Jammu & Kashmir High Court - Srinagar Bench
Ghulam Mohammad Kumar vs State Through P/S Vok Srinagar on 8 September, 2022
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CrlA(S) No. 4/2020
Reserved on:- 04.08.2022
Pronounced on:- 08.09.2022
Ghulam Mohammad Kumar
...Appellant(s)
Through: Mr. M.S.Latief, Sr. Advocate with
Mr. Zahid Ahmad, Advocate.
Vs.
State through P/S VOK Srinagar
...Respondent(s)
Through: Ms. Asifa Padroo, AAG.
CORAM:
HON'BLE MR. JUSTICE MD. AKRAM CHOWDHARY, JUDGE
JUDGMENT
1. By the medium of this Criminal Appeal, the judgment and order dated 27.02.2020 (hereinafter referred to as 'impugned judgment') passed in the case titled State through SHO Police Station VOK Vs. Gh. Mohammad Kumar by learned 1st Additional Sessions Judge Baramulla (Special Judge Anticorruption Baramulla / Bandipora / Kupwara) (hereinafter referred to as 'trial court'), has been challenged.
2. Vide impugned judgment, the appellant herein has been convicted for the commission of offences punishable under Sections 5(1)(d) read with 5(2) of J&K Prevention of Corruption Act and Section 161 RPC and was sentenced to undergo simple imprisonment for two years and fine of ₹10,000/- under each offence and in default for payment of fine the appellant-accused was to undergo further Page |2 simple imprisonment of two months under each offence. Both the punishments/sentences were directed to run concurrently.
3. It is being argued by the appellant herein that one Khursheed Ahmad Lone had made a complaint against him for demanding bribe of ₹2500/- from him for making necessary entries in the revenue record, while being posted as Patwari Bomai Sopore, which complaint culminated into registration of FIR No.39/2006 P/S VOK. That after completion of the investigation by the respondent-VOK, charge sheet came to be presented before the competent court of law; and after facing trial for long 13 years, the appellant has been convicted by the trial court and has been sentenced to undergo simple imprisonment for two years and fine of ₹10,000/- for the commission of each of the offences punishable under Sections 5(1)(d) read with 5(2) of J&K Prevention of Corruption Act and Section 161 RPC.
4. The impugned judgment and sentence has been challenged, inter alia on the following grounds:-
a) That the Trial Court has passed the impugned judgment and sentence in a mechanical, slip shod manner without appreciating the evidence adduced by the prosecution which is full of cracks/dents and further doubtful in law.
b) That the prosecution has failed to adhere to the procedure and norms required for a trap case of the like nature particularly when the prosecution has failed to adhere to pre-trap and post-trap procedure.
c) That the prosecution has miserably failed to establish the ingredients of the offences charged thereby rendering the Page |3 conviction of the appellant as unsustainable in law, as such, the impugned judgment and sentence is bad in law, coupled with the fact when the Trial Court has failed in appreciating the material on record in its right perspective.
d) That the complainant PW-1 Khursheed Ahmad Lone who has set the criminal law in motion had personal animosity with the appellant which is substantiated and corroborated by one Altaf Hussain Lone PW-6 brother of the complainant and in whose name the agreement to sell is, which was sought to be mutated by the complainant through the appellant and PW-6 has turned hostile during trial.
e) That the Trial Court while appreciating the evidence of the independent witness PW-2 (witness to the seizure) has cast doubt in the prosecution story when the witness has deposed his ignorance in identifying the seized shirt belonging to the appellant as also the bottle containing the solution has not been identified by the independent witness, has totally destroyed the prosecution case.
f) That the Trial Court has ignored the golden principle to give benefit of doubt to the accused when doubt always favours the accused. Even if two views are possible, the view which favours the accused has to be given credence. In the instant case the prosecution story being full of doubt same deserves to be rejected at the Page |4 threshold which renders the impugned judgment and sentence to be set aside and quashed.
g) That the trial court has failed to appreciate the evidence of PW-3 Mohammad Shafi Dar who deposed that the independent witness Mushtaq Ahmad Hakim has never accompanied to the Patwar Khana, who further negated the seizure of the shirt of the appellant thereby further strengthening the appellant's case for his acquittal and setting aside of the impugned judgment and sentence.
h) That the trial court also did not appreciate that in a trap case the evidence of the prosecution witnesses who are interested witnesses have to be scanned with due diligence and a higher degree of corroboration is required in such cases.
i) That the trial court ought not to have accepted the evidence of PW-3, PW-5, PW-7 and PW-9, who were part of trap led by the prosecution and who lent themselves to be the tools in the hands of the prosecution who are nothing but partisan witnesses and the law of evidence demands corroboration by reliable witnesses to base the conviction of the accused.
j) That the prosecution has failed to prove the seizure of the gratification amount as the seal used on the case property was neither produced nor was identified by any of the prosecution witnesses, which renders the judgment and sentence impugned to be set aside and quashed.
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k) That the impugned judgment is liable to be set aside and quashed on the sole ground which the trial court has lost sight of i.e., absence of offer to have a personal body search of the searching/raiding party by the appellant, casts doubt on the possibility of in planting the alleged money only to bring home guilt of the appellant.
l) That none of the seizure memos contains the signatures of the appellant which could have led the trial court to reach a conclusion, as there exists discrepancy of grave nature which could have not been ignored by the trial court.
m) That the trial court has also failed to appreciate that the GC Notes and the shirt were not sent to FSL for chemical examination coupled with the fact that when the seizure of the shirt being undoubted, as such, renders the impugned judgment and sentence bad in law.
5. Heard learned counsel for both sides, perused the record and considered.
6. Mr. Latief, Learned Senior counsel for the appellant, reiterating the grounds of challenge in the memorandum of appeal, vehemently argued that the trial court has misdirected itself while appreciating the evidence, to record conviction of the appellant based on the shaky and weak prosecution evidence, ignoring the basic principles of criminal jurisprudence. While arguing the case learned senior counsel laid emphasis on two grounds; one that despite the prosecution having failed to establish demand of illegal gratification by the appellant-accused from the complainant during Page |6 trap proceedings, the learned trial court has on the basis of surmises and conjectures, proceeded to observe that the same stands proved; other ground is that the evidence on record as regards the recovery of tainted money from the possession of appellant-accused is contradictory and full of suspicion, which fact has been ignored by the trial court while passing the impugned judgment. Learned senior counsel vehemently argued that the trap in the present case was nothing but a concoction as the appellant had never expressed any desire or made demand for illegal gratification nor he received the same from the complainant. He further argued that the prosecution evidence is tainted with partisan and mala fides, which does not find corroboration from any independent evidence. He has referred to and relied upon the following judgments :-
i) Ram Kishore Sharma Vs. State of U.P Crl. Appeal No.2997/1984 ii) Kashmir Singh Vs. State of Punjab Cr. Appeal No. 674-SB/1983 iii) That State of Maharashtra Vs. Kindlik Sugandhrao Aravade Cr. Appeal No. 670/2003 iv) Darshan Lal Vs. Delhi Administration Cr. Appeal No. 112/1970 v) Brij Mohan Vs. State of Punjab Cr. Appeal No. 629-SB/1983 vi) Nirmal Singh Vs. The State of Punjab Cr. Appeal No. 626/1982 vii) Raghbir Singh Vs. State of Punjab Cr. Appeal No. 142/1971 viii) Lachman Dass Vs. State of Punjab Cr. Appeal No. 118/1968 ix) Ram Prakash Arora Vs. The State of Punjab Cr. Appeal No. 164/1969
7. Ms. Padroo, learned AAG, appearing for the respondent- State, ex-adverso, argued that the grounds of challenge taken by the Page |7 appellant-accused are not legally tenable being against the facts as well as law. The impugned judgment and sentence passed by the trail court fulfils all the legal parameters required for consideration and appreciation of evidence on record, as such, the same is well reasoned and legally sustainable. She sought dismissal of the appeal having no merits and substance in it, and prayed that the impugned judgment be upheld.
8. Brief facts of the instant case are:
(a) that on 10.10.2006 a written complaint was lodged by the complainant Khursheed Ahmad S/O Gh.Ahmad Lone R/O Ponipora Sagipora before VOK alleging therein that he had purchased 14 marlas of land at Ponipora Sagipora and obtained agreement to sell in this regard; that he approached the appellant-convict Gh.
Mohammad Kumar for making necessary entries in the revenue record, who demanded ₹5000/- as bribe; that an amount of ₹2500/- as bribe was settled to be paid on 10.10.2006.
(b) On registration of the instant case on 10.10.2006 the investigation of the case was taken up. A trap team was constituted. The currency notes produced by the complainant were noted in presence of one Mushtaq Ahmad Hakeem, Sr. Assistant in the office of Director Health Services Kashmir, who was associated in the proceedings as independent witness. Fardi waqa was prepared on spot in presence of witnesses. Before proceeding on spot, a demonstration was conducted to Page |8 show the effect of phenolphthalein powder dusted on the currency notes. The demonstration memo was prepared on spot in presence of independent and other witnesses.
(c) After completing the pre-trap proceedings, the trap team accompanied by the complainant and the independent witness proceeded to the spot i.e. Bomai Patwar Khana. The complainant and shadow witness Constable Mushtaq Ahmad No. 111/SVO entered the office of Patwari Halqa Sagipora and contacted Shri Gh.
Mohammad Kumar appellant-accused in his office. The accused on seeing the complainant came out of the office and the complainant handed over the agreement to sell (Iqrar Nama) to the appellant-accused outside the office. The accused after going through the agreement to sell document, demanded and accepted the bribe money of ₹2500/- from the complainant and kept the same in his left pocket of shirt. The trap team immediately rushed to the spot on being signalled by the shadow witness and recovered the tainted money from the left pocket of the shirt of the appellant-accused and accordingly a seizure memo was prepared on spot.
(d) After investigation of the matter the commission of offences punishable under Section 5(1)(d) read with Section 5(2) PC Act 2006 and Section 161 RPC, were prima facie made out against the appellant-accused and accordingly sanction for prosecution was accorded by the competent authority.
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9. After investigation, it was concluded that the appellant/accused had committed offences punishable under Section 5(1)(d) read with Section 5(2) PC Act 2006 and Section 161 RPC, and laid the charge sheet before the Trial Court.
10. The charges for the commission of alleged offences against the appellant-accused stands framed vide order dated 02.08.2007 and the prosecution during the course of trial examined all the witnesses listed in the charge sheet except PW-8 Khurshid Ahmad Dar who was reportedly died. Accused/appellant was examined in terms of Section 342 of J&K Cr.PC and was directed to lead defence evidence, however, he chose not to enter upon his defence. The learned trial court after hearing the prosecution and the defence came to the conclusion that the charges against the appellant-accused were proved and, accordingly, held the appellant-accused guilty for the aforesaid offences.
11. It order to bring home the guilt of the accused in the like cases, the prosecution has to establish the following ingredients which are necessary for proving an offence punishable under Sections 5(1)(d) read with Section 5(2) of PC Act and Section 161 of RPC:-
I) Initial demand of illegal gratification by accused from the complainant;
II) Demand and voluntary acceptance of tainted money/bribe by the accused from the complainant at the time of trap proceedings;
III) Recovery of tainted money from the accused.
12. Hon'ble Supreme Court in Banarsi Dass Vs. State of Haryana reported as (2010) 4 SCC 450, has held that:-
P a g e | 10 "To constitute an offence under Section 161 IPC, it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. It has been further held that in terms of Section 5(1)(d) of the PC Act, the demand and acceptance of money for doing a favour in discharge of his official duties is sine qua non to the conviction of the accused. The demand and acceptance of the illegal gratification by the accused has to be proved and established by substantive evidence."
13. It is, therefore, required to be proved by the prosecution by convincing evidence that the amount accepted by the accused as illegal gratification was recovered from his possession. As regards the first ingredient (supra), it is not disputed that the accused was working as a public servant. It is with respect to the ingredient (II) and (III) above that the prosecution had a burden of proving the demand, acceptance and recovery of the illegal gratification and for which they have examined host of witnesses, the star witnesses amongst them are complainant Khurshid Ahmad Lone, his brother Altaf Ahmad Lone, shadow witness Constable Mushtaq Ahmad and, independent witness Mushtaq Ahmad Hakim.
14. As regards the ingredient of demand for illegal gratification made by the accused, it was found that there was no other witness except complainant to prove the ingredient of the demand. It is further found in the impugned judgment that the shadow witness Constable Mushtaq Ahmad did not enter the room, where the accused and the complainant P a g e | 11 were making some negotiations and the accused was told by the complainant that he had brought the bribe money, therefore the purpose of there being a shadow witness was practically lost as he could not witness as to what had transpired between the complainant and the accused. With regard to another witness namely Altaf Ahmad Lone, brother of the complainant, he had deposed that he had no knowledge about the occurrence and the said witness was declared as hostile.
15. On going through the evidence available on file, it transpires that the complainant had lodged a complaint that the accused, who was working as a Government official (Patwari) had demanded gratification of an amount of ₹ 5000/- which had lastly settled for ₹ 2500/- for his request of affecting mutation on the basis of agreement executed in the name of the brother of the complainant. The complainant in his cross- examination has conceded the fact that no mutation can be affected on the basis of an agreement unless there is a deed of conveyance with regard to the landed property. The brother of the complainant Mohammad Altaf Lone, who was cited as PW-6, while being examined in the court denied having knowledge with regard to any such agreement and stated that his father is alive and he is the person to look after all these matters, and that no agreement has been executed in his favour to be acted upon by the Revenue authorities. It appears from the statements of the complainant and his brother that the complainant knowing fully well that no mutation can be attested on the basis of such document, as had been produced by him to the Vigilance Organization, complaining that the Patwari had not attested the mutation and was asking for gratification.
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16. The shadow witness namely Constable Mushtaq Ahmad was stated to have witnessed the demand of gratification by the accused in the adjoining room of Patwar-Khana, however, he, in his statement had deposed that the complainant and the accused both had asked him to stay outside the room and that once he peeped into the room from the door he had seen the accused counting the currency notes, which means that he has not seen the accused demanding the bribe money. Mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond all reasonable doubts that the accused demanded and accepted the money knowing it to be bribe.
17. PW-5 Bashir Ahmad an official of the Vigilance Organization Kashmir stated that the independent witness Mushtaq Ahmad Hakim along-with the shadow witness Constable Mushtaq Ahmad of Vigilance Organization, had entered into the Patwar-Khana along-with the complainant and that the independent witness as well as the shadow witness had eye witnessed the demand and acceptance of the bribe money by the accused from the complainant, therefore, this witness had contradicted not only the shadow witness but the independent witness as well who had stated that he had not entered the Patwar-Khana along- with the complainant and had stayed back with the Trap Team awaiting signal of the shadow witness.
18. The prosecution witness comprising of Trap Team have stated that some persons were present when the complainant and the shadow witness had approached the accused in Patwar-Khana, however, none of them were associated as independent witness to corroborate the statements of the witnesses comprising of the Trap Team so as to give credibility and authenticity to the prosecution story. Hon'ble Apex P a g e | 13 Court in a case titled Suraj Mal Vs. State (Delhi Administration) reported as AIR 1979 SC 1408, has held that:-
"In a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable."
19. In B.Jayaraj Vs. State of A.P reported as (2014) 4 Scale 81, the Supreme Court held that mere possession and recovery of currency notes from an accused without proof of demand will not bring home the offence under Section 7 as well as Section 13(1)(d)(i)(ii) of the PC Act, 1988. The relevant observations of the Supreme Court are extracted as under:-
"....Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive in so far as the offence under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established."
20. In view of the aforesaid law, it is clear that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof dehors the proof of demand would, thus, not be sufficient to bring home the charge, and the failure of prosecution to prove the demand and P a g e | 14 voluntary acceptance of illegal gratification would, therefore, be fatal to the prosecution case against the accused who has been charged for offence under Section 5(1)(d) of the PC Act.
21. In the case on hand, the witnesses, including the complainant, have made totally inconsistent and contradictory statements, their testimonies become unreliable and unworthy of credence and no conviction can be based on the evidence of such witnesses. No witness had seen the complainant handing over the money to the accused as the shadow witness is not even sure about it because when the occurrence took place the shadow witness was not in the room of occurrence. None of these witnesses has actually heard the accused demanding money from the complainant. In Ram Kishore Sharma's judgment relied upon by learned senior counsel for the appellant, it has been held that 'it would be difficult and unsafe to sustain the conviction and sentence of the appellant recorded by the trial court basing upon the evidence of highly interested witnesses of the prosecution which smacks taint and malafide and which does not find corroboration from independent evidence, even the scientific test does not inculpate the appellant's hands in the crime. Thus the prosecution has miserably failed to bring home the guilt to the appellant beyond reasonable doubt on the basis of evidence adduced by the prosecution in the instant case.'
22. It is trite in law as settled by the Hon'ble Apex Court in a catena of judgments that despite availability of independent witnesses at the scene of crime and not associating them with the prosecution story, creates doubt to the truthfulness of the proceedings carried out there. Withholding of independent material witness, without any plausible explanation by I.O. seriously affects the credibility of the prosecution P a g e | 15 case. Therefore, the uncorroborated testimony of the complainant with regard to handing over the bribe money to the accused, particularly when the independent witnesses were available but not examined by I.O and their evidence having being withheld without any reasonable explanation, does not satisfy the test of credibility, being contradictory to what he has stated before the police in his statement does not inspire confidence in the court and renders the prosecution case highly doubtful. In Chuni Lal Koul Vs. State of J&K reported as 2004 (3) JKJ 624, it has been observed :-
"In a criminal case, it is always incumbent upon the prosecution to prove the guilt of the accused by convincing, reliable and cogent evidence, so as to hold him guilty and record his conviction. Where there is only sole eye-witness, conviction may be recorded against the accused, provided the evidence tendered by such witness is regarded as honest and truthful. But prudence requires that some corroboration should be sought in support of the solitary witness, who is complainant. This becomes more necessary when the evidence of material witnesses has been withheld by the Investigating officer, without any plausible cause and satisfactory explanation."
23. The I.O who was leading the Trap Team also stated with regard to some persons present at the Patwar-Khana, but were not associated with the investigation of the case, therefore, not associating the persons as independent witnesses to prove the demand and recovery of the bribe P a g e | 16 amount by the accused, raises doubt with regard to recovery as well. The evidence of trap witnesses has to be scrutinized with great care before conviction can be based on it. The law of the land requires that certain things should be done by the police in presence of independent respectable persons so that the presence of the said persons may put the particular transactions beyond the pale of suspicion. It has been held in many judgments that the members of the Trap Team are the interested witnesses as they have interest to ensure the conviction of the accused, as such, their statements have to be appreciated under circumspection.
24. Another important aspect of the case which has not been appreciated by the trial court is that the "key" used to seal the bottles of the mixture was though stated to have been seized and kept on the Superdnama of the independent witness namely Mushtaq Ahmad Hakim, however, while being examined in the Court, this witness denied that any such seal had been kept on his Superdnama. This key used as seal was not sent to the FSL to be compared with the impression on the samples, as has been deposed by Forensic expert PW-7 Mr. Yeswi. In State of Rajastan Vs. Gurmail Singh 2005 (2) RCR (Criminal) 58, (Supreme Court), wherein the sample seal was not sent to the Laboratory, at the time of sending the sample parcel, the Apex Court, held that the case of the prosecution was doubtful, on account of this reason, as the laboratory, in the absence of deposit of sample impression of the seals, could not come to the conclusion, whether the seals on the sample, were the same, as were affixed, at the time of alleged recovery. In this view of the matter also, the case of the prosecution becomes doubtful. The trial court, did not take into P a g e | 17 consideration, this aspect of the mater, as a result whereof, miscarriage of justice occasioned.
25. It is also trite in law that the safety of the samples sent to the FSL can only be ensured by the use of the seal and on its comparison with the impressions on those samples, therefore, this aspect of the case also creates doubt with regard to the safety of the samples sent to the FSL, which is also fatal for the prosecution case.
26. It is well settled that in absence of the evidence regarding demand of bribe, the appellant-accused cannot be held guilty on the basis of the evidence, unworthy of acceptance. After going through the entire evidence, I am of the view that there is no acceptable evidence to prove demand and acceptance of the bribe money within the meaning of Section 161 RPC. Under these circumstances, the findings of the trial court that the prosecution has established the charge of demand and acceptance of bribe with ultimate recovery of tainted money from the accused-appellant, cannot be accepted and agreed.
27.Thus, in the peculiar circumstances of the case, it cannot be held that the prosecution has succeeded in proving the essential ingredients of demand of illegal gratification, made by the accused-appellant, from the complainant for doing an official act. Though a vain attempt seems to have been made by the prosecution to bring the factum of demand relying upon these witnesses, but their evidence does not support the complainant in material particulars to bring home, beyond reasonable doubt that a demand of ₹ 2500/- as bribe was made by the accused- appellant for doing an official work while acting as a public servant.
28. Having regard to the aforesaid factual background and the law laid down on the subject, it is held that the trial court has not appreciated the P a g e | 18 evidence properly and thus reached a wrong conclusion to hold appellant/accused guilty of the offences of which he was charged. As a sequel to the afore-stated discussion, the conviction recorded against the appellant-accused would necessarily have to be set aside. The appeal succeeds. The conviction and sentences awarded to the appellant- accused are set aside. Bail and personal bonds are discharged.
29. The appeal is, accordingly, allowed. Copy of this judgment be certified to the court below.
(MD. AKRAM CHOWDHARY) JUDGE Srinagar 08.09.2022 Muzammil. Q Whether the order is reportable: Yes / No