Rajasthan High Court - Jaipur
Gir Raj Kishore vs State Of Rajasthan on 23 February, 1987
Equivalent citations: 1987(1)WLN684
JUDGMENT Inder Sen Israni, J.
1. This is an appeal against the judgment of conviction and sentence passed by the learned Special Judge, Anti-Corruption Cases, Jaipur dated 23-1-1979 where by the accused appellant has been convicted under Section 161 I.P.C. read with Section 5(1)(d)(2) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for one year for offence under Section 161 I.P.C. and further sentenced under Section 5(1 )(d) & (2) of the Prevention of Corruption Act for two years rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine, to further undergo simple imprisonment for six months. Both the sentences were to run concurrently.
2. Briefly stated the facts of the case are that PW 1 Harlal submitted a report (Ex.P 1) before the Deputy Superintendent of Police, Anti-Corruption Department, Bharatpur on 12th July, 1975 at 9.30 a.m. alleging that he was resident of Pagor Nagla Lakhan and was a teacher. The accused appellant, who is Head Constable of Police Station Kumher called his father Sanwal Ram PW 6 on 10th July, 1975 and detained him in police station in a false case under Section 411 I.P.C. on the ground that he had purchased the stolen wheat out of levy wheat of village Lakhan. The above case was got registered on account of enmity by the villagers. The wheat, which has stolen by the labourers had been recovered by the Patwari and the Patwari had made an entry in his Ghatna Bahi. The Patwari had also informed the Police Station, Kumher about this fact. Even then it was stated that the accused appellant is trying to obtain bribe by not releasing his father. The accused demanded a sum of Rs. 200/- from him as bribe, but later on agreed to accept Rs. 100/-only. The complainant did not want to give bribe and wanted to get the accused appellant trapped red handed. One G.C. note of Rs. 100/- was submitted before the Dy. SPACD and the same was dusted with powder of phenolthalein by L.C. Rajveer Singh in presence of PW 2 Ratan Singh. A motbir witness also came with the complainant when Ex.P 1 was submitted before the Deputy Superintendent of Police. All these proceedings were recorded in Ex.P 2. Thereafter the note was returned to Har Lal after giving necessary instructions in the matter. The complainant was also given instructions to give a signal by raising his hands after giving the currency note to the appellant. Shri Ratan Singh was directed to remain with Harlal and watch and hear the conversation which took place between the accused and the complainant while passing the tainted G.C. note. The Deputy Supdt. of Police thereafter left Bharatpur along with the trap party and Motbir witness Ratan Singh PW 2 for Kumher in a jeep. At Kumher, Kamal Singh PW 3 met the trap party and informed that accused had gone to Bharatpur and was expected to come back at Kumher at 3 00 p.m. The accused was seen at Kumher bus-stand at 3.00 p.m. Harlal and Kamal Singh contacted him. After a short while the accused came back to bus-stand with a constable and a person who was hand-cuffed. The accused, constable Sanwal Ram, Harlal and Rafan Singh boarded a bus, which was leaving for Bharatpur. Kamal Singh informed the (rap parly that the accused had raised the demand of Rs. 100/- to Rs. 150/-, which has been accepted by Harlal and the same will be paid in Bharatpur, where he had a rented house. The accused will release his father Sanwal Ram at Bharatpur after accepting bribe amount. The trap party reached at Bharatpur power house at about 4.30 p.m. Ratansingh & Rajveer Singh were sent to locate Harlal and Sanwar Ram. After some time, Rajveer along with Harlal and Ratan Singh came and informed the Deputy Superintendent of Police near the Power House that the accused had taken Rs. 150/-from him and has also released his father. Now the accused is going towards Police quarters at Girraj from the road passing infont of the Collectorate, Bharatpur. The accused was apprehended near the Collectorate and was taken in the jeep of Dy S.P. to the out post, Anti Corruption Department, Bharatpur. There, one G.C. note of Rs. 100/- and 5 G.C. notes of Rs. 10/-each were recovered from the possession of accused and a diary and remand sheet were also taken into possession vide Ex. P 4. After usual investigation, a challan was submitted in the Court of Special Judge, Anti-Corruption cases Rajasthan, Jaipur. The prosecution examined as many as 8 witnesses in support of its case, where as the accused examined seven witnesses including himself in the defence. Learned trial Court after hearing both the parties convicted and sentenced the accused appellant as indicated above.
3. Mr. R.N. Sharma, learned Counsel for the appellant has contended that necessary ingredients of the offence under the Prevention of Corruption Act regarding demand and acceptance of bribe amount have not been proved by any evidence on record. He further contends that none of the prosecution witnesses has stated that the appellant demanded any bribe amount from PW 1 Harlal, the decoy He also contended that none of the prosecution witnesses has said that the amount of Rs. 150/- said to have been accepted by the appellant, was given as bribe for releasing father of PW 1 Harlal. Therefore, both the ingredients are absent. He has also pointed out that even the amount of bribe to be given is not fixed. PW 1 in the beginning states that Rs. 200/- were demanded by the appellant, but subsequently he agreed to take Rs. 100/-. However when the actual bribe money was given he has stated that the appellant demanded Rs. 150/- and therefore, this amount of Rs. 150/-was given to the appellant. This also according to the learned Counsel, goes to prove that no such demand was ever made.
4. It has also been pointed out that as proved by PW 3 Kamal Singh, the appellant at the time of arrest also gave explanation of Rs. 150/- which was given to him by PW 1 Harlal. He has further stressed that this amount of Rs. 150/- was given to the appellant by Harlal which were sent to the accused by one Deshraj to whom this amount of Rs. 150/- had been sent by the appellant for sending pure Ghee. Since pure Ghee was not available, therefore, this amount was returned by Deshraj through Harlal PW 1. It is, therefore, submitted that receipt of Rs. 150/- by the accused appellant at the time of arrest is fully explained and he has been falsely implicated to have accepted any bribe amount from PW 1 Harlal.
5. Mr. S.C. Sharma, learned Public Prosecutor on the other hand has supported the judgment of the trial court and has stressed that the explanation given by the accused appellant at the time of arrest is most untenable and the demand and acceptance of the amount of Rs. 150/- is fully proved from the evidence on record. Therefore, the appellant has been rightly convicted of the offence committed by him.
6. I have heard learned Counsel for the appellant and the learned Public Prosecutor and have also gone through the judgment, evidence and documents on record.
7. PW 1 Harlal the decoy in his statement has stated that on 10-7-75 he went to Kumher and met the accused appellant, who demanded Rs. 200/-from him for releasing his father. Thereafter he met the Dy. S.P. Anti-Corruption, who told him to fix up the date of receipt of money with the accused. Thereupon, he sent Ratan Singh PW 2, Kamal Singh PW 3 and Yadram DW 6 to Kumher to meet with the accused appellants, who settled to take Rs. 100/- on 12-7-1975. On 12-7-75 he along with PW 2 Ratan Singh went to the office of Dy. S.P. Anti Corruption Department and gave him wristen application (Ex. P 1) regarding the same, Thereafter he along with PW 2 Ratan Singh met the appellant on 12th at the bus stand, Kumher, where he again requested to release his father, but he demanded Rs. 150/-from him. Thereupon, the witness told him that he had agreed to accept Rs. 100/-, but he insisted to take Rs. 150/- only. Thereafter the appellant went inside the Thana and came out with his father, who was hand cuffed. On his enquiry, the appellant told him that he was taking his father to Bharat Pur to produce him in the court. The witness told the appellant that he will pay him Rs. 150/- as demanded. Thereupon, the appellant told the witness that he will release his father in Bharatpur on receipt of the amount of Rs. 130/-. The appellant thereafter boarded the bus for Bhartpur along with his father. The witness also boarded the bus along with PW 2 Ratan Singh. On reaching Bharatpur, the witness asked the appellant to wait at the bus stand itself, so that he may go and bring the money from his room at Bharatpur. The appellant went to his room and brought Rs. 150/- (five notes of Rs. 10/-each), and gave one note of Rs. 100/- & these 5 notes of Rs. 10/- each to the appellant at the bus stand. The appellant kept the amount in the pocket of the coat and opened the hand cuffs of his father and released him. Thereafter the witness and his father both went to his house at Bharatpur along with PW 2 Ratan Singh. After leaving his father at his room he along with Ratan Singh came on the cycle to the market. The appellant at that time was going from Bazar towards the police quarters. Both of them followed the appellant and on reaching Mathura gate they met PW 5 Rajveer Singh, constable whom they told the whole story. Rajveer Singh thereupon took them to the Dy. S.P. who was sitting in the jeep along with the trap, which was standing nearby. He told the Dy. S.P. that the appellant was going to the police quarters via Collectorate. The Dy. S.P. asked him and Ratan Singh to sit in the jeep and drove towards the police quarters and saw the appellant coming little ahead of the Collectorate. The Dy. S.P. showed his identity card to the appellant, who thereupon tried to take out and tore a paper from the file in hand. Thereafter he was made to sit in the jeep and they all came to the office. A paper (Ex. P 4) (remand sheet of Sanwal Ram, father of PW 1) was taken in possession from the appellant. However, in cross this witness has clearly stated that he did not make any complaint with the police against the appellant on 10-7-1975 as he had not talked with the appellant regarding demand of bribe He has further stated that he came to know only from Ratan Singh PW 2 Kamal Singh PW 3 and Yad Ram DW 6 that the appellant was demanding bribe for releasing Sanwal Ram. He, thus clearly contradicts his own statement made in examination in chief. He has also stated that in his statement (Ex D 1 ) recorded by the police he had not stated that he had first gone to his house at Bharatpur to leave his father there when his father was released by the appellant. Even though he has admitted that he knows Desh Raj DW 2, but, has denied that Deshraj gave him Rs. 150/- for returning the same to the appellant as he could not get pure ghee as requested by the appellant, who had sent this amount of Rs. 150/- to him for purchase of pure Ghee.
8. PW 2 Ratan Singh, who is father-in-law of Harlal has stated in his statement that the appellant did not demand anything from PW 1 Harlal, in his presence. Thereafter, they met the appellant on the next day when the appellant told them that he will not release the father of PW 1 Harlal, Constable Shiv Charan said that he can be released on payment of Rs. 250/-. The accused appellant did not say anything. This witness in cross-examination has clearly stated that on 10th and 11th July, 1975, he and PW 1 had talked with a constable named Shiv Charan. This witness therefore, also does not support the case of the prosecution that appellant demanded bribe from Har Lal on 10th July, 1975, where on the whole process started. This witness has further stated that at the bus stand when PW 1 talked with the appellant, he demanded Rs. 150/- from him for releasing Sanwal Ram. He has further stated that the appellant did not accept the amount of Rs. 150/- from him at bus stand, Kumher. This also is contradictory to the statement of PW 1 who stated that at Bus stand, Kumher he had only Rs. 100/- with him and he told the appellant that he will pay him Rs. 150/- at Bharatpur, where he had a rented room and will bring Rs. 50/- from there. Thus, the question of offering Rs. 150/- to the appellant and his not accepting the same at bus stand Kumher does not arise. He has also stated in cross that he knows Bhagat Deshraj of Deeg and that at the time of giving of amount the name of Bhagat Deshraj had definitely come up, but he could not say whether PW 1 told the appellant that the amount of Rs. 150/- given by him to the appellant was sent by Desh Raj He has also stated that at the time when the appellant was arrested, Sanwal Ram was also present, whereas PW 1 has stated that he had left Sanwal Ram at his room and thereafter went for informing the police.
9. PW 3 Kamal Singh has stated that on 11-7-1975 Harlal, PW 1 had met him at Kumher and told him that accused, appellant was demanding Rs. 150/- as bribe for releasing his father. However, PW 1 himself has stated that he had sent Ratan Singh PW 2, Kamal Singh PW 3, and Yad Ram DW 6 on 10-7-1975 to talk to the appellant and PW 1 himself came to know from these witnesses that the appellant was demanding bribe of Rs. 200/- to release his father. This witness in cross has further stated that on 11-7-1975, PW 1 Harlal had told him that the appellant wants to arrest his father, therefore, while returning the amount of Rs. 150/- of Bhagat Deshraj to the appellant, he will trap the appellant. Regarding this witness, a request was made to the trial court to declare this witness hostile and permit the prosecution to cross-examine this witness but the trial court did not find it fit to do so. This witness has also stated in cross-examination that at the time of arrest, the appellant had informed the Dy. SP, Anti-Corruption that he had not taken any bribe of Rs. 150/- from PW 1, but this amount of Ghee was sent back by Bhagat Deshraj to him.
10. PW 6 Sanwal Ram has stated that on 10-7-1975 Ratan Singh PW 2 had come to the police station and talked to the appellant, but he does not know what talk took place between them. Thereafter, Ratan Singh along with his son Harlal came to the police station on 11-7-1975 and they both talked to the appellant, but he does not know what took place amongst them. He has further stated when he, appellant. Ratan Singh and Harlal reached Bharatpur in bus, on getting down from it Ratan Singh and Harlal went behind the appellant towards the police lines. He went away to the house of, Harlal as appellant had unlocked his hand-cuffs at Bus-stand Kumher itself Thus the statement of this witness is absolutely contradictory to the version given by the other witnesses that the amount of Rs. 150/- was given to the appellant at Bus-stand, Bharatpur, after which the appellant released Sanwal Ram and his son Harlal took him to his house. He has also stated that when Harlal and Ratan Singh did not come back to the house till 6.00 p.m., he went in Bazar and found a crowd standing there. On enquiry, he came to know that appellant had been arrested by the Superintendent of Police, but he could not say why he was arrested. On the same night at Bharatpnr, Harlal told him that he had got the appellant arrested on the charge of accepting Rs. 150/-as bribe from him. He further says that no amount was given by Harlal to the appellant in his presence.
11. PW 8 Mool Singh, Dy. S.P. has stated that on 12-7-1975, PW 1 Harlal came along with Ratan Singh and gave him in writing that the appellant was demanding bribe of Rs. 200/- for releasing his father, but had finally agreed to take Rs. 100/- for this work. In cross, he has stated that at the time of arrest the appellant when asked, had stated that he has committed mistake and he may be pardoned. However, PW 3 Kamal Singh has stated that at the time of arrest, the appellant when enquired, had given explanation that Rs. 150/- were sent to him by Bhagat Deshraj. This witness has further admitted that PW 2 Ratan Singh was an independent witness taken along with the trap party and that he did not know at that time that Ratan Singh was the father-in-law of PW 1 Harlal.
12. The accused appellant when examined under Section 313 Cr. P.C. has also stated that the amount recovered from him was sent back by Deshraj, which was given for purchase of Ghee. He has denied that he ever apologised at the time of arrest. He has further stated that he had received a post-card (Ex.D. 5) from Deshraj in which he had written to him that since pure Ghee of cow needed by him was not available with him due to hot season, therefore, he will return the money with some reliable person. It was also written that he had come to the Police Station, Kumher but could not meet him.
13. DW 2 Deshraj has stated that he had received Rs. 150/- from the appellant for sending Ghee and that he had also written a post-card (Ex.D 5) to him and had given Rs. 150/- to PW 1 Harlal for returning the same to the appellant.
14. From the above discussion of the evidence it is clear that the allegation of the prosecution is that in the beginning the demand was for Rs. 250/-, thereafter it came to Rs. 200/- and subsequently settled at Rs. 100/-However, at the actual time of giving the amount, the demand by the appellant was raised to Rs. 150/- and the decoy went to his rented house at Bharatpur to bring Rs. 50/- more and handed over Rs. 50/- to the appellant. All this change in the amount, coupled with the evidence of prosecution witnesses discussed above, does not inspire confidence to prove that the appellant had actually demanded any amount from PW 1 Harlal for releasing his father. Some of the prosecution witnesses have them selves admitted that PW 1 had said that he will some how get the appellant trapped when he hands over Rs. 150/- to him which were given to him by Deshraj for returning to the appellant.
15. Regarding recovery of the amount Rs. 150/- the prosecution witness PW 3 Kamal Singh admits that at the time of arrest the appellant had given explanation that this amount of Rs. 150/- was sent by Deshraj to him which were given by Harlal and it was not the amount of bribe. PW 6 Yad Ram is a witness who is named by PW 1 but has been examined on behalf of the defence. This witness is clearly related to PW 1 Harlal. He states that Harlal had told him that he has spent away Rs. 50/- from the amount Rs. 150/-, which were given to him by Bhagat Dishraj for returning to the appellant. He had also told him that the appellant will not release his father and, therefore, ha has made arrangement to get him trapped.
16. In the case of Darshan Lal v. Delhi Administration , it was held by their Lordships of the Supreme Court that there should be independent and trust-worthy corroborator of the evidence of trap witnesses. In the present case there is absolutely no corroboration from any independent witness regarding giving of and recovering the illegal gratification. In the case of Sita Ram v. State of Rajasthan it was observed that there are three main ingredients of the charge under Section 161 of the Penal Code:
(1) that the accused was a public servant;
(2) That the must be shown to have obtained from any person as gratification;
(3) The gratifications should be other than legal remuneration as a motive or reward for doing or forbearing to do any official act for showing or forbearing to show, in the exercise of his official functions, favour c-r disfavour to the person.
In the present case the prosecution in my considered opinion has failed to prove that any demand cf gratification was made by the appellant. The prosecution has also not been able to prove that the amount of Rs. 150/- recovered from the appellant was the amount of illegal gratification given to him by PW 1 Harlal. The explanation given by the appellant at the time of arrest, which is also endorsed by the prosecution witnesses as also by DW 6 Deshraj, cannot be ignored. Therefore, in my considered view the prosecution has failed to prove the charges levelled against the appellant.
17. In the result this appeal is accepted. The conviction and sentence passed by the trial court against the appellant is set-aside and he is acquitted of the charges levelled against him. The appellant is on bail and he need not surrender to his bail bonds.