Rajasthan High Court - Jaipur
Bhagwan Singh vs State Of Rajasthan Through Pp on 24 January, 2025
Author: Ganesh Ram Meena
Bench: Ganesh Ram Meena
[2024:RJ-JP:51267]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Appeal No. 38/2016
Bhagwan Singh S/o Shri Kishan Singh, R/o Pahari, Tehsil Pahari
District Bharatpur The Then Head Constable No.-176, Police
Station Malakhera, District Alwar (Raj.)
(At present confined in District Jail Alwar)
----Accused Appellant
Versus
State Of Rajasthan Through Pp
----Respondent
For Appellant(s) : Dr. Gunjan Sharma with Mr. Kapil Kumar Khandelwal Mr. Aamir Khan Ms. Renu Goyal For Respondent(s) : Mr. Amit Poonia, PP HON'BLE MR. JUSTICE GANESH RAM MEENA JUDGMENT Date of Reserve ::: December 12, 2024 Date of Pronouncement ::: January 24, 2025 REPORTABLE:
1. By filing instant criminal appeal under section 374 (2) CrPC, the accused appellant has challenged the judgment of conviction and sentence dated 04.01.2016 passed by the Court of learned Special Judge, Special Court of ACD Cases, Alwar (for short 'the learned trial court') in Sessions Case No.33/2015(12/10,101/13), State Vs. Bhagwan Singh, whereby the learned trial court convicted him for the offences punishable under Section 7 & 13(2) read with Section 13(1)
(d) of the Prevention of Corruption Act, 1988 (For short 'the (Downloaded on 27/01/2025 at 10:21:14 PM) [2024:RJ-JP:51267] (2 of 28) [CRLA-38/2016] Act of 1988') and sentenced to undergo four years rigorous imprisonment and also a fine of Rs.10,000/- and in default of payment of fine to further under three months imprisonment.
2. The facts of the case in nutshell are that one Najir S/o Kabira (PW4), Age 50 years R/o Village Baghore P.S. Tijara District Alwar gave a parcha bayan (Ex.P1) on 09.04.2009 at 11:15 AM in the ACB Chowki, Alwar and stated that one Imrat who is resident of Village Dorakhi, Tehsil Ferozepur Jhirka District Nuh is 'Samdhi' of his elder brother Aasin, so, he shares the same relation with him. His above named relative has been confined in the P.S. Malakhera for last five days. Imrat came to purchase milch cow, who was apprehended by the policemen of Malakhera without any offence for last five days. He has not been produced in any court so far. He was carrying sufficient amount, but exact detail can be told by Imrat himself. When his brother Sahabudin went to Police Station to get him release, the SHO also asked him to sit in the police station. After confining Sahabudin in Police Station for 4-5 hours, he was threatened to spend some money otherwise he would be lodged in lock up. Shahbudin was beaten. Thereafter, a tout of policemen named Deenu, R/o Salarpur contracted a deal with Sahabudin in three thousands to get the later release from the police and Rs.3000/- were paid to one Yadav SHO. Mr. Yadav SHO told to Shahbudin that if he wants to get release Imrat then it (Downloaded on 27/01/2025 at 10:21:14 PM) [2024:RJ-JP:51267] (3 of 28) [CRLA-38/2016] would be done in Rs.35,000/- otherwise Imrat would be booked in a false cow slaughter case. Today, this entire story was narrated to him by Sahabudin. On the same day he went to meet Brijender Yadav, SHO, who asked him to meet Deenu Meo for the release of Imrat. He could not find Deenu Meo.
Shahbdin told that Deenu Meo, is also demanding Rs.35,000/- for release of Imrat. Now, the complainant has come with Sahabudin. SHO, P.S. Malakhera, Brijender Yadav has confined his relative Imrat for last five days without showing arrest and brother of Imrat named Shahbdin went to get him release and she was also beaten and forced to sit there and released him after taking three thousand through tout Deenu. Now, Brijender Yadav, SHO is demanding Rs.35,000/- to release Imrat through Deenu Meo otherwise threatening to book Imrat in a false case. Deenu Meo works as police tout. He and Shahbdin do not want to give bribe. They want Brijender Yadav to be caught red handed. There is no enmity of him and Shahbdin with Brijender Yadav.
Trap proceedings were conducted on 09.04.2009 and from the possession of Bhagwan Singh Rs.20,000/- were alleged to have been recovered.
On the basis of aforesaid Parcha bayan (Ex.P1), an FIR No.70/79 was registered at Police Station ACB, Jaipur for the offences under sections 7, 13(1)(d) read with section (Downloaded on 27/01/2025 at 10:21:14 PM) [2024:RJ-JP:51267] (4 of 28) [CRLA-38/2016] 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act of 1988') and section 120B IPC.
3. The police after investigation submitted charge- sheet against the accused appellant for the aforementioned offences in the Court concerned.
4. The learned trial court framed the charges against the accused appellant for the offences under sections 7, 13(1)(d) and section 13(2) of the Act of 1988, to which he denied and opted for trial.
5. From the prosecution side, the statements of 17 witnesses were recorded and certain documents were exhibited.
6. The statement of the accused appellant was recorded under section 313 CrPC. The accused appellant in his statement has denied about the allegations levelled against him and deposed that he has been falsely implicated in the instant case
7. The learned trial court vide its impugned judgment dated 04.01.2016 convicted and sentenced the accused appellants for the aforesaid offences.
8. Dr. Gunjan Sharma, counsel appearing for the accused appellant submitted that the prosecution has failed to prove the guilt of the appellant because in fact nothing was recovered from the possession of the accused appellant and (Downloaded on 27/01/2025 at 10:21:14 PM) [2024:RJ-JP:51267] (5 of 28) [CRLA-38/2016] only to achieve the target, fake trapping was done by the officials of the ACB. No case is made out against the accused appellant under the Act of 1988 because it is crystal clear from the F.I.R. itself that there was no demand on his part.
Counsel further submitted that it was essential for the prosecution to show that the accused appellant received the amount for the work which was pending with him and there was demand on his part to do that particular work, but, all these elements are missing in this case and only on the basis of surmises and conjectures the accused appellant has been made accused in this case.
Counsel also submitted that during the course of investigation, no voice sample of the accused appellant has been taken and during the course of trial also, the alleged tape conversation was not produced before the complainant and such transcript conversation was not approved by the independent witnesses. Therefore, the learned trial court has committed a grave illegality in relying upon the tape conversation.
Counsel further submitted that the trial court has erred in not considering the fact that the prosecution sanction has been issued in a mechanical manner. Counsel also submitted that the sample of the case remained intact; the prosecution did not lead proper evidence in this regard and it is an admitted fact that the accused appellant did not touch (Downloaded on 27/01/2025 at 10:21:14 PM) [2024:RJ-JP:51267] (6 of 28) [CRLA-38/2016] the notes. Therefore, positive FSL report in respect of sample of water of hands of accused appellant creates doubts about the prosecution story and proves the fact that fair investigation is not done in the matter.
Counsel further submitted that looking to the facts and circumstances of the present case, the defence version appears to be more plausible, as such no offence is made out against the accused appellant. Counsel also submitted that the case of the accused appellant does not fall under any of the provisions of the Act of 1988. Counsel also submitted that the findings arrived at by the learned trial court are further vitiated as no critical appreciation and analysis has been made by the learned trial court.
9. Learned Public Prosecutor has opposed the appeal and has submitted that there is no material irregularity or illegality committed by the learned trial court and keeping in view the evidence on record, the accused appellant has been rightly convicted.
10. Considered the submissions advanced by the counsel appearing for the accused appellant, learned Public Prosecutor appearing for the State, gone through the impugned judgment and also gone through the record of the case.
11. The accused appellant has been convicted for the offences under sections 7 and 13(2) read with section 13(1) (Downloaded on 27/01/2025 at 10:21:14 PM) [2024:RJ-JP:51267] (7 of 28) [CRLA-38/2016]
(d) of the Act of 1988. The relevant provisions as stand on 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.
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(d) "A motive or reward for doing"- A person who receives a gratification as a motive or reward for 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,-
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(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(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."
12. After extensive scrutiny of the prosecution evidence it has come out that the present case has been lodged on the basis of Parcha Bayan (Ex.P1) of complainant Najir (PW4) wherein he has stated that Imrat (PW2) who is the 'Samdhi' of his elder brother Asim is confined at Police Station Malakhera for the last five days without there being any case registered against him. When the younger brother of Imrat (Downloaded on 27/01/2025 at 10:21:14 PM) [2024:RJ-JP:51267] (10 of 28) [CRLA-38/2016] (PW2) named Shabudin (PW1) went to the Police Station, he was also asked to sit towards there and was threatened to give money and was also given beating. It was also stated that one 'Thanedar' with Surname 'Yadav' demanded Rs.3,000/- to release Shabudin and Thanedar Yadav said to Shabudin that he wants to catch his brother Imrat, he had to pay Rs.35,000/-. In the later part of the Parcha Bayan (Ex.P1) he has specifically stated that Thanedar Bijender Yadav demanded Rs.35,000/- for release of Imrat (PW2) and therefore, he wants to catch the SHO Bijender Yadav red handed.
As per the Parcha-Bayan (Ex.P1), initially stated by complainant Najir (PW4), there was no allegation against the accused appellant as regards the demand of any money. The demand was made by person with Surname "Yadav" whereas the Surname of the appellant is "Gurjar".
13. The complainant Nazir has been examined as PW4 and he has been declared hostile as he has not supported the prosecution story. PW4 Nazir though has narrated the same facts as regards the confinement of Imrat (PW2) and thereafter Shabudin but in the later part of the examination- in-chief he has stated that the lawyer has said to him that Rs.25,000/- is to be incurred by them to get release Imrat which was arranged by his brother Parmal (PW3) and the amount was given to the lawyer. He has also stated that he (Downloaded on 27/01/2025 at 10:21:14 PM) [2024:RJ-JP:51267] (11 of 28) [CRLA-38/2016] never met any Police Personnels at the Police Station and no- one demanded any money from him. He has also stated that he was not given any tape recorder to record the conversation.
PW4 Najir (complainant) has further stated that he gave the money to the accused appellant but he refused to accept the same and when he came out of the Office, the ACB Personnels threatened him to go back and give this money to the accused appellant and he put the money in the pocket of the accused appellant. Thereafter the ACB persons came and caught hold of the accused appellant. In the cross- examination, this witness has not supported the trap proceedings and has also stated that he cannot recognize the voice of the accused appellant and the complainant (PW4 Najir) alleged to have been recorded in the tape recorder regarding conversation. During his examination, he has not supported the fact of confinement of Imrat (PW2) and has not made any complaint against the accused appellant Bhagwan Singh. He has also categorically stated that the accused appellant has never demanded any money and has further stated that when he tried to put the money in the pocket of the accused appellant the ACB persons came there. He also deposed that the trap proceedings against the accused appellant are illegal.
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14. Shahbudin who is also a material witness has been examined as PW1, who has also been declared hostile as he has not supported the prosecution story. This witness has stated that he is unaware of the fact that complainant Najir (PW4) was given a tape-recorder by the ACB Personnels to record the conversation as regards the verification of demand. He has also specifically stated that it is wrong to say that the accused appellant demanded any bribe from him.
15. The other material witness Imrat who has been examined as PW2, has also not supported the prosecution story and turned hostile. In the examination-in-chief he has stated that a person in civil dress asked him that 'Thanedar' is calling him and he has not met any Head Constable named Bhagwan Singh. He has also denied that Bhagwan Singh (accused appellant) took him to the Thanedar Yadav. In his cross-examination he has stated that he was beaten by the public in the market and not by the Police and no money was demanded by the Police Personnels from him.
16. Parmal, the brother of the complainant Najir (PW4) has been examined as PW3 who is said to have arranged Rs.25,000/-, alleged to have been given bribe to the accused appellant. He has specifically stated that Bhagwan Singh never demanded any bribe and the complainant Najir (PW4) has forcibly put the money in the pocket of the accused appellant. The material witness Parmal (PW3) has been (Downloaded on 27/01/2025 at 10:21:14 PM) [2024:RJ-JP:51267] (13 of 28) [CRLA-38/2016] declared hostile as he has not supported the prosecution story. PW3 Parmal has also stated that when Najir (complainant PW4) went to Bhagwan Singh to offer the money, he (Bhagwan Singh) denied to accept the money and asked them to settle the dispute with the villagers and they came out. It is further stated that when he along-with brother of Najir (PW4) came out of the office and stated to the ACB Personnels that Bhagwan Singh is not accepting the money then the ACB Personnels asked them to give him money in any manner otherwise whole trap proceedings will result into failure and then they went again and tried to give the money to the accused appellant who denied but the complainant Najir (PW4) put the money in his pocket and thereafter the ACB Personnels came there.
17. It is the allegation of the prosecution that Imrat (PW2) was confined in Police Station Malakhera without there being any case registered against him and when his brother Shahbudin went there to get him release he was also asked to sit there and for their release the money was demanded.
In this regard the statements of PW5 Jairam are very material and relevant. He has stated that he is posted as Constable at Police Station Malakhera and on 09.04.2009 he was on duty from 12:00 AM to 6:00 PM and no-one was confined at the Police Station during that time. He further stated that complainant Najir (PW4) came there and asked (Downloaded on 27/01/2025 at 10:21:15 PM) [2024:RJ-JP:51267] (14 of 28) [CRLA-38/2016] about Bhagwan Singh, ASI, then he stated that there is no person Bhagwan Singh posted as ASI in the Police Station.
18. Rajender Kumar Verma has been examined as PW6 who is said to be the independent witness of conversation recording. When the recording was played and he was asked to recognize the voice then he stated that he is unable to recognize the voice. However, he stated that when the transcript was prepared the complainant (PW4 Nazir) stated that there is a voice of his and the accused appellant.
19. The another material witness is PW10 Sunil Kumar, who is posted at Police Station Malakhera. The allegation as per the case of the prosecution is that Imrat (PW2) was confined for 4-5 days at Police Station Malakhera without there being any case registered against him, however, the said witness (PW10) has stated that he cannot say whether Imrat was confined or not.
20. PW11 Dr. Bhupender Yadav who has obtained and submitted the prosecution sanction and also submitted the charge-sheet has categorically stated that the name of the accused appellant does not find place in the initial Parcha Bayan (Ex.P1). He was posted in the ACB on the date of alleged incident, though in the beginning he has supported the prosecution story. He has stated that on the complaint of the complainant (PW4 Najir), the SHO Brijender Yadav was arrested. He has further stated that the complainant Najir (Downloaded on 27/01/2025 at 10:21:15 PM) [2024:RJ-JP:51267] (15 of 28) [CRLA-38/2016] (PW4) who was standing near Bhagwan Singh stated that the accused appellant has nothing to do with them.
21. The other witness relevant for the case is PW13 Alok Vasisth who has accorded the prosecution sanction to prosecute the accused appellant for the offences under sections 7 and 13(2) read with section 13(1)(d) of the Act of 1988. This witness has stated that by the time the matter came before him for prosecution sanction, the SHO Brijender Yadav was not found to be an accused whereas in the Parcha- Bayan (Ex.P1) as well as the initial transcript the name of SHO 'Yadav' finds place. He has further stated that Bhagwan Singh denied the allegations and has stated that the complainant (PW4 Najir) has forcibly put money in his pocket, however, his explanation was not recorded on the phard recovery.
22. The another witness Richpal Singh has been examined as PW14 who was posted as Addl. Superintendent of Police at ACB. He has stated that the Parcha Bayan (Ex.P1) was given by the complainant (PW4 Najir) which was recorded by him and for verification of the demand Najir (complainant PW4) was handed over a digital tape recorder and thereafter the transcript was prepared in the presence of two witnesses. The transcript is Ex.P15 wherein there are allegations of demand of bribe by the accused appellant and the SHO Brijender Yadav. He has specifically stated that in (Downloaded on 27/01/2025 at 10:21:15 PM) [2024:RJ-JP:51267] (16 of 28) [CRLA-38/2016] the Parcha Bayan (Ex.P1) there is no name of the accused appellant Bhagwan Singh, however, the name of Bhagwan Singh has appeared in the transcript. The said witness has also stated that complainant Najir (PW4) does not recognize the voice of Bhagwan Singh and Brijender Singh and he and his Office Staff also do not recognize their voice. He has also stated that the running note also does not disclose the fact about which point the complainant (PW4 Najir) gave the signal to the trap party.
23. PW15 Jagdish Prasad Gupta has also stated that in the Parcha Bayan (Ex.P1) there is no name of the accused appellant which was read over to Parmal (PW3) who verified the facts. He also stated that till that time the transcript (Ex.P15) was prepared, there was no name of Bhagwan Singh and it was recorded without there being any knowledge. He has also stated that most of the documents were prepared in Alwar and the CD of the transcript was not prepared in his presence. The said witness has also categorically stated that the complainant (PW4 Najir) and PW3 Parmal were sent to give money to the SHO Brijender Yadav but when they came back they stated that the SHO is not inside. He has also stated that Bhagwan Singh narrated to them that the complainant (PW4 Najir) has put the money forcibly in his pocket.
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24. The another witness is PW16 Narender Kumar, who has prepared the transcript. He has stated that he has prepared the transcript as narrated by the Addl. Superintendent of Police and he has not prepared the CD. He is also not aware about the 'Marka' of the cassette and its time duration. He also stated that while writing trancript (Ex.P15) it came to his notice that the SHO Brijender Yadav is demanding the bribe and there was no name of the accused appellant Bhagwan Singh in the transcript (Ex.P15).
25. In the statement of PW17 Vineet Kumar Bansal, it has also come out that the SHO Brijender Yadav has made a complaint against ACB Personnels. He has also stated that there is nothing on the record that Imrat (PW2) was in confinement of the accused appellant. He has further stated that as per the Parcha Bayan (Ex.P1), the demand of money was made by the SI Brijender Yadav. He has also stated that no certificate under section 65B of the Indian Evidence Act was obtained during investigation as regards transcripts (Ex.P9 and Ex.P15) respectively.
26. On consideration of the material evidence it has come out that no certificate under section 65B of the Indian Evidence Act was obtained during investigation as regards transcripts (Ex.P9 and Ex.P15) respectively of the alleged conversation of the complainant (PW4 Najir) and the accused appellant. PW17 Vineet Kumar Bansal, who is Investigating (Downloaded on 27/01/2025 at 10:21:15 PM) [2024:RJ-JP:51267] (18 of 28) [CRLA-38/2016] Officer has admitted this fact that no certificate under section 65B of the Indian Evidence Act was obtained during investigation as regards transcripts (Ex.P9 and Ex.P15) respectively.
27. 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."
28. The material witnesses Rajender Kumar Verma (PW6) and PW15 Jagdish Prasad Gupta, who are the witnesses of the transcripts have also not denied this fact that the certificate under section 65B of the Indian Evidence (Downloaded on 27/01/2025 at 10:21:15 PM) [2024:RJ-JP:51267] (19 of 28) [CRLA-38/2016] Act was obtained or they recognize the voice of the accused appellant as the transcript was prepared in their presence.
29. The Hon'ble Apex Court in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi), reported in Criminal Appeal No.1669 of 2009, SLP (Cri.) Nos. 6497 of 2020 & Other connected matters, decided on 15.12.2022, reported as (2023) 4 SCC 731 has observed in para 88 as under:-
"88. What emerges from the aforesaid discussion is summarised as under:
88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.
88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence."
30. In the present case, in the Parcha Bayan (Ex.P1) there is no allegation of demand of bribe by the accused appellant. Further, the material prosecution witnesses i.e. the complainant (PW4 Najir), PW1 Shahudin, PW2 Imrat and PW3 Parmal have not supported the prosecution story and turned declared hostile. The gist of their statements have already been quoted in the forgoing paras.
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31. As per the observations made by the Hon'ble Apex Court in the case of Neeraj Dutta (supra) quoted above, since there is no proof of demand of bribe by the accused appellant, the conviction of the accused appellant does not seem to be proper.
From the evidence of the prosecution witnesses, the alleged acceptance of bribe is also not proved to a perfect degree for conviction of the accused appellant. The fact of demand and acceptance of money is to be proved either by direct evidence which can be in the name of oral evidence or documentary evidence but in the present case the prosecution has failed to prove the demand and acceptance made by the accused appellant to the extent that there is no other possible thought because the accused appellant himself has stated that the complainant (PW4 Najir) at one point of time tried to hand over the money to him but when he refused to accept and the complainant (PW4 Najir) went out of his Office. They came back at the threat of the ACB Personnels and forcibly put the money in his pocket and thereafter he was caught on the spot. Complainant (PW4 Najir) has categorically stated that when the accused appellant denied to accept the money as they were giving under the instructions of the ACB Personnels, they came out of the Office and the ACB Personnels who were standing there threatened him to go back and give the money to him. PW1 (Downloaded on 27/01/2025 at 10:21:15 PM) [2024:RJ-JP:51267] (21 of 28) [CRLA-38/2016] Shahbudin has also not supported the demand and acceptance. PW2 Imrat as well as PW3 Parmal have also not supported the demand and acceptance of money by the accused appellant.
32. On critical examination of the findings of the trial court it has come out that the trial court has convicted the accused appellant observing that from the oral and documentary evidence it is proved that the tainted money was recovered from the person of the accused i.e. from the left pocket of the pant wore by him and the accused has also not denied the fact that he has not touched the amount but has given a false explanation that complainant forcibly put the same in his pocket. The findings given in para 17 precedes on probabilities observing that there are contradictions between the explanation of the accused and deposition of the complainant, though he knows this fact that the complainant (PW4 Najir) has turned hostile.
33. The trial court while convicting the accused appellant has also observed that the demand and acceptance was for release of Imrat (PW2) who was confined in Police Station Malakhera illegally without there being any case registered against him. It is pertinent to mention here that the trial court knowing it well and has observed in its judgment that the Investigating Officer has admitted during cross-examination that there is no documentary evidence (Downloaded on 27/01/2025 at 10:21:15 PM) [2024:RJ-JP:51267] (22 of 28) [CRLA-38/2016] that Imrat was recovered from the custody of accused Bhagwan Singh does not weaken the case of prosecution, because bargaining for the release of the accused was being made by him and victim was recovered from the place where accused Bhagwan Singh lives. When there is no oral as well as documentary evidence as regards confinement of Imrat (PW2) under the accused appellant Bhagwan Singh, the observations and the findings of the trial court are illegal and perverse. The trial court has also taken into consideration the conversation recording for convicting the accused appellant knowing it and observed that non figuring the name of the accused Bhagwan Singh is concerned, it is true that his name does not figure in the Parcha Bayan Ex.P1 and name of SHO Yadav figures in it, but when the complainant was sent for the verification by giving tape recorder, SHO sent the complainant to accused Bhagwan Singh, who negotiated the deal and demanded Rs.35,000/-. He has also relied upon the recording and the transcript. As observed above, admittedly no certificate under section 65B of the Indian Evidence Act was obtained during investigation as regards the transcript. The material witnesses also could not recognize the voice of the accused appellant when it was played in the Court. It is also borne out from the record that no voice samples were taken to certify the alleged voice of accused appellant in the recorded conversation. Therefore, in such circumstances the (Downloaded on 27/01/2025 at 10:21:15 PM) [2024:RJ-JP:51267] (23 of 28) [CRLA-38/2016] conviction of the accused appellant made by the trial court is not sustainable.
34. The learned trial court relying upon certain judgments has observed that mere possession and recovery of currency notes from the accused without proof of demand is not sufficient for conviction, cannot be disputed. Even then merely on the basis of alleged recovery of certain currency notes, has convicted the accused appellant without there being a cogent evidence as regards the demand and acceptance. The complaint registered on the basis of Parcha Bayan (Ex.P1) of the complainant (PW1 Najir) does not speak of any demand by the accused appellant but the same is not supported by a cogent verification and acceptance.
35. As per the Parcha Bayan (Ex.P1), the demand was made by the SHO Yadav but has been released/ discharged under the provisions of section 169 CrPC and the same was accepted by the Court. The learned trial court has also observed that "this is proved beyond reasonable doubt in the evidence led in the court that Imrat was confined in the police station illegally for many days with the consent of SHO until he was recovered by the ACB and roznamchas produced in court and other evidence shows that Brijender Yadav, SHO remained present in the police station during these days. So, Brijender Yadav, the the SHO, Malakhera deserves a disciplinary action for his unlawful act. So, a letter be written (Downloaded on 27/01/2025 at 10:21:15 PM) [2024:RJ-JP:51267] (24 of 28) [CRLA-38/2016] to the DGP, Rajasthan, for taking appropriate disciplinary action against him under the relevant provisions of law". Apart from these observations, the allegation in the Parcha Bayan (Ex.P1) is also against the SHO Yadav but he has not been made as an accused and has been given a release under section 169 CrPC. In the aforesaid circumstances, the conviction of accused appellant without implicating SHO Yadav as an accused does not seem to be proper.
36. The Hon'ble Apex Court in the case of Digamber Vaishnav & Anr. Vs. State of Chhattisgarh, reported in (2019) 4 SCC 522 has observed in para 14 as under:-
"14. One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt."
37. The Hon'ble Apex Court in the case of Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra, reported in (1973) 2 SCC 793 has observed in para 19 as under:-
(Downloaded on 27/01/2025 at 10:21:15 PM)
[2024:RJ-JP:51267] (25 of 28) [CRLA-38/2016] "19. Now let us sum up the whole case in the light of the evidence we have found to be of worth. We must observe that even if a witness is not reliable, he need not be false and even if the police have trumped up one witness or two or has embroidered the story to give a credible look to their case that cannot defeat justice if there is clear and unimpeachable evidence making out the guilt of the accused. Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between "may be" and "must be"
is long and divides vague conjectures from sure conclusions. Informing ourselves of these important principles we analyse the evidence found good by us. In our view there is only one eyewitness, PW 5, Vilas. Even if the case against the accused hangs on the evidence of a single eyewitness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affair. We are persuaded that PW 5 is a witness for truth but in view of the circumstances that he is interested we would still want corroboration in this case to reassure ourselves. And that we have in this case."
38. The Hon'ble Apex Court in the case of Vikramjit Singh @ Vicky Vs. State of Punjab, reported in (2006) 12 SCC 306 has observed in para 27 as under:-
"27. We have noticed hereinbefore that both the learned Sessions Judge as also the High Court proceeded to compare the probabilities of two views. It is now beyond any cavil that where two views of a story appear to be probable, the one that was contended by the accused should be accepted. (See K. Gopal Reddy v. State of A.P. [(1979) 1 SCC 355 :
1979 SCC (Cri) 305] , Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 : 1984 SCC (Downloaded on 27/01/2025 at 10:21:15 PM) [2024:RJ-JP:51267] (26 of 28) [CRLA-38/2016] (Cri) 487 : AIR 1984 SC 1622] , Tota Singh v. State of Punjab [(1987) 2 SCC 529 : 1987 SCC (Cri) 381 :
AIR 1987 SC 1083] , Divakar Neelkantha Hegde v. State of Karnataka [(1996) 10 SCC 236 : 1996 SCC (Cri) 1242 : JT (1996) 7 SC 63] , State of Orissa v.
Babaji Charan Mohanty [(2003) 10 SCC 57 : 2004 SCC (Cri) 785] and Hem Raj v. State of Haryana [(2005) 10 SCC 614 : 2005 SCC (Cri) 1646]."
39. On scrutiny of the evidence, this Court finds that there are probabilities of two versions; one, is what has been mentioned in the Parcha-Bayan (Ex.P1) i.e. the demand made by SHO Yadav and later-on the money was put in the pocket of the accused appellant (Surname is 'Gurjar') as is evident from the statements of the material prosecution witnesses that too under the threat of ACB Personnels and the other probability can be that a demand was made by the SHO Yadav and the accused appellant cooperated so as to meet the demand of the SHO Yadav who has not been arrayed as an accused and has been given a release under section 169 CrPC. Apart from this, the prosecution evidence does not come out with a full proof evidence so as to convict the accused appellant for the alleged charges.
There has come no evidence on record as regards any work of the complainant party is pending or in purview of the accused appellant for performing that he would demand or accept money. In absence of such evidence, conviction and sentence cannot be said to be justified.
(Downloaded on 27/01/2025 at 10:21:15 PM) [2024:RJ-JP:51267] (27 of 28) [CRLA-38/2016]
40. In view of the observations of the Hon'ble Apex Court made in the cases of Digamber Vaishnav (supra), Shivaji Sahabrao Bobade (supra) and Vikramjit Singh @ Vicky (supra), applying it to the prosecution evidence of the present case, this Court feels that the conviction of the accused appellant for the offences under sections 7 and 13(2) read with section 13(1)(d) of the Act of 1988, is illegal, perverse and not sustainable.
41. Hence, in view of the discussion made above, the criminal appeal filed by the accused appellant deserves to be allowed and is accordingly allowed and the impugned judgment of conviction and sentence dated 04.01.2016 passed by the Court of learned Special Judge, Special Court of ACD Cases, Alwar, in Sessions Case No.33/2015(12/10,101/13), State Vs. Bhagwan Singh, is set aside and the accused appellant is acquitted of the charges levelled against him.
42. The accused appellant is on bail, he need not to surrender. His bail bonds and surety bonds are accordingly discharged.
43. Keeping in view, however, the provisions of Section 437-A of the Code of Criminal Procedure, 1973, the accused appellant is 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 Deputy Registrar (Judicial) of this Court, (Downloaded on 27/01/2025 at 10:21:15 PM) [2024:RJ-JP:51267] (28 of 28) [CRLA-38/2016] 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 appellant, on receipt of notice therefore, shall appear before the Supreme Court.
44. The record be sent back to the trial court forthwith.
(GANESH RAM MEENA),J Sharma NK/Dy. Registrar (Downloaded on 27/01/2025 at 10:21:15 PM) Powered by TCPDF (www.tcpdf.org)