Jharkhand High Court
Ram Chandra Ram S/O Late Darbari Lal vs The State Of Jharkhand Through C.B.I. ... on 14 February, 2020
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (S.J.) No. 251 of 2007
Ram Chandra Ram S/o Late Darbari Lal, resident of village-Kandi,
P.S.- Majhian, District- Palamu ... ... ... Appellant
Versus
The State of Jharkhand through C.B.I. ... ... ... Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellant : Mr. Dilip Kumar Prasad, Advocate Mr. Jitesh Kumar, Advocate For the Opp. Party-CBI : Mrs. Nitu Sinha, advocate for CBI
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15/14.02.2020
1. Heard Mr. Dilip Kumar Prasad, learned counsel appearing on behalf of the appellant alongwith Mr. Jitesh Kumar, Advocate.
2. Heard Mrs. Nitu Sinha, learned counsel appearing on behalf of the Opposite Party-C.B.I..
3. This criminal appeal is directed against the judgment dated 28.02.2007 passed by Md. Noman Ali, 7th A.J.C.-cum-Special Judge, C.B.I., Ranchi in R.C. Case No.2(A)/2003(R) whereby the learned Special Judge has convicted the appellant under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and has sentenced him to undergo Rigorous Imprisonment for one year and fine of Rs. 200/- under Section 7 and Rigorous Imprisonment for 2 years and fine of Rs. 250/- under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. It has also been directed that in case of default of payment of fine, the appellant will further undergo simple imprisonment for 10 days on each count and both the sentences have been directed to run concurrently.
4. As per the prosecution case, appellant was posted and functioning as Loading Clerk/Munshi, CCL, Churi Colliery, Chatra at the relevant point of time and demanded Rs. 200/- as illegal gratification from the Complainant to release Challan-
2cum-Gate pass in respect of Truck no. BPV 9789. As per the prosecution case, the Complainant visited CBI office on 30.01.2003 with the aforesaid complaint. Thereafter, Sri Vikas Gupta, Inspector, CBI, Ranchi was instructed to verify the complaint who interrogated the Complainant thoroughly and submitted verification report recommending registration of Regular Case against the appellant under Section 7 of the Prevention of Corruption Act, 1988 and consequently, the case was registered under the orders of Superintendent of Police, CBI, Ranchi and it was decided to lay a trap to catch the appellant. Accordingly, a team consisting of Sri Bikas Gupta, Inspector, Sri Mukesh Verma, Sri Mahesh Kumar, Constable and Sameer Singha, Constable under the leadership of Sri K.K. Singh was constituted and two independent witnesses namely, Md. Aslam, Postal Asst. GPO, Ranchi, Sri Mehndi Hasan were also included. Thereafter, aforesaid CBI team members alongwith both the independent witnesses namely, Md. Aslam, Postal Asst. GPO Ranchi, Sri Mehndi Hasan and the Complainant assembled in a room in the office of SP, CBI, ACB, Ranchi on 30.01.2003. After introducing each other, the purpose of assemblage was explained to all persons. The process of laying a trap as well as the role of each member to be played during the trap was also explained. The Complaint was shown to both the independent witnesses and both the witnesses went through the same. Thereafter, the use of Phenolphthalein powder in laying of a trap was explained and its chemical reaction with the solution of Sodium Carbonate in water was also explained which was followed by a practical demonstration given before all present including the aforesaid two independent witnesses and the Complainant. Thereafter, the Complainant was asked to produce the amount of Rs. 200/- brought by him which was to be given to the appellant on his 3 specific demand as bribe. The complainant produced two number of Hundred Rupee GC Notes amounting to Rs. 200/ whose numbers and denomination were noted and were treated with Phenolphthalein powder and the entire proceedings were incorporated in detail in the pre-trap memorandum.
Thereafter, the Complainant was asked to keep the said tainted GC Notes with him, which he did. Soon after completion of the above pre-trap formalities, the aforesaid CBI Trap team members alongwith both the above independent witnesses and the Complainant left the CBI office and reached near the Loading Spot of Churi Colliery of CCL at about 01.05 P.M. in two office vehicles on 30.01.2003. Thereafter, the aforesaid CBI trap team members took their suitable position outside the office room of the appellant and the Complainant was accompanied by Md. Aslam, independent witness and contacted the appellant in his office room for obtaining the challan-cum-gate pass. As soon as the Complainant, accompanied by shadow witness Md. Aslam, entered into the office of the appellant, the Complainant asked the appellant to issue challan-cum-gate pass in respect of his truck bearing No. BPV-9789. Upon that the appellant demanded an amount of Rs. 100/- for releasing the challan cum gate pass. The complainant expressed his willingness and readiness to give Rs. 100/-. The appellant extended his right hand towards the complainant. Upon this, the Complainant took out the tainted GC Note worth Rupees One hundred from his upper left chest pocket of his shirt with his right hand and gave to the appellant in his extended right hand. The appellant took the said tainted GC note in the right hand and thereafter, he transferred to his left hand after being satisfied the amount being Rupees One Hundred GC Note and after collecting challan-cum-gate pass lying on the table from his right hand, handed over the same to 4 the Complainant. The above conversation and transaction of bribe amount between the Complainant and the appellant was clearly overheard and seen by Md. Aslam, the independent witness, who was standing behind the Complainant. The transaction of bribe amount between Complainant and the appellant was clearly seen by Shri Mukesh Kumar, and Shri Mehndi Hasan, the independent witness, who were standing outside the office room of the appellant nearby the window of the said office room of the appellant. Thereafter, the Complainant gave pre-fixed signal and on seeing the signal, all the CBI trap team members and other independent witness rushed towards the appellant in his office and Sri K.K. Singh after disclosing his identity as well as other CBI trap team members and that of witnesses challenged the appellant for having demanded and accepted illegal gratification of Rupees One hundred from the complainant. At this point of time, the appellant became pale and nervous. Immediately on being directed, Shri Vikas Gupta and Mahesh Verma caught hold of right and left hand wrists of the appellant and the appellant was declared arrested. Thereafter, fresh solution of sodium carbonate in plain water in a clean glass beaker was prepared which was milky in colour. On being asked, the appellant dipped his right hand fingers in the said solution of Sodium Carbonate in water. As soon as the appellant did so, the colour of the said solution turned pink. This pink colour solution was then transferred to a clean glass bottle which was then labelled, sealed and signed by all concerned and marked as capital "R" for identification. Similar process was done with the left hand and again the colour of the solution turned pink which was transferred to a clean glass bottle, which was then labelled, sealed and signed by all concerned. It was marked "L" for identification. The appellant was asked to hand over the tainted 5 GC note which he had kept in his left hand, which he had accepted from the complainant in the hand of Shri Md. Aslam, the independent witness. Accordingly, the appellant handed over the said GC Note in the hand of Shri Aslam, the independent witness. Thereafter, Shri Aslam tallied the number and denomination of the said GC note recovered from the appellant with the help of other independent witness Shri Mehdi Hasan with the number and denomination of GC note as noted in the pre-trap memorandum. Said Shri Md. Aslam and Mehdi Hasan tallied the said GC note which matched with the number and denomination of said GC Note so recovered from the accused which is as under.
The above noted GC Note recovered worth Rs. one hundred was taken into police possession and was kept in an envelope and sealed and signed by all concerned. A recovery memo regarding above proceedings was prepared and its content was read over and explained in Hindi to all concerned and present who signed over it in token of its correctness and the contents therein.
5. On the basis of aforesaid, it was alleged that it disclosed commission of offences punishable under Section 7 and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 by the appellant and upon taking sanction for prosecution Charge-sheet No.03/2003 dated 28-03-2003 was submitted under Sections 7 & 13(2) r/w 13(1)(d) of P.C. Act, 1988 and cognizance of offence was taken on 31-03-2003 and Charges were framed on 10-07-2003 under Sections 7 & 13(1)(d) of the prevention of Corruption Act, 1988 punishable under Section 13(2) of Prevention of Corruption Act, 1988.
Submissions on behalf of the appellant
6. Altogether 11 witnesses were examined on behalf of the prosecution and the appellant did not choose any defence 6 witness. The prosecution witnesses are as under: -
P.W. 1 Mahesh Kumar Thapar Chairman-cum-Managing Director, Central Coalfields Limited, Authority who granted Sanction for prosecution of the appellant.
P.W. 2 R. G. Ram Chandran Formal Witness, he typed
sanction order
P.W. 3 Bimal Chandra Purkait C.F.S.L. Expert
P.W. 4 Sarju Yadav Scriber of Written Complaint
P.W. 5 Md. Aslam Independent witness & a
member of trap team.
P.W. 6 Ram Chandra Rai Informant, Hostile witness
P.W. 7 Mehndi Hassan Independent witness & a
Member of trap team.
P.W. 8 Sahid Perwej Ahmad Manager, Churi Colliery,
Formal witness
P.W. 9 K.K. Singh Investigating officer
P.W. 10 Mukesh Verma A member of trap team
P.W. 11 Bikas Gupta Verifying Officer and a
member of trap team
7. Learned counsel for the appellant has submitted that the prosecution has not been able to prove the case beyond all reasonable doubts in view of the fact that it was the specific case of the prosecution that a demand of Rs. 200/- was made, but on the spot as per the prosecution case itself, there was a demand of Rs. 100/- only. The learned counsel has also submitted that the informant having turned hostile, the very genesis of the case i.e. demand has not been proved. The learned counsel has referred to the evidence of P.W.-4 and submitted that P.W.-4 in his cross-examination has stated that he had written the 7 complaint at the instance of CBI Officer and he had not talked to the informant in connection with the complaint. He submits that the statement of P.W.-4 is contradictory to his own statement at Paragraph-1, wherein he has stated that he had written the complaint at the instance of the informant. It has further been argued by the counsel that local persons who were present at the place and time of the alleged occurrence were not made seizure witness and therefore, the seizure itself is not proved beyond all reasonable doubts. He has also submitted that it has come in evidence that the seizure-list was prepared at the CBI office. P.W.-10 has stated in his cross examination that the complainant had handed over the bribe money to the appellant, but the hands of the complainant were not washed. The learned counsel has relied upon a judgment passed by the Hon'ble Supreme Court reported in (1973) CJ (SC) 17 (B. C. Goswami vs. Delhi Administration) Para-10 on the point of sentence and he submitted that the matter relates to alleged recovery to Rs.
100/- only and considering the age of the appellant which is about 70 years today and this is being his first offence, some lenient view may be taken. Learned counsel for the appellant further submits that the appellant has remained in custody for a period of 4 months 14 days during the trial. He submits that the fine amount has already been paid.
Arguments of the Opposite Party-CBI
8. Learned counsel appearing on behalf of the opposite party, on the other hand, submitted that the two independent witnesses i.e. P.W.-5 as well as P.W.-7 have fully supported the fact regarding the demand of Rs. 100/- made by the appellant on the spot and in lieu of Rs. 100/-, the challan was given. She submitted that the members of the trap team have also fully supported the prosecution case. Learned counsel has also submitted that the appellant has not given any explanation in 8 connection with the demand of Rs. 100/- in his statement under Section 313 of Cr.P.C. and no reason has been given by the informant in his evidence or even during his cross-examination to suggest any kind of enmity between the appellant and any of the witnesses. She further submitted that merely because the informant has turned hostile, that is not enough to demolish the prosecution case. She has relied upon a judgment passed by the Hon'ble Supreme Court reported in (2012) 11 SCC 642, Paras-11 and 17 and submitted that once demand of illegal gratification as well as the recovery of bribe money is established, there is presumption in favour of the prosecution which was to be taken care of by the defence by leading evidence. In the instant case, neither the appellant chose to lead any defence evidence, nor any explanation has been furnished by him during his examination under Section 313 of Cr.P.C.The learned counsel for the C.B.I. submitted that the prosecution has been able to prove the case beyond all reasonable doubts and these aspects of the matter have been properly considered by the learned trial court while passing the impugned judgment and therefore, it does not call for any interference.
Findings of this court A. On the point of Complaint, verification of the Complaint regarding illegal gratification and pre-trap procedures
9. PW-6 is the Complainant of this case. His examination-in-chief started on 27.05.2004 and on that day, he deposed that in the month of January, 2003, he used to drive truck and used to carry coal from Churi Colliery. On 30-01-2003, he had come to C.B.I. Office with Mehndi Hassan (PW-7) because the appellant, who was loading Munshi of Churi Colliery, was demanding Rs.200/- from every truck as bribe for issuing challan, but the informant did not want to pay the bribe. He accepted that he had got the Complaint written by Sarju Yadav (PW-4) who had written it as 9 per his dictation and that he had also read the Complaint and finding out to be correct, he had put his signature. This witness identified the written complaint already marked as Exhibit-5.
Thereafter, the examination-in-chief of PW-6 was continued on 10.06.2004. On this date, he has stated that thereafter, he was sent to Bikas Gupta (PW-11) and after sometime, K.K. Singh (PW-9) called him and took him in a room where 4 to 5 persons of C.B.I. were present and a person of Postal department was also present. However, he made a prayer for adjournment of the case as he was not feeling well due to excess heat and the case was adjourned.
This witness was further examined on 07.08.2004. On this date, he deposed at the outset that he was made to sign on blank pages and upon this, he was declared hostile. He deposed that the Inspector of C.B.I. had not taken his statement and he voluntarily deposed that he had not given any complaint petition. He denied about the entire pre-trap proceeding at its all stages, but he identified his signatures on the following exhibits and material exhibits :-
(i) His signature over the bottle containing pink solution of pre-trap demonstration i.e. Material Exhibit-I, as Exhibit-
3/19.
(ii) His signature over the envelope where the piece of paper used for pre-trap demonstration was kept i.e. Material Exhibit-IV, as Exhibit-3/20.
(iii) His signature on the envelope where the remaining phenolphthalein powder was kept and sealed i.e. Material Exhibit-V, as Exhibit-3/21.
(iv) His signatures on the four pages of pre-trap memorandum as Exhibit 3/22 to 3/25.
10During cross-examination by the defence, PW-6 deposed that the C.B.I. had got the complaint written by other person and had got his signature over several plain papers at Dakra Rest House and thereafter, C.B.I. had gone away. He has stated that no paper was pasted over Material Exhibits-II and III and signature on Exhibit-3/22 to 3/25 was taken on plain paper and nothing was written over it. He has also stated that Sarju Yadav (PW-4), who had written the Complaint Petition, is an accused of Arms Act, but no such details of any case have been given by him. He has also identified his signature on the Complaint which has been marked as Exhibit-5/1 on 09-05-2005.
10. It has been held by the Hon'ble Supreme Court in the case of Himanshu v. State (NCT of Delhi), (2011) 2 SCC 36 , with regard to evidence of hostile witness at para 30 and 31 which is as under :
"30. In Prithi v. State of Haryana, decided recently, one of us (R.M. Lodha, J.) noticed the legal position with regard to a hostile witness in the light of Section 154 of the Evidence Act, 1872 and few decisions of this Court as under: (SCC pp. 544- 45, paras 25-27) "25. Section 154 of the Evidence Act, 1872 enables the court in its discretion to permit the person who calls a witness to put any questions to him which might be put in cross- examination by the adverse party. Some High Courts had earlier taken the view that when a witness is cross-examined by the party calling him, his evidence cannot be believed in part and disbelieved in part, but must be excluded altogether. However, this view has not found acceptance in later decisions. As a matter of fact, the decisions of this Court are to the contrary. In Khujji v. State of M.P., a three-Judge Bench of this Court relying upon earlier decisions of this Court in Bhagwan Singh v. State of Haryana, Rabindra Kumar Dey v. State of Orissa and Syad Akbar v. State of Karnataka reiterated the legal position that: (Khujji case, SCC p. 635, para 6) '6. ... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on careful scrutiny thereof.' 11
26. In Koli Lakhmanbhai Chanabhai v. State of Gujarat this Court again reiterated that testimony of a hostile witness is useful to the extent to which it supports the prosecution case. It is worth noticing that in Bhagwan Singh this Court held that when a witness is declared hostile and cross-examined with the permission of the court, his evidence remains admissible and there is no legal bar to have a conviction upon his testimony, if corroborated by other reliable evidence.
27. The submission of the learned Senior Counsel for the appellant that the testimony of PW 6 should be either accepted as it is or rejected in its entirety, thus, cannot be accepted in view of the settled legal position as noticed above."
"31. The aforesaid legal position leaves no manner of doubt that the evidence of a hostile witness remains admissible evidence and it is open to the court to rely upon the dependable part of that evidence which is found to be acceptable and duly corroborated by some other reliable evidence available on record ............ "
11. By applying the aforesaid law in connection with consideration of the evidence of hostile witness , this court finds that although the Complainant has turned hostile on subsequent date of his examination as witness, but he has supported the factum that he had come to CBI office with Mehndi Hassan and had given written report and has also supported the factum of verification of the Complaint in his examination-in-chief, although he has completely denied the entire trap during his further examination. However, he has admitted his signatures on various exhibits, but has stated that he had signed on plain papers. This court is of the considered view that merely because the Complainant has turned hostile, the same is not fatal to the prosecution case and still the prosecution has been able to prove its case beyond all reasonable doubt due to the consistent evidences of the independent witnesses as well as the members of the trap team and there is no whisper of any malice against the appellant or the informant from the side of the said witnesses. Further all the exhibits have been exhibited without any objection from the side of the defence. The evidences of the other witnesses are discussed as follows.
1212. P.W.-4 is the scriber of the written complaint which was made to the Superintendent of Police, C.B.I., Ranchi. He has stated that written report was prepared under the instructions of the Complainant. He has stated that the complaint contains his signature as well as the signature of the complainant. The complaint was exhibited as Exhibit-5. During cross- examination, he has stated that the complaint was written by him in Dakra Rest House in Khalari and thereafter, he stayed in Khalari itself. He had not come to Ranchi, C.B.I. Office on the particular date and he is not aware as to what happened thereafter. He has stated that Complainant is the driver of the truck and he is the owner of the truck. He has also stated that in the loading side, there are frequent quarrels amongst the employees of CCL and the drivers of the trucks in connection with loading. He has further stated that at the time when he was writing the application in Dakra Rest House, the C.B.I. Officers had come and he had written the complaint under the instructions of C.B.I. Officers. He has further stated in his cross- examination that prior to writing the application, there was no discussion with the Complainant.
13. This court is of the considered view that the aforesaid statement made by the PW-4 in the cross-examination has no bearing in the matter as there is enough evidence on record that the Complainant had interacted with the other witnesses who had expressed their satisfaction about the genuineness of the Complaint.
14. PW-11 was the Verifying Officer. He has proved the Complaint as Exhibit-5 and the endorsement made by N.C. Jha, the then S.P. as Exhibit-14. He has proved his Verification Report as Exhibit-15 and has clearly stated that he had thoroughly examined the Complainant and was satisfied about the genuineness of the Complaint.
1315. PW-5 is an independent shadow witness and a member of the trap team. He is an employee of General Post Office, Ranchi working on the post of Postal Assistant. He has deposed that the occurrence is of 30-01-2003. At about 10:00 A.M., his Senior Officer directed him to go to C.B.I. Office, Ranchi and he went to C.B.I. Office, Ranchi and met K.K. Singh, Inspector (PW-9) where Mukesh Verma (PW-10), Bikas Gupta (PW-11), Mehndi Hassan (PW-7), Ram Chandra Rai (PW-6) and 2 - 3 constables of C.B.I. were present. They were introduced with each other and were told about the purpose of the assemblage. They were told that Informant (P.W-6) has given a Complaint that the appellant, who works in Churi Colliery, used to demand Rs.200/- per truck for passing the trucks. The Complaint was shown to him.
16. PW-7 is a member of the trap team and is an independent witness. He has deposed that on 30-01-2003, he had gone with the Informant to C.B.I. Office and the Informant had met with C.B.I. Officer K.K. Singh (PW-9). PW-9 had introduced him with CBI staff and others and also an outsider Md. Aslam (PW-5).
17. PW-9 is K.K. Singh who is the inspector of the CBI at the relevant point of time and he was posted at CBI office, Ranchi. He is the investigating officer of the case and also a member of the trap team. He has stated that F.I.R. was registered under the instruction of Superintendent of Police against the appellant who was Munshi at Churi Project, C.C.L. under Section 7 of the Prevention of Corruption Act. He has stated that the F.I.R. was prepared under his dictation and was typed by one Suresh Prasad. He has mentioned that F.I.R. also contains his signature as well as the signature of the Complainant and the F.I.R. was exhibited by this witness as exhibit-10. He has stated that after registration of the F.I.R., trap team was constituted in which apart from him, Bikas Gupta, Inspector, Mukesh Verma, Sub-
14Inspector and Mahesh Kumar and Samir Singha, both constables, and two independent witnesses namely, Md. Aslam and Mehndi Hasan were included. They assembled and were introduced to each other. He has stated that the Complainant was questioned by the independent witnesses Md. Aslam and Mehndi Hassan about the Complaint and was shown the Complaint. The Complainant in the presence of these persons also stated that the appellant was posted as Munshi in Churi Colliery and in order to give the gate pass, he was demanding Rs. 200/- as bribe.
18. P.W. 10 is the Inspector posted at CBI office at the relevant point of time. He has stated that under the instruction of Sri K.K. Singh and under the leadership of K.K. Singh the trap team was constituted and in the trap team Mr. K.K. Singh, Inspector, Bikash Gupta, Inspector two constables Mahesh Kumar and Samir Singha were there. He has stated that everybody assembled in a room in which two witnesses were also present namely Md. Aslam and Mehndi Hasan and everybody was introduced to the Complainant. The Complainant had made a Complaint that the appellant is the Munshi in Churi Colliery and he has been asking for bribe of Rs. 200/- for giving the challan and the Complainant did not want to give bribe money and therefore, he has lodged the Complaint. He has stated that the Complaint was shown to the independent witnesses and the Complainant was asked certain questions and the independent witnesses were satisfied with the reply.
19. This court finds that P.Ws.- 5, 7 , 9, 10 and 11 have stated about assembly of all the members of the trap team as well as two independent witnesses i.e. P.Ws.-5 and 7 as well as the Complainant and all these witnesses have consistently stated that a piece of paper was treated with phenolphthalein powder and Mehndi Hassan (PW-7) was asked to touch the paper who 15 touched the paper by his right hand finger. Thereafter, a solution of sodium carbonate was prepared in a glass which was white in colour in which the finger of Mehndi Hassan was dipped and the colour of the solution turned pink. The pink solution was transferred in a glass bottle and was marked exhibit in which they put their signatures. All the said witnesses have identified the bottle marked as Material Exhibit-I and have identified their respective signatures over the bottle which were also marked as exhibits. The piece of paper was kept in an envelope which was sealed. The said witnesses have identified the envelope marked as Exhibit-IV and their respective signatures on the envelope which have also been marked as exhibits. All these witnesses have stated that thereafter, money was demanded from the Informant (PW-6) who produced two notes of Rs.100/- denomination. The numbers of the notes were noted down and the notes were treated with phenolphthalein powder and were returned to the Informant with a direction that the tainted currency notes were to be given to the appellant only on demand. The residual phenolphthalein powder was kept in an envelope which was sealed and was signed by all. These witnesses have identified their respective signatures which have been marked as exhibits and they have identified the envelope as Material Exhibit-V. Thereafter, personal search of all the persons was taken. Only the tainted amount of Rs.200/- was left with the Informant and none was allowed to keep anything else. The hands of all the persons were washed. A memorandum of all the proceedings was prepared which was read over and explained to all in Hindi and English. Thereafter, all the persons put their signatures over each page. These witnesses have identified their signatures over the 04 pages of the pre-trap Memorandum which have been marked as exhibits. All these witnesses have clearly stated that the signatures of the 16 all the persons including the independent witnesses and the Complainant were put in presence of all of them.
20. P.W-3 is the expert witness, who has deposed that during the relevant point of time, he was working as Junior Scientist in Central Forensic Science Laboratory, Kolkata. He has exhibited the report marked as Exhibit-2 and the examination of the pink coloured liquid in the bottles supports the case of the prosecution on the point of pre-trap procedures and preparation of pre-trap memorandum.
21. This court finds that the evidences of the aforesaid witnesses clearly establishes the case of the prosecution beyond all reasonable doubts that the Complainant had approached the CBI office with the Complaint and his Complaint was duly verified by P.W.-11 and the independent witnesses as well as the aforesaid members of trap team who were also fully satisfied with the genuineness of the Complaint. The prosecution has also been able to prove the pre-trap procedures as well as preparation of pre-trap memorandum in presence of the trap team, independent witnesses and Informant beyond all reasonable doubts.
B. On the point of trap proceedings, demand of bribe money at the time of trap and its acceptance and recovery from the appellant
22. On this point, the prosecution has been able to prove the case beyond all reasonable doubts, even if the Informant has been declared hostile.
23. PW-8 (Sahid Perwej Ahmad) was the Manager of Churi Colliery. He is a formal witness and has proved the presence of the appellant in his office on the date of trap. He deposed that on the day of occurrence, he was present in office. He has proved the signature of the appellant in the attendance register which has been marked as Exhibit-7. He proved the challan- cum-gate-pass in the signature of the appellant for Truck 17 No. BPV 9789 which has been marked as Exhibit-8. He has also proved the enclosure which is receipt of weight of M.T. truck as Exhibit-9.
24. This court finds that the P.W- 5, 7, 9, 10 and 11 have stated that the entire trap team alongwith the informant and both independent witnesses reached the office at Churi at around 1:05 P.M. and the shadow witness remained with the Complainant at the loading spot. The complainant contacted the appellant and Md. Aslam (shadow witness) was behind the Complainant. It has been stated by these witness that the appellant asked the Complainant to first pay Rs. 100/- and then the challan of the truck will be given to him. Upon which, the Complainant said that he is giving the money for the challan and thereafter, the appellant extended his right hand and demanded the money. The Complainant took out the money from the left pocket of his shirt and handed it over to the appellant. The appellant took the money in his right hand and thereafter, took it in his left hand. Then, the Complainant gave the pre-fixed signal and upon receiving the signal, everybody reached and challenged the Complainant that he has taken bribe of Rs. 100/- upon which the appellant said that he had committed mistake and they caught hold the hands of the appellant. Thereafter, the solution of sodium carbonate was prepared and his right hand was dipped which turned pink. The solution was kept in a bottle which was sealed and was marked as 'R' and, on the seal, everybody put their signatures. This bottle was marked as Material Exhibit-II and theses witnesses have exhibited their respective signatures on the Material Exhibit-II. Thereafter, the money was seized from left hand and tallied with number of note already recorded in the pre-trap memorandum and the note was kept in an envelope which was sealed on which everybody had put their signatures.
18The envelope was marked as Material Exhibit-VI. The witnesses exhibited their respective signatures and was marked exhibits. The note was taken out from the envelope and was marked as Material Exhibit-VII. The solution of sodium carbonate was prepared and left hand of the appellant was dipped in the solution which turned pink and the solution was kept in a bottle which was marked as 'L' for identification. On the bottle, everybody had put their signatures which were marked as exhibits. The bottle was marked as Material Exhibit-III. Thereafter, the appellant was searched and arrested and the Project Officer, Churi was informed and the wife of the appellant was also informed. The entire proceeding was recorded in the memorandum which was read over and explained to everybody in Hindi and English and after understanding the same, everybody put their signatures. The memorandum has been exhibited as Exhibit-12 consisting of six pages and the said witnesses have exhibited their signatures in all six pages which have been marked as Exhibits. A copy of the post trap memorandum was handed over to the appellant and the appellant duly received the same and his receipt has been marked as Exhibit-6. The witnesses have identified the appellant in the court as and when he was found present and in his absence, his identification was waived. There are no material contradictions in the evidence of these witnesses. The learned counsel for the appellant has also not pointed out any contradiction much less any material contradiction in the evidence of these witnesses.
25. P.W.-3 is the expert witness, who has deposed that during the relevant point of time, he was working as Junior Scientist in Central Forensic Science Laboratory, Kolkata. This witness has exhibited three bottles which were sent by the Superintendent of Police, C.B.I. for examination. He has deposed that after 19 examination, the report was prepared and these bottles have been marked as Exhibit Nos. 1, 2 and 3 respectively with respect to the bottles marked separately. He has stated that all the three pink coloured liquid in the bottles were tested by him and he found that in the said liquid, there was phenolphthalein and Sodium Carbonate. He has exhibited the report and marked as Exhibit-2. He has stated that after examination of the contents of the three bottles, the report was prepared under his dictation given to one typist, namely, Sri Balram Acharya and he had put his signature on the said report. He has further stated that the remaining solutions in the bottles which remained after examination were sealed and the seal mark of the CFSL were put on the sealed bottles, upon which, he had put his signatures and these signatures have been marked as Exhibits- 3, 3/1 and 3/2 respectively. He has also stated that after preparation of the report, the same was duly forwarded to the Superintendent of Police, C.B.I. by a letter issued under the signature of the Assistant Director, CFSL who had signed the letter in the capacity of Director, CFSL and this letter has been marked as Exhibit-4. During his cross examination, he has stated that the report does not disclose as to the quantity of phenolphthalein power and Sodium Carbonate present in the mixture and the report does not contain the signature of Balram Acharya who is said to be the typist having typed the report. During his cross-examination, he has also stated that the pink colour solution can be prepared by various chemical composition. He has stated in his cross-examination that if in Sodium Carbonate solution, the phenolphthalein powder is mixed, it will turn pink. He has also stated during cross- examination that he has not brought the note book in which the various noting relating to the examination report from time to time was recorded. This court finds no material contradiction in 20 the evidence of this witness.
26. During cross-examination, P.W-5 has deposed that the memorandum was prepared in the office of CBI and it has been argued by the learned counsel for the appellant that on account of this statement the demand and recovery of bribe money has not been proved beyond all reasonable doubts. It has also been argued that although there was presence of a number of other persons at the alleged place of occurrence, but the prosecution did not take any person amongst them to be a seizure witness.
27. The informant has denied about the trap proceeding, but he identified his signatures on the following exhibits and material exhibits :-
(v) His signature on Material Exhibit-2, 3 and 6 as Exhibit-
3/26, 3/27 and 3/28.
(vi) His signatures on the six pages of post -trap memorandum and seizure list as Exhibit 3/29 to 3/34.
This court also finds that the other witnesses including independent witnesses have stated that the complainant had put his signature on the exhibits in their presence.
28. Upon conjoint reading of the evidences of the witnesses coupled with the facts that all the witnesses have deposed about throughout presence of the informant and all the exhibits including the material exhibits as well as about the post trap memorandum containing the signatures of the members of the trap team as well as the Complainant and independent witnesses and the fact that a copy of the post trap memorandum was also handed over to the appellant, the aforesaid statement of the P.W-5 in his cross examination is not fatal to the case of the prosecution and inspite of the same, this court is of the considered view that the prosecution has been able to prove its case beyond all reasonable doubts. Even in the statement 21 recorded under Section 313 of Cr.P.C., the appellant had simply remained in denial of the entire circumstances put to him. This is coupled with the fact that all the exhibits have been marked without any objection from the side of the defence. So far as the seizure witnesses are concerned, this court is of the considered view that merely because no person from the public was taken, the same cannot be taken as fatal to the prosecution case as there is consistent evidence on the point of seizure and there is no material on record to disbelieve the official witnesses and the independent witnesses on the point. P.W.-10 has stated in his cross-examination that the Complainant had handed over the bribe money to the appellant, but the hands of the Complainant were not washed. This court is of the considered view that washing the hands of the Complainant after the trap has no relevance in the matter. The argument of the appellant that although the allegation of demand was for Rs.200/-, but the alleged demand at the time of trap was only Rs.100/- has no bearing in the matter of demand and recovery of bribe money by the appellant which has been proved beyond all reasonable doubts.
29. The aforesaid evidences of the witnesses clearly establishes the case of the prosecution beyond all reasonable doubts that the appellant was on duty on the date and time of trap and while on duty, he had demanded illegal gratification of Rs.100/- from the Complainant who handed over the tainted money of Rs.100/- and was caught red handed with the bribe money which was seized and tallied with the number and denomination of note mentioned in the pre-trap memorandum and consequently, the appellant was taken into custody and post trap memorandum was prepared, a copy of which was handed over to the appellant.
In the present case, this court has no doubt about the 22 correctness of the testimony of witnesses of the trap team members and of the independent witnesses who accompanied the trap team members and accordingly, this court finds no reason to reject their testimony. This court finds that the prosecution has been able to prove the demand of bribe money of Rs.100/- by the appellant, its acceptance by the appellant and its recovery from the possession of the appellant beyond all reasonable doubts. Considering the law laid down by the Hon'ble supreme court in the judgement of Himanshu v. State (NCT of Delhi), reported in (2011) 2 SCC 36 (supra) this court is of the considered view that merely because the Complainant has turned hostile by stating that he had put his signatures on blank papers and had not accompanied the trap team members for the trap of the appellant is not fatal to the case of the prosecution as there is consistent evidence that the Complainant was present throughout and was instrumental in getting the appellant trapped on account of demand and recovery of bribe money of Rs.100/- . It has come in evidence that he had put his signatures on all the exhibits including all material exhibits in presence of other witnesses and he has not denied any of his signatures. Moreover, all the exhibits including material exhibits have been marked without any objection from the side of the defence and the defence has not led any evidence and the appellant has not given any explanation in his statement recorded under section 313 of Cr.P.C and has simply remained in a state of denial.
30. The learned counsel for the opposite party has rightly relied upon the judgement passed by the Hon'ble Supreme Court in the case of Mukur Bihari and another -versus- State of Rajasthan [(2012) 11 SCC 642] wherein the Hon'ble Supreme Court has clearly held that demand of illegal gratification is sine qua non for constituting an offence under the Prevention of Corruption Act, 1988 and that mere recovery of tainted money 23 is not sufficient to convict the accuse unless there is either evidence to prove payment of bribe or to show that money was voluntarily taken as bribe. The Hon'ble Supreme Court also held that once the demand and acceptance of amount as illegal gratification is proved the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Prevention of Corruption Act, 1988 by bringing on record the evidence, either direct or circumstantial, to establish with reasonable probability that the money was accepted by the accused other than the motive or reward as referred to in Section 7 of the Prevention of Corruption Act, 1988. It has also been held that while invoking the provision under Section 20 of the Prevention of Corruption Act, the court is required to consider the explanation offered by the accused if any, only on the touchstone of preponderance of probability and not on the touchstone to proof beyond all reasonable doubt and that before the accused is called upon to explain as to how the amount in question was found in possession, the fundamental facts must be established by the prosecution. This Court fully agrees with the submissions of the learned counsel for the opposite party that once demand and recovery of bribe money is proved beyond all reasonable doubts, there is presumption in favour of the prosecution which was to be taken care of by the defence by leading evidence. In the instant case, neither the accused chose to lead any defence evidence, nor any explanation has been furnished by him during his examination under Section 313 of Cr.P.C.
C. On the point of sanction for prosecution
31. The list of the witnesses who have deposed before the learned trial court is mentioned above. From the records of the case, it appears that all the exhibits produced by the prosecution side have been marked exhibits without any objection from the side 24 of the defence.
32. P.W.-1 is the authority who has granted sanction for prosecution of the appellant. He has stated that he was the Chairman-cum-Managing Director of C.C.L, Ranchi in the month of March, 2003 and was competent to remove the appellant from service and was accordingly competent to grant sanction for prosecution. He has exhibited the sanction order marked as Exhibit-1. He has stated that he had given sanction for prosecution after considering the case records sent by CBI after discussion with the legal section and vigilance department. In his cross examination, he has stated that documents have not been specifically mentioned in the sanction order. He has also stated that he had applied his mind at the time of grant of sanction.
33. P.W.-2 has deposed that he had typed the sanction order, but in his cross-examination, he has stated that his signature is not there at the column regarding signature of typist.
34. This court finds that the P.W-1 was the competent authority for grant of sanction for prosecution of the appellant and had gone through the materials sent by CBI and after being satisfied, he has granted sanction for prosecution. The P.W- 2 has supported the evidence of P.W-1 on the point of sanction for prosecution. This court finds that the sanction was accorded by the competent authority after due application of mind. There is no dispute that at the relevant point of time, the appellant was a government servant and was working as loading Munshi in Churi Colliery of Central Coalfields Limited and he was empowered to issue challan for loading of the truck.
Findings of the learned trial court
35. The learned trial court framed the following points for determination in this case:-
(i) Whether the accused was a public servant at the time of 25 occurrence?
(ii) Whether the accused Ram Chandra Ram had demanded illegal gratification of Rs. 200/- for issuing challan-cum- gate pass in favour of the Complainant Ram Chandra Rai?
(iii) Whether the accused was caught red handed while demanding and accepting the illegal gratification from Complainant Ram Chandra Rai and the bribe amount Rs. 100/- was recovered from his possession?
(iv) Whether the accused being a public servant has committed criminal misconduct by demanding and accepting illegal gratification other than legal remuneration as a motive or reward for issuing challan-
cum-gate pass in favour of the Complainant Ram Chandra Rai?
(v) Whether the sanction was obtained from competent authority?
(vi) Whether the prosecution has been able to prove the charges beyond all reasonable doubt?
36. The finds of the learned trial court are as under:-
(i) With regard to point no. (i), the trial court has recorded a finding that it is admitted fact that the accused was posted and working as loading clerk-cum-Munsi in Churi Colliery of C.C.L. on 30.01.2003. This fact has been supported by all the witnesses. The accused himself admitted this fact during his statement under Section 313 Cr.P.C.. This fact also gets support from the evidence of P.W.-1 Mahesh Kumar Thapar who was the Chairman-
cum-Managing Director, C.C.L. at the time of occurrence and has granted the sanction for prosecution of the appellant. P.W.-2 Sri Ram Gopalan Ram Chandran has also supported this fact. This fact also gets support from the sanction order (Exhibit-1) and Written Complaint 26 (Exhibit-5). In view of the aforesaid evidences, the trial court held that at the time of occurrence, the appellant was posted and working as loading clerk-cum-Munsi in Churi Colliery in C.C.L. and he was a public servant.
(ii) So far as point nos. (ii), (iii) and (iv) are concerned, the trial court after scrutiny of the evidences on record held that the appellant Ram Chandra Ram had demanded illegal gratification of Rs. 200/- for issuing challan-cum- gate pass in favour of the Complainant Ram Chandra Rai and the accused was caught red handed while demanding and accepting the illegal gratification from Complainant Ram Chandra Rai and the bribe amount of Rs. 100/- was recovered from his possession. The trial court further held that the accused being a public servant has committed criminal misconduct by demanding and accepting illegal gratification other than legal remuneration as motive or reward for issuing challan-cum-gate pass in favour of Complainant Ram Chandra Rai.
(iii) The learned trial court with regard to point no. (v), after perusal of the evidence and the sanction order (Exhibit-1), held that the sanction was accorded by the competent authority after perusing the documents sent by the C.B.I. It is further held that the sanction was accorded by the competent authority after due application of mind.
(iv) So far as point no. (vi) is concerned, the learned trial court after perusal of the evidences oral and documentary on record held that the prosecution has been able to prove the case against the appellant who was working as Munsi in Churi Colliery was a public servant and had demanded Rs. 200/- for issuing challan-cum-gate pass from the Complainant Ram Chandra Rai and was caught red handed while demanding and accepting the illegal 27 gratification of Rs. 100/- which was recovered from his possession and being a public servant, the appellant Ram Chandra Ram committed the criminal misconduct by demanding and accepting illegal gratification from Complainant Ram Chandra Rai other than legal remuneration as a motive or reward for issuing challan- cum-gate pass in favour of the complaint Ram Chandra Rai and the sanction was accorded by the competent authority. The prosecution has been able to bring home the charges beyond all reasonable doubt.
37. In view of the aforesaid findings recorded by this court (till para 32 above) on the basis of evidences on record, this court finds no reason to differ with the aforesaid findings of the learned trial court as the Judgment of conviction of the appellant is a well- reasoned judgement calling for no interference by this court.
On the point of sentence
38. On the date of registration of the F.I.R. in R.C. Case No.2(A)/2003(R) dated 30-01-2003, the minimum punishment of imprisonment prescribed under Section 7 was 06 months and the minimum punishment of imprisonment prescribed under Sections 13(2) for the offence committed under Section 13(1)(d) of the Prevention of Corruption Act, 1988 was 01 Year.
39. The appellant has faced the rigors of the criminal case since 2003 and he has deposited the entire fine amount imposed by the learned trial court and at present, he is aged about 63 Years and this is his first offence.
40. Considering the aforesaid aspects of the case and for the ends of justice, this Court hereby modifies and reduces the sentence of the appellant for the offence under Section 7 of the Prevention of Corruption Act, 1988 to a period of 06 months and his sentence for the offence under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 to a period of 28 01 Year without any modification with respect to the sentence of fine imposed by the trial court for the said offences. Both the sentences shall run concurrently. The period already undergone by the appellant shall be set off.
41. Accordingly, with the aforesaid modification on the point of sentence of the appellant, the present criminal appeal is hereby dismissed.
42. Pending interlocutory application, if any, is dismissed as not pressed.
43. The bail bonds furnished by the appellant are hereby cancelled.
44. The office is directed to immediately send back the lower court records to the concerned court below alongwith a copy of this judgment.
45. Let this order be communicated to the court concerned through electronic mail.
(Anubha Rawat Choudhary, J.) Binit/