Rajasthan High Court - Jaipur
Brijesh Kumar Meena S/O Shri Nand ... vs State Of Rajasthan on 28 February, 2025
Author: Ganesh Ram Meena
Bench: Ganesh Ram Meena
[2025:RJ-JP:6205]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Appeal No. 2324/2019
Brijesh Kumar Meena S/o Shri Nand Kishore Meena, R/o
Khirkhidi, Police Station Todabheem, Distt. Karauli The Then
S.h.o. Police Station Sadar, Alwar
(At Present Lodged In Central Jail Alwar)
----Appellant
Versus
State Of Rajasthan, Through P.P.
----Respondent
Connected With
S.B. Criminal Appeal No. 2342/2019
Jakir S/o Shri Safeda B/c Meo, R/o Chanduki, Police Station
Sadar, Distt. Alwar Raj. (At Present In Central Jail Alwar)
----Appellant
Versus
State Of Rajasthan, Through P.P.
----Respondent
For Appellant(s) : Mr. V.R. Bajwa Sr. Advocate assisted
by Ms. Savita Nathawat for accused
appellant in S.B. Criminal Appeal No.
2324/2019
Mr. V.S. Chauhan for accused
appellant in S.B. Criminal Appeal No.
2342/2019
For Respondent(s) : Mr. Vijay Singh Yadav learned PP
HON'BLE MR. JUSTICE GANESH RAM MEENA
JUDGMENT
Reserved on ::: January 17, 2025
Pronounced on ::: February 28, 2025
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1. Both the criminal appeals arose out of one common
judgment, hence, the same are being decided together by a
common judgment.
2. By filing two separate criminal appeals under
section 374 (2) CrPC, the accused appellants have challenged
the judgment of conviction and sentence dated 23.09.2019
passed by the Court of learned Sessions Judge, Special Court,
Prevention of Corruption Cases, Alwar (for short 'the learned
trial court') in Criminal Regular Case No.34/2015, 'State Vs.
Brijesh Kumar Meena & Anr.', whereby the learned trial
court convicted and sentenced the accused appellants as
under:-
Accused appellant- Brijesh Kumar Meena
U/s. 7 of the Prevention of Corruption Act, 1988:
Two years imprisonment and Rs.10,000/- as a fine
and in default of payment the accused appellant has been
directed to further undergo two months additional simple
imprisonment.
U/s. 13(1)(d) read with section 13(2) of the
Prevention of Corruption Act, 1988:
Four years imprisonment and Rs.20,000/- as a fine
and in default of payment the accused appellant has been
directed to further undergo four months additional simple
imprisonment.
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U/s. 220 IPC:
Five years imprisonment and Rs.25,000/- as a fine
and in default of payment the accused appellant has been
directed to further undergo six months additional simple
imprisonment.
U/s. 392 read with section 120B IPC:
Five years imprisonment and Rs.25,000/- as a fine
and in default of payment the accused appellant has been
directed to further undergo six months additional simple
imprisonment.
Accused-appellant- Jakir
U/s. 392 read with section 120B IPC:
Five years imprisonment and Rs.25,000/- as a fine
and in default of payment the accused appellant has been
directed to further undergo six months additional simple
imprisonment.
U/s. 220 read with section 120B IPC:
Five years imprisonment and Rs.25,000/- as a fine
and in default of payment the accused appellant has been
directed to further undergo six months additional simple
imprisonment.
U/s. 7 of the Prevention of Corruption Act, 1988 read
with section 120B IPC:
Two years imprisonment and Rs.10,000/- as a fine
and in default of payment the accused appellant has been
directed to further undergo two months additional simple
imprisonment.
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U/s. 13(1)(d) read with section 13(2) of the
Prevention of Corruption Act, 1988:
Four years imprisonment and Rs.20,000/- as a fine
and in default of payment the accused appellant has been
directed to further undergo four months additional simple
imprisonment.
Sentences were ordered to run concurrently.
3. The facts of the case in a nutshell are that on
04.09.2012 complainant Lalit Kishore (PW16) along-with his
father Giriraj Prasad Meena (PW21) submitted a written
report (Ex.P8) in the ACB Chowki, Alwar as under:-
अभियोग के अनुसार प्रकरण के स संकंक्षिषिप्षिप्त ्षिप्तत तथय इस प्रकार हप ार हैं कक
ददिना संक 04.09.2012 को मीणा पाडी, अलवर निनवासी परिरवादि
लभल्षिप्त कुमार ने अपने पप्षिप्ता गगराराजप्रसादि मीणा के साथ
ए.सी.बीी. चौकी अलवर पर उपस्थ्षिप्त होकर एक भलखखि्षिप्त रिरपोररा
प्रदिदररा पी.8 इस आदरय की पेदर की, ार हैं कक उसके ्षिप्तीन दिो््षिप्त
ममहदि पुर बीालाजी के दिदररान हे्षिप्तु उसके आम संत्रण पर अलवर आये
हुए थे और ददिना संक 04.09.12 की फलाइर पकडने हे्षिप्तु अलवर से
जयपरु के भलए ददिना संक 03.09.12 को रातत्र को जयभस संह से एक
रैकसी ार हैं ककराये पर ल । जयपुर जाने के भलए ्षिप्तीननों वयसक्षिप्त
नि्षिप्तजारा रोड, अलवर स्थ्षिप्त सोनन होरल पर बीैठे हुए थे। ्षिप्तिी
जाार हैं ककर खिा सं ार हैं ककराये की गाडी लेार हैं ककर डाईवर सदह्षिप्त बीाजार गया
और एक लडकी को बीैठाकर लाया ्षिप्तथा उसको को अपना मकान
ददिखिाने के बीहाने गाडी मम बीैठा कर ले गया और कुछ समय
पशचा्षिप्त त वापपस सोनी होरल पर आकर सिी चाय-पानी पीने
लगे। ्षिप्तिी पव
न रा सनिु नयोसज्षिप्त ्षिप्तर के से एस .एच. ओ. थाना सदिर
बीज
ज ेदर मीणा होरल पर पहुचचे और जाार हैं ककर खिाच का इदरारा पाकर
लडकी के साथ ्षिप्तीननों दिो््षिप्तनों को अपने साथ सदिर थाना पर ले
आये। लडकी को एक ्षिप्तरफ कर उसके दिो््षिप्तनों को बीोला ार हैं कक
गौहार से सज्षिप्तना पैसा लेकर आये हो, मझ
ु े सौंप दिो अनयथा
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इस लडकी से बीलातकार के आरोप मम आपके पवरूद्ध मुकदिमा
लगाउ संगा। एस.एच.ओ. की इस लेनदिेन की कायरावाह मम समीम
खिी सं व जाार हैं ककर खिाच मख्य
ु य िभन मका निनिा रहे थे। एस.एच.ओ. के
नाम से रकम दिेने के भलए समीम लगा्षिप्तार परिरवादि पर दिबीाव
डाल रहा है और हवाला्षिप्त मम बी संदि उसके दिो््षिप्तनों को परेदरान कर
रहा है। इस सबी की कलल रिरकार्डिंग उसके मोबीाइल मम है। इसी
कम मम आज सबी
ु ह जाार हैं ककर उसके मन
ु ीम राकेदर जैसे से
ह््षिप्तांक्षिरयक
ु ्षिप्त चैक लेकर कर कैदर कराने गया हुआ है।
कायरावाह की जाये।
On the basis of aforesaid written report (Ex.P8), a
criminal case was registered at No.361/2012.
4. The police after investigation submitted the charge-
sheet against the accused-appellants for the offences
punishable under sections 7, 13(1)(d), 13(2) of the Act of
1988 and sections 220 and 392 IPC, in the competent Court.
5. The learned trial court framed the charges against
the accused appellant- Brijesh Kumar Meena for the offences
punishable under sections 7,13(1)(d) and section 13(2) of the
Act of 1988 and sections 220 and 392 read with section 120B
IPC and against accused appellant- Jakir for the offences
under sections 7 and 13(1)(d) read with section 13(2) of the
Act of 1988 and sections 220 and 392 IPC; wherein they
denied all the charges and opted for trial.
6. From the prosecution side, the statements of 40
witnesses were recorded and certain documents were
exhibited.
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7. The statements of the accused were recorded under
section 313 CrPC. The accused appellants in their statements
have denied the allegations levelled against them and
deposed that they have been falsely implicated in the instant
case.
8. The learned trial court vide its impugned judgment
dated 23.09.2019 convicted and sentenced the accused
appellants for the aforesaid offences.
9. Mr. V.R. Bajwa, Senior Advocate assisted by Ms.
Savita Nathawat appearing for the accused appellant Brijesh
Kumar Meena (Criminal Appeal No.2324/2019) submitted
that the star witnesses of the case, relying upon whom the
entire edifice of the prosecution case was raised, have
refused to further the prosecution story or even side with the
prosecution, during trial. In such a situation, the prosecution
case gets demolished beyond repair. The three persons
namely, Shiv Narain Pathak (PW.15), Sarju Kumar Hasnu
(P.W.20) and Jagdish Prasad (P.W.14) are the three persons,
from whom, as per the prosecution case, bribe was allegedly
demanded and accepted; they have turned hostile, giving a
clean chit to the accused appellant and at the same time also
defying the entire prosecution case. Senior Counsel submitted
that P.W.14 Jagdish Prasad, P.W.15 Shiv Narain and P.W.20
Sarju Kumar have duly accepted that they were arrested for
breach of peace u/s 151 Cr.P.C. and were produced before the
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A.D.M. In such circumstances, the entire prosecution case
gets an irreparable blow. Senior Counsel also submitted that
the statements of these three persons recorded in the
proceedings before the A.D.M., have not been produced by
the prosecution, and thus in lieu of the same an adverse
inference under Section 114 of Evidence Act needs to be
drawn against the prosecution, which further demolishes the
case of the prosecution.
Senior Counsel submitted that PW14 Jagdish during
examination in court, admitted that the cheque amount was
given in reference to a purchase of a Dumper.
Senior Counsel also submitted that complainant
Lalit Kishore (PW16) did not support the prosecution story
and turned hostile. Senior Counsel submitted that as far as
the alleged conversational content in the cellphones of Zakir,
Shamim and informant Lalit Kishore is concerned, there is
nothing on record in reference to the same, except for the
call record details, which does not quite provide for the fact
as to what was the conversation between them. Furthermore,
there is no statutory certificate u/s 65-B of the Evidence Act,
to fortify the call detail records with regard to the aforesaid
cellphones, which renders the same to be a valueless
evidence. Senior Counsel further submitted that the instant
case does not relate to a conventional trap proceeding and in
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such circumstances since cash is an unidentifiable item the so
called recovery of cash from other accused persons does not
further the case of the prosecution, as, it cannot be
ascertained beyond doubt that the cash recovered from them
was the same cash given to Zakir by the accountant of Lalit
Kishore. Senior Counsel also submitted that as far as the
transcript related to the recording of the conversation in the
tape recorder recorded at the instance of the father of the
complainant namely Giriraj Prasad Meena is concerned, the
same does not further the case of prosecution against the
accused appellant. Giriraj Prasad Meena, during investigation,
had claimed that he engaged in a conversation with the
appellant in person but during trial, he refused to even
identify the accused appellant. In such circumstances, the
case of the prosecution against the appellant completely
hangs in the air. Furthermore, there is no statutory certificate
u/s 65-B of Evidence Act with regard to the recording
allegedly done on the tape-recorder. Senior Counsel also
submitted that the accused appellant neither made any
demand nor did he accept any bribe so as to satisfy the
punitive ingredients of offences punishable under Section 7 as
also Section 13(1)(d) of P.C. Act.
Senior Counsel also submitted that the punitive
ingredients of Section 392 I.P.C. are also completely missing
in the instant case. On the one hand, the prosecution alleges
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that bribe was being demanded and accepted, on the other
hand, in the same breath, allegation of robbery at the hands
of the accused persons of robbing the three persons namely,
Shiv Narain Pathak, Sarju Kumar and Jagdish Prasad, has
been pressed into service. The said situation appears to be in
anti-thesis of each other. Senior Counsel further submitted
that the learned trial court fell in error in recording conviction
on stray pieces of alleged evidence. The learned trial court
has recorded conviction only on the basis of the complaint
making out a case of rape, allegedly said to have been
written by Manisha, which was recovered from the drawer of
the table at the Police Station, on the basis of the tape
recording contents of the conversation between the appellant
and Giriraj Prasad Meena (P.W.21) and a compromise
application recovered allegedly from co-accused-Zakir. The
aforesaid material first of all, has not been proved beyond
reasonable doubt and secondly, is highly deficient to reach
the conclusion of guilt of the accused appellant. The
complaint of Manisha alleged to have been written by
Manisha, has not been proved by the prosecution, as, there is
no F.S.L. report of handwriting analysis of Manisha and
secondly, the compromise application in itself is not a
substantive evidence as it is neither here nor there. The
substantive evidence would have been the ocular evidence of
witnesses namely, P.W.15 Shiv Narain, P.W.14 Jagdish Prasad
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and P.W.20 Sarju Kumar, which is contrary as they have
turned hostile and have denied the existence of any such
situation.
Senior Counsel submitted that even the punitive
ingredients of Section 220 I.P.C. are completely missing in
the instant case. P.W.15 Shiv Narain, P.W.20 Sarju Kumar and
P.W.14 Jagdish Prasad have turned hostile and have candidly
admitted that they were arrested u/s 151 Cr.P.C., under the
apprehension of committing a cognizable offence, who came
to later be released by the concerned authority i.e. A.D.M.,
through due process of law. In such circumstances, Section
220 I.P.C. falls flat and does not even get attracted prima
facie, much less to record a conviction there-under.
10. Mr. V.S. Chauhan, learned counsel appearing for the
accused appellant Jakir (Criminal Appeal No. 2342/2019)
submitted that learned trial Court has further failed to
consider that while appreciating the evidence in a criminal
case, the court should keep in view the two cardinal principles
that the guilt of the accused must be proved beyond
reasonable doubts and that the burden on the accused is not
so heavy so as to prove the plea taken by him, as it lay on
the prosecution. The burden can be discharged by the
accused merely by showing the preponderance of
probabilities in favour of the plea taken by him. Counsel also
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submitted that there are several infirmities and contradictions
in the statements of the prosecution witnesses and therefore
no reliance can be placed upon the testimony of such
witnesses. That the statements of the prosecution witnesses
are inconsistent, contradictory and also suffer from
infirmities. The witnesses of the prosecution have suppressed
the genesis of the occurrence and have not corroborated the
story of the prosecution. Therefore, the prosecution witnesses
cannot be treated as credible and reliable witnesses. In such
circumstances, the conviction on the basis of the statements
of such witnesses is not sustainable in the eyes of law and
same is liable to be quashed and set aside by this Hon'ble
court.
Counsel also submitted that the learned Trial Court
has failed to consider that in this case while lodging the
written report (Ex. P-8), the allegation regarding hatching of
a criminal conspiracy and loot has been leveled against the
accused and from the facts, it is clear that the incident was
alleged to have taken place in Sonu Hotel but same has not
been attested to and the son of Jaisingh i.e. PW-19
Tejprakash has been examined as a witness but he has not
supported the prosecution case and he has been declared
hostile. PW-4 Sher Singh has admitted the fact of sale of
vehicle. It is submitted here that there is no evidence
available on record to prove the fact that money was taken
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from all these three, by threatening the witnesses on the
lines of falsely implicating them in a rape case but all the
witnesses have stated that the amount was given against sale
of vehicle but, since the entire payment was not made, the
vehicle could not be transferred. Counsel also submitted that
the trial Court has also failed to consider that in this case the
prosecution witnesses namely Shiv Narayan and Sarju Kumar
have not supported the prosecution case and they have been
declared hostile. Further these witnesses have not supported
the Police statement (Ex. P-27 and P-29) and have further
not testified that the money was taken under a threat to
otherwise be falsely implicated in a rape case, rather these
witnesses have stated that the money was given in lieu of the
sale of a Dumper.
Counsel also submitted that the learned Trial Court
has failed to consider that PW-16 Lalit Kishore is the
complainant and has submitted the report but he is not the
witness of the place of incidence i.e. of alleged incident, as
the said witness was deputed with the C.R.P.F. on the post of
Deputy Commandant on the said date, and so, after applying
his mind in a cunning manner, he has lodged the present
false and concocted case; while this witness has stated that
what was found in the search of Manisha and appellant Jakir,
he does not know. Counsel also submitted that the learned
Trial Court has further failed to consider that for making a
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search, no search warrant was obtained and no reason has
been mentioned as regards not obtaining the search warrant.
The neighbours have not been made witnesses and further
there is no evidence that the accused appellant was involved
in the conspiracy. Counsel also submitted that from a bare
perusal of the material and evidence available on record and
from a bare perusal of the impugned Judgment, it is clear
that the learned Trial Court has neither properly considered
nor critically examined the statements of the prosecution
witnesses and rather, in a general and routine manner has
discussed the same and after taking into consideration the
few words from their statements, has passed the impugned
judgment of conviction. This method of the learned Trial
Court is against the criminal jurisprudence. Counsel further
submitted that the learned Trial court has not properly
appreciated the material and evidence available on record in
its true sense and has passed the impugned judgment of
conviction and sentence in a cursory manner.
Counsel also submitted that the findings arrived at
by the learned Trial court are erroneous as it is passed having
misread and not having read the material evidence in support
of the appellant as well as having been passed on mere
surmises and conjectures. It is submitted that the findings
arrived at by the learned Trial court are further erroneous as
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no critical appreciation and analysis has been made by the
learned Trial Court.
11. Mr. Vijay Singh Yadav, learned Public Prosecutor
appearing for the State opposed the submissions advanced by both the Counsels appearing for the accused appellants and submitted that the investigating agency at the time of trap arrested the accused Jakir, Samim and Manisha Khan and filed charge sheet against them and charge sheet was also filed u/s 299 of Cr.P.C. against the accused appellant Brijesh Kumar Meena. In the present case the prosecution examined 40 witnesses and also exhibited 90 documents in their favour, wherein PW-16 Lalit Kishore admitted in his chief examination that he submitted the FIR i.e. P-8 and the same is in his writing with his signature, he also admitted to the conversation with co-accused Jakir on his mobile and he also admitted his signature on Ex. P-3, P-4, P-14, P-17, P-18, P- 28, P-29, P-30, P-31, P-32, thereby it is clear that the complainant admitted to the truthfulness of the FIR and trap proceeding, recovery memo, arrest memo, in his chief examination. Thereafter the complainant was declared hostile but in his cross examination he also admitted his statement recorded u/s 161 of Cr.P.C. and also admitted the portion of his statement marked as A to B and he also admitted his version marked as K to L on the basis of his conversation with Jai Singh and Jakir.
(Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (15 of 55) [CRLAS-2324/2019] Learned Public Prosecutor further submitted that other witnesses are PW-14, PW-15 & PW-20 i.e. Jagdish, Shivnarayan and Suraj Kumar Hasnu, wherein PW-14 admitted in his cross examination that the accused Brijesh Kumar Meena arrested him u/s 151 of Cr.P.C. along with his two friends from Sonu Hotel and they were sitting at Sonu Hotel peacefully and the Inspector Brijesh Kumar Meena without any cause took them to the Police Station and arrested them and he also admitted that the brother of accused Brijesh Kumar Meena offered him Rs. 50,000/- for making the statement in their favour, therefore, he submitted the report before ACB against Man Singh and ACB registered the case and trial is pending till date for that case. Thereby it is clear that the accused persons falsely implicated them u/s 151 of Cr.P.C. and also threatened them with false implication in a rape case and for that demand Rs. 2,50,000/- were transferred from the account of Shrinarayan Pathak as instructed by the accused persons. The same version was stated by the PW-15 & PW-20 and PW-15 also admitted in his cross examination that he told ACB that the accused Jakir demanded Rs. 2,50,000/- to spare them of the offence of 376 of IPC. PW-20 also admitted exhibits P-35, P-36 & P-37, recovery memo of the cheques and that one cheque of Rs. 3,05,000/- has also been honored, hence it is clear that the (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (16 of 55) [CRLAS-2324/2019] aforesaid witnesses though declared hostile, have admitted the story of the prosecution.
Learned Public Prosecutor further submitted that the alleged report written by the accused Manisha Khan regarding the allegation of rape against PW-14, PW-15 & PW- 20 and the said written report has been recovered from the rack of the table of accused Brijesh Kumar Meena from his office and further more the compromise written by the accused Manisha Khan was also recovered from the co- accused Jakir on the same day i.e. 04.09.2022, thereby it is clear that the accused persons got into a conspiracy for extortion of money from the friends of the complainant.
Learned Public Prosecutor further submitted that Ex. P-30, P-31 and P-32 are the transcript versions of demand of bribe and specifically P-30 is the recording of the conversation of complainant's father PW-21 Giriraj and co- accused Jakir and the same has been admitted by him in his chief examination and he also leveled allegations against the accused persons for the offences for which they were facing trial and he also admitted his signature on the running note of exhibit P-8 and on exhibit P-28, P-29 & P-30, P-31 & P-32 before the learned trial court in his cross examination, and hence it is clear that the prosecution proved their case beyond doubt before the learned trial court. (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (17 of 55) [CRLAS-2324/2019] Learned Public Prosecutor further submitted that the accused persons regarding the cheque and cash payment took a defence that the witness number 14, 15 & 20 came to Alwar for purchasing a Dumper/Truck and they made payment against the said vehicle which was to be purchased by them, but in the defense evidence the accused appellants did not produce any documentary evidence regarding the purchase transaction of the Dumper/Truck or even the papers of the Dumper/Truck such as R.C., Insurance & other related ownership documents, thereby it is clear that the defense version of the accused appellant is not sustainable in the eyes of law. Learned Public Prosecutor also submitted that though the prosecution did not submit the certificate u/s 65B of the Evidence Act but the electronic evidence and transcript version of the same is admissible as secondary evidence and the learned trial court rightly observed that the issuing authority mentioned on the documents that it is electronically generated document, therefore, there is no requirement of signature.
Learned Public Prosecutor further submitted that the report submitted by the co-accused Manisha Khan alleging rape was submitted on 03.09.2012 but the S.H.O./CI Brijesh Kumar Meena did not register the aforesaid report (Exhibit P-9) as FIR and next the day booked PW-14, PW-15 & PW-20 u/s 151 of Cr.P.C., prior to which he and other (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (18 of 55) [CRLAS-2324/2019] accused persons received the alleged amount i.e. Rs. 1,03,000/- from the clerk of the complainant, Rs. 2,50,000/- from the brother of Shivnarayan and Rs. 3,05,000/- via a cheque, in account of one Sh. Tayyab and the accused appellants received Rs. 5,55,000/- during the said period and the accused appellants did not advance any clarification regarding the aforesaid amount in their statements u/s 313 of Cr.P.C. or in the cross examination of the prosecution witnesses, moreover the co-accused Manisha Khan admitted in her defense u/s 313 of Cr.P.C. that she went to the Police Station for lodging an FIR for the offence of rape against the accused persons, thereby it is clear that the learned trial court rightly considered the evidence of the prosecution and convicted the accused appellants.
Learned Public Prosecutor also submitted that the call details of the accused persons produced before the learned trial court as exhibit P-90 which is related to the period from 29.08.2012 to 05.09.2012, wherein it is clear that the accused Jakir called the co-accused Brijesh Kumar Meena at Sonu Hotel and the other accused persons were also in contact with each other and this fact is clear from exhibit P-90, thereby it is clear that the accused persons entered into a conspiracy against PW-14, PW-15 & PW-20 for getting undue advantage/benefit and the learned trial court after considering the all facts and circumstances convicted (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (19 of 55) [CRLAS-2324/2019] the accused appellants and passed the judgment dated 23.09.2019.
Learned Public Prosecutor further submitted that bare perusal of the exhibit P-30 the transcript version of the conversation of complainant Lalit Meena and Jakir and another conversation of Giriraj Prasad Meena with Jakir and Brijesh Kumar Meena, it is clear that the accused person made a conspiracy to grab the money from the friends of the complainant whowere PW-14, PW-15 & PW-20, therefore, the learned trial court rightly convicted the appellant.
Learned Public Prosecutor also submitted that although some witnesses have been declared hostile but they admitted the exhibits and their signature upon the exhibits. The trap team of ACB proved the case of prosecution and they made statement against the accused appellants and the witnesses of local police team i.e. PW-2, PW-10, PW-11 & PW-25 although declared hostile but they admitted their police statement recorded u/s 161 of Cr.P.C. i.e. exhibit P-1, P-19, P-20 & P-41 that they arrested three accused male persons along with one female accused, thereby the presence of Manisha Khan is proved at the time of incident and she wants to implicate the friends of complainant for their ulterior motive.
(Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (20 of 55) [CRLAS-2324/2019] Learned Public Prosecutor further submitted that PW-5 Tayyab, PW-6 Rajesh Kumar Meena, PW-8 Rakesh Vijay, PW-9 Surendra Nath, PW-12 Somdatt, PW-13 Brijpal, PW-17 Moolchand, PW-18 Nihal Chand, PW-21 Giriraj, PW-22 Ramveer Singh, PW-23 Tarachand, PW-24 Ramcharan Sharma, PW-26 Narendra Kumar, PW-27 Hariom, PW-28 Mukesh Kumar, PW-29 Narendra Kumar, PW-30 Basti Ram, PW-31 Ratan Singh, PW-32 Surendra Singh, PW-33 Rakesh Jain, PW-34 Satish Kumar, PW-35 Ramesh Chand, PW-36 Vishnaram Vishnoi, PW-37 Harinarayan, PW-38 Sher Singh, PW-39 Mool Singh and PW-40 Harishchandra Meena support the story of the prosecution and deposed their statement against the accused appellants, therefore, on the basis of same the learned trial court rightly convicted the accused appellants for the offence u/s 7, 13 (1) (d) read with 13 (2) of P.C. Act and u/s 220 of IPC and u/s 392 read with 120B of IPC and passed the sentence against the accused appellants.
12. Considered the submissions advanced by both the counsels appearing for the accused appellants, learned Public Prosecutor appearing for the State, gone through the impugned judgment as also the records of the case and other material made available to me.
13. So as to see whether the conviction of the accused appellants for the alleged offences is sustainable or not, the (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (21 of 55) [CRLAS-2324/2019] Court extensively examined the prosecution evidence. The basic written report (Ex.P8) was submitted by PW16 Lalit Kishore, wherein he has stated that his three friends who arrived from Guwahati, stayed at Alwar before proceeding to Jaipur on 05.09.2012. All the three persons were staying in Sonu Hotel, Tijara Road, Alwar and thereafter one of the accused Jakir Khan brought a girl and when they were taking tea and snacks, the appellant Brijesh Kumar Meena came at the hotel and brought all the three along-with the girl at police station and asked them to hand over the whole money which they have brought from Guwahati otherwise he will book them in the case of rape with the girl. He also stated that Jakir has also taken some cheques from him.
14. On the basis of the aforesaid written report (Ex.P8), further proceedings were undertaken by the ACB and thereafter the FIR was registered against the appellants.
15. So as to see the veracity of these allegations, the material witnesses are; Lalit Kishore (PW16), who has lodged the written report (Ex.P8) and his those three friends who have arrived from Guwahit whose names are; Shiv Narain Pathak (PW15), Jagdish Prasad Sharma (PW14) and Sarju Kumar Hansu (PW20).
16. The oral evidence of the aforesaid four material witnesses is as under:-
(Downloaded on 01/03/2025 at 12:34:45 AM)
[2025:RJ-JP:6205] (22 of 55) [CRLAS-2324/2019] A. Lalit Kishore was examined as PW16. He in his statement before the trial court has stated that Jakir- one of the appellant who is known to him had managed for the stay of three friends. He has further stated that conversation was going on in between them with regard to purchase of the dumper but it could not be materialized as he was at Delhi.
Accused Jakir was taking care of the three friends for their visit and stay. He received a call from Jakir that his three friends have been taken by the police along-with a girl. He was not made known about the reasons for taking those friends to the police and he lodged the written report (Ex.P8) with the ACB on the basis of the conversation with Jakir and Jai Singh. He has also stated that four cheques were lying with his Clerk- Rakesh and he had some conversation with Jakir as regards the cash amount. He has further stated that he along-with his father did not go to the police station with the ACB Personnels with the tape recorder but only his father went. He has further stated that whatever the conversation with he and Jakir, same was recorded in his phone, which is Ex.P30. He has further refused to recognize the appellant Brijesh who was present in the Court. It is pertinent to note that the said witness PW16 Lalit Kishore was not relied by the prosecution and on request of the Special Public Prosecutor he was declared hostile.(Downloaded on 01/03/2025 at 12:34:45 AM)
[2025:RJ-JP:6205] (23 of 55) [CRLAS-2324/2019] B. The other material witness is PW14 Jagdish Prasad Sharma. He has stated before the trial court that he along-
with his two friends Shiv Narain and Sarju came from Delhi to Alwar and they stayed at Hotel Natraj which was arranged by Lalit Kishore. He further stated that at the hotel. Lalit came to him along-with Jakir and Shamim and also said that they have come to Alwar for purchase of dumper. He has further stated that Jakir showed them dumpers and for that Sarju Kumar (PW20) handed over a cheque of Rs. 4 lakh to Jakir.
While handing over the cheque, Lalit Kishore was also present there. He has further stated that an amount of Rs.2.5 lakh was got transferred from the account of brother of Shiv Narain while they were staying at Alwar.
This witness has further stated that when they were taking cold drink at Hotel, the police came there and because of some scuffle with the police they were taken to the police station. He has also stated that other than three of them, none was taken to the police station by the police and and these three persons were booked under section 151 CrPC and thereafter released on bail. The prosecution did not rely upon the evidence of this witness and on the request of the Special Public Prosecutor he was declared hostile. During the cross-examination by the Special Public Prosecutor he has stated that the blank cheques given to Lalit Kishore were for purchase of dumper. He has also denied the allegation against (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (24 of 55) [CRLAS-2324/2019] the appellant Brijesh Kumar Meena that he asked them to settle the matter. The said witness did not recognize the accused appellant Brijesh Kumar and Manisha and admitted the fact that he was released on bail after being booked under section 151 CrPC. On cross-examination by the counsel for the accused appellant Brijesh Kumar Meena, the said witness has stated that the accused Brijesh Kumar neither threatened them nor demanded any money.
C. The another material witness PW15 Shiv Narain Pathak has stated that he along-with his two friends came from Guwahati to meet Lalit Kishore (PW16) and they stayed at Jhankar Hotel at Alwar, where Lalit introduced them one Jakir and Jakir said that he will arrange dumper. He has further stated that when they were at Sonu Hotel and were taking cold drinks, the police came there and thereafter all the three persons were taken by the police to the police station. He has further stated that after they being released on bail as they were booked under section 151 CrPC, they went to the ACB Office. The prosecution did not rely upon the evidence of the said witness and on request of the Special Public Prosecutor, he was declared hostile. On cross-
examination by the Special Public Prosecutor he has stated that it is wrong to say that the girl was also taken with them to the police station and was let free.(Downloaded on 01/03/2025 at 12:34:45 AM)
[2025:RJ-JP:6205] (25 of 55) [CRLAS-2324/2019] The said witness on cross-examination by the counsel for the accused appellant Brijesh Kumar Meena has stated that when he was staying at Delhi, Jakir and Lalit met him. He has also stated that the deal as regards purchase of the dumper was settled for Rs.10 lakh and when they were taking cold drink at hotel the police took them to the police station. The said witness has categorically stated that the accused appellant Brijesh, who is present in the Court, had no conversation with him and he did not demand any money.
D. The another material witness Sarju Kumar Hasnu (PW20) has also stated that he along-with his two friends Shiv Narain (PW15) and Jagdish Sharma (PW14) came to Alwar on a call from Lalit for purchase of second hand dumper. He also stated that he asked Lalit that the dumper should not be involved in any crime and should be in a good condition. He further stated that he gave blank cheques to Lalit and at that time accused Jakir was also present. The said witness has further stated that when they were taking tea at 'Dhaba' the police vehicle came there and they were taken to the police station in the vehicle and they were kept at the police station for whole of the night and in the morning they were released on bail by the ADM.
This witness has categorically stated that the Police Inspector has not demanded any money from him and he has (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (26 of 55) [CRLAS-2324/2019] not even seen the face of the Police Inspector. The prosecution has not relied upon the testimony of said witness and on the request of the Special Public Prosecutor, this witness has also been declared hostile. The said witness on cross-examination by the learned Special Public Prosecutor has stated that Jakir brought some girl Manisha. On cross- examination by the counsel for the accused, the said witness has stated that he has given the cheques for purchase of dumper. He further stated that at the police station the Inspector neither demanded any money nor threatened them and he has not even seen the face of the Inspector and it is wrong to say that the Inspector has threatened them to book in a rape case.
17. As regards the allegations of demand and acceptance of bribe, PW16 Lalit Kishore, PW14 Jagdish Prasad Sharma, PW15 Shiv Narain Pathak and PW20 Sarju Kumar Hasnu are the material witnesses. The demand and acceptance of the bribe by both the accused appellants namely; Brijesh Kumar Meena and Jakir could not be and has not been proved.
18. The accused appellants have been convicted for the offences under sections 7 and 13(2) read with section 13(1)
(d) of the Act of 1988. The relevant provisions as stand on (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (27 of 55) [CRLAS-2324/2019] the date of alleged incident i.e. on 09.04.2009 are quoted as under:-
"7. Public servant taking gratification other than legal remuneration in respect of an official act."
It says --Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine.
Explanations- (a) "Expecting to be a public servant"- If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) "Gratification"- The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal remuneration"- The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) "A motive or reward for doing"- A person who receives a gratification as a motive or reward for (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (28 of 55) [CRLAS-2324/2019] doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section."
13. Criminal misconduct by a public servant. - (1) A public servant is said to commit the offence of criminal misconduct-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person. whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (29 of 55) [CRLAS-2324/2019]
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation- For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."
19. The another evidence which has been relied upon by the trial court while convicting the accused appellants for the alleged offences under the Prevention of Corruption Act is the transcript of conversation between the complainant and the accused appellant Jakir and Brijesh Meena. As regards the transcript of conversation it has been admitted by the learned Public Prosecutor that there is no certificate as (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (30 of 55) [CRLAS-2324/2019] required under section 65B of the Indian Evidence Act. Section 65B of the Indian Evidence Act reads as under:-
"65B. Admissibility of electronic records.- (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:--
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (31 of 55) [CRLAS-2324/2019]
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether--
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,--
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (32 of 55) [CRLAS-2324/2019] this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; --
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation.-- For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process."
20. The Hon'ble Supreme Court in the case of Ravinder Singh v. State of Punjab, (2022) 7 SCC 581 has observed in paras 21 and 22 as under:-
"21. Lastly, this appeal also raised an important substantive question of law that whether the call records produced by the prosecution would be admissible under Sections 65-A and 65-B of the Evidence Act, given the fact that the requirement of certification of electronic evidence has not been complied with as contemplated under the Act. The uncertainty of whether Anvar P.V. v. P.K. Basheer [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (Downloaded on 01/03/2025 at 12:34:45 AM)
[2025:RJ-JP:6205] (33 of 55) [CRLAS-2324/2019] (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 :
(2015) 1 SCC (L&S) 108] occupies the filed in this area of law or whether Shafhi Mohammad v. State of H.P.[Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 : (2018) 2 SCC 807 : (2018) 2 SCC (Civ) 346 : (2018) 2 SCC (Civ) 351 : (2018) 1 SCC (Cri) 860 : (2018) 1 SCC (Cri) 865] lays down the correct law in this regard has now been conclusively settled by this Court by a judgment dated 14-7-2020 in Arjun Panditrao Khotkar v.
Kailash Kushanrao Gorantyal [Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 : (2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587] wherein the Court has held that : (Arjun Panditrao Khotkar [Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 : (2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587] , SCC pp. 56 & 62, paras 61 & 73) "61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , and incorrectly "clarified" in Shafhi Mohammad [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 : (2018) 2 SCC 807 : (2018) 2 SCC (Civ) 346 : (2018) 2 SCC (Civ) 351 :
(2018) 1 SCC (Cri) 860 : (2018) 1 SCC (Cri) 865]. Oral evidence in the place of such certificate cannot possibly suffice as Section 65-
B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor [Taylor v. Taylor, (1875) LR 1 Ch D 426] , which has been followed in a number of the judgments of this Court, can also be applied. Section 65- B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65-B(4) otiose.
(Downloaded on 01/03/2025 at 12:34:45 AM)
[2025:RJ-JP:6205] (34 of 55) [CRLAS-2324/2019]
* * *
73.1. Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 :
(2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , as clarified by us hereinabove, is the law declared by this Court on Section 65-B of the Evidence Act. The judgment in Tomaso Bruno [Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 : (2015) 3 SCC (Cri) 54] , being per incuriam, does not lay down the law correctly.
Also, the judgment in Shafhi Mohammad [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 :
(2018) 2 SCC 807 : (2018) 2 SCC (Civ) 346 :
(2018) 2 SCC (Civ) 351 : (2018) 1 SCC (Cri) 860 : (2018) 1 SCC (Cri) 865] and the judgment dated 3-4-2018 reported as Shafhi Mohammad v. State of H.P. [Shafhi Mohammad v. State of H.P., (2018) 5 SCC 311 : (2018) 2 SCC (Cri) 704] , do not lay down the law correctly and are therefore overruled.
73.2. The clarification referred to above is that the required certificate under Section 65-B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4)."
(emphasis supplied)
22. In light of the above, the electronic evidence produced before the High Court should have been in accordance with the statute and should have (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (35 of 55) [CRLAS-2324/2019] complied with the certification requirement, for it to be admissible in the court of law. As rightly stated above, oral evidence in the place of such certificate, as is the case in the present matter, cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law."
21. The Hon'ble Apex Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors., reported as (2020) 7 SCC 1, has observed in para 61 as under:-
"61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 :
(2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , and incorrectly "clarified"
in Shafhi Mohammad [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 : (2018) 2 SCC 807 : (2018) 2 SCC (Civ) 346 : (2018) 2 SCC (Civ) 351 : (2018) 1 SCC (Cri) 860 : (2018) 1 SCC (Cri) 865] . Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor [Taylor v. Taylor, (1875) LR 1 Ch D 426] , which has been followed in a number of the judgments of this Court, can also be applied. Section 65-B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65-B(4) otiose." (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (36 of 55) [CRLAS-2324/2019] In view of above facts and law, the transcript can not be made the basis of conviction of the accused appellants.
22. Even on the scrutiny of the transcript also there is no iota of evidence or conversation as regards any demand made by the accused appellants namely; Jakir and Brijesh Kumar Meena. The allegation is that the appellants have taken the cheques from the complainant party but there is nothing on record to support the allegations.
23. From the scrutiny of the aforesaid evidence and discussion, the Court finds that the prosecution has failed to establish the demand or acceptance of bribe by the accused appellants. The peculiar facts of the case are that it is alleged that the appellants have extorted the money by way of cheques and thereafter on complaint the verification is said to have been made.
24. PW21 Giriraj Prasad, the father of the complainant, who is said to have recorded the conversation in between the accused appellant Brijesh Kumar Meena and himself has failed to identify the accused appellant Brijesh Meena in the Court. He has also stated that the name of the accused appellant Brijesh is not there in the transcript and when the transcript was prepared, he did not object to it. (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (37 of 55) [CRLAS-2324/2019]
25. Now PW33 Rakesh Jain, who is the Clerk of complainant Lalit, during his examination before the trial court has stated that the persons namely; Jagdish (PW14), Hansu (PW20) and Pathak (PW15) came from Assam to Alwar at the call of Lalit. Jagdish gave him four cheques of Rs.1,03,000/- saying that he will take the said cheques after some time and he returned to the home. When he reached to Sonu Hotel then again he was informed that the police had already taken all the three persons to the police station. He further stated that on saying of Lalit he has given Rs.1,03,000/- to Jakir. He has further stated that that Jakir has taken the money and cheques but did not state that he will not get these three persons released.
26. The another prosecution witness is Baneh Singh, who has been examined by the prosecution as PW2, who is as Police Constable and at the relevant time he was posted at the Police Station Sadar. This witness has stated that during night patrolling they found that three persons were quarreling with each other and thus they took them to the police station. He has also stated that no girl was seen there. He has further stated that no-one harassed these three persons who were booked and no-one demanded any money from them.
27. Another witness namely; Iqbal has been examined as PW3. This witness did not support the prosecution story (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (38 of 55) [CRLAS-2324/2019] and turned hostile. The said witness is landlord of a house where Manisha was residing.
28. PW4 Sher Mohd. Taiyyab has also not supported the prosecution story and turned hostile. He was the witness in whose account the money was deposited. He has further stated that the said money was deposited in his account as regards the sale consideration of a Santro Car.
29. PW5 Taiyyab who is also one of the witness as regards the deal of purchase of vehicle has stated nothing about the accused appellant Brijesh Kumar Meena.
30. PW6 Rajesh Kumar Meena is the witness of search of the Office of the SHO i.e. accused appellant Brijesh Kumar Meena.
As per seizure memo (Ex.P11) the alleged complaint made by Manisha was found in the drawer of the table of the SHO, however, this witness before the trial court states that the said complaint was lying on the table. Meaning-thereby, anyone could have put the complaint on the table. So it cannot be said that the said complaint was seized from the conscious possession of the accused appellant Brijesh Kumar Meena or from his belongings.
31. PW7 Brijlal Meena, is also a witness of the seizure memo of search of the Office of the accused appellant Brijesh Kumar Meena. As regards the arrest of the accused appellant (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (39 of 55) [CRLAS-2324/2019] Brijesh Kumar Meena is concerned, he has been declared hostile. He has further stated that no recovery of any complaint was made from the accused appellant Brijesh Kumar Meena but stated that the same was lying on the table.
32. PW10 Nemi Chand is a Constable in the police and was posted at Police Station Sadar where the accused appellant Brijesh Kumar Meena was the SHO. He has stated that when they were reached at the 'Dhaba' at Shalimar, three persons were found there and because they had scuffle with the police, they were taken to the police station and were booked under section 151 CrPC.
On the request of the Special Public Prosecutor, the said witness has also been declared hostile who is a Police Constable.
33. PW11 Surendra Kumar who is also a Police Constable, was also present when the three persons were taken to the police station and booked under section 151 CrPC. The said police constable has also been declared hostile on the request of the Special Public Prosecutor.
34. PW39 Mool Singh Rana is also a material witness. He has stated that he did not submit any application in the Court to seek the voice sample of Brijesh Meena recorded during investigation. He has also stated that Ex.P83, which is (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (40 of 55) [CRLAS-2324/2019] a carbon copy of the Rojnamcha, has not been certified by him. This witness has categorically stated that no certificate as required under section 65B of the Indian Evidence Act has been enclosed with the call details.
35. PW40 Harish Chand Meena, the then Director General of Police, Rajasthan, in his examination has specifically stated that there is no evidence on record as regards the prior meeting of mind of accused appellant Brijesh Kumar Meena with other co-accused. He after going through the record of the case file of the Court, has stated that there is no such evidence on record. He also does not recollect that whether the transcript was brought before him by the Investigating Officer, though the transcripts are regularly brought before him.
36. PW19 Tej Prakash has stated that 3-4 persons who were sitting at hotel and discussing about the deal to purchase dumper got entangled with each other and thereafter the police came there. The said witness was declared hostile on the request of the Special Public Prosecutor.
37. PW25 Kashiram, who is also a Constable has stated that three persons were booked under sections 107 and 151 CrPC.
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38. PW26 Narendra Kumar, during his examination before the trial court has stated that he has not signed any memo at the house of Jakir till his statement was recorded. He has also stated that whatever was seized from the house of Jakir, was not shown to him.
39. PW27 Hariom Singh, who was posted as a Constable has stated that when the Addl. S.P. departed from Chowki, he did not get himself searched and therefore, he cannot say that what were the documents available with him. He has further stated that whatever was recovered from the house and the Swift Car of Jakir, that was not sealed.
40. PW28 Mukesh Kumar Yadav who is a Clerk and posted at ACB has stated that before entering into the police station, no search of them was made and they directly went to the office of the SHO. He has further stated that he does not know whether the SHO was present at the time of search and seizure.
41. PW31 Ratan Singh, who was posted as a Constable in the ACB Office has stated that Girraj Prasad Meena, after having meeting with the accused came back and stated to him that he had conversation with the accused and the said conversation was recorded in the tape recorder. He has further stated that the aforesaid statement has been given as what has been stated to the complainant. He does not know (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (42 of 55) [CRLAS-2324/2019] that what was the conversation in between the accused and Girraj Prasad Meena.
42. PW32 Surendra Singh who is also a Police Personnel and present during search has stated that because they were not having any search warrant, so no memo was prepared. There are no separate signatures of Manisha on the complaint (Ex.P9). It is further stated that as regards the complaint (Ex.P9), they had not made any investigation from Manisha. It was also stated by him that the persons who were booked under section 151 CrPC did not make any complaint. In his cross-examination, he has also stated that the drawer from which the alleged document (complaint Ex.P9) is said to have been recovered, was not locked. There is no date mentioned on the said complaint and he has also not mentioned the date below his signatures on the said document (complaint Ex.P9).
43. PW36 Vishnaram Vishnoi stated that he has not recorded the statement of Lalit because he (Lalit) has not submitted any report before him. He has further stated that he has not made any investigation as regards the facts stated in the FIR but has only proceeded with the allegation of demand of bribe. He has further stated that he has not recovered any recording from Lalit wherein there is any demand made by SHO Brijesh Kumar Meena. There was a private recording which was not taken on record and he has (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (43 of 55) [CRLAS-2324/2019] also not heard that. The said witness has further stated that he has not heard the voice recording. Therefore, he cannot say that whether there was any demand. He has further categorically stated that in the transcript there is nothing as regards demand by Jakir, Brijesh or Shammim.
The said material witness during cross-examination by the counsel for the accused appellant- Brijesh Kumar Meena has further stated that Lalit was not present at the time of verification of the demand and the tape of conversation was not sealed pack. He further stated that there is no name of Brijesh Meena in the transcript. He has categorically stated that he has not given any certificate as required under section 65B of the Indian Evidence Act in relation to the transcript (Ex.P30).
44. From the aforesaid discussion of the prosecution evidence, the Court finds that there is no sufficient evidence to hold that the allegations against the accused appellants are proved.
45. The trial court while convicting the accused appellants has basically relied upon an alleged complaint said to have been submitted by Manisha as regards the allegations of rape against three persons and the SHO did not register the case and thereafter a compromise application was found from the possession of accused appellant Jakir and so also (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (44 of 55) [CRLAS-2324/2019] the transcript of the voice recording alleged to be in between the complainant and his father on the one side and accused appellant Jakir and Brijesh Kumar Meena on the other side and also on the CDR.
46. As far as the transcript is concerned, firstly; the said transcript is not supported by the certificate as required under section 65B of the Indian Evidence Act and secondly; on going through the transcript also, the Court finds nothing substantial as regards the demand alleged to have been made by the appellants. As regards the complaint made by Manisha, the recovery of the same could not be proved by the prosecution evidence that the same was in the well knowledge of the accused appellant Brijesh Kumar Meena because as per the prosecution evidence the said complaint was found to be lying on the table where anyone can place it.
47. The conviction of the accused appellants is based on the transcript, is not sustainable for the reason that the said transcript is not supported by the certificate as required under section 65B of the Indian Evidence Act. Merely saying that the said transcript is system generated report and need no signatures and the call details are admissible in evidence, is not sufficient in view of the law laid down by the Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar v. (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (45 of 55) [CRLAS-2324/2019] Kailash Kushanrao Gorantyal & Ors., reported as (2020) 7 SCC 1 and Ravinder Singh @ Kaku (supra).
48. The learned trial court while convicting the accused appellants has already relied upon the entry made in the diary (Ex.P53) recovered from the possession of the accused appellant Jakir. Merely mentioning that Rs.10,000/- were given to the Police of Shivaji Park Police Station, cannot be said to be the basis for holding collusion of the accused appellant Brijesh Kumar Meena who was posted as SHO at Police Station Sadar and not at Shivaji Park Police Station. The entry which has been relied upon is with regard to Police Station Shivaji Park and not Police Station Sadar where the accused appellant Brijesh Kumar Meena was posted.
49. The learned trial court at page 38 has stated that the transcript of the conversation clearly speaks of conspiracy in between Jakir, Manisha and Brijesh. PW40 Harish Chand Meena, who at the relevant time was posted as Director General of Police, Rajasthan, has categorically stated that there is no evidence on record that accused Brijesh Meena prior to the alleged incident was having prior meeting of mind with other co-accused. He after going through the case file of the Court stated that there is no evidence with regard to the conspiracy. Even after going through the complete evidence, the Court finds that there is no evidence of conspiracy in (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (46 of 55) [CRLAS-2324/2019] between the accused prior to the alleged incident. Hence, the finding of the learned trial court is perverse and contrary to the record. The transcript also does not disclose any conspiracy between the accused.
50. The learned trial court while convicting the accused appellants observed that if Jakir and Shamim were having any truck for sale to the complainant party they would have submitted the relevant documents i.e. the registration certificate or agreement to sale or any other relevant documents but nothing was placed before the Court. The finding of the trial court is based on conjectures and surmises without there being any cogent evidence. There was a plea by the accused appellants that all the three persons who were booked under section 151 CrPC had admitted their guilt before the SDM and they did not make any complaint before the SDM and therefore, it cannot be said that the accused have misused their powers under conspiracy. The trial court has observed that the said plea is only as a defence but the said proceeding is not a part of the conspiracy of the accused. The said finding of the trial court that the proceedings under section 151 CrPC and the release of the persons on bail is a part of conspiracy of the accused, is baseless and without any evidence.
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51. In view of the discussion made above, the conviction of the accused appellants for the offences under section 7 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act is not sustainable as there is no sufficient evidence available on record so as to prove the allegations against them beyond reasonable doubt.
52. The accused appellant Brijesh Kumar Meena has been convicted for the offence under section 220 IPC and the accused appellant Jakir has been convicted for the aforesaid section with the aid of section 120B IPC. Section 220 deals with 'commitment for trial or confinement by person having authority who knows that he is acting contrary to law'. There is ample evidence on record including the evidence of the Police Constables as regards the fact that during patrolling the police went at the place where three persons who were entangled with each other had scuffled with the police and to maintain the law and order situation they were taken to the police station and booked under section 151 CrPC. The said persons were produced before the Court where they admitted their guilt and were released on bail bonds and sureties with the condition to maintain the peace. There is no evidence on record that accused appellant Brijesh Kumar Meena was not having any authority to book these three persoins when they persons were creating nuisance. The material prosecution witnesses namely; PW2 Baneh Singh, PW10 Nemi Chand and (Downloaded on 01/03/2025 at 12:34:45 AM) [2025:RJ-JP:6205] (48 of 55) [CRLAS-2324/2019] PW11 Surendra Kumar have not supported the prosecution story. They have categorically stated that these persons were taken to the police station when they started scuffling with the police. There is no evidence on record as regards the conspiracy amongst the accused appellants.
53. In view of the above referred prosecution evidence, the conviction of the accused appellant Brijesh Kumar Meena for the offence under section 220 IPC and accused appellant Jakir for the aforesaid offence with the aid of section 120B IPC is not sustainable.
54. Accused appellants Brijesh Kumar Meena and Jakir have also been convicted under section 392 read with section 120B IPC. Section 392 IPC deals with punishment of 'robbery' and the robbery has been defined under section 390 IPC which says that in robbery there is either theft or extortion.
55. On scrutiny of the prosecution evidence, the Court finds that there is no evidence of either theft or extortion against both the accused appellants. There is no evidence available on record that both the accused appellants have taken any money from the complainant party. The trial court has observed and given a finding that accused appellant Brijesh Kumar Meena put three friends in the lock up and extorted money, which is evident from the evidence. The trial court has failed to point out any evidence as regards the theft (Downloaded on 01/03/2025 at 12:34:46 AM) [2025:RJ-JP:6205] (49 of 55) [CRLAS-2324/2019] or extortion for which the accused appellants Brijesh Kumar Meena and Jakir can be convicted for the offence under section 392 read with section 120B IPC. Thus, the conviction of both the accused appellants for the aforesaid offence is illegal, perverse and not sustainable.
56. On extensive scrutiny of the evidence, the Court feels that the evidence does not indicate the case in a particular line. However, the Court finds that there are various possibilities or probabilities as borne out from the evidence. On scrutiny of the evidence, one possible view can be that three friends who came to Alwar on a call of the complainant Lalit Kishore for their enjoyment, called one lady Manisha (accused since died) through accused appellant - Jakir and may be because of some dispute arose between them, which led to call of the police and those three friends were taken to the police station and booked under section 151 CrPC, who after their release settled the issue with the lady without there being any involvement of the police persons. The another possibility or probability could be that these three friends who came on call of the complainant Lalit Kishore for purchase of the dumper after making some payment, there arose some dispute as regards the deal and they had some hot talks in between them which on being informed to the police, they were taken to the police station and booked under section 151 CrPC, who later-on released on (Downloaded on 01/03/2025 at 12:34:46 AM) [2025:RJ-JP:6205] (50 of 55) [CRLAS-2324/2019] bail by the Competent Magistrate, where they had not raised any issue as regards their detention. The possibility of the case of the prosecution as alleged is bleak as the prosecution story has not been supported by the material prosecution witnesses.
57. The Hon'ble Apex Court in the case of K.P. Thimmappa Gowda vs. State of Karnataka, reported in (2011) 14 SCC 475 has also acquitted the accused therein observing that in criminal cases, the rule is that the accused is entitled to the benefit of doubt. If the court is of the opinion that on evidence two views are reasonably possible, one that the appellant is guilty, and the other that he is innocent, then the benefit of doubt goes in favour of the accused.
58. The Hon'ble Apex Court in Kalinga @ Kushal Vs. State of Karnataka By Police Inspector Hubli, (Criminal Appeal No.622 of 2013), decided on 20.02.2024, reported as 2024 INSC 124 has observed in para 26 as under:-
"At the cost of repetition, it is reiterated that the anomaly of having two reasonably possible views in a matter is to be resolved in favour of the accused."
59. The Hon'ble Apex Court in Pradeep Kumar vs. State of Chhattisgarh (Criminal Appeal No.1304 of (Downloaded on 01/03/2025 at 12:34:46 AM) [2025:RJ-JP:6205] (51 of 55) [CRLAS-2324/2019] 2018) decided on 16.03.2023 in para 24 and 25 has observed as under:-
"24. It is important to note that the cardinal principles in the administration of criminal justice in cases where heavy reliance is placed on circumstantial evidence, is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to the accused must be adopted. [Kali Ram v. State of H.P. (1973) 2 SCC 808].
25. In the present case, we state that the circumstances present before us, taken together, do not establish conclusively only one hypothesis, that being the guilt of the accused, Pradeep Kumar. The presumption of innocence remains in favour of the accused unless his guilt is proven beyond all reasonable doubts against him. [Babu v. State Kerala, (2010) 9 SCC 189]. The cherished principles or golden threads of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly which was done by the Courts below."(Downloaded on 01/03/2025 at 12:34:46 AM)
[2025:RJ-JP:6205] (52 of 55) [CRLAS-2324/2019]
60. The Hon'ble Apex Court in the case of Devi Lal Vs. State of Rajasthan & one other connected matter (Criminal Appeal No(s). 148 of 2010 decided on 08.01.2019, reported as 2019 INSC 29 has observed in para 17 as under:-
"17. That apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him. All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same."
61. The Hon'ble Apex Court in the case of Jitendra Kumar Mishra @ Jittu vs. The State of Madhya Pradesh & one other connected matter (Criminal Appeal No.1348 of 2011) decided on 5.1.2024, reported as 2024 INSC 20 has observed in para 17 as under:-
"17. We are conscious of the fact that the appellate court should be slow in interfering with the conviction recorded by the courts below but where the evidence on record indicates the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and that a plausible view, different from the one expressed by the courts below can be taken, the appellate (Downloaded on 01/03/2025 at 12:34:46 AM) [2025:RJ-JP:6205] (53 of 55) [CRLAS-2324/2019] court should not shy away in giving the benefit of doubt to the accused persons."
62. In view of the discussion made above, the Court finds that (i) the prosecution story has not been supported by the material witnesses; (ii) many of the material witnesses including the complainant and those three persons who were booked under section 151 CrPC and for whose release there is an allegation of taking money, have also turned hostile; (iii) the Police Constables were also part of the team who took those three friends to the police station and booked under section 151 CrPC, have also not supported the allegations against the accused appellants; (iv) there are lis probabilities of the stand of the prosecution; (v) there is no evidence as regards the theft or extortion so that the accused appellants could be held liable for the offence under section 392 read with section 120B IPC, as per statement of PW40 Harish Chand Meena, who was posted as Director General of Police, Rajasthan, at the relevant time, has specifically stated that there is no evidence on record of the case file as regards the conspiracy and prior to meeting of mind so that the accused can be held liable for conspiracy and also (vi) the three friends were booked under section 151 CrPC, who were released on bail by the Competent Magistrate and they never agitated at any point of time that they have been illegally booked and the accused appellant Brijesh Kumar Meena has (Downloaded on 01/03/2025 at 12:34:46 AM) [2025:RJ-JP:6205] (54 of 55) [CRLAS-2324/2019] misused the authority and in such circumstances there is nothing on record to convict the accused appellant Brijesh Kumar Meena for the offence under section 220 IPC and accused appellant Jakir for the said offence with the aid of section 120B IPC.
63. Learned Public Prosecutor has also made one submission that a criminal case has also been lodged against the brother of accused appellant Brijesh Kumar Meena as regards influencing the witnesses by offering some amount.
64. It has also come on record that the criminal case regarding the said allegations has not yet been finalized. The relevant witnesses as regards whom it is alleged that the brother of the accused appellant Brijesh Kumar Meena made some offer, has not come with this case during their examination before the trial court. None of the said witnesses have deposed before the trial court that the brother of the accused appellant- Brijesh Kumar Meena ever tried to influence them. When there is no any finding in this regard, the only submission cannot be made the basis for hostile of the witnesses.
65. Hence, in view of the discussion made above, both the criminal appeals filed by the accused appellants deserve to be allowed and are accordingly allowed and the impugned judgment of conviction and sentence dated 23.09.2019 passed by the Court of learned Sessions Judge, Special Court, (Downloaded on 01/03/2025 at 12:34:46 AM) [2025:RJ-JP:6205] (55 of 55) [CRLAS-2324/2019] Prevention of Corruption Cases, Alwar in Criminal Regular Case No.34/2015, State Vs. Brijesh Kumar Meena & Anr., is set aside and the accused appellants are acquitted of the charges levelled against them.
66. The accused appellants are on bail, they need not to surrender. Their bail bonds and surety bonds are accordingly discharged.
67. Keeping in view, however, the provisions of Section 437-A of the Code of Criminal Procedure, 1973, the accused appellants are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each and a surety bond in the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellants, on receipt of notice therefore, shall appear before the Supreme Court.
68. The Registry is directed to place a copy of this Judgment in the connected case file.
69. The record of the case be sent back to the learned trial court forthwith.
(GANESH RAM MEENA),J Sharma NK/Dy. Registrar (Downloaded on 01/03/2025 at 12:34:46 AM) Powered by TCPDF (www.tcpdf.org)