Jharkhand High Court
Sudersan Singh vs State Of Jharkhand on 2 September, 2009
Author: Pradeep Kumar
Bench: Pradeep Kumar
Criminal Appeal No. 36 of 2002
With
Criminal Appeal No. 48 of 2002
Against the judgment of conviction and order of sentence dated 19.01.2002 passed by
Shri Devendra Kumar Lal, 7th Additional Judicial Commissioner, Ranchi in Special Case
No. 0004 of 1990 arising out of Patna Vizilance P.S. Case No. 7 of 1990.
-----------------------
Indra Deo Paswan ... ... Appellant (in Cr. Appeal No. 36 of 2002)
Sudersan Singh ... ... Appellant (in Cr. Appeal No. 48 of 2002)
-Versus-
The State of Jharkhand ... ... Respondent
--------------------------
For the Appellants : M/S. Laljee Sahay, Jitendra Nath, A.K. Sinha, Advocates
For the State : Mr. A.K. Kashyap (Vizilance), Sr. Advocate, A.P.P.
-----------------------
P R E S E N T
THE HON'BLE MR. JUSTICE PRADEEP KUMAR
C.A.V. on 18.08.2009 Pronounced on 2/9/2009
Pradeep Kumar, J.: Heard learned counsel for the appellants and learned
counsel for the State, Department of Vizilance.
2. Both Cr. Appeal No. 36 of 2002 and Cr. Appeal No. 48
of 2002 are against the judgment of conviction and order of sentence
dated 19.01.2002, passed by Shri Devendra Kumar Lal, 7th
Additional Judicial Commissioner, Ranchi in Special Case No. 0004
of 1990 arising out of Patna Vizilance P.S. Case No. 7 of 1990, by
which judgment the learned Additional Judicial Commissioner
found both the accused guilty for the charge under Sections 7 and 13
(2) read with Section 13 (1)(d) of the Prevention of Corruption Act.
They were also held guilty for abetting the accused late Tarni Prasad
(now deceased) for accepting bribe in their behalf, which is
punishable under Section 12 of Prevention of Corruption Act. They
are convicted theirunder and sentenced to undergo rigorous
imprisonment for one year under Sections 7 and 13 (2) read with
Section 13 (1)(d) and 12 of Prevention of Corruption Act.
3. It is submitted by learned counsel on behalf of both the
appellants that bribe was demanded by the Officer-in-charge of the
police station, Mr. Tarni Prasad (now deceased) and the evidences
are that it is Tarni Prasad (now deceased), who accepted the bribe
2
money and has submitted in absence of any demand for bribe or its
acceptance. The conviction of appellants under Sections 7 and 13 (2)
read with Section 13 (1)(d) and 12 of Prevention of Corruption Act is
bad in law and fit to be set aside. It is further submitted on behalf of
the appellant Sudarshan Singh that he had played no part in demand
of bribe by Tarni Prasad or its acceptance. He never instigated Tarni
Prasad for demanding bribe or for its acceptance. The only role
alleged against him is that after Tarni Prasad accepted the bribe
money, he asked the appellant Sudarshan Singh (Havildar) to give it
to the co-accused Indradeo Paswan (A.S.I.), who was investigating
the case, except that there is no allegation against him, and as such,
he has neither demanded bribe nor accepted bribe nor instigated the
main accused for taking bribe nor he has abetted the same in any
manner, and as such, this conviction under Section 12 of the P.C. Act
is bad in law and fit to be set aside. He being subordinate staff
working as havildar in the office of Officer-in-charge, Lapung has
only obeyed the order of his superior, who asked him to take the
money to the co-accused, Indradeo Paswan (A.S.I.), and as such, his
conviction is bad in law and fit to be set aside.
4. On the other hand, learned counsel for the State has
opposed the prayer of both the appellants and submitted that both
the appellants along with the main accused Indradeo Paswan (A.S.I.)
participated in demanding bribe and accepted the same and thereby
also opted the main accused and hence their conviction under
Sections 13 (1)(d) and 12 of the P.C. Act rather well founded and
required no interference in this appeal.
5. After hearing both the parties and after going through
the evidences on record, I find that the prosecution case has been
started on the basis of F.I.R. given by the informant, Chandra Pal
Mahto on 22.03.1990 at 1 P.M. stating therein that he is a resident of
Vilage- Katik Kel, P.S. Lapung, District- Ranchi. On 12.03.1990, he
was digging foundation on his ancestral land appertains to Khata
No.203, Plot No.949 for the purpose of constructing house, but his
rival party Dukhan Gope came there along with seventy to eighty
persons and assaulted him and his family members. Then, he
reported the matter to the village chaukidar, who advised him to
report the matter to the police station, but at the instance of Sarpanch
and Mukhia of the village, he did not lodge the report to the police.
3
However, it is alleged that on 13.03.1990, A.S.I. from Lapung Police
Station came and took up Bodhan Mahto and locked him in the
Thana. Then on 14.03.1990, the informant along with village
chaukidar went to the police station and gave detailed description of
the occurrence to the Officer-in-charge, Lapung Police Station, but he
slapped them and demanded Rs.15, 000/- to hush up the case.
However, when they settled on matter for Rs.4,000/- in stead of
giving Rs.15, 000/-, then he agreed to enlarge the detenue of Rs.4,
000/- and asked them to pay the same by 22.03.1990. Then, the
informant, Chandra Pal Mahto went to the S.P., Vizilance Office at
Ranchi. The Vizilance Department sent a man with him for
verification of the action, since, the informant stated that he had
already paid Rs.350/-, the person from Vizilance accompanied the
informant to the office of Officer-in-charge, Tarni Parsad, who sent
him to the A.S.I., Indradeo Paswan, who was investigating officer of
the case and in presence of the Vizilance man, he demanded the
money and when they said that he had got no money at that time
then, he stated that he will arrest them also, then he gave Rs.350/-
kept in his pocket and promised to give the rest amount on
24.03.1990. After verification, police made a raiding party and G.C. note memorandum of Rs.3300/- was prepared in the presence of raiding party, then they headed for the office of Officer-in-charge Tarni Prasad and on demand made by him on 24.03.1990, informant handed over the same to the O.C. and the O.C. then gave it to havildar, Sudarshan Singh directing him to give the same to the A.S.I., Indradeo Paswan, who was the investigating officer of the case. On search, the said money was recovered from the room of Sudarshan Singh in presence of independent witnesses and a seizure list was duly prepared and all the accused persons were sent to police custody.
6. After investigation, charge sheet was submitted under Sections 7 and 13 (2) read with Section 13 (1)(d) of the P.C. Act and accordingly cognizance was taken and after trial by the Additional Sessions Judge, both the appellants were convicted as aforesaid.
7. It appears that in course of trial, prosecution has examined twenty witnesses. P.W.1 is Bhola Sharma, S.I. Vizilance, P.W.2 is Rai Suresh Chandra Prasad, P.W.3 is Manohar Singh, P.W.4 is Bhagwan Singh, S.I. Vizilance, P.W.5 is Belascious Toppo, P.W.6 is 4 Garbet Hembrom, S.I. Vizilance, P.W.7 is Rabindra Kumar Gupta, P.W.8 is Arjun Mahto, P.W.9 is Ram Dhan Mahto, P.W.10 is Bodhan Mahto, P.W.11 is Chandra Pal Mahto, P.W.12 is Minak Mahto, P.W.13 is Shet Hembrom, P.W.14 is Rameshwar Rabidas, Dy. S.P. (I.O.), P.W.15 is Ratan Kumar Prasad, Special Magistrate of Vizilance, P.W.16 is Zahir Ahmad, P.W.17 is Kishori Sahu, P.W.18 is Martin Barla, P.W.19 is Raghu Mahto and P.W.20 is Md. Sarwar.
8. It is important to note that out of the aforesaid twenty prosecution witnesses examined, P.W.2, Rai Suresh Chandra Prasad, P.W.3, Manohar Singh, P.W.5, Belascious Toppo, P.W.7, Rabindra Kumar Gupta, P.W.8, Arjun Mahto, P.W.9, Ram Dhan Mahto, P.W.10, Bodhan Mahto, P.W.12, Minak Mahto, P.W.13, Shet Hembrom, P.W.16, Zahir Ahmad, P.W.18, Martin Barla and P.W.19, Raghu Mahto were tendered for cross-examination, but nothing has been obtained by them for defence in their cross-examination. As such the important prosecution witnesses to be considered for proving the charges are the informant, P.W.11, Chandra Pal Mahto, P.W.14, Rameshwar Rabidas, Investigating Officer, P.W.15, Ratan Kumar Prasad, Special Magistrate, Vizilance, P.W.17, Kishori Sahu, B.D.O. and P.W.20, Md. Sarwar, who proved the sanction of the prosecution of other corroborating witnesses P.W.1, P.W.4 and P.W.6.
9. It appears that the informant, P.W.11, Chandra Pal Mahto stated in court that six years back in the month of 'Chait' just after 'Holi' the occurrence took place. He was digging foundation of his ancestral land appertains to Khata No.203, Plot No.949 for the purpose of constructing house, but his rival party Dukhan Gope came there along with seventy to eighty persons and assaulted him. Whereupon, he reported the matter to the village Chaukidar and asked him to report the matter to the police station, but at the instance of Sarpanch and Mukhia of village, he decided to settle the matter in the Panchayat. The matter was not put to police station and on 13.03.1990, A.S.I. from Lapung Police Station came and arrested the informant's relative and took him to police station and put him to thana hajak whereupon he went to police station with Chaukidar on 14.03.1990. Then, he demanded Rs.15, 000/- for relative Bodhan Mahto. However, he agreed to release the accused on demand of Rs.4, 000/-. Thereafter, he reported the matter to the 5 S.P., Vizilance office at Ranchi. Thereafter, the Vizilance Department sent P.W.6, Garbet Hembrom for verification and in presence of Garbet Himbrom, the informant paid Rs.350/-. Then a written report was filed by the Vizilance Department by P.W.6, which was marked as Ext.5. He further stated that during raid he made a payment of Rs.300/-. The notes were treated with chemical powder and G.C. note memorandum was also prepared. He stated that at the time of raid, S.I., Bhagwan Singh of Vizilance Department present there as a shadow witness. The informant also proved the material exhibit currency notes as Ext. I/XXXII. He further stated that Officer-in-charge, Tarni Prasad took the currency notes in his hand then handed over to havildar to give them to A.S.I. (Chhota Babu). Thereafter, he went from there. He identified the accused persons in dock.
10. The prosecution case has been fully supported by the evidence of P.W.14, the Investigating Officer of the case namely Rameshwar Rabidas, D.S.P. He stated that on 24.03.1990, he was posted at Vizilance Department, Ranchi and on the direction of Additional S.P., Vizilance, Sri B.P. Singh "Bakt", he participated in the raid to be made on the information of the informant, Chandra Pal Mahto. He went to the office of the Special Magistrate, Ranchi, who has come from Patna for raid. When the informant Chandra Pal Mahto came with Rs.3300/- G.C. note memorandum was prepared by the 3300 rupees, which was sent by all the witnesses. The memo was marked as Ext.1 and signature of the witness was marked as Ext. 1/4. Investigating Officer further stated that the currency not was treated with Phenolphthalein powder. Thereafter, the notes were handed over to Chandra Pal Mahto, who sent to the same currency notes on demand. The informant also put his signature on G.C. memo which was marked as Ext. 1/2. The raiding party was constituted by the Additional S.P., which was marked as Ext. 2/4. Thereafter, on 24.03.1990, they went to Lapung along with the raiding party under the leadership of Additional S.P. at 1.30 P.M. along with S.I., Bhagwan Singh. The informant was sent to the office of the accused, Tarni Prasad along with S.I., Bhagwan Singh in his presence. The informant gave the bribe money to the accused, thereafter, the S.I. came and told him that the O/C has taken the bribe money and handed over to havildar for giving the same to 6 A.S.I., Indradeo Paswan. Then, two persons from the raiding party went to the Chamber of A.S.I., Indradeo Paswan and found him taking money from the havildar, whereupon, they caught hold of the A.S.I. and O/C was brought there giving their introduction, then, some of the local people assembled there and the B.D.O., Lapung and Sarpanch were called on. In their presence, G.C. note memorandum was read, and the recovered notes were parted. The independent witnesses sent the same. The raiding party members also got them searched by the independent witnesses. The notes were recovered along with the wrist watch of accused kept behind the door. The witnesses proved the G.C. note as Ext. I/XXXII in the court. The I.O. also proved the signature of Special Magistrate, Sri Ratan Kumar, Manbodh Sahu and Kishori Sahu, B.D.O. as Ext. 6 to 6/2. The informant also stated that in the sodium carbonate liquid the hand of Tarni Prasad, Sudarshan Singh and Indradeo Paswan were put then the solution became pink colour. Then, these liquids were kept in different vials and labels were pasted in presence of Special Magistrate and independent witnesses. The seizure of those liquids were also prepared and marked as Ext. 7. He has proved the signature of the witnesses on Ext. 7 as Ext.7/1 to Ext.7/3. The carbon copy of the seizure list was given to the accused Tarni Prasad, Sudarshan Singh and Indradeo Paswan and receipt signed by them were also proved as Ext. 7/4 to 7/6. The informant stated that thereafter all the accused persons were remanded to jail custody. Subsequently, during trial accused Tarni Prasad retired his service and he is now dead. In his cross examination, he stated that the informant, Chandra Pal Mahto had not named the appellants Indradeo Paswan and Sudarshan Singh in his F.I.R.
11. The evidence of the informant and the investigating officer has fully been supported by the other witnesses namely P.W.4, Bhagwan Singh (Vizilance), P.W.1, Bhola Sharma, S.I., Vizilance, P.W.6, Garbet Hembrom, who verified the F.I.R. made by the informant, Chandra Pal Mahto and supported the detailed report and proved his signature on the informant report as Ext.3 and has proved his enquiry report on verification as Ext.4 in the trial. He specially stated in Para 2 of his evidence that on 20.03.1990, when he went with the informant Chandra Pal Mahto to Lapung Police Station, then, Officer-in-charge, who was standing in the gate asked 7 Chandra Pal Mahto as to whether he brought the money or not, then he stated that he will make the payment after selling his cow and buffalo in the market. Then, the officer-in-charge asked him to go to A.S.I. since the case was with him. Then he along with informant went to the A.S.I., who said that if he will not give him money by the next market then he will take serious action against them. He stated that he has received Rs.700/- and he must pay Rs.3300/- on the next market day. P.W.6 stated that he has stated this in his report Ext.4 that accused Indradeo Paswan had accepted Rs.700/- from the informant and demanded Rs.3300/- more on 24.03.1990. He also stated that on 26.03.1990, when the informant came with 3300 rupees i.e. 33 notes of 100 rupees, then, a memo was prepared in presence of the Additional S.P. of the case were treated with Phenolphthalein powder given to the informant with instruction to give the note that had taken to the Officer-in-charge. He also proved the signature on G.C. note as Ext. 1/3. He again gave the full detail as to how the money was paid to the main accused Indradeo Paswan, whereupon, he gave the money after counting to accused Sudarshan Singh for giving the same to Indradeo Paswan and when Indradeo Paswan was receiving the money he was caught hold by the raiding party and the notes were recovered from his room. P.W.15, Ratan Kumar, Special Magistrate, who came from Patna for conducting the raid has also fully supported the prosecution case and stated that he was Special Magistrate, Vizilance posted at Patna and on the request of D.I.G., Vizilance he came on 24.03.1990 and reached in the office of S.P., Vizilance, Ranchi at 10.30 A.M. The informant of this case Chandra Pal Mahto came in his presence and 33 notes of Rs.100/- was noted and a memorandum was prepared and, thereafter, the notes were treated with phenolphthalein powder and given to the informant and thereafter the same was recovered after it was given on demand by the informant to the main accused Tarni Prasad, who gave the same to accused Sudarshan Singh for handing over the same to S.I., Indradeo Paswan and when the Indradeo Paswan received the same he was arrested by the raiding party in his presence and thereafter the money was recovered from his room. He proved his signature on the memo of G.C. note and seizure list etc.
12. Thus, after going through the entire prosecution case and considering the evidences as discussed above, I find that it has 8 been proved beyond reasonable doubt that the appellant Indradeo Paswan, A.S.I., who was the investigating officer of the case demanded bribe from the informant Chandra Pal Mahto in the presence of the witness P.W.6, Garbet Hembrom on 20.03.1990 and also admitted in his presence that he has accepted Rs.700/- as bribe from him and rest Rs.3300/-, he must bring on 24.03.1990 otherwise be ready to face the consequences. Thus, as far as accused Indradeo Paswan, A.S.I. is concerned, there is direct and cogent evidence against him to prove that he demanded bribe along with the main accused Tarni Prasad, since, he also accepted the said bribe in presence of the witnesses, who were the member of the raiding party on 24.03.1990 and the money was recovered from his room where he had kept behind the door along with his writ watch. The witnesses has also proved that he counted the money himself and hence solution of sodium carbonate liquid became pink as the G.C. notes were treated with phenolphthalein powder.
13. Thus, the prosecution has proved the charges beyond reasonable doubts as far as accused appellant Indradeo Paswan is concerned and that appeal is accordingly dismissed and his conviction and sentence under Section 7 and 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act as also under Section 12 of P.C. Act is conformed. Accordingly, Cr. Appeal No.36 of 2002 filed by Indradeo Paswan stands dismissed.
14. As far as appeal filed by accused havildar Sudarshan Singh is concerned, I find that the name of Sudarshan Singh does not appear in the F.I.R. nor the witnesses, who went to verify the demand of bribe money, i.e. P.W.6, Garbet Hembrom has stated that Sudarshan Singh had also demanded money as bribe, the raiding party members have only stated that on the date of raid i.e. on 24.03.1990, when on demand bribe money was handed over to the Officer-in-charge of Lapung Police Station Late Tarni Prasad then he counted the money thereafter gave the same to the havildar Sudarshan Singh for giving the money to the A.S.I., Indradeo Paswan and while he was handing over the money to him, he was arrested by the member of the raiding party.
15. In my opinion, the important condition for conviction under Section 13(1)(d) of the P.C. Act is that there must be a demand of illegal gratification by a government servant and acceptance of the 9 illegal gratification, until and unless these two conditions are proved the accused cannot be convicted for the offence under Section 13(1)(d) of the P.C. Act. In the instance case, since the evidence of the witnesses show that nor any demand was made by the appellant Sudarshan Singh nor there is any evidence that he instigated the appellant Indradeo Paswan or the deceased O/C Tarni Prasad for demanding bribe from the informant nor he accepted the bribe money from the informant on their behalf, and as such, his conviction under Section 13(1)(d) of P.C. Act is bad in law, his conviction under Section 12 of the P.C. Act is equally bad since there is no evidence that he abetted the taking of bribe by the main accused Tarni Prasad and Indradeo Paswan. Only because at the instance of his superior, Officer-in-charge late Tarni Prasad he took the money to hand over the same to Indradeo Paswan and he handed over the same to Indradeo Paswan in presence of witnesses, it cannot be said that he abetted the offence of demand of bribe and acceptance of the same.
16. In that view of the matter, appellant Sudarshan Singh, who has filed Cr. Appeal No. 48 of 2002 is acquitted from the charges levelled against him and the finding and conviction and sentence against the accused Sudarshan Singh is set aside. He is on bail, thus, he is released from the bondage of bail bond.
17. Since, the appeal of Indradeo Paswan in Cr. Appeal No. 36 of 2002 has been dismissed, the trial court is directed to issue warrant of arrest for his arrest for serving the sentence passed against him.
(Pradeep Kumar, J.) Jharkhand High Court, Ranchi The 2nd Sept. , 2009 R.K./N.A.F.R.