Jammu & Kashmir High Court - Srinagar Bench
Mohammad Abdullah Geelani vs State Of J&K Through Vok Srinagar on 13 December, 2024
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
Serial No. 7
Reg. List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRA No. 9900008/2014
Reserved on:- 12.09.2024
Pronounced on:-13.12.2024
Mohammad Abdullah Geelani
S/o Mohd. Yasin Geelani
R/o Laribal Handwara
Presently lodged in Central Jail, Srinagar ..... Petitioner/Appellant(s)
Through: Mr. I. Sofi, Advocate
V/s
State of J&K through VOK Srinagar .....Respondent(s)
Through: Mr. Mohsin Qadri, Sr. AAG with
Ms. Nadiya Abdullah, Advocate
CORAM:
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE.
JUDGMENT
1. This appeal is directed against the judgment of conviction and sentence dated 29.08.2014 recorded by the Court of learned Additional Special Judge, Anti-corruption, Srinagar (for short 'the trial court') in File No. 43/B-127/B titled "State Vs. Mohammad Abdullah Geelani" whereby, the learned trial court has convicted the appellant for commission of offences Nuzhat u/s Shafi5(2) read I attest to the accuracy and authenticity of this document 12.12.2024 23:49 with section 5 (1)(d) of J&K PC Act and Section 161 RPC and has sentenced the appellant to rigours imprisonment for three years with fine of ₹10,000/- for commission of offence u/s 5(2) r/w 5 (1) (d) of J&K PC Act and further two years rigorous imprisonment for commission of offence under section 161 RPC. In default of payment of fine, the appellant has been ordered to undergo simple imprisonment for a further period of six months. Both the sentences have been ordered to run concurrently.
2. The appellant has assailed the judgment primarily on the ground that the learned trial court has not appreciated the evidence in its right perspective as during the trial, the prosecution could not prove that the appellant made any demand of ₹5,000/- from the complainant and accepted the same from the complainant. It is also urged by the appellant that there are material contradictions in the evidence led by the prosecution and as such, the judgment cannot sustain in the eyes of law.
Arguments:
3. Mr. I. Sofi, learned counsel for the appellant has argued that the independent witness has not corroborated the evidence of the complainant and further PW- Peer Mohammad Ashraf, who was sitting in the room of the appellant, has also not deposed that any demand was made by the appellant. He has further argued that as per the prosecution story, ten currency notes of ₹ 500/- each were recovered from the drawer of the table of the appellant whereas, in the seizure memo i.e. EXT-P4 only nine currency notes of ₹500/- each have been shown as recovered from the drawer of the table of the appellant. He has laid much stress that, as per the prosecution story, the complainant submitted an application for attestation of mutation, but the said application was not at all seized by the Investigating Officer. Rather the application for Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 attestation of mutation was filed by Mst. Sundari. Lastly, he has submitted that the prosecution has not proved the sanction to prosecute the appellant. Learned counsel for the appellant has placed reliance upon the judgments of the Hon'ble Supreme Court Of India in "Mir Mustafa Ali Hasmi vs The State of A.P, "Neeraj Dutta vs State (Govt.of N.C.T. of Delhi)" and "B.Jayaraj Vs State of A.P."
4. Per Contra, Mr. Mohsin Qadri, Learned Sr. AAG has argued that all the three essential ingredients i.e. demand, acceptance and recovery of the bribe amount from the appellant have been successfully proved by the prosecution and the learned trial court after finding the evidence led by the prosecution as cogent and reliable, has convicted the appellant and there is neither any illegality nor perversity in the judgment of the conviction recorded by the learned trial court.
5. Heard learned counsel for the parties and perused the record. Prosecution Case:
6. The case projected by the prosecution is that on 28.06.2006, an application (EXT-P1) was submitted by the complainant i.e. PW-1-Mansoor Ahmed @ Mashooq before the S.S.P, Vigilance Organization, Kashmir, (for short 'the VOK') stating there in that he had gone to Tehsil Office, Handwara for the attestation of mutation of the land owned and possessed by the appellant who was posted there as Nazir/Jr. Assistant demanded an amount of ₹10,000/- from him. He was a poor man and was making his both ends meet with difficulty and as such, after persuasions, the appellant had asked him to bring ₹ 5,000/ that day. As he was against paying the bribe and had managed ₹5,000/ with great difficulty, therefore, he approached the VOK for taking action against the appellant. On receipt of this application, FIR No. 24/2006 u/s 5(2) of J&K PC Act read with section 161 RPC was registered. SSP Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 Vigilance Organization Kashmir, namely PW-Ghulam Hassan Bhat constituted a trap team and also requisitioned the services of an independent witness from the Directorate of Health Services and PW Arvind Kumar was deputed for the said purpose. The pre-trap proceedings were conducted and thereafter, the trap team along with the complainant and the independent witness went to the Tehsil Office Handwara. The complainant accompanied with independent witness entered office of the appellant. The appellant demanded and accepted an amount of ₹5,000/- from the complainant as the bribe money and the complainant flashed the pre-fixed signal to the independent witness who in turn flashed the same to the other members of the trap team. The trap team rushed to the office immediately. The independent witness on request dipped his fingers in the solution of sodium carbonate prepared on spot but the colour of the solution did not change and when the appellant was asked to dip his fingers in the same solution, the colour of the solution turned pink. The bribe amount of ₹5,000/- was recovered from the right drawer of the office table of the appellant. The seizure memos were prepared on spot. Application filed by the complainant, application submitted by Mst. Sundri, a copy of the will deed of Ahad Hajam in favour of the complainant, copy of the mutation No. 442, were also recovered from the office locker in exclusive possession of the appellant. After the investigation, the Investigating Officer, on the basis of oral and documentary evidence established the case under section 5(2) J&K PC Act and section 161 RPC against the appellant/accused. After obtaining the requisite sanction dated 19.10.2006 from the General Administration Department, the charge sheet was laid against the appellant/accused on 04.06.2006. The learned trial court vide its order dated 04.06.2007 charged the appellant for the commission of offences under section 5(1) (d) read with Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 section 5(2) of J&K Prevention of Corruption Act and 161 RPC. As the appellant did not plead guilty to the charge, the prosecution was directed to lead evidence. The prosecution examined all the ten witnesses whereas, the appellant examined four witnesses in his defence. The learned trial court after considering the evidence led by the parties, convicted and sentenced the appellant as mentioned above.
7. In order to find out as to whether the prosecution has proved its case beyond the reasonable doubt and further that the learned trial court has rightly appreciated the evidence or not, it is imperative to have the brief resume of the evidence led by the parties.
8. Evidence led by the Prosecution:
a. PW-1 Mansoor Ahmad Hajam (Complainant) stated that he had gone to Tehsil Handwara for attestation of mutation in his favour pursuant to the will executed by his uncle. The accused, who was working as Head Clerk in the office met and told him that the will was forged. He demanded ₹10,000/- for attestation of mutation. On his request, the accused agreed for ₹ 5,000/-. As he (witness) was against the payment of bribe, he approached VOK with an application. He proved the contents of the same which was marked as EXT-P1. One team was constituted including one official from Health Department. He produced ₹ 5,000/- before the Officers of VOK, which were counted by official of the Health Department. The numbers of the notes were noted and some powder was dusted on them. These notes were returned to him. Memo of handing over (EXT-P2) was prepared, and he proved the same. Thereafter, one solution was prepared, and the hands of the Health Official were dipped in the same but the colour of the solution did not change. Thereafter, his hands were dipped in the solution and the colour of the solution turned pink. The Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 solution was sealed in one bottle. The demonstration memo (EXT-P3) was prepared and he proved the same. He also identified the sealed bottle in the court which was marked as 'Mark-A'. Thereafter, the entire team proceeded to and reached Tehsil Office Handwara. He was accompanied by the official of Health Department and the rest of the members of the team remained outside. Thereafter, he and independent witness went inside the room of the accused. He went to the room of the accused and the independent witness remained at the door. The accused asked as to whether he had brought the 'Amanat', which meant bribe amount and he replied in affirmative. The accused received ₹ 5,000/- and kept in the right drawer of the table. After receiving the signal, the team members came inside and recovered the amount of ₹ 5,000/- from the drawer. The seizure-recovery memo (EXT-P4) was prepared and he proved the same. He also identified the notes. Thereafter, the hands of the independent witness were dipped in the solution but the colour of the solution did not change and when the hands of the accused were dipped in the solution, the colour of the solution turned pink which was seized in the bottle. One demonstration memo (EXT-P5) was prepared and he proved the same. He also identified the solution in the sealed bottle which was marked as 'Mark-B'. His application and the file which was submitted for attestation of mutation was also seized from the locker of the accused. One seizure memo (EXT-P6) was prepared and he proved the same. During cross- examination, he stated that this is wrong that (EXT-P1) was prepared by the Vigilance Officials. He was not conversant with Urdu language. He even cannot read words in English but knows counting. He did not remember as to which official prepared EXT P2, P3, P4, P5 and P6. He also could not say as to the place where those documents were prepared. Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 The content of Mark A-B is just like water at present. As those were sealed in his presence, as such, he could say that those bottles were same. No seal impression was affixed on the bottles. When they entered the office of the accused, one more person namely Ashraf was there. Besides him, some civilians were also there. First, accused was taken into custody and thereafter, recovery was affected. One Vigilance official recovered the money from the drawer.
b. PW-2 Arvind Kumar:- stated that on 28.06.2006 he was posted in the office of Directorate of Health Services as 'Senior Assistant'. He was instructed by S.O by a written order to go to the office of VOK. Complainant was present and one team of Vigilance was also present. The complainant told them that one official of Tehsil Office, Handwara, was demanding bribe from him. He produced ₹ 5,000/- in the form of ten notes of ₹ 500/- each, which were dusted with powder by one official of Vigilance and thereafter handed over to the complainant. He was instructed to handover those currency notes to the official who was demanding bribe. Demonstration was conducted on spot. His hands were washed in a glass of solution but the colour of the solution did not change. Thereafter, the hands of the complainant were washed in the solution and the colour of the solution turned pink. He proved memo of the handing over (EXT-P2) of the currency notes to the complainant. He also proved the memo of demonstration (EXT-P3). On the same day, he along with members of the Vigilance team and complainant, went to Tehsil Office Handwara. He was instructed to remain outside the room and the complainant went inside the room. The members of the Vigilance Team by signal instructed him to go inside the room. The accused was asked to raise his hands. His (witness) hands were washed in a solution but the Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 colour of the solution did not change. Thereafter, the hands of the accused were washed in the solution and the colour of the solution changed. Thereafter, the bribe money was recovered from the drawer of the table where the accused was sitting. The numbers of the currency notes were tallied and they were found to be the same, which were produced in Vigilance Office. He proved the demonstration memo (EXT-P5), recovery-seizure memo (EXT-P4) of the currency notes. After tallying the notes with Ext-P2, they were marked as 'Mark-B'. The accused was searched on spot and memo of personal search (EXT-P3) was prepared and he proved the same. (Note EXT-P3 has been mentioned on both memo of personal search of the accused and memo of demonstration during pre-trap proceedings). He also proved the seizure memo (EXT-P6) by virtue of which the documents were seized. He also identified the file marked as Mark-A shown to him in the Court. He also identified the bottles marked as 'A & B'. He identified his signatures on the bottles. His signatures on the bottles were marked as EXT-P10 and EXTP10/1. During cross-examination, he stated that the colour of the solution in the bottles is white. In EXT-P4, numbers of nine currency notes have been mentioned but on the spot, ten notes of ₹ 500/- each were recovered from the drawer. He had signed the recovery memo on the spot. He had no personal knowledge as to whether the table from which the recovery was effected, belonged to accused or some other employee. The complainant had not flashed any signal to him after coming out but employee of the Vigilance Organization, Kashmir, gave signal to him to come inside the office. Vigilance Employee had taken the money out of the drawer and showed to him. He did not search the team members and also he was not searched by Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 anyone when they entered the Office of the accused. He did not know as to which Vigilance official said that amount was lying in the drawer. c. PW-3 Peer Mohammad Ashraf stated that on 28.06.2006 he was working as Orderly in Tehsil Office Handwara. Accused was posted as Nazir in the Office. They used to perform their duties in the same office. On the said date, while he was sitting in the room, the accused came to sit on his chair and when he was about to sit on his chair, the Vigilance officials came on spot and asked the accused to raise his hands. They conducted the search of the accused. From the personal search of the accused, Identity Card, Mobile phone and money were recovered. Thereafter, Vigilance officials asked him to show the bribe amount and thereafter, bribe money of ₹ 5,000/- was recovered from the drawer of the table of the accused. Recovery-Seizure memo (EXT-P4) was prepared and he proved the same. Thereafter, hands of the accused were washed and the colour of the solution turned pink. He signed the demonstration memo (EXT-P5) and proved the same. He also proved the memo of personal search (EXT-P3). He also proved the seizure memo (EXT-P6) of the application and other documents. He identified the record, which was seized that day, marked as 'Mark-A'. He also identified the bribe money in the court marked as 'Mark-B'. During cross-examination, he stated that he had not seen the accused receiving amount from the complainant or keeping the bribe amount in the drawer of the table. He had not seen the complainant prior to detention of the accused by the officials of Vigilance Organization, Kashmir, rather he entered the room along with officials of the Vigilance Organization, Kashmir. After examining EXT-P4, he found that only nine notes were seized and recovery memo is wrong to the extent that ten notes were recovered from the accused. The currency note Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 bearing No. 3AC517392 which was shown to him in the court was not mentioned in the recovery memo. He had signed the papers in the office only.
d. PW-4 Ghulam Qadir Mir stated that on 28.06.2006 he was posted as Tehsildar, Handwara. After hearing the noise, he entered the room and came to know that the officials of VOK had come. They had gone to the office of Nazir. He had not gone there and remained in his office. Thereafter, officials of VOK came to him and told him that they had trapped Nazir i.e. the accused present in the court. They also stated that some amount had been recovered from the accused. The vigilance officials did not demand anything/file from him. Vigilance officials told him that they had seized one file from the accused and asked him to attest the photocopies of the file and he attested the same which was seized by the officials of Vigilance Organization. He proved the seizure memo (Ext- P6). He was shown the file marked as Mark-A. In the record, there was one application which was presented to him for attestation of mutation and he had marked the said application to the accused. The writing in the red ink on the file was in his handwriting and he identified the same which was marked as EXT-P4 (Note. The recovery-seizure memo of currency notes is also marked as EXT P4). He also identified the summons issued in the name of Mst. Sundri and others, carrying his signature. He proved the same which was marked as EXT-P4/1. Other application in the file which was submitted before him by the applicant and was marked by him to the Patwari, also carrying his signature was marked as EXT-P4/2. He had also seen the attested photocopies of the Will and mutation attested by him which were marked as A1, A2 & A3. During cross-examination, he stated that he was not associated as a witness during trap. EXT-P4 Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 pertained to the exemption of Mst. Sundri and was not concerned with mutation. He did not remember as to who submitted the application for attestation of mutation, as to whether it was filed by Mst. Sundri or the complainant. He had seen the exhibit EXT-P4/2 and the said application for mutation was submitted by Mst. Sundri and not Manzoor Ahmad.
e. PW-5 Mohd. Ayoub Pandit stated that on 28.06.2006 he was posted as Inspector, VOK. He was deputed as member of trap team by SP. In his presence, the complainant handed over ₹ 5,000/- comprising of currency notes of ₹ 500/- denomination to the Investigating Officer. SGCT Abdul Rashid Khan dusted the currency notes with phenolphthalein powder and thereafter, the notes were handed over to the complainant. One demonstration was conducted. A solution of sodium carbonate was prepared and hands of independent witness Arvind Kumar, Senior Assistant, Health Department, were washed in the said solution but the colour of the solution did not change. Thereafter, the hands of the complainant were washed in the solution and the colour of the solution turned pink. The solution was sealed in one bottle. He signed the handing over memo (EXT-P2) and memo of demonstration (EXT-P3). Thereafter, hands of Abdul Rashid were washed. The team members proceeded to Tehsil, Handwara. The complainant and the independent witness went towards the room of Nazir and SGCT Shakeel Ahmad, stood at some distance away from them. Other team members remained in the premises of Tehsil Office Handwara. As people were in the room of Nazir, the complainant and independent witness waited in the veranda and after some time, when people came out, the complainant and the independent witness went inside the room. After few minutes, Constable Shakeel Ahmad, flashed signal to the team and they immediately went inside the Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 room of Nazir and asked the Nazir to stand up. One demonstration was conducted. Solution of sodium carbonate was prepared, in which hands of independent witness were washed but the colour of the solution did not change. Thereafter, hands of the accused were washed in the solution and the colour of the solution turned pink. The solution was sealed in one bottle. Thereafter, ₹ 5,000/- in the form of ten currency notes of ₹ 500/- each were recovered from the drawer of the accused and after comparison, they were found to be the same, which were produced by the complainant in the Vigilance Office. The notes were seized and pursuant to the identification of accused, the documents of the complainant and other documents were recovered from the locker and seized. During personal search of the accused, ₹ 9000/-, one Identity Card, Mobile Phone etc. were recovered and seized. The contents of recovery memo (EXT-P4), demonstration memo (EXT-P5), Seizure memo (EXT-P6), memo of personal search (EXT-P3), were read over and found correct by him. He also identified the ten notes of ₹ 500/- each, amounting to ₹ 5000/-. They were compared with EXT-P2 and were found to be the same, as were produced by the complainant. These notes were already marked as MAP/1 to MAP/10. But in EXT-P4, numbers of only nine notes have been mentioned and note marked as MAP/4 has not been mentioned in the seizure memo but the same was recovered from the accused. He also identified the bottles marked as Mark-A and Mark-B in the court. During cross-examination, he stated that the independent witness had also entered into the room along with the complainant. He was a witness, as to what happened between the accused and the complainant. This is wrong the one member of the team entered the room along with the complainant and he only flashed the signal. When he signed as a witness on the recovery Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 memo, he did not inform the IO about mentioning of nine notes in the seizure memo. Shakeel Ahmad had flashed signal to them. He was standing in the veranda. The amount of ₹ 5,000/- was recovered from the drawer of the table. He had not seen the accused accepting, counting and keeping the bribe money in the drawer. He had no personal knowledge in respect of the contents of EXT-P5 wherein, it was mentioned that the accused had received the amount through his fingers and counted the same and kept the money in the drawer. He had not told the IO that he was not aware about the abovementioned fact. All the documents were prepared in his presence. He could not recollect who wrote EXT-P3 and EXT-P6. The Seizure memo of the seal is in the handwriting of the IO. He did not remember as to who produced the seal which was used during the trap proceedings. He had not seen the seal in the Court. f. PW-6 Mohammad Aftab Mir stated that he was included in the team by SSP Vigilance in FIR No. 24 of 2006. He has deposed about the complainant having gone to Tehsil Office, Handwara on 27.06.2006 for attestation of mutation in respect of his land and demand of ₹ 10,000/- made by the accused. He also stated that the complainant submitted a complaint in respect of demand of bribe. He deposed about the pre-trap proceedings. He proved the memo of handing over of the money (Ext-P2). He proved the memo of pre-trap demonstration (EXT-P3). After the pre trap proceedings, they went to Handwara Tehsil Office. They instructed complainant and independent witness to go to the room of accused and instructed them to hand over the bribe money to the accused after his demand. After handing over the bribe money to the accused, they were instructed to flash signal to shadow witness constable Shakeel Ahmad standing outside the room of the accused, so that he could pass on the Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 same signal to him and other members of the team. There was lot of rush in the office. After finding the appropriate opportunity, complainant and the independent witness went inside the room of the accused and after some time, witness Shakeel Ahmad flashed the signal to him and other team members to come inside the room. He along with other team members went inside the room of the accused and asked him to raise his hands. They also disclosed their identity. Thereafter, the accused was asked to disclose his identity who disclosed his name as Mohammad Abdullah Geelani, Nazir, in the Tehsil Office Handwara. Thereafter, they prepared the solution of sodium carbonate and the hands of the independent witness were dipped in the same but the colour of the solution did not change. Thereafter, the hands of the accused were washed in the solution and the colour of the solution turned pink. The solution was sealed on spot. He identified the solution marked as EXT-P10 but the colour of the solution was not pink when his statement was recorded. Rather the colour of the solution was faded pink. He proved the demonstration memo (EXTP-5) having his signature. Thereafter, from the right drawer of the table of the accused, the bribe amount was recovered. The numbers of the notes were tallied and they were the same. Notes were already marked as Mark-B. He also proved the seizure cum recovery memo (EXT-P4) of the currency, bearing his signature. Thereafter, Will deed, application and the other concerned documents were seized from the locker of the accused regarding which seizure memo (EXT-P6) was prepared. The personal search of the accused was conducted regarding which memo (EXT-P3) was prepared and he had signed the same. During cross-examination, he stated that it is not mentioned in the statement under section 161 Cr PC that the complainant submitted application and Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 currency notes in his presence. He had not seen the accused demanding, accepting and keeping the bribe amount in the drawer. He further stated that, once the colour of the solution turned pink, it was evident that the accused had handled the currency notes. After examining the recovery memo (EXT-P4), he stated that numbers of only nine currency notes were mentioned in the memo and numbers of ten currency notes were not mentioned in the same though, ten currency notes were recovered from the drawer of the table of the accused. He denied that he had put his thumb impression on EXT-P6. During re-examination, he stated that he had seen the record mentioned in the seizure memo EXT-P6 and same were marked as Mark A to Mark C. The photocopy of the Will was marked as Mark-A1 and the photocopy of the mutation number 442 was marked as Mark-A2.
g. PW-7 Shakeel Ahmad Wani stated that 28.06.2006 he was posted in Vigilance Office as Selection Grade Constable. He was deputed as member of trap team and he went to the office of the Investigating Officer, where, besides complainant, independent witness Arvind Kumar Senior Assistant, Directorate of Health Service Kashmir was also present. Besides him, Inspector Mohammad Aftab Mir, Inspector Mohammad Ayoub Pandit, and Inspector Mohammad Rafiq and Selection Grade Constable Abdul Rashid Khan were also present. The complainant produced ₹ 5,000/- of ₹ 500/- denomination before the Investigating Officer, which were handed over by the Investigating Officer to Selection Grade Constable Abdul Rashid Khan, who dusted those notes with phenolphthalein powder and handed over the amount to the complainant. Memo of handing over (EXT-P2) was prepared. He identified his signature on the same. He also identified those ten notes in the court and Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 compared the same with EXT-P2, those were already marked as Mark MAP/1 to Mark MAP/10. Thereafter, one demonstration was conducted in the office of Vigilance Organization. One solution of sodium carbonate was prepared and the hands of independent witness were washed but the colour of the solution did not change. Thereafter, hands of the complainant were washed in the same and the colour of the solution turned pink. The solution was sealed on spot. One demonstration memo (EXT-P3) was prepared, it was signed by him. He proved the same. He also identified the bottle containing the solution and the same was marked as Mark-A. Investigating Officer, instructed the team members and he was asked to remain in the veranda of the room of Nazir. The instructions in respect of pre-fixed signal were also imparted. The complainant and the independent witness entered the room of Nazir and he remained in the veranda of the room of Nazir. There was rush in the Office of Nazir due to which the independent witness and complainant came out and started waiting outside the room in the veranda. After some time, when people came out, the complainant and independent witness entered the room of the Nazir and only one person besides Nazir was inside the room. Thereafter, the complainant flashed the pre-instructed signal to the independent witness who in turn flashed the same to him. He in turn flashed signal to the other members of the team. Immediately, thereafter, whole team entered the Office of Nazir and asked him to stand up. Thereafter, Abdul Rashid Khan prepared one solution of sodium carbonate on being instructed by I.O and hands of the independent witness were washed in the solution and the colour of the solution did not change. Thereafter, the fingers of both the hands of the accused were washed in the solution and the colour of the solution turned pink. The solution was Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 preserved in one bottle. Demonstration memo was prepared and he signed the same. The Investigating Officer made inquiry from the accused but to no effect. Thereafter, the search of the room of the accused was conducted and the bribe amount of ₹ 5,000/ was recovered from the right drawer of the table of the accused. The currency notes were tallied with the memo of handing over and they were found to be the same. One seizure cum recovery memo was prepared by the Investigating Officer and he signed the same. Thereafter, the Investigating Officer recovered the file from the locker of the accused. Photostat copies of the Will, application of Mst. Sundri and application filed by the complainant were seized. He proved the seizure memo. Thereafter, from the personal search of the accused, some currency notes, Mobile Phone and other items were recovered and seized by the Investigating Officer. The seal which was used by the I.O was kept on his supardnama. Demonstration memo (EXT-P5), seizure and recovery memo (EXTP4), Seizure memo of the documents (EXT-P6), Memo of personal search (EXT-P3) were read over and he admitted the same to be true. He also identified the hands wash of the accused marked as 'B' in the court. He also identified the currency notes, ten in number, for an amount of Rs. 5,000/-. The notes were found to be same as mentioned in EXT-P4. One note bearing No. 3AC517392 is not mentioned in EXTP4 but the same was recovered from the drawer of the accused. These currency notes were marked as Mark MAP/1 to MAP/10. He also identified the documents seized vide seizure memo (EXT-P6) and they were marked as Mark-A, Mark A/1, Mark B, Mark C and Mark A/2. He also identified his signatures on seizure memo of seal marked as EXT- P7 whereas, the supardnama of seal is marked as EXTP7/1.During cross- examination, he stated that he did not enter the room of the accused along Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 with the complainant. This is wrong that the independent witness did not enter the room of the accused. He could not say as to who had kept the money in the drawer and in what manner. In his presence, the accused neither made any demand nor accepted the amount. Photography of the drawer of the table was not conducted in his presence. He had read the contents of the recovery memo and at that time, he did not tell the Investigating Officer about mentioning of numbers of nine only in the same.
h. PW- 8 Abdul Rashid Khan stated that in the year 2006 he was posted as Selection Grade Constable in the Vigilance Organization, Kashmir. On 28.06.2006, he was included in a trap team constituted by SSP. Thereafter, they went to the Office of the Inspector Rafiq where, complainant Manzoor Ahmad Hajam was called and one independent witness from Health Department namely Arvind Kumar, Senior Assistant, was also called. Thereafter, the complainant produced ten currency notes of ₹ 500/- each before the Investigating Officer regarding which seizure memo was prepared and the numbers of the currency notes were also mentioned. He dusted the phenolphthalein powder on the currency notes and handed over the currency notes to the complainant. Memo of delivery (EXT-P2) was prepared in that regard which bears his signatures and he proved the same. One demonstration memo (EXT-P3) was prepared and he proved the same. Thereafter, they went to Handwara. During the journey, the complainant was instructed to hand over the bribe amount to the accused on his demand. Upon reaching the spot, the complainant along with the independent witness entered the office of the accused and they were followed by shadow witness Constable Shakeel Ahmad. He along with other team members remained outside. After some time, independent Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 witness flashed a signal to the shadow witness, who in turn flashed the signal to the other members of the team. Thereafter, all the members of the team entered the room of the accused. The accused was sitting on his table. Demonstration was conducted. The hands of the independent witness were washed in the solution but the colour of the solution did not change. Thereafter, the hands of the accused were washed in the solution and the colour of the solution turned pink. The solution was seized and sealed in a bottle. One demonstration memo was prepared on spot which was marked as EXT-P5 and it bears his signatures. Thereafter, the bribe amount was recovered from the drawer of the table of the accused. The number of the currency notes recovered were tallied with the number of the notes mentioned in the handing over memo prepared during pre-trap proceedings and they were found to be the same. One recovery memo cum seizure memo (EXT P4) was prepared on spot which bears his signatures and he proved the same. He further stated that ten currency notes of ₹ 500/- each were recovered from the drawer of the table but due to error in the recovery cum seizure memo, numbers of only nine currency notes were recorded. Thereafter, on the identification of the accused the file pertaining to the complainant was seized from the office of the accused. Seizure memo (EXT-P6) in that regard was prepared which was signed by him. He identified his signatures. He identified the documents also in the court which were seized that day. They were marked as Mark A, Mark-B, Mark-C, Mark-A/1 and Mark-A/2. Thereafter, personal search of the accused was conducted and search memo in that regard was prepared which was signed by him. He proved the search memo (EXT- P3). Notes marked as mark MAP/1 to mark MAP/10 were identified by the witness. He identified the bottles which were already marked as Mark- Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 A and Mark-B. During cross-examination, he stated that the solution in bottles marked as Mark-A and Mark-B is colourless. This is wrong that the independent witness did not signal the shadow witness. In fact, he signalled to the shadow witness, who in turn signalled to the members of the team, who were outside the room. He has no knowledge as to how the bribe money was kept in the drawer of the table of the accused. On the identification of the accused. The amount was recovered from the search of the room, upon identification of the complainant. This is correct that in the recovery memo it has not been mentioned that the bribe amount was recovered pursuant to the information of the complainant. In the recovery memo, nine currency notes have been mentioned and ten currency notes have not been mentioned.
i. PW-9 Mohammad Rafiq Parray stated that on 28.06.2006 he was posted as Inspector in Vigilance Organization, Kashmir. SSP handed over the copy of FIR No. 24/2006 to him for investigation. SSP constituted the team and associated one official from Health department. He inquired from the complainant, who told him that he had filed an application for attestation of mutation of inheritance in respect of the property of his uncle with the Tehsildar Handwara but the Nazir, who was posted there, was not doing the needful for want of bribe. The Nazir had demanded ₹10,000/- from him and asked him to bring Rs. 5000/- that day. Thereafter, pre-trap proceedings were conducted in office of VOK. The complainant produced ₹ 5,000/- in the form of ten currency notes of ₹500/- each. Selection Grade Constable Abdul Rashid Khan, dusted the currency notes with phenolphthalein powder and notes were handed over to the complainant who put the same in his pocket. Thereafter, solution of sodium carbonate was prepared and the hands of the independent witness Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 Arvind Kumar were washed in the solution but the colour of the solution did not change. Thereafter, accused was asked to wash his hands in the same solution and the colour of the solution turned pink. The solution was preserved and sealed. One iron bolt was used for the purpose of seal. Hands of SGCT Abdul Rashid, were washed and the documents were prepared in the office. Thereafter, the trap team along with independent witness and complainant proceeded towards Tehsil Office Handwara. Application submitted by the complainant marked as EXT-P1 is the same on the basis of which FIR No. 24/2006 marked EXT-P10 was registered. He identified the same. The contents of EXT-P2 are true and correct and the same is his handwriting. He also saw the currency notes in the court and tallied with EXT-P2 and they were same. Notes were already marked as Mark MAP- 1 to MAP-10. The contents of demonstration memo EXT- P3 are true. He identified his signatures on the same. He also identified the bottle in which the solution was preserved, which was marked as A. He also read the contents of EXT-P7 which were true and correct and he identified his signatures on the same. On reaching Handwara, he instructed the team members and the complainant was instructed to give the bribe money to the accused on his demand and after handing over the money, to flash a signal by moving his head. The independent witness was instructed to go near the complainant and the accused and to make all possible efforts to hear their conversation. Constable Shakeel Ahmad, was instructed to remain at some distance from the complainant and the independent witness. The independent witness was instructed to flash signal to constable Shakeel Ahmad after receiving signal from the complainant. Shakeel Ahmad in turn was instructed to flash signal in similar manner to other team members. As per instructions, the Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 independent witness followed the complainant towards the room of the Nazir, whereas, Shakeel Ahmad, remained at a distance of few yards away from them. The other team members continued to roam in the premises of Tehsil Office, Handwara but kept their sight on Shakeel Ahmad, independent witness and complainant. The independent witness and the complainant after remaining some time in veranda entered the room of the Nazir, whereas Shakeel Ahmad continued to stand in the veranda. After some time, the independent witness came outside the room and flashed the signal to Constable Shakeel Ahmad by moving his head. Thereafter, Shakeel Ahmad also flashed the same signal to other team members, who immediately entered the room of Nazir. After entering the room and disclosing his identity, he asked Nazir to stand up. Solution of sodium carbonate was prepared in the Room of Nazir. Independent witness was asked to dip his fingers in the solution but the colour of the solution did not change. Thereafter, the accused was asked to dip his fingers in the same solution and the colour of the same turned pink. The solution was preserved and sealed in a bottle. Thereafter, he made an inquiry from the complainant and independent witness in respect of the bribe money who told them that the accused accepted the money from the complainant and after counting the same, kept in the right drawer of his table. Thereafter, he opened the drawer of the table in presence of all the witnesses and recovered ten notes of ₹ 500/ each. The numbers of the notes recovered were tallied through independent witness and it was found that they were the same notes which were dusted with phenolphthalein powder in the office of VOK and handed over to the complainant. On his instructions, the Nazir produced the file from his locker. He found the documents were vital piece of evidence and they were seized. All the Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 documents were prepared in the office of Nazir. He read the contents of EXT-P5 & EXT-P4 and were found to be true and correct. Note: The witness has stated that the bribe money comprised of ten currency notes of ₹ 500/- each, amounting to ₹ 5,000/- and in the EXT-P4 the amount has been mentioned as ₹ 5,000/- in the form of ten currency notes of ₹ 500/- in denomination but one note bearing No. 3AC517392 has not been mentioned in the same. It could have happened due to the fact that while noting the numbers of notes, he might have taken two notes together and because of that reason only, the number of other note might not have been mentioned. He read the contents of Seizure memo of the documents (EXT-P6), memo of personal search (EXT-P3), arrest memo (EXT-P9) and Supardnama (EXT-P7/1) and found the same to be true and correct and all those documents were bearing his signatures. He also identified the bottle marked as Mark B which contained the hand wash of the accused. He recorded the statements of some of the witnesses on spot under section 161 CrPC. He also prepared the site plan (EXT-P9/1). Thereafter, they came back to Srinagar. During personal search of the accused, Identity Card, Mobile Phone and amount of ₹ 9000/- were recovered. He also identified the letter dated 29.06.2006 and identified his signatures also. He also identified the letter dated 14.07.2006 from the office of Assistant Commissioner, Handwara, marked as Mark MRP. He also identified the communication dated 28.06.2006 in respect of independent witness marked as MRP/1. During investigation, he proved the offences under section 161 RPC and 5(2) PC Act against the accused. He also identified the documents mentioned in the EXT-P6 and marked as Mark A, mark-B, Mark-C, Mark A/1 and Mark A/2. All the documents were contained in the file which is marked as Mark-A. During cross-examination, he stated Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 that after the investigation was handed over to him, he made general enquiry from the complainant but recorded his statement under section 161 Cr PC after the post trap proceedings. He did not record the statement of the complainant in terms of section 154 Cr PC. Trap proceedings are to be conducted swiftly and while conducting the proceedings swiftly, the legal requirements cannot be avoided. When the accused was caught while demanding and accepting the bribe, he was sitting on the chair and the table was in his use. On being asked as to whether the table was allotted to the accused, he stated that all the witnesses in one voice had stated that the table was in the use of the accused and because of that reason only there was no requirement for getting the formal allotment order in respect of table. When the complainant entered the room, the independent witness also entered the room. Number of only one currency note was not mentioned due to mistake and not intentionally. EXT-P4 was not prepared by him but was bearing his signatures. It was prepared by Shakeel Ahmad Constable. He had not mentioned in the same that it was prepared by Constable Shakeel Ahmad.
j. PW-10 Haji Ghulam Hussan Bhat stated that on 28.06.2006 he was posted as SSP Vigilance Organization, Kashmir and he was performing duties as SHO, P/S VOK. He identified his signatures on FIR bearing No. 24 of 2006 (EXT-P10). He also identified the endorsement on EXT-P1 which was in his handwriting and was marked as Ext-P10/1. He also saw the order dated 28.06.2006 (EXT-P10/2) which was in his handwriting by virtue of which he had permitted Investigating Officer to arrest the accused. He had entrusted the investigation of the case to Inspector Mohammad Rafiq Parray. After the conclusion of the investigation and obtaining the sanction, the challan was prepared which was signed by Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 him. He identified his signatures. The challan was marked as EXT-P10/3. During cross-examination, he stated that he had prepared the challan after perusing the whole of the evidence but he could not notice that Recovery Memo (EXT-P4) contained the description of 9 currency notes only and not of 10 notes.
9. Defence Evidence:
a. DW - 1 Abdul Qayoom Khan stated that he had worked in the Tehsil Office Handwara and accused was known to him. On 28.06.2006, he was in the said office and many people had gathered there. The accused was also there. A rumour spread that the officials of the Crime Branch had laid a trap. At that very moment, some people took the accused inside Tehsil Office, Handwara, and sought some record in respect of mutations from him. Accused told them that he was an Accountant and was not dealing in the matter. During cross-examination, he stated that on 26.06.2006 he was posted as an ASI in Police Station Larnu and on the said date, he was on leave. He could not produce the copy of daily diary.
He had to obtain a PRC for his son and earlier also, he had visited the Patwari in Tehsil office for that purpose but he had not visited the office of the accused. He further stated that, he had no knowledge about the table used by the accused and the duties being performed by him in his office. He had no knowledge as to whether the accused was dealing with the mutations or accountancy.
b. DW - 2 Mohd. Sultan Bhat stated that the accused used to work with him in Tehsil Office Handwara. In the year 2006, he was performing his duty in Tehsil Office and the accused was standing in front of Tehsildar. When the accused went outside, Tehsildar asked him to call back the accused. When he went to the room of the accused, the accused was Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 outside his room. Some people came and asked him to leave the place. They went inside the room. They asked the accused to hand over mutation and application, to which the accused replied that he was not having any application because he was dealing in accounts. During cross- examination, he stated that he had no personal knowledge about the case and it is correct that the accused was arrested by the officials of the VOK. c. DW-3 Abdul Majeed Chopan stated that accused had worked with him in Tehsil Office Handwara, as an accountant. He was on duty with Tehsildar, who called him and told him that the accused had to proceed on leave, so he asked him to get money from the accused for petrol. The accused was going to his room ahead of him, when suddenly two persons caught him. When he (witness) asked them about the reasons, they stated that they were the officials of the Vigilance. In the meanwhile, one more person took one file in his possession. Thereafter, he called Tehsildar and Vigilance Officials took the accused along with them. During cross- examination, he stated that he was posted with Tehsildar as jamadar and his duty was to remain stationed at door and to call the cases taken up by Tehsildar for adjudication. It is the job of Nazir to prepare vouchers and it is not the job of Jamadar to obtain the vouchers of petrol from Nazir. Voucher book was being maintained by the accused. He had no personal knowledge about the case. The accused was performing the duties of Nazir in the Office. He also had no knowledge about the person who took out the file from the locker. He further stated, that he did not witness any proceedings, as he had gone to call the Tehsildar.
d. DW-4 Ghulam Mohammad Mir stated that being a Numberdar, he visited Tehsil Office, Handwara. The incident is of June 2006. He had to get the verification done in Tehsil Office, Handwara. He was with Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 Tehsildar. At that very moment, some police officials came. The accused entered in his room and was followed by 1- 2 civilians. One was carrying pistol and directed the accused to raise his hands. One of them gave their introduction as officials of the Vigilance. Other person was carrying bundle of money in his hands and he started fiddling with the drawer. The accused was caught and taken in the vehicle. During cross- examination, he stated that he often used to meet the accused. He had no knowledge regarding the case pending against the accused. He also had no knowledge about the duties assigned to the accused in Tehsil Office, Handwara. He could not recollect as to whose verification was to be done in Tehsil Office Handwara. In Tehsil Office Handwara, a separate room was provided to the accused and Tehsildar had separate room. The office of the room of the accused was in a separate building whereas, the office of Tehsildar was in another building. He reached Tehsil Office on the said date at 10 AM. He left Tehsil Office at 1:30 PM and did not know as to what happened thereafter.
Appreciation of evidence:
10. Before this court proceeds ahead to consider the rival contentions of the parties, it would be apt to take note of the judicial precedents, in respect of standard of proof regarding the demand and acceptance of bribe and principles governing the same. The Hon'ble Supreme Court of India, after taking note of the judgment of the Constitution Bench in 'Neeraj Dutta v. State (NCT of Delhi), (2023) 4 SCC 731', in 'Neeraj Dutta vs. State" 2023 SCC On Line SC 280 has observed as under:
18. The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49
The Constitution Bench has laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. Therefore, in this case, we will have to examine whether there is any direct evidence of demand. If we come to a conclusion that there is no direct evidence of demand, this Court will have to consider whether there is any circumstantial evidence to prove the demand.
(emphasis added)
11. In 'B. Jayaraj v. State of A.P.', (2014) 13 SCC 55, the Hon'ble Apex Court has observed as under:
7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Girish Babu v. CBI.
(emphasis added)
12. In' State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede,' (2009) 15 SCC 200, the Hon'ble Apex Court has observed that indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety.
13. Thus, the three essential ingredients i.e. demand, acceptance and recovery of the amount of the illegal gratification, are required to be established by the prosecution beyond reasonable doubt for holding the accused guilty for commission of the offence under section 5(1) (d) of the J&K P C Act. Now, it is to be seen as to whether, the prosecution has been able to prove all these three essential ingredients beyond beyond reasonable doubt, warranting the conviction of the appellant.
Nuzhat ShafiI attest to the accuracy and authenticity of this document 12.12.2024 23:49 A. Demand:
In the chargesheet, it is stated that the PW-1 Manzoor Ahmed Hajjam (complainant) accompanied with the independent witness, entered the office of the appellant. After the appellant demanded and accepted the bribe amount of ₹5000 from the complainant, the complainant flashed pre-fixed signal to the independent witness PW-2 Arvind Kumar, who in turn flashed the signal to the other members of the trap-team. PW-9 Mohammad Rafiq Parray (Investigating Officer) has deposed that he instructed the team members and the complainant was instructed to give the bribe money to the accused on his demand and after handing over the money, to flash a signal by moving his head. The independent witness was instructed to go near the complainant and the appellant and to make all possible efforts to hear their conversation. PW-7 Constable Shakil Ahmed was instructed to remain at some distance from the complainant and the independent witness. The independent witness-Arvind Kumar was instructed to flash signal to PW-7Constable Shakeel Ahmed, after receiving signal from the complainant. PW-7-Shakeel Ahmed in turn was instructed to flash a signal in the similar manner to other members of the trap-team. He has further stated that the PW-1 and PW-2 after remaining some time in veranda entered the room of Nazir, whereas, PW-7 Shakil Ahmed remained in veranda. After some time, the independent witness came outside and flashed the signal to Constable Shakeel Ahmed by moving his head. PW-6 Mohd. Aftab Mir has stated that they instructed complainant and independent witness to go to the room of appellant and instructed them to hand over the bribe money to the appellant after his demand. After handing over the bribe money to the appellant, they were instructed to flash signal to shadow witness constable Shakeel Ahmad Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 standing outside the room of the appellant, so that he could pass on the same signal to him and other members of the team. PW-7 Ct Shakeel Ahmed has stated that the complainant and independent witness entered the room of Nazir. Thereafter, the complainant flashed pre-instructed signal to the independent witness who in turn flashed the same to him. He in turn flashed the signal to the other members of the team. PW-8 Abdul Rashid Khan, has stated that upon reaching the spot, the complainant along with the independent witness entered the office of the appellant and they were followed by shadow witness Constable Shakeel Ahmad. He along with other team members remained outside. After some time, independent witness flashed a signal to the shadow witness, who in turn flashed the signal to the other members of the team. If the evidence of the PWs 6,7,8 and 9 is compared with the evidence of PW-1 Mansoor Ahmed Hajam (complainant) and PW-2 Arvind Kumar (independent witness), it is found that both PW-1 and PW-2 have deviated from the instructions of the PW-9(IO) and have not acted as per the instructions of IO and there are material contradictions in their evidence. The deviations on the part of the complainant/shadow witness, from the instructions imparted by the IO may or may not affect the prosecution case and it would depend upon the facts and circumstances of each case but so far as the present case is concerned, the deviations on the part of the PW-1 Mansoor Ahmed Hajjam and PW-2 Arvind Kumar, in fact have created doubt in the prosecution story. PW-1-Mansoor Ahmed Hajam (complainant) has stated that after receiving the signal, the members of the team came inside and recovered the amount of ₹5000 from the drawer of the table. PW-1 Mansoor Ahmed Hajjam has nowhere stated that he flashed any signal to the independent witness. PW-2 Arvind Kumar, who Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 accompanied the complainant, stated that he was instructed to remain outside the room and the complainant went inside the room. The members of the vigilance team by signal instructed him to go inside the room. The appellant was asked to raise his hands. During cross- examination, he stated that the complainant had not flashed any signal to him, after coming out. But the employee of the Vigilance Organization, Kashmir, signalled him to come inside the office. He has also not stated that he flashed any signal to PW-7 Constable Shakil Ahmed. Rather, from his testimony, it is evident that he was asked by vigilance official to go inside the office. He went inside the office and accused was asked to raise his hands. It needs to be mentioned that the PW-2 Arvind Kumar has been cited as a witness in respect of demand and receipt of the bribe amount by the appellant and in his statement recorded under section 161 Cr.P.C, he has stated about the demand made by the appellant and receipt of the bribe amount by him. From the statement of independent witness- Arvind Kumar, it becomes clear that he had not heard any conversation between the appellant and the complainant, though, he was instructed to go near the complainant and the appellant and to make all possible efforts to hear their conversation. PW-1 i.e. the complainant has nowhere stated that he flashed any prefixed signal to the independent witness-Arvind Kumar and similarly independent witness-Arvind Kumar has nowhere stated that he flashed the prefixed signal to PW-7 constable Shakeel Ahmed. Rather, PW-7 Shakeel Ahmed denied the suggestion by the defence counsel that the independent witness did not enter the room of the appellant along with the complainant and as such, he contradicts PW- 2 Arvind Kumar. Thus, it is evident that PW-2 Arvind Kumar did not hear any conversation between the appellant and the complainant and as Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 such, he has not corroborated the statement of the complainant that appellant asked him as to whether he had brought 'Amaanat'. In absence of corroboration of evidence of the complainant by PW-2 Arvind Kumar, the statement of PW-3 Peer Mohd Ashraf becomes very relevant, who admittedly was present in the office of Nazir, when the appellant was trapped by the officials of VOK. He has stated that they (appellant and the witness) used to perform their duties in the same office. On the said date, while he was sitting in the room, the appellant came to sit on his chair and when he was about to sit on his chair, the Vigilance officials came on spot and asked the accused to raise his hands. He has stated that he had not seen the appellant receiving the amount from the complainant or keeping the bribe amount in the drawer of the table. He had also not seen the complainant prior to detention of the appellant by the officials of VOK. Rather, he entered the room along with officials of the Vigilance Organization, Kashmir. The evidence of the complainant has been negated by PW-3 Peer Mohd. Ashraf, whose presence on the spot was natural. Had the demand been made by the appellant, PW-3 Peer Mohammad Ashraf would have heard the same, as he was sitting in the same office and other prosecution witnesses have admitted his presence and he has been cited as a witness to the recovery-seizure memo (Ext-P4) and demonstration memo (Ext-P5). In absence of corroboration of the evidence of the complainant by the independent witness, coupled with the negation of testimony of the complainant by PW-3 Peer Mohammad Ashraf, it cannot be said that the prosecution has proved the demand made by the appellant beyond reasonable doubt.
B. Acceptance of money by the appellant and the subsequent recovery from the drawer of table:
Nuzhat ShafiI attest to the accuracy and authenticity of this document 12.12.2024 23:49
The facts in respect of 'acceptance and recovery of the bribe' are so intertwined that this court has deemed it proper to examine both these issues together. PW-1 Mansoor Hajjam, has stated that the appellant received the amount of ₹5000 and kept in the right drawer of the table. As already noted above, the independent witness PW-2 Arvind Kumar did not corroborate evidence of the complainant in respect of demand and likewise, he has also not corroborated the evidence of the complainant that the appellant received the amount from the complainant, though he had been cited by the prosecution, as a witness to prove the acceptance of bribe amount by the appellant. At the cost of repetition, it needs to be noted that PW-3 Peer Mohamad Ashraf has stated that that he had not seen the appellant receiving amount from the complainant or keeping the bribe amount in the drawer of the table. PW-1 Mansoor Ahmed Hajam (complainant) has stated that after receiving the signal, team members came inside and recovered the amount from the drawer of the table. Seizure Memo (Ext-P4) was prepared and thereafter the hands of the appellant were washed. PW-2 Arvind Kumar has stated that the members of the Vigilance team by signal instructed him to go inside the room, where the appellant was asked to raise his hands. His (witness's) hands were washed in a solution but the colour of the solution did not change. When the hands of the appellant were washed in the solution, the colour of the solution changed and thereafter, the bribe money was recovered from the drawer of the table where the appellant was sitting. The sequence of recovery of the money vis-à-vis and the washing of the hands of the appellant has been stated in different manner by the complainant and the independent witness. PW-3 Mohd. Ashraf Peer has stated that the Vigilance Officials asked the accused to show the bribe Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 amount and thereafter the bribe money was recovered from the drawer of the table of the appellant. PW-7 Shakeel Ahmed has stated that the search of the room was conducted and the bribe amount of ₹ 5,000/ was recovered from the drawer of the table of the appellant. PW-8 Abdul Rashid Khan has stated that the amount was recovered from the search of the room upon the identification of the complainant. Investigating Officer, PW-9 has stated that the appellant was asked to dip his fingers in the solution and the colour of the solution turned pink. Thereafter, he made enquiry from the complainant and the independent witness in respect of bribe money, who told them that the appellant accepted the money from the complainant and after counting the same, kept in the right drawer of his table. Thus, there are three different versions in respect of recovery of the bribe money from the drawer of the table of the appellant. In EXT-P5, it is stated that the appellant after counting the bribe amount had kept in the drawer of the table. No witness to the demonstration memo (EXT-P5) has stated that the appellant counted the money and kept in the drawer of the table. Even PW-1 Mansoor Ahmed Hajjam, has nowhere stated that the appellant counted the money and thereafter, kept in the drawer. PW-Mohd. Ayub Pandit has stated that he has no personal knowledge in respect of the contents of Ext-P5 wherein, it has been mentioned that the appellant had received the amount through his fingers, counted the same and kept the money in the drawer. Once the prosecution had alleged the manner in which the money was accepted by the appellant and subsequently recovered from him, more particularly in a trap case, then it should have proved the same in the similar manner. The three different versions in respect of recovery of bribe amount from the drawer of the table of the accused, as discussed above, makes the Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 prosecution story more suspicious. Another vital aspect of the case is as to how the team members came on spot after the appellant allegedly accepted the bribe, particularly when the independent witness denied having received any signal from the complainant in respect of receipt of bribe amount and further admission on his part that Vigilance Employee asked him to go inside the room. Though, there is evidence that the colour of the solution turned pink, when the hands of the appellant were washed but in view of the contradictions/infirmities in the prosecution case in respect of acceptance and recovery receipt of bribe amount, it is not safe to rely upon the solitary factum of change of colour of the solution.
14. There is another aspect of the case which makes the prosecution story doubtful. In the application (EXT-P1), on the basis of which FIR was registered, it was stated that he had gone to Tehsil Office, Handwara, for attestation of mutation, in respect of land owned and possessed by him but in his deposition before the court he stated that he had gone to Tehsil Office Handwara, for attestation of mutation in his favour pursuant to the Will executed by her uncle. The appellant, who was working as Head Clerk in the office, met him and told him that the Will was forged. This is an altogether new story. Further, from the perusal of the mutation No.442 (seized vide EXT-P6), it is revealed that there was a dispute in respect of estate of uncle of the complainant namely Ahad Hajjam. Mst. Sundri i.e. the sister of Ahad Hajam was also claiming the estate and the proceedings were pending before Tehsildar. On 27.06.2006, the statements of both Mansoor Ahmed Hajjam (complainant) and Mst. Sundri, were recorded during proceedings before Tehsildar. PW-1 Mansoor Ahmed Hajjam has nowhere stated about the participation of Mst. Sundri, in the proceedings pending before Tehsildar. Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 The complainant by supressing these facts, filed the application with VOK. It was not a case at all that the application was filed by the complainant for the attestation of mutation and the mutation was not being attested, rather Mst. Sundri was also seeking her rights during the mutation proceedings. The conduct of the complainant is doubtful and as such, it is not safe to rely upon his statement only to convict the appellant.
15. This court has examined the judgment passed by the learned trial court and it appears that the learned trial court has not taken in to consideration the infirmities in the prosecution case, as noted above by this court, therefore, it can be held that that the learned trial court has not appreciated the evidence in its right perspective and the material contradictions in the prosecution evidence have escaped the attention of the learned trial court.
16. Taking into consideration the entirety of facts and circumstances of the case as discussed above, this court is of the considered view that the prosecution has not proved its case beyond reasonable doubt and as such, under such circumstances, it cannot be conclusively held that the appellant has committed offences as mentioned above. In fact, the whole case of the prosecution is shrouded with mystery and there are un-explained gaps in the prosecution story, the benefit of which is required be given to the appellant. There is no doubt that the allegations against the appellant are in respect of commission of offence against the society but the facts established by the prosecution merely raises a suspicion on the appellant in respect of commission of offence without establishing his guilt conclusively, but the accused cannot be convicted on suspicion alone, how strong it may be. The appellant deserves to be granted the benefit of doubt. Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 CONCLUSION:
17. In view of what has been considered and discussed above, the judgment dated 29.08.2014 passed by the Court of learned Additional Special Judge, Anti-corruption, Srinagar in case titled "State Vs. Mohammad Abdullah Geelani", arising out of FIR No. 24/2006 of P.S VOK is not sustainable in the eyes of law and as such, the same is set aside. The appellant is acquitted, and the challan is dismissed. The appellant is on bail. His bail and personal bonds are discharged. The record of the trial court be sent back forthwith.
18. Appeal allowed.
(Rajnesh Oswal) Judge SRINAGAR:
13.12.2024 "S.Nuzhat" i. Whether the order is speaking: Yes ii. Whether the order is reportable: Yes Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49 Nuzhat Shafi I attest to the accuracy and authenticity of this document 12.12.2024 23:49