot had asked for a computer or money as illegal gratification in lieu of not implicating him as an accused in Om Prakash Teli's (Don) land related dispute. It is further stated in the complaint that from the last 3-4 days, the C.I. Madan Gehlot was calling the complainant on his mobile number-9829042905 and it was the complainant's belief that he must have been calling him for threatening and demanding bribe. However, the complainant did not wish to illegally gratify the accused-appellant and his wish was to ensure that he is caught red-handed. He filed a complaint with the ACB, Outpost Rajsamand for the same and a trap operation was planned in pursuance thereof.
3. As alleged, upon confidential verification of the facts mentioned in the application through the tape recording, it was revealed that there was no demand made by the accused- appellant in the first call but the complainant again called in the evening and offered Rs.15,000 to the accused-appellant. It is alleged that as per the tape recording, the demand of bribe was verified and a transcript of the audio recording was prepared and the cassette was seized & sealed.
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4. On the basis of the above-mentioned written complaint, trap proceeding was carried out on 30.09.2012. During the course of the trap proceeding, after receiving the pre-planned signal from the complainant, the Additional Superintendent of Police entered the Police station Bhupalpura along with two witnesses. As per them, as soon as they entered the premises and the accused laid eyes on them, he fled away from the scene. Thereupon, the team caught hold of him and brought him inside police station, Bhupalpura. It is alleged that the hands of the accused were washed by the members of the ACB in a solution of sodium carbonate upon which his hands turned pink. On further search being made, Rs. 15000/- were recovered from the pocket of the accused. After conducting usual investigation, a charge-sheet for offences under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act (hereinafter referred to as the 'Act') was submitted. The learned court took cognizance of the offences and framed charges under the afore-mentioned provisions.
5. In order to buttress its case, the prosecution examined fifteen witnesses and produced thirty two documents in evidence. Upon being examined under Section 313 Cr.P.C, the accused denied the case of the prosecution and submitted that he neither demanded nor accepted any bribe from the complainant. In respect of his claim, two witnesses were examined and sixteen documents were exhibited in defence. After going through oral and documentary evidence, the learned Judge convicted the (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (4 of 36) [CRLA-28/2016] appellant vide judgment dated 22.12.2015. Hence, this criminal appeal has been filed before this Court.
6. Learned counsel for the accused-appellant has submitted that the appellant did not commit any offence and a false case has been foisted upon him grudgefully. He has submitted that, in any event, the complainant has not supported the case of the prosecution and the shadow witnesses (PW-2 and PW-3) did not depose that any demand of money was made in their presence and further, the recovery was also not proved to have been effected from the appellant as the notes were recovered from the temple of the police station and not from the conscious possession of the appellant. He has urged that the offence punishable under Section 7 is not made out without any proof of demand and even the offence under clause (d) of sub-section (1) of Section 13 is not made out in the given circumstances. He has further submitted that there is no evidence of demand of illegal gratification by the appellant except in the transcript. It has been argued that the story set out by the prosecution does not inspire confidence and the case of prosecution was not proved beyond every shadow of reasonable doubt. It has also been urged that the proof of demand and acceptance of gratification by a public servant is a sine qua non for proving the commission of offences punishable under Section 7 of the Act and the same has not been done in the instant case.
7. Arguing further, it has been submitted that the appellant is liable to be acquitted as the transcript relied upon by the prosecution, being copy of the electronic evidence, is not (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (5 of 36) [CRLA-28/2016] admissible in evidence in absence of the certificate under Section 65-B of the Evidence Act and thus, the trial court erred in relying upon the transcript. Lastly, it has been submitted that the finding of the trial Court is based on surmises and conjectures and thus, the same deserves to be quashed and set aside.
8. Per contra, learned Public Prosecutor has opposed the submissions made on behalf of the appellant and has submitted that the learned Court below has rightly passed the impugned judgment of conviction after looking into the overall facts and circumstances of the case and the pieces of evidence placed on record before it.
9. Heard learned counsel for both the parties and perused the impugned judgment rendered by the Special Court as well as other evidence available on record.
10. From the fact of framing of charge in this case, it is precisely indicated that the trial began with the allegation that Mr. Madan Gehlot, S.H.O. Bhupalpura who is the accused in this case called the complainant multiple times and asked for illegal gratification in pursuance of removing his name from a case related to one Mr. Om Prakash Teli. Thereafter, Rs. 15,000/- were recovered from the pocket of the trouser of the accused when the trap proceedings were conducted in pursuance of the complaint filed by PW-1 Dheeraj with the ACB and after verification of the tape recording, a case of commission of offence under Section 7 and Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act began against the accused.
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11. This court, being the first appellate court, is supposed to re- appreciate the judgment of conviction and thus, the evidence brought on record by the prosecution in the trial has been carefully scanned so as to examine both legal and factual aspects of the matter.
12. After wading through the material available on record, a few points worth discussing can be culled out through which it is to be seen whether the prosecution has succeeded in proving the offences under Section 7 and Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act beyond reasonable doubt. These points have been discussed in the succeeding paragraphs:
A) Demand of illegal gratification.
13. It is well settled law that for establishing the commission of an offence punishable under Section 7 of the Act, proof of demand of illegal gratification and acceptance of the gratification is a sine qua non. Moreover, the constitutional bench of Hon'ble the Supreme Court in Neeraj Dutta Vs. State (Govt. of NCT of Delhi) reported in [2023] 2 SCR 997 has reiterated that the presumption under Section 20 of the Act can be invoked only on proof of facts in issue, namely, the demand of gratification by the accused and the acceptance thereof.
i) Sworn Statement of Complainant 14. Complainant PW-1 did not support the case of the
prosecution. He did not say anything in his examination-in-chief about the alleged demand having been made by the appellant. This witness admitted in his on oath statement that he had implicated the appellant because of a personal grudge and in fact, (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (7 of 36) [CRLA-28/2016] he stated in his cross examination that he had submitted the report Ex.P-1 in revenge because the accused-appellant had arrested his friend in some other matter. The complainant had also deposed before the court that he made a commitment along with two other persons to donate a computer to the police station Bhupalpura in the Community Liaison Groups (CLG) meeting which was corroborated by P.W.-3 and P.W.-4 by stating that he had attended the CLG meetings, thus, it can be inferred that the fact of donation of computer is nowhere related to demand of any kind of illegal gratification.
ii) Sworn Statements of Shadow Witnesses
15. The shadow witness PW-2 Narsi Ram Koli did not support the case of the prosecution and rather turned hostile. He deposed before the court that on 29.09.2012, no proceedings were undertaken in front of him. This witness stated that he did not meet the complainant on that day and also mentioned that the transcript had not been prepared in front of him by playing the tape of the alleged demand made by the accused-appellant.
16. The second shadow witness PW-3 Roop Singh, was not made a part of the alleged verification of demand made by the accused which was conducted on 29.09.2012 as he was made part of the trap proceedings from the next day.
17. The role of shadow witnesses is to see what happens and bear witness to see how it happens and their presence in a trap party is always desirable by law though not mandatory but in the case at hand, the role that the shadow witnesses actually played can, in no manner, be regarded as being true to their purpose (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (8 of 36) [CRLA-28/2016] rather they appear to be clueless about what actually transpired between the ACB team members and the accused-appellant during the trap proceedings as well as during the post-trap proceedings. They were mere signatories to the requisite documents without actually serving the purpose of being shadow witnesses.
18. As observed in the foregoing paragraphs, the complainant as well as the shadow witnesses have not supported the story as set out by the prosecution and thus, their evidence cannot be taken as a piece of direct evidence with regard to demand of illegal gratification.
iii) Reliability of Evidence of Transcript
(a) Testimony of PW-8
19. PW-8 Mr. Gopal Swarup Mewara, who led the trap proceeding, admitted in his cross-examination that on the alleged day, i.e. 28.09.2012, when the transcript was prepared, two calls were made by the complainant to the accused for verifying the demand for illegal gratification out of which, one was made in between 12:20 p.m. to 12:30 p.m in which no conversation regarding any sort of demand was made by the accused-appellant and the other was made in between 6:00 p.m. to 6:15 p.m. in which, again, no demand of any kind whatsoever was made by him rather the complainant himself gave a suggestion and offered Rs. 15,000 to the accused-appellant.
(b) Testimony of PW-15
20. The testimony of PW-15, Kanhaiyalal, who was the then D.S.P., ACB, Dungarpur and was investigating the case, is (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (9 of 36) [CRLA-28/2016] important to look into in this regard. He stated in his cross examination that neither was he present when the call was made to confirm the fact of illegal demand nor did he listen to the cassette.
Therefore, the worthiness of the evidence of PW-8 and PW- 15, in view of the deficiencies discussed above, stands on shabby ground.
(c) Admissibility of electronic evidence of tape recording
21. Since oral and direct evidence with regard to demand has not been adduced satisfactorily, thus, the case of the prosecution would depend solely on the recording of conversation. Taking the tape recording and the transcript of the same into consideration, it is to be ascertained whether these are pieces of evidence that could prove the fact of demand.
22. The tape recording is an evidence in electronic form which attracts application of Section 65-B of the Evidence Act. It is the mandate of Section 65-B that any information contained in an electronic record shall be admissible in any proceedings without further proof or production of the original; if the conditions mentioned in the provision are satisfied and the evidence is accompanied with a certificate as per this provision. It is the case of the prosecution that the appellant demanded illegal gratification of Rs. 15,000/- to buy a computer from the complainant for not making him an accused in the Case No. 13/2012. It is the allegation of the prosecution that when the agency went through the tape recording, the aforesaid facts were verified and it was found that the appellant was asking for an amount of Rs.15,000/- (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (10 of 36) [CRLA-28/2016] which was to be paid as illegal gratification. But it is apparent from the record of the file that the prosecution did not submit the certificate required under Section 65-B of Evidence Act along with the original tape recorder which was used to make the voice recording at the relevant time.
23. Section 65-A states that the contents of electronic records are to be proved as per Section 65-B which means that the certificate issued under Section 65-B is required in the present case with regard to the contents of the tape recording on the basis of which the decision to conduct the trap proceedings was taken. Section 65-B is reproduced herein below for ready reference:
65B. Admissibility of electronic records. --
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: --
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (11 of 36) [CRLA-28/2016] was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether--
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, --
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;(Downloaded on 12/11/2023 at 01:04:27 AM)
[2023:RJ-JD:19288] (12 of 36) [CRLA-28/2016]
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub- section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section, --
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation. --For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.
24. Now, it is considered necessary to refer to the judicial pronouncements of Hon'ble the Supreme Court on the subject of admissibility of electronic evidence as envisaged under Section 65- B of the Indian Evidence Act.
25. The requirement of the certificate is mandated by Section 65- B of the Indian Evidence Act as well as the landmark judgment passed by Hon'ble the Apex Court in the case of Anvar P.V. Vs. (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (13 of 36) [CRLA-28/2016] P.K. Basheer reported in AIR 2015 SC 180. It is stated therein that source and authenticity are the two hallmarks that are to be taken into account when an electronic record is sought to be used as evidence. In order to use an electronic record as proof against an accused, it is necessary that the requirements of Section 65-B are complied with before oral evidence pertaining to electronic record can be considered.
26. In the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Ors. reported in AIR 2020 SC 4908, Hon'ble the Supreme Court has held that the judgment passed in Anvar P.V. (supra) has been declared to be the law on Section 65-B of the Indian Evidence Act and admissibility takes precedence over relevancy when it comes to consideration of electronic evidence. The relevant part of the judgment has been reproduced herein below:
"75. Documentary evidence, in contrast to oral evidence, is required to pass through certain check posts, such as (i) admissibility (ii) relevancy and
(iii) proof, before it is allowed entry into the sanctum. Many times, it is difficult to identify which of these check posts is required to be passed first, which to be passed next and which to be passed later. Sometimes, at least in practice, the sequence in which evidence has to go through these three check posts, changes. Generally and theoretically, admissibility depends on relevancy. Under Section 136 of the Evidence Act, relevancy must be established before admissibility can be dealt with.
Therefore if we go by Section 136, a party should first show relevancy, making it the first check post and admissibility the second one. But some documents, such as those indicated in Section 68 of the Evidence Act, which pass the first check post of relevancy and the second check post of admissibility may be of no value unless the attesting witness is examined. Proof of execution of such documents, in a manner established by law, thus constitutes the (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (14 of 36) [CRLA-28/2016] third check post. Here again, proof of execution stands on a different footing than proof of contents.
76. It must also be noted that whatever is relevant may not always be admissible, if the law imposes certain conditions. For instance, a document, whose contents are relevant, may not be admissible, if it is a document requiring stamping and registration, but had not been duly stamped and registered. In other words, if admissibility is the cart, relevancy is the horse, under Section 136. But certain provisions of law place the cart before the horse and Section 65B appears to be one of them.
.
.
.
.
81. But Section 65B makes the admissibility of the information contained in the electronic record subject to certain conditions, including certification. The certification is for the purpose of proving that the information which constitutes the computer output was produced by a computer which was used regularly to store or process information and that the information so derived was regularly fed into the computer in the ordinary course of the said activities.
.
83. But Section 65B(1) starts with a non-obstante Clause excluding the application of the other provisions and it makes the certification, a precondition for admissibility. While doing so, it does not talk about relevancy. In a way, Sections 65A and 65B, if read together, mix-up both proof and admissibility, but not talk about relevancy. Section 65A refers to the procedure prescribed in Section 65B, for the purpose of proving the contents of electronic records, but Section 65B speaks entirely about the preconditions for admissibility. As a result, Section 65B places admissibility as the first or the outermost check post, capable of turning away even at the border, any electronic evidence, without any enquiry, if the conditions stipulated therein are not fulfilled.
84. The placement by Section 65B, of admissibility as the first or the border check post, coupled with the fact that a number of 'computer systems' (as defined in Section 2(l) of the Information Technology Act, 2000) owned by different individuals, may get involved in the production of an electronic record, with the 'originator' (as defined in Section 2(za) of the Information Technology Act, 2000) being different from the recipients or the sharers, has created lot of acrimony behind Section (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (15 of 36) [CRLA-28/2016] 65B, which is evident from the judicial opinion swinging like a pendulum."
27. The prosecution has made the transcript of the tape recording the warp and woof of their case yet the same was not sent for FSL and was not even listened to by the investigating officer; even PW-08, who conducted the raid did not verify the fact that whether it was actually Mr. Madan Gehlot who was the person other than the complainant or it was someone else. There is no audio cassette of the said tape recording on record and thus, it can be said that primary evidence has not been submitted. It is rule of law as well as rule of prudence and legal expertise that the best evidence has to be produced if criminal charges are to be proved.
28. As discussed before, demand is the main ingredient using which the whole recipe of the offence of taking bribe under Section 7 of the Prevention of Corruption Act comes together and owing to the lack of fulfilment of requirement of certificate under Section 65-B of the Evidence Act, the evidence of the tape recording cannot be made admissible and the fact of demand remains unestablished on this count.
29. The story set out by the prosecution is indeed a story and nothing else as there is not even an iota of evidence, either oral or documentary, except the recording of the alleged conversation and the transcript placed on record. In light of inadmissibility of the recording, this court is constrained to hold that the prosecution utterly failed to prove the fact of demand allegedly made by the (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (16 of 36) [CRLA-28/2016] appellant and that the transcript of the tape recording is also not an admissible and reliable piece of evidence.
30. The recording of the alleged conversation and the transcript placed on record which is not admissible in evidence broadly constitute the spectrum of evidence brought on record by the prosecution to establish the two most essential ingredients of the charge being demand and acceptance of the bribe amount, out of which, demand does not stand proved in this regard.
iv) Presence of complainant at P.S. Rajsamand
31. Although the onus was not lying upon the appellant to disprove the case alleged upon him yet he adduced oral as well as documentary evidence in defence to show his innocence as well as to prove that a false case was foisted upon him. Some call data record along with certificate under Section 65-B of Evidence Act was produced by him and now, it is an admitted fact of the case that the complainant made a call to the TLO on 30.09.2012 at 02:41 p.m. which is proved by the CDR report. Upon examination of D.W.-1 and D.W.-2, cyber cell experts, it is revealed that the location of the complainant when he made the call to the TLO was Udaipur. They have also relayed the information that on 30.09.2012, from 02.41 p.m. to 11.01 p.m., the location of the SIM being used by the complainant was Udaipur. It is baffling that the complainant who was supposedly present at P.S. Rajsamand at around 03:00 p.m. for the pre-trap proceedings as per the running note was also present in Udaipur till 11:01 p.m. in the night on the same day. There is a serious doubt over the fact of his presence at the place shown in the papers on the day of the trap (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (17 of 36) [CRLA-28/2016] proceedings which further puts a question mark on the genuineness of the story of the prosecution. A simple reading of the statements of PW-8 TLO and of constables PW-11 and PW-15 reveals that there was no entry to mark or signify that the complainant was present at P.S. Rajsamand on 30.09.2012 when the pre-trap proceedings were conducted which further puts a dent on the authenticity of the pre-trap proceedings and as a necessary corollary, it puts a serious doubt on the authenticity of the trap proceedings and makes it an unreliable piece of evidence.
v) Trustworthiness of Exhibit P-1
32. The complainant in his complaint Ex.P-1, clearly made disclosure of the fact that the appellant had been calling him continuously from the last 3-4 days and he assumed that he was obviously doing so with the purpose of making a demand for bribe for which he had lodged the complaint. The cyber cell expert who was examined as D.W.-1 has categorically deposed in the trial court that no calls had been exchanged between the complainant and accused from 22.09.2012 to 27.09.2012 as per their call detail report Ex.P-28. The false statement made by the complainant regarding receiving calls from appellant carries with it an undercurrent of either malice or prejudice so as to wreak vengeance upon the appellant and this brings the other assertions made in the complaint too under a grave shadow of doubt. It is observed that the very foundation of the prosecution story has been laid on falsehood.
33. Since the carrying out of the trap proceedings itself has been put under grave uncertainty, therefore, the allegation of demand (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (18 of 36) [CRLA-28/2016] of illegal gratification also stands vitiated. Conclusively, it can be safely inferred from the discussion made above with regard to the hostility of complainant and shadow witnesses, reliability of the evidence of transcript and presence of complainant at Police Station Rajsamand that the allegation of demand of bribe is not proved against the appellant.
34. As the prosecution could not succeed in proving the fact of demand made by the accused beyond reasonable doubt, more specifically the fact that the appellant demanded illegal gratification from Dheeraj for not naming him as an accused in Case No. 13/12, so in the absence of any trust-worthy and reliable evidence from the side of the prosecution to establish the fact of demand of bribe, the case of the prosecution stands defeated on this very first premise itself, however, to reach at a foolproof conclusion, other aspects have also been pondered upon and discussed in the succeeding paragraphs.
B) Acceptance of Illegal Gratification
i) Ambiguity over the location of the accused
35. According to the story of the prosecution and recovery memo, the trap proceedings were conducted on 30.09.2012 between 07:00 p.m. to 08:40 p.m. During cross-examination of TLO PW-8, he admitted that the location of his mobile and the mobile of the accused should have been at the P.S. Bhupalpura during the above-mentioned time period and owned up to the fact that Fard Khana Talasi Ex.P-9 was prepared at P.S. Bhupalpura at 08:30 p.m. on 30.09.2012, however, the CDR (Ex. D-9) is showing the location of accused-appellant at Delwara at 08:17 p.m. As per the (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (19 of 36) [CRLA-28/2016] memo enclosing the CDR (Ex. D-9), the location of the handset of the accused is showing to be at Girwa at 08:01 p.m. and at Delwara at 08:17 p.m. which does not match with the purported story of the prosecution. This court is at a loss for understanding as to how Ex. D-9, the memo enclosing the CDR, is showing the tower location of the accused at a different location for the same point in time when he was supposed to be present at P.S. Bhupalpura along with the TLO when as per the investigation, during the relevant period of time when the trap proceedings were being conducted, the accused was already in custody and his phone had been seized by the TLO at P.S. Bhupalpura. The possibility of the inference that the accused was not present at P.S. Bhupalpura during the alleged trap proceedings cannot be overlooked bearing in mind the direct conflict between oral and electronic evidence adduced in this respect. When the very presence of the accused at the spot where he was allegedly caught red-handed while accepting the bribe is not proved beyond doubt, then the fact of acceptance of bribe can also not stand proved. It further deepens the doubt cast over the whole case of the prosecution.
ii) Contradictory testimonies of key prosecution witnesses
(a) Testimony of PW-2
36. PW-2 Narsilal Koli, categorically stated in his on-oath statement that no proceedings were undertaken by ACB in front of him at P.S. Bhupalpura and that after getting the agreed signal from the complainant, the whole team went inside the police station and there was no one in the cabin of S.H.O. Then, after (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (20 of 36) [CRLA-28/2016] sometime, ACB officers brought a person in the cabin and one of them handed over the recovered money to this witness and stated that they found the money from the appellant. Then, this witness kept the money in his pocket. Except this, no other investigation or inquiry has been done at P.S. Bhupalpura as per PW-2. He further stated that after coming back to ACB Chowki, Rajsamand, no proceedings took place before him and he was just called to affix his signatures upon the requisite documents the next day. He further admitted that he could not identify the accused in the court because on the day of the trap, the accused was taken to Out-post ACB, Rajsamand immediately after he was caught by the ACB.
(b) Testimony of PW-3
37. Another prosecution witness, PW-3 Roop Singh, stated during his deposition that no proceedings were undertaken in his presence at P.S. Bhupalpura except washing of the hands of the accused with phenolphthalein powder. As stated by him, he was called inside after passing of 20 minutes from the point of time when the ACB team went inside, so it is very much possible that he could not be a witness to any of the proceedings allegedly conducted up until that point. He, too, was asked to come and sign the papers the next day and deposed that the ACB team did all the paperwork after coming back to ACB Chowki, Rajsamand.
38. As expressed in the first segment of this judgement related to demand, the shadow witnesses have a designated role to play in trap proceedings but in the present case, the shadow witnesses did not even observe the proceedings properly and thus, they (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (21 of 36) [CRLA-28/2016] cannot be in a position to corroborate the stance of the prosecution. The trap squad did not facilitate or include the shadow witnesses in a manner by which they would be able to retell before the court what happened at the police station and how things unfurled or in other words, be able to verify the story set up by the prosecution. The statements of both the shadow witnesses are revealing that though they went to P.S. Bhupalpura but neither did the trap team stay there for long nor were they able to observe the trap being conducted except handing over of money from the ACB officer and washing of hands of the accused- appellant, thus, it can be understood that these shadow witnesses were ceremonial witnesses who were made part of the trap proceedings just for the name sake which destroys the credibility of the story set up by the prosecution. In light of the testimonies of these shadow witnesses, the entire case of the prosecution falls to the ground and it would go to suggest that a false story was cooked up and designed by the officers.
(c) Testimonies of PW-4 & PW-5
39. Now, let's move towards the on-oath statements of P.W.-4 Sangram Singh and P.W.-5 Poonam Chand who were posted as constables at P.S. Bhupalpura on the alleged day of trap. They stated that on the evening of 30.09.2012, an unknown person came to P.S. Bhupalpura and directly went into the temple of the police station where he kept something. Immediately thereafter, six-seven persons entered the police station, found an envelope kept inside the temple and one of them took the said envelope and kept it inside his pocket. Subsequently, they got to know that (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (22 of 36) [CRLA-28/2016] those people were ACB officials who took the money from the temple and the person who took the envelope placed the money in the pocket of the accused when he was brought inside the police station by the ACB officers. These two witnesses, namely PW-4 and PW-5, were produced by the prosecution and they are police constables and there appears nothing on record that would lead this Court to disbelieve their testimonies regarding the material aspect of the case, thus, the fact of acceptance of illegal gratification is not proved beyond reasonable doubt.
40. If the testimonies of trap witnesses remain uncorroborated, the edifice of the case of the prosecution is not razed to the ground but it does create a lack, even if abysmal, in the foundational support of the case raised.
iii) Relevance of evidence of recovery memo
41. P.W.-6 Yashwant Singh, who was posted as lower division clerk at ACB, Chowki Rajsamand, stated in his on oath statement that the recovery memo Ex.P-6 was typed by him on the day of proceedings at the ACB, Chowki Rajsamand and an endorsement to this effect had also been made on the document. As per the document and warrant of law the recovery memo had to be prepared at the place where the alleged recovery was made but in this case as per this witness the memo was prepared on the next day at ACB outpost, Rajsamand which is 60 kms away from the place of recovery. This court does not hesitate to comment that if it has happened it is nothing but absurd. It is not comprehensible that why the testimony of this Police officer of the ACB, team should be disbelieved or discarded.
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42. PW-8 deposed before the court that the entire proceedings of the trap were conducted before him at P.S. Bhupalpura and that he bore witness to the recovery effected at the instance of the accused as alleged as well as the preparation of the recovery memo including the appending of signatures on the said memo. Contrary to the above, this witness admitted in his cross examination that the date and time in the fard peshkasi note, the recovery memo and the transcript were rightly endorsed. Thus, as per PW-8, these documents were prepared at the ACB, Chowki Rajsamand but the proceedings were conducted at ACB, Chowki Bhupalpura, which raises a serious doubt about the genuineness of these documents.
43. The constable of the ACB team, P.W.-14 Shiv Singh, who was driving the vehicle of the trap team, deposed that the recovery memo was prepared at P.S. Bhupalpura and that the endorsement on the said memo that it was prepared at P.S. Rajsamand is wrong. However, his statement in otherwise not getting corroborations for the statement of other witnesses as well as from scientific evidence.
44. Similarly, the I.O. P.W.-15, stated during his cross- examination that as per the story of the prosecution, the recovery memo was prepared at ACB, Chowki Bhupalpura, however, it bears endorsement that it was made at ACB, Chowki Rajsamand. Thus, there is direct conflict between what is on the paper and what was actually said.
45. If the testimonies of the above-mentioned three witnesses are taken into consideration, it is emerging that the testimony of PW-8 (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (24 of 36) [CRLA-28/2016] is contradictory in itself and the testimonies of PW-6 and PW-14 are in variance with each other when it comes to the place where the recovery memo was prepared. This shows that the recovery memo in itself is not a sacrosanct piece of evidence that can be given any importance. Recovery memo is a piece of evidence holding vital importance and cannot be taken lightly in a case pertaining to corruption charges which have been attempted to be proved by way of conducting trap proceedings. The stenographer of Ex. P-6 the recovery memo admitted in his cross-examination that the said memo was prepared at Outpost, Rajsamand which is 60 kms away from the place where the trap was conducted and alleged recovery was effected. Otherwise also, it is the want of law as well as a convention that the memo of recovery has to be prepared at the same place where the recovery was allegedly effected. If the fact of demanding illegal gratification and the fact of recovery of tainted amount are disproved, then there remains nothing in the case of the prosecution and this court is not hesitant to comment that a patently false case has been foisted against the appellant probably due to some personal grudge. This court is amazed as to how the learned Trial Judge failed to take note of such an important aspect of this matter. If such imperative aspects have not been taken note of by the learned Trial Judge then it can safely be observed that the learned Trial Judge has miserably failed to appreciate the correct legal and factual aspects of the matter.
C) Lacuna in investigation & follies of the investigating team (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (25 of 36) [CRLA-28/2016]
i) Testimony of PW-15: Investigating Officer
46. The I.O. in his on oath statement clearly admitted the fact that the mobile phone of the accused was seized by the ACB at 7:00 p.m. and the said seized phone was kept in the Malkhana P.S. Rajsamand at 9:30 p.m. and if we look at the CDR of the seized mobile phone, it is evident that calls have been made from that seized handset after 7:40 p.m. and in between 09:30 p.m. to 10:26 p.m. on the same day. The CDR of the seized mobile phone casts doubt on the entire recovery of the case. The signature of the complainant was taken on the subsequent day of the day when the trap was conducted at Police Station Rajsamand rather than at P.S. Bhupalpura where the accused was caught red- handed. It can be inferred that the I.O. committed blunders during the investigation of this case. All these contradictions and inconsistencies in the case of the prosecution with regard to the point of recovery put serious doubt on the whole situation as posed by the prosecution.
ii) Testimony of PW-8: Trap Leading Officer/ Deputy Superintendent
47. It is interesting to note that it is clearly stated in the statement given by this witness that the accused admitted that he had taken an amount of Rs. 15,000/- for the purpose of buying computer for the P.S. and that he was apologetic that he received the above mentioned amount of bribe, however, in the cross- examination of the complainant PW-1, it is stated that he was present when the accused-appellant was apprehended but he made no such statement in front of him. This raises a serious (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (26 of 36) [CRLA-28/2016] question upon the story of the prosecution that when the complainant himself is refusing that such statement was made by the accused-appellant then how did the TLO mention the same.
iii) Testimony of PW-13
48. Another shortcoming in the investigation is that PW-13 Mr. Om Prakash admitted the fact that he wrote the running note of this case which contained the entire proceedings that had taken place on 28.09.2012 at 12:05 p.m. i.e. the verification of illegal demand, howbeit, during his cross-examination, he admitted that he was on leave on 28.09.2012 which can be verified through the rojnamcha diary and he also admitted that he wrote the running note in backdate as per the order of TLO, thus, this makes the whole story of prosecution fall flat on its face.
iv) Supply of information to superior officers
49. The alleged trap proceedings were conducted in P.S. Bhupalpura which is situated in Udaipur. Udaipur is a big city in the state of Rajasthan whereas Rajsamand is a smaller city in the state of Rajasthan. The District Headquarters of the Anti- Corruption Bureau is located in Udaipur which is headed by one of the range officers of the rank of Deputy Inspector General of Police whereas Rajsamand is an outpost which is headed by an officer of the rank of Additional Superintendent of Police. In the present matter, no dissemination of information took place from the Outpost Head to any of the higher ranking officials posted at the District Headquarters at Udaipur. In fact, the entire trap proceedings were led by an official of the rank of Deputy Superintendent of Police and the direct reporting officer of the (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (27 of 36) [CRLA-28/2016] Deputy S.P. who was presiding at Udaipur was also not kept in the loop. At the minimum, for the sake of maintaining transparency, the fact that a trap proceeding was going to be conducted should have been communicated to the senior officers; at least the TLO should have informed regarding the same to his immediate senior/ seniors at the District Level if not the seniors at the District Headquarters. Even the concerned SP under whose instructions the accused-appellant was working had no knowledge regarding the trap proceedings.
Hence, in the firm opinion of this Court, it can be concluded that the investigation conducted in the instant matter was not transparent, unambiguous and carried out with honest conviction towards discharging of duty.
D) Pendency of Work
50. The complainant in his complaint P-1, clearly mentioned that the accused is asking bribe from him so as to not make him an accused in Case No. 13/12 which is related to one Mr. Om Prakesh Teli alleging that he has sold the concerning land to Mr. Om Prakash. A glance at the on oath statement of TLO is reflecting that the investigating officer in Case No. 13/12 regarding which the alleged demand was made, happens to be one Mr. Daulat Singh ASI, who has already informed the TLO during investigation that neither the name of complainant finds any mention in this case nor has he ever heard his name before during the entire investigation of this case.
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51. The I.O. of the case has also admitted in his cross- examination that there was no work of the complainant pending before the accused.
52. Now, this court wonders that how is it even possible for the accused to drag the complainant in this case when his name has not been pumped out even once in the whole investigation and if the complainant had actually sold the alleged land to Mr. Om Prakash, then his name should have been mentioned as an accused or a witness already. It cannot be possible that he sold the land and his name did not come up even once during the entire investigation. Moreover, the accused did not have any power or authority to drag the name of the complainant in the case as he was not the I.O. of that particular case. If a case or complaint is registered against any person, it is obvious and apparent that he/she/they would try to either acquire or be provided basic information regarding his/her/their case. The complainant seems to be well aware of his legal rights as he attends CLG meetings and it is evident that he is also familiar with the provisions of P.C. Act. This court is not able to digest the fact that how come the complainant did not know who is the I.O. in Mr. Om Prakash Teli's case and that he did not even attempt to contact or know about the same when the accused allegedly made the demand of bribe before him. Thus, a big question still remains as to why and what work of the complainant was pending with the accused for which he had to pay an amount of bribe when he knows that the accused had no authority in that case to implicate him; neither there remained any reason for him to get scared nor (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (29 of 36) [CRLA-28/2016] was there any undue duress upon him to pay Rs. 15,000/- as illegal gratification to the accused. In fact, there was no leverage with the accused to be able to demand bribe on the count that he will not name the complainant in case no. 13/12 and thus, looking at it from both the perspectives, the scenario as alleged by the prosecution does not stand firm on its own logic. E) Presumption under Section 20 of the Prevention of Corruption Act, 1988
53. As far as presumption under Section 20 of the Act is concerned, it would be appropriate to discuss how it applies under criminal law. In criminal law, there is a presumption of innocence in favour of the accused. The prosecution must establish beyond reasonable doubt that accused had committed the offence for which he was charged. As a general principle, the burden of proving actus reus and mens rea lies on the prosecution. Section 20 of the Act refers to the rebuttable presumption. Rebuttable presumption in criminal law is somewhat controversial, in that it does effectively reverse the presumption of innocence. The effect of rebuttable presumption is to put the legal burden of disproof on the accused. In rebuttable presumption also the primary facts must be proved by the prosecution, thereafter the specific presumption could be drawn from them. In the present case, since the primary facts have not been proved with regard to demand and acceptance, so mere recovery of signed tainted notes cannot lead to raising of presumption under Section 20 of the Act. Additionally, it is imperative to assert here that even the recovery (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (30 of 36) [CRLA-28/2016] of tainted notes from the accused-appellant is under a cloud of doubt, thus, viewing from any angle, the presumption under Section 20 cannot sustain.
F) Standard of Legal Proof
54. It is a settled position of law that any allegation under the aforementioned sections against an accused, if sans a demand for any kind of illegal gratification or a recovery of the same, as discussed above, would result in a failure of the prosecution to prove its case, beyond all reasonable doubt.
55. The burden to be discharged by prosecution before sustaining a conviction of an accused under the Prevention of Corruption Act is completely absent in the present case. Proof of acceptance of illegal gratification can follow only when there is proof of demand. The same is conspicuously lacking in the present case and the primary facts on the basis of which presumption under Section 20 of the Act can be drawn are completely amiss. The mere possession and recovery of currency notes from the accused without proof of demand will not establish the offence under Section 7. Further, the same shall be conclusive insofar as the offence under Section 13(1)(d) r/w Section 13(2) is concerned as in the absence of proof of demand for illegal gratification, use of corrupt or illegal means of abuse of position as public servants to obtain any valuable thing or pecuniary advantage, cannot be held to be established. The demand of gratification cannot be said to be proved only on the basis of the allegations levelled in the complaint in absence of any corroboration to that effect. Mere (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (31 of 36) [CRLA-28/2016] recovery of tainted money from the accused in absence of proof of demand is not sufficient to sustain the conviction and in the instant case, even the fact of recovery is disputed and in the firm opinion of this court, the prosecution has failed to establish the above fact beyond reasonable doubt.
56. The three cardinal principles of criminal jurisprudence are well settled and in the case of Rabindra Kumar Dey Vs. State of Orissa reported in AIR 1977 SC 170, they were highlighted as under by Hon'ble the Supreme Court:-
"(i) that the onus lies affirmatively on the prosecution to proves its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case;
(ii) that in a criminal trial, the accused must be presumed to be innocent unless proved to be guilty; and
(iii) that the onus of the prosecution never shifts.
Merely because of the existence of presumption under Section 20, the burden does not shift on the accused. The Evidence Act do not contemplate that the accused should prove the case with the same strictness and rigor as the prosecution is required to prove a criminal charge and it is sufficient if the accused is able to prove his case by standard of preponderance of probabilities as envisaged under Section 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of the version given by him throws doubt on the prosecution case and, therefore, the prosecution cannot be said to have established the charge beyond reasonable doubt."
57. Once the accused gives a reasonable and probable explanation, it is for the prosecution to prove affirmatively that the explanation is false. In criminal trial, it is not at all obligatory on the accused to produce evidence in support of its defence and for (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (32 of 36) [CRLA-28/2016] the purpose of proving his version, he can rely on the admissions given by prosecution witness or documents filed by the prosecution. The prosecution has to stand on its own legs, and if it fails to prove its case beyond reasonable doubt, the entire edifice of the prosecution case would crumble down. The burden to prove the case always lies upon the prosecution and the accused even keep a mum since he has a right of silence.
G) Miscellaneous Factors of Consideration
58. It is not the quantity of the witnesses but the quality of witnesses which matters. The quality of evidence to base conviction and to curtail the liberty of an individual should be immaculate and of sterling worth. The quality of evidence brought on record must be impeccable, clinching, and fully trustworthy which should not leave any room for doubt.
59. It is trite law and settled principle of criminal jurisprudence that 99 guilty persons may escape the clutches of law but not even one single innocent may be punished. Therefore, the conviction of both the appellant recorded by the trial court is found to be perverse and illegal and it is not sustainable in the eyes of law and the same is liable to be set aside.
60. In K.P. Kolanthai Vs. State By Inspector of Police (Criminal Appeal No. 693 of 2008 decided on 09.08.2019), a single bench of Madras High Court, while deciding a matter related to corruption charges, succinctly and aptly stated the position of law about appreciation of evidence in cases where a trap operation (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (33 of 36) [CRLA-28/2016] was executed and that portion is reproduced herein under for reference:
"12. At the outset, the legal position, which emerges regarding appreciation of evidence in a trap, can be summarized as under:-
(i) To succeed in such a case, the Prosecution is obliged to prove the demand of bribe before and at the time of trap, its acceptance and the recovery of tainted money.
(ii) The demand can be proved by testimony of the complainant as well as from the complaint made by him and other witnesses if proved in accordance with law and if it is corroborated in material particulars.
(iii) A presumption as to the demand of bribe can also be drawn if the tainted money i.e. the money tendered as bribe money is recovered from the possession of the accused, which presumption, of course, is rebuttable under Section 20 of the Prevention of Corruption Act, 1988.
(iv) If the accused gives some defence, that can be scrutinized by the test of preponderance of probability, while the Prosecution must prove its case beyond all reasonable doubt.
13. The genesis of a trap lies in the previous demand of bribe made by the accused from the complainant, which becomes the basis of laying a trap by the investigating agency. Then, it is for the Prosecution to, again, prove the demand at the time when the trap was laid and thereafter, the question of acceptance and recovery of bribe money also is required to be proved beyond all reasonable doubts."
61. If the points mentioned in concise in the above judgment are glanced upon, it is utterly clear from the discussion above that the prosecution miserably failed to fulfill the obligation of proving the fact of demand before as well as at the time of trap. Neither acceptance nor recovery of the tainted money is proved. The fact of demand is not proved in the case at hand by the evidence of complaint & the testimony of the complainant himself; the (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (34 of 36) [CRLA-28/2016] testimonies of the prosecution witnesses are riddled with inconsistencies and contradictions; even material particulars do not corroborate the stance of the prosecution. Even drawing of presumption under Section 20 can also not be done as it cannot be said with utmost certainty that the money was recovered from the exclusive and conscious possession of the accused-appellant and the primary facts of demand and acceptance have not been proved. On the count of preponderance of probability as well, the defence stands firmer on its ground than the prosecution, thus, this case is not a fit case for convicting the accused-appellant for committing offence under Prevention of Corruption Act.
62. It stands well settled by Hon'ble the Supreme Court that in a case where there is no sort of evidence; direct or circumstantial to prove demand of illegal gratification by the accused, a conviction is not possible under Section 7 of the P.C. Act. It is true that just because of the complainant turned hostile, the prosecution case would not collapse and the prosecution can prove the case by other evidence possible but the corresponding evidence and the surrounding circumstances in the present case, too, do not contribute towards proving of fact of demand and acceptance of illegal gratification. There is not even a single witness who stated that PW-1 Dheeraj made the payment of the bribe amount to the accused appellant at the time of trap proceeding except the story of prosecution as set out by the investigating team. When it comes to the recovery of certain things, it has to be made from the exclusive and conscious possession of the accused as the (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (35 of 36) [CRLA-28/2016] same has not been done in the instant case, the fact of recovery is not proved.
63. In view of the above reasons, this Court finds that the prosecution has not been able to put forth positive, acceptable, cogent, consistent, convincing and satisfactory evidence, to establish the basic ingredients required to make out offences under Sections 7&(13)(1)(d) read with 13(2) of the PC Act against the accused. Thus, when the offences alleged have not been proved by the prosecution beyond all reasonable doubt, and thus, benefit of doubt shall accrue in favour of the accused/appellant.
64. As an upshot of the discussion made herein above, it is observed that sufficient material is not there on record to bring home the guilt of the appellant. The judgment impugned suffers from serious illegality and gross impropriety and therefore, the same is not sustainable in the eyes of law. There is force in the criminal appeal and therefore, the same deserves acceptance.
65. Accordingly, the appeal succeeds and the same is allowed. The impugned judgment of conviction and order of sentence dated 22.12.2015 passed by the learned Special Judge, Session Court, Prevention of Corruption Act Cases, Udaipur in Sessions Case No. 32/2013 is hereby quashed and set aside. The accused-appellant is acquitted from the charges under Sections 7, 13(1)(d) and 13(2) of P.C. Act. His bail bonds are canceled.
66. All pending applications, if any, also stand disposed of.
67. Record be sent back.
68. The accused-appellant would be required to execute a bond of a sum of Rs. 50,000/- with surety of like amount before this Court (Downloaded on 12/11/2023 at 01:04:27 AM) [2023:RJ-JD:19288] (36 of 36) [CRLA-28/2016] within a period of 30 days from the date of passing of this judgment to the effect that if an appeal is preferred against this judgment before the Apex Court within a period of six months, he shall appear before the Higher Court as and when such Court issues notice in respect of an appeal.
(FARJAND ALI),J 316-/-
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