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Madhya Pradesh High Court

Rajkumar Jaiswal vs The State Of Madhya Pradesh on 2 May, 2017

Equivalent citations: AIRONLINE 2017 MP 3

Author: Ashok Kumar Joshi

Bench: Ashok Kumar Joshi

                    HIGH COURT OF MADHYA PRADESH
                     PRINCIPAL SEAT AT JABALPUR

Division Bench: Hon'ble Shri Justice Ravi Shankar Jha
              Hon'ble Shri Justice Ashok Kumar Joshi


                       Criminal Appeal No.2276/2007
Rajkumar Jaiswal           ..........Appellant
Versus
State of M.P.               .............Respondent



Shri S.C.Datt, learned senior counsel with Shri Siddharth Datt and Ms.Kishwar
Khan, learned counsel for the appellant.
Shri Pankaj Dubey and Shri S.A.Tiwari, learned counsel for the respondent.



Whether approved for reporting: Yes/No
                               JUDGMENT

(Pronounced on 2/5/2017) Per: Ashok Kumar Joshi J.

1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 16.10.2007 passed by the Special Judge, Damoh in Special Case No.4/2004, convicting and sentencing appellant Rajkumar Jaiswal under Section 7 of the Prevention of Corruption Act to undergo six months' R.I. with a fine of Rs.500/-, under Section 13(1)(d)(ii) read with 13(2) of the Prevention of Corruption Act to undergo two years' R.I. with a fine of Rs.1000/-, under Section 420 of the I.P.C. to undergo two years' R.I. with a fine of Rs.1000/- and under Section 388 of the I.P.C. to undergo two years' R.I. with a fine of Rs.1000/- with default stipulation and a direction to run all the jail sentences concurrently.

2. Admittedly appellant Rajkumar at the relevant time was appointed and working from 29.07.2002 as Deputy Superintendent of Police in Scheduled Caste Welfare Cell, Damoh and on the date 13.5.2003, the appellant had gone into the chamber of complainant Dr.Peetamber Budhwani's Vidya Hospital, Damoh. Admittedly at the relevant time, the appellant was investigating the crime no.240/2003 of above mentioned Cell relating to offences of gang rape and offence punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

3. As per case of the prosecution, on 12.5.2003, complainant Dr.Peetamber Budhwani submitted a written application in the office of Special Superintendent of Police, Lokayukt Office, Sagar stating that at Damoh, he is conducting Vidya Hospital and in the night of 11.5.2003 on his mobile phone no.9425095570, a call was received from the appellant's mobile no.9425095985 and the appellant intimated him that a sex scandal has been exposed at Damoh, in whose enquiry complainant's name is coming. The complainant denied his involvement in sex scandal. Then the appellant intimated him that the victim girl is disclosing the complainant's name and if his identification parade would be held and media would be intimated, then his image would be damaged. The complainant asked the appellant not to do that, then the appellant demanded Rs.1,00,000/- as bribe and asked complainant to come in next morning at his home. In next morning of 12.05.2003 when complainant did not go to appellant's residence, then appellant talked to him twice through mobile phone and demanded money. In written application, it was mentioned that the complainant is not guilty, the appellant is unnecessarily demanding bribe from him, which the complainant is not desirous to give, but he wants that legal proceedings be initiated. In Sagar's above mentioned office, a small tape-recorder, micro cassette and phone taping apparatus were provided to complainant for recording his conversation with the appellant regarding demand of bribe. On 13.5.2003 at about 11 a.m. in his Vidya hospital, Damoh, second application (Ex.P.5) was submitted by the complainant to Inspector Devvrat Mishra, in which it was mentioned that he has recorded telephonic conversation between complainant and appellant in provided micro-cassette and tape-recorder and that call was made by complainant by his hospital's landline phone no.(0781) 222870 to appellant's mobile and in the conversation with the appellant, complainant expressed his inability in giving Rs.1,00,000/-, then the appellant was agreed to receive Rs.25,000/- as bribe and the appellant would come to his Vidya hospital after 6 p.m. to receive the amount of bribe. Then a transcription of recorded conversation between complainant and the appellant was prepared by Inspector Devvrat Mishra (P.W.9) in presence of panch witnesses P.R.Rathore (P.W.6), Assistant Engineer and Raghunath Prasad Parashar (P.W.11), Sub-Engineer of trap party. Dehati nalishi report was also recorded, which was later on sent to the Special Police Establishment, Lokayukt, Bhopal for original registration of crime. The complainant submitted Rs.25,000/- in denomination of Rs.500/- and Rs.1000/- notes and the numbers of notes were recorded in preliminary panchnama. The currency notes were treated with phenolphthalein powder. The members of trap party remained hidden in a nearby room of complainant's hospital. In the evening on 13.5.2003, appellant after giving prior intimation through his mobile reached to complainant's hospital and entered into his chamber, then after receiving the bribe amount by the appellant from complainant and hearing the preplanned indication of ringing of bell, the members of trap party entered into the chamber of complainant, where introduction of members of trap party was given to the appellant and a solution of sodium carbonate was prepared, in which on dipping the fingers of N.K.Parihar (P.W.7), colour of the solution did not change. But when in the remaining half portion of the solution, fingers of both of the hands of appellant were dipped, then the colour of solution changed to pink. This changed colour solution was sealed in a clear bottle. Thereafter, the appellant was searched by panch witness Raghunath Prasad Parashar (P.W.11) , then from back pocket of the appellant's full-pant, currency notes of Rs.25,000/- were recovered and the numbers of the recovered notes were tallied with the numbers previously recorded numbers in the preliminary panchnama. After removal of appellant's worn full-pant, on dipping of its back pocket in solution of sodium carbonate, then its colour changed to pink, which was also sealed in a separate clear bottle and a seizure memo of full-pant of appellant was prepared, thereafter the fingers of panch witness Raghunath Prasad Parashar (P.W.11) who had counted the recovered notes were dipped in sodium carbonate's solution, then its colour changed to pink, which was also sealed in a separate glass bottle. The appellant was arrested and arrest memo was prepared and appellant's wife was intimated about his arrest. Thereafter, on the same day from the residence of appellant, the relating case diary of crime no.240/2003 was recovered and seizure memo relating to it was prepared by N.K.Parihar (P.W.7). During investigation, call details of above mentioned appellant's mobile number and complainant's mobile number and his hospital's landline phone number were obtained from the relating telecom authority. Sanction for prosecution of appellant was obtained from the Secretary of Law Department, Bhopal. After completing the investigation, charge- sheet was filed in the Court of Special Judge, Damoh.

4. The Special Judge framed charges under Section 7 and 13(1)(d)(ii) read with section 13(2) of the Prevention of Corruption Act and Section 420 and 388 of the IPC. The case of the appellant was of denial and he pleaded that he has been falsely implicated. It was his defence that on 13.5.2003, he was suffering from abdominal ailment and thus he had gone to complainant's hospital for his treatment and in appellant's defence, Rajesh Sonkar (D.W.1) constable Lokayukt, V.K.Rohit (D.W.2), Assistant Professor, Rishi Jaiswal (D.W.3 appellant's son), Smt.Poonam Jaiswal (D.W.4) (wife of appellant) and Dr.J.P.Pasari (D.W.5), retired medical officer were examined and under Section 315 of the Cr.P.C., appellant Rajkumar himself entered into witness-box as D.W.6. During trial, in total sixteen prosecution witnesses were examined. The trial Judge relying on prosecution evidence found the appellant guilty for all the charged offences and sentenced him as mentioned above.

5. Having heard the learned counsel for the parties and keeping in view their arguments, we have carefully gone though the prosecution evidence and defence evidence alongwith annexed papers, so also the aforesaid provisions of law and in reference to citations referred by the counsel for the parties.

6. Learned senior counsel for the appellant Shri S.C.Datt vehemently argued placing reliance on several referred citations that both government officials of other departments, who were included in trap party P.R.Rathore (P.W.6) and Raghunath Prasad Parashar (P.W.11) did not support the prosecution case and the evidence of Devvrat Mishra (P.W.9) and both these independent panch witnesses were declared hostile by the prosecution and there was no reliable evidence regarding demand of bribe by the appellant and there were material contradictions and inconsistency in depositions of various prosecution witnesses and some of the prosecution witnesses supported the defence version that when they entered into the chamber of complainant, then appellant's full-pant was kept on a chair, which impliedly supported the defence that the appellant had gone to complainant's hospital for his medical problem with his minor son. It was also argued that there is no identification of voice of the appellant under the recorded telephonic conversation as complainant Dr.Peetamber (P.W.4) himself deposed that he had met appellant in his chamber in the night of 13.5.2003 for the first time and before that he had heard appellant's voice on telephone. Much emphasis has been given by the learned counsel for the appellant that a Lokayukt constable of trap party Awadhesh Khare (P.W.12) clearly deposed in cross-examination that when he entered into the chamber of Dr.Peetamber, then the appellant's pant was hanging on a chair and Awadhesh Khare (P.W.12) was not declared hostile by the prosecution, thus placing reliance on some citations, it has been argued that evidence of Awadhesh Khare (P.W.12) is binding on prosecution, which demolishes the prosecution case. It was also objected that after recording of telephonic conversation by complainant (P.W.4) in the morning, the relating micro-cassette was permitted to be remained in complainant's custody till evening of 13.05.2003 and during investigation no voice samples of appellant and complainant were taken and sent with the recorded cassette to any laboratory or institution, thus it was forcefully argued that the learned trial Court erred in recording conviction. Thus, it is prayed that his appeal be allowed and appellant be acquitted from all the charged offences.

7. On the other hand, learned counsel for the respondent opposing the appeal submitted that evidence adduced by the prosecution witnesses is sufficient for drawing an inference that the appellant is guilty for demanding and accepting the illegal gratification other than legal remuneration.

8. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the impugned judgment and evidence available on record.

9. It is well-settled that proof of both demand of bribe and acceptance thereof is necessary to uphold conviction. (kindly see Suresh Kumar Shrivastava Vs. State of M.P. (AIR 1994 SC

245), N.Sunkanna Vs. State of A.P. [(2016) 1 SCC 713].

10. Complainant Dr.Peetamber Budhwani deposed that in the night of 11.5.2003 at about 11 p.m. on his mobile 9425095570, he received a telephonic call from the then D.S.P., Damoh Rajkumar Jaiswal, who intimated him that in Damoh sex scandal which is being investigated by him, some persons are taking his name and asked him to come with cash of Rs.1,00,000/- to appellant’s house in next morning till 9.00 a.m. The complainant deposed that on next day i.e. 12.5.2003 when he did not go to appellant’s house in the morning, at about 9.15 a.m. appellant’s call also came on his mobile phone, then complainant intimated his inability to arrange the said amount. The complainant deposed that he was not desirous to give bribe to the appellant, thus on the same day i.e. 12.5.2003, he reached to the Lokayukt police office, Sagar where he presented signed application (Ex.P.3), where the police of Lokayukt, Sagar provided him a micro tape recorder and apparatus for telephone tapping by preparing memo (Ex.P.4). Head Constable Niranjan Singh (P.W.16), constable Mahesh Hazari (P.W.13), who are witnesses of memo (Ex.P/4) and Inspector Devvrat Mishra (P.W.9) who prepared this memo had corroborated complainant’s evidence on this point. Complainant deposed that tapping apparatus were attached to his landline telephone bearing no.222780 of his Vidya hospital, thereafter he made a call and talked on appellant’s mobile through his above mentioned landline number and recorded the conversation took place between the appellant and him. According to complainant’s evidence, on 13.5.2003 from Sagar with trap party, panch witnesses P.R.Rathore (P.W.6) and Raghunath Prasad Parashar (P.W.11) had come to his hospital’s chamber where they heard the recorded conversation and then his both applications (Ex.P.3 and Ex.P/5) were verified by the above mentioned both panch witnesses and in their presence a transcript panchnama (Ex.P.6) about recorded conversation was prepared by Devvrat Mishra (P.W.9), which is also signed by him and both of above mentioned panch witnesses and previously given micro tape recorder and cassette were seized by Devvrat Mishra (P.W.9) through seizure memo (Ex.P.7) and dehati nalishi (Ex.P.8) was also recorded, which was also signed by him. Complainant deposed that during conversation, it was agreed that he would give Rs.25,000/- and for receiving this amount, appellant would come to his hospital after 6 p.m. on the same day. These facts are also mentioned in complainant’s written application (Ex.P.5) dated 13.5.2003. Complainant also deposed that appellant had intimated him that at about 6 p.m. after telephoning him, he would intimate about time of appellant’s coming to his hospital.

11. Complainant deposed that in his hospital, he provided forty notes of denomination of Rs.500/- and five notes of denomination of Rs.1000/-, in total Rs.25,000/- to Devvrat Mishra (P.W.9), whose numbers were noted down by panch witnesses and the produced notes were treated with some powder by police official of trap party and constable Sonkar had put the treated notes in his shirt’s upper pocket intimating him that he should not touch these notes before offering bribe to appellant and thereafter solution was prepared and the hands of panch witnesses were dipped then colour of the solution had not changed, but when constable Sonkar dipped his fingers in solution then colour had changed to pink, which was sealed in a glass bottle.

12. Complainant deposed that on 13.5.2003 at about 7.15 p.m., he received telephonic call from appellant that he is coming within 15-20 minutes, thereafter he intimated trap party, then members of trap party sat in a nearby room of hospital and at about 7.45 p.m., the appellant came to his chamber of his hospital, then according to preplan he gave the treated notes taking them out from his upper pocket of the shirt to the appellant, who kept those notes in back pocket of his full-pant, then in accordance with planning, he rang the bell, thereafter Devvrat Mishra (P.W.9) with panch witnesses and other members of trap party entered into his chamber and after giving introduction of trap party, the appellant’s hands were caught by members of trap party and on asking by Devvrat Mishra (P.W.9), one panch witness had taken out the amount from the back pocket of appellant’s full-pant and the numbers were tallied and thereafter solution was prepared and his hand and the hands of appellant and that panch witness who had taken out treated amount from appellant’s pant’s pocket were dipped in solution, then its colour had changed to pink and seizure memo of recovered notes (Ex.P.10) was prepared and thereafter appellant’s worn full-pant was taken out and the back pocket of full-pant was also dipped in solution, then its colour changed to pink, which was also separately sealed in a bottle and the appellant’s full-pant was also seized at that time after preparing seizure memo.

13. Members of trap party Inspector Devvrat Mishra (P.W.9), head- constable Niranjan Singh (P.W.16), Inspector N.K.Parihar (P.W.7) and constable Awadhesh Khare (P.W.12) have substantially supported the evidence given by complainant but panch witnesses of trap party P.R.Rathore (P.W.6) and Raghunath Prasad Parashar (P.W.11) have made some material changes in their depositions regarding incident. P.R.Rathore (P.W.6) and Raghunath Prasad Parashar (P.W.11) were declared hostile by the prosecution. Both of these hostile declared panch witnesses also deposed that due to memory loss, they could not remember all the facts.

14. Devvrat Mishra (P.W.9), complainant Dr.Peetamber (P.W.4) and some other prosecution witnesses admitted that in complainant’s hospital’s chamber, appellant had come with the minor son. Appellant’s son Rishi Jaiswal was examined as D.W.3, appellant’s wife Smt.Poonam Jaiswal was examined as D.W.4, Dr.J.P.Pasari was examined as D.W.5, who examined the appellant on 21.5.2003 with members of other medical panel when the appellant was detained in District Jail, Damoh, Assistant Professor of Chemistry V.K.Rohit (D.W.2) has been examined in relation to P.H. value of solution of sodium carbonate and police constable Rajesh Sonkar, who was a member of trap party and who treated the various notes with phenolphthalein powder in complainant’s hospital was examined as D.W.1 by the appellant before the trial Court.

15. Appellant Rajkumar Jaiswal (D.W.6) as defence witness deposed that at the relevant time he was working as D.S.P. AJAK, Damoh. He was investigating Crime No.240/2003 in which five accused persons were arrested by him and the progress of investigation of this crime number was being published in daily newspaper, then due to hard working and in absence of rest, there happens some trouble in his stomach. The appellant has further deposed that on suggestion of the then Reader of Police Superintendent, Damoh, Mukesh Tiwari (P.W.15) on the date of incident 13.5.2003 with his minor son Rishi (D.W.3), he had gone to complainant's hospital for treatment of his stomach trouble. The appellant admitted that at the relevant time, his mobile phone number was 9425095985, but he also deposed that generally his mobile was being kept by his sub-ordinate officials. The appellant deposed that ward-boy of complainant's hospital Amit Balmiki (P.W.2) sent him to the chamber of complainant, then under formality complainant Dr.Peetamber shook hand with him and when he intimated complainant about his stomach problem, then Dr.Peetamber asked him to take out his pant, then after removing his worn full-pant and hanging it on a chair, he lied on examination table of the doctor. Thereafter, complainant after pressing his stomach at various places asked him where he was feeling pain and after examination, when he was to wear his full-pant again, then suddenly some people who had entered into the chamber of doctor surrounded him and they intimated that they belonged to business and at that time any member of the trap party told that amount of bribe has been recovered from back pocket of his pant, then his son started weeping. Then his son was taken out from the room and after creating pressure on him, some documents got signed by him. Thereafter, his home was also searched, but from where nothing illegal was seized and after his arrest on the date of incident, his bail petition was dismissed by the Court, thus he was sent to jail where he again suffered from stomach trouble and during his detention period, a medical panel had examined him and he was also admitted in hospital during the detention period. The appellant has exhibited telephone bill of B.S.N.L. (Ex.D.2), which is also containing call details of above mentioned mobile number from 18.5.2003 to 5.6.2003.

16. The appellant's son Rishi Jaiswal (D.W.3) has repeated the defence version. Appellant's wife Poonam Jaiswal (D.W.4) deposed that about few days after his husband's arrest, complainant Dr.Peetamber Budhwani had come to her house early in the morning at 7-8 a.m., then she first time saw him and the complainant told to her that he had committed a mistake and she should forgive him and he was made a tool (mohra) by some senior officials and leaders. She also deposed that thereafter also complainant's phone calls were coming to her house.

17. In written submission filed by the appellant's learned counsel before this Court, much emphasis has been given on the fact that the prosecution witness Mukesh Tiwari (P.W.15) had deposed in his cross-examination that he had taken appointment for appellant's medical check-up in the night of date of incident i.e. 13.5.2003.

18. Complainant Dr.Peetamber Budhwani (P.W.4) and appellant (D.W.6) both have deposed that in the night of 13.5.2003 when the appellant entered into chamber of complainant's hospital, then they saw each other for the first time in their life. Complainant Dr.Peetamber Budhwani (P.W.4) had deposed that at Sagar's office on 12.5.2003, he had met with Lokayukt. On this contradiction, much emphasis has been given. But complainant's first application dated 12.5.2003 (Ex.P.3) is addressed to Police Superintendent, Lokayukt, Sagar and Devvrat Mishra (P.W.9) has proved the hand- written portion and below signature of Superintendent of Police, Lokayukt, Sagar in margin of front page of Ex.P.3. Thus, above mentioned contradiction about Lokayukt in complainant's evidence does not appear to be material.

19. Complainant Dr.Peetamber Budhwani (P.W.4) clearly deposed in para 23 of his cross-examination that before evening of 13.5.2003, he had never met the appellant and previously he had talked with the appellant only on phone, thus at the time of preparation of transcription of recorded conversation, he had identified the voice of appellant only on the basis of telephonic talkings. He clearly admitted in last line of para 23 that actually he could not identify the voice of appellant and expressed that only on the basis of telephonic conversation, he had identified appellant's voice. Much emphasis has been given by the learned senior counsel for the appellant on this fact.

20. But, in present case, there is other available evidence on record, which has come from an independent source regarding call details of appellant's mobile phone, which have been proved by Vibhuti Shrivastava (P.W.10), who was at the relevant time was working as Sub-Circle Engineer in B.S.N.L. office Damoh, who deposed that in reply to the letter sent by S.P. Lokayukt, Sagar, he got prepared the call details of mobile phone numbers 9425095985 (appellant) and 9425095570 (complainant), which were sent to the above mentioned S.P. in form of Ex.P.21, which was signed by him. This witness Vibhuti Shrivastava (P.W.10) was called on 1.9.2007 by the appellant as defence witness before the trial Court. Vibhuti Shrivastava (P.W.10) deposed in para 8 that according to these call details on 11.5.2003 in the night at about 11:00 p.m., no any call was made from mobile no.9425095985 to mobile no.9425095570, but on the same day at 9:41:26 p.m., a call was made from mobile no.9425095985 to mobile no.9425095570. The complainant had deposed that he had received first bribe demand call made by the appellant in the night at about 11:00 p.m. on 11.5.2003, but according to call details, this call was made from the mobile of appellant at 9.41 p.m. The learned trial Court has properly discussed this point and this difference does not appear to be material or substantial.

21. Placing reliance on cases of Ram Singh & others Vs. Col. Ram Singh [1985 (Supp) SCC 611] and Nilesh Dinkar Paradkar Vs. State of Maharashtra [(2011) 4 SCC 143], it has been argued by the learned counsel for the appellant that it was not proved that the recorded voice in produced micro cassette is of appellant as voice samples of the complainant and appellant were not taken during investigation and no any such voice samples and recorded cassette were sent to any F.S.L. or other institution for identification of voice. Complainant Dr.Peetamber Budhwani (P.W.4) in his cross-examination (Para 14) had deposed that on 11.5.2003, he received the appellant's telephonic call for the first time and in para 23, the complainant admitted that he could not identify the voice of D.S.P. Jaiswal (appellant). It has been admitted by Devvrat Mishra (P.W.9) in para 31 of his deposition that in the morning of 12.5.2003 after recording of the telephonic conversation between the appellant and complainant, tape- recorder and tapping apparatus were handed over to him by complainant Dr.Peetamber Budhwani, but the recorded cassette article 'B' remained in possession of complainant Dr.Budhwani till 5:00 p.m. of that day. It is well established that due to negligence or fault of investigator or police official, evidence of complainant could not be disbelieved especially when there is corroboration of alleged first demand of bribe by an independent source.

22. Appellant Rajkumar as D.W.6 clearly deposed in his examination-in-chief that 13.5.2003 was Tuesday, thus it is clear that 11.5.2003 was Sunday. According to call-details of appellant's mobile phone (Ex.P.21), it is clear that first call from appellant's above mentioned mobile was made at 9:41:26 p.m., thus it could not be believed that on Sunday in the night at about 10:00 p.m., appellant's mobile phone remained with any of his sub-ordinate staff, thus the defence and evidence given by the appellant that he never talked to complainant on any date is falsified by the call- details (Ex.P.21) of his mobile phone.

23. It could not be presumed that at about 9:41 p.m., appellant’s mobile phone could be used by any of his sub- ordinate employee, but from appellant’s side much emphasis has been given on three recorded mobile calls made in the morning of 21st May, 2003 at different times 7:44:07, 7:44:25 and 7:45:12 p.m. from the above mentioned mobile number of complainant to the mobile phone of the appellant. Admittedly on 21.5.2003, the appellant was detained in jail and his mobile was with appellant’s wife or other family members. Appellant’s wife Smt.Poonam Jaiswal (D.W.4) deposed that after few days of incident at about 7:00 a.m., complainant alone had come to his house and he was apologing and saying that he had committed a mistake and had falsely implicated her husband. Complainant in his cross-examination denied the suggestion given by accused’s counsel about visiting appellant’s house and demanding apology. In any case, the mobile calls made by complainant’s phone to appellant’s phone on 21.5.2003 could not disturb the evidence regarding prior telephonic calls made on 11.5.2003, 12.5.2003 and 13.5.2003. It appears from the record of the trial Court that after appellant’s arrest and his detention in jail, appellant’s bail petition before the Special Judge, Damoh was opposed by complainant Dr.Peetamber Budhwani by filing a written objection dated 19.5.2003 and on 14.5.2003 also complainant Peetamber Budhwani had filed a written and signed objection on letter-head of his Vidya hospital in which it was averred that if appellant would be released on bail, then he and other employees of his hospital or his family members could be implicated in false cases by the appellant. Looking to the conduct of the complainant before the Special Judge concerned, the evidence given by appellant’s wife as defence witness that complainant was demanding apology from her appears to be totally unbelievable.

24. Much emphasis has been given on facts came in cross- examination of prosecution witness Mukesh Tiwari (P.W.15), who according to prosecution’s case was only a witness of supurdginama (Ex.P.29) as the relating case diary of Crime No.240/2003, which was recovered on 13.5.2003 from appellant’s house was given in interim custody of Mukesh Tiwari (P.W.15) because he was at that time working as Reader in the office of Superintendent of Police, Damoh.

25. Mukesh Tiwari (P.W.15) in cross-examination had deposed that previously appellant had intimated him about his abdominal ailment, then he had suggested to the appellant that he should take an appointment from Dr.Peetamber Budhwani, because previously he had seen Dr.Budhwani hospital during travelling to Sagar and on appellant’s asking, he had taken appointment from Dr.Budhwani for appellant some days before the date of incident. Mukesh Tiwari (P.W.15) had deposed that previously he had not gone to Dr.Budhwani hospital for his treatment and he did not know that the complainant is medical specialist of which subject. Appellant (D.W.6) has deposed that for him Mukesh Tiwari (P.W.15) had taken appointment from complainant regarding his abdominal ailment.

26. Appellant Rajkumar Jaiswal (D.W.6) had deposed that he was not having any serious ailment of abdomen and was merely suffering from amoebic colitis which could be avoided by general precautions. D.W.6 in his cross-examination (para 13) admitted that in Damoh, police department was having its own police hospital at relevant time, where only police officials were treated, but he did not prefer to get treatment regarding his abdominal ailment from the police hospital. Appellant (DW.6) has admitted in para 11 that complainant Dr.Peetamber Budhwani is a surgical specialist.

27. It is to be remembered that at the relevant time, appellant was a gazetted officer of police department. In record of the trial Court, a written letter sent by then jailor of District Jail, Damoh on 20.5.2003 is tagged which is bearing the office seal of Superintendent, District Jail, Damoh, in which it has been complained by the jailor concerned that in his jail appellant as a detenu is pressurizing him that he is a Police Superintendent and he be shifted for any reason to district hospital, Damoh, otherwise in future, he would see them and in jail the appellant is influencing the arrangement of jail administration and being a local police high official, pressure is being created, thus it was prayed that appellant be shifted to Central Jail from his jail.

28. If the defence of appellant and his evidence given as D.W.6 is to be believed, then next inevitable inference would be that complainant Peetamber Budhwani (P.W.4) was a genius astrologer, who was having previous knowledge in the night of 11.5.2003 and in the morning of 12.5.2003 that the appellant would come to his hospital for his treatment in the night of 13.5.2003. Similarly, regarding any abdominal ailment, asking by the doctor to the patient to take out of his pant also appears to be unnatural and unbelievable. Thus, the defence taken by the appellant could not disturb the veracity of evidence given by the complainant corroborated on material points by police official members of the trap party and also on material points by hostile declared panch witnesses.

29. Vibhuti Shrivastava (P.W.10) had deposed in his deposition that due to technical default of printing machine in his signed call details (Ex.P.21), some calls have been recorded twice for the same time. From Ex.P.21, it is clear that from appellant’s mobile phone, a call was made on 11.5.2003 at 9:41:26 p.m. to the mobile phone of complainant and from Ex.P.21, it is also clear that in morning of 12.5.2003, two calls were made from appellant’s mobile to the mobile of complainant at times 8:16:52 a.m. and 8:17:13 a.m. respectively. Similarly from Ex.P.21, it is clear that in morning of 13.5.2003 at 9:54:43 a.m., a call was received by appellant on appellant’s mobile, which was made by landline phone No.2222870, which was landline number of complainant’s hospital. Similarly in evening of 13.5.2003, a call at 7:00:45 p.m. was made from appellant’s mobile to the landline number of complainant’s hospital. Thus, this documentary call details provides independent corroboration to complainant’s evidence that repeated calls from appellant’s mobile phone were made to complainant’s mobile phone or to his landline telephone.

30. It is clear that hostile declared prosecution witnesses P.R.Rathore (P.W.6) and Raghunath Prasad Parashar (P.W.11) had tried to substantially deviate from prosecution’s version, but evidence of both of these witnesses is not mutually corroborative and is also not supporting the defence version given by the appellant as D.W.6.

31. Raghunath Prasad Parashar (P.W.11) who was at the relevant time working as Sub-Engineer in Water Resources Department at Sagar clearly deposed in para 3 of his examination-in-chief that the bribe notes which were recovered/seized from present accused, their numbers were uttered by him at the time of preparation of preliminary panchnama (Ex.P.9) and numbers of recovered notes were uttered by him at the time of preparation of seizure memo of currency notes (Ex.P.10), but his examination-in-chief after para no.3 remained incomplete on 3.7.2006, because Court’s time was over. On next day in para 5, he clearly deposed that a police constable had put the treated currency notes with powder in complainant’s shirt upper pocket and before him complainant was warned that he should not touch these treated notes before tendering them to be given in bribe. Raghunath Prasad Parashar (P.W.11) deposed that after ringing of the bell from the complainant’s hospital’s chamber, he with other panch witness Rathore and other members of the trap party had entered into the chamber of the complainant, at that time appellant’s pant was hanging on a chair and on asking by Devvrat Mishra (P.W.9), he had taken out the currency notes from the back pocket of appellant’s full-pant. In para 3, Raghunath Prasad Parashar (P.W.11) has clearly deposed that notes were recovered from the accused/appellant but on next day, he modified his deposition, but in para 8, he had deposed that when appellant’s fingers were dipped in prepared solution, then the colour of solution had changed and similarly when his fingers were dipped in solution separately, then colour had also changed. Raghunath Prasad Parashar (P.W.11) clearly admitted in para 15 that at the time of recording of his police statement during investigation, he had not said that appellant’s full-pant was hanging on a chair from which notes were taken out by him. In the same para, he clearly admitted that these facts were stated by him on that day i.e. 4.7.2006 for the first time. In his re-examination in para 24, Raghunath Prasad Parashar (P.W.11) clearly admitted that in his presence, which procedure was being adopted that procedure was recorded and his police statement was recorded as was stated by him, but in next breathe, he changed his version and deposed that he had not given any statement to the police.

32. Prosecution panch witness P.R.Rathore (P.W.6) deposed that on 13.5.2003 each of the two applications submitted by complainant (Ex.P.3 and Ex.P.5) were verified by other panch witness Parashar in his presence and he had also signed regarding verification on each of these applications and in his presence, recorded telephonic conversation’s transcript was prepared, which was in accordance with the recorded conversation in cassette. In his examination-in-chief (para 3), he deposed that when after ringing of bell, he entered into complainant’s hospital's chamber, then a person was present there who was perhaps T.I. or other was counting notes and thereafter currency notes were seized and that person’s hands were washed and in next breathe, he deposed that present person in Court at the time of recording of his evidence is the same person who was counting currency notes, but in next breathe he again changed his version and deposed that when he entered into chamber, then present police officials were counting currency notes. In next breathe, he deposed that the currency notes which were kept on doctor’s table were seized and seizure memo was prepared and at that time appellant’s full-pant was hanging on a chair present there and appellant’s full-pant was also seized. It is significant to mention here that when deposition of any prosecution witness is being recorded in Court, then at that time no any other prosecution witness of the same case could remain present in the Court. It is clear from para 3 of examination-in-chief of P.R.Rathore (P.W.6) that he was continuously changing his version in that para itself. Firstly he deposed that present person in Court means the appellant/accused was counting currency notes, thereafter in next breathe, he deposed that police officials were counting notes. In next breathe, he deposed that the currency notes kept on complainant’s table were seized. Thus, it is clear that like another hostile declared panch witness Raghunath Prasad Parashar (P.W.11) was also continuously modifying his deposition and was not stable on any fact. Thus, it is clear that each of both of the panch witnesses Raghunath Prasad Parashar (P.W.11) and P.R.Rathore (P.W.6) were not ready to reveal the truth and thus they were continuously changing their depositions. Looking to the total depositions of these panch witnesses Raghunath Prasad Parashar (P.W.11) and P.R.Rathore (P.W.6), learned trial Court had ordered and directed in last para no.118 of its judgment to the public prosecutor that a complaint be filed in competent Court against both of these panch witnesses and the Court be intimated. This order was passed by the trial Court on an application filed under Section 340 of the Cr.P.C. by the prosecution before it.

33. According to well established legal position, the evidence of hostile declared prosecution witnesses could not be discarded totally and that parts of their evidence could be believed which are supported by other evidence available on record.

34. Devvrat Mishra (P.W.9) had categorically stated in paras 7,8,9 and 10 that after entering into chamber of the complainant, he and head-constable Niranjan Singh (P.W.16) had caught hold of wrists of the appellant and thereafter on his direction constable Awadhesh Khare (P.W.12) had prepared a solution of sodium carbonate, which was colourless and when on his direction, fingers of both of the panch witnesses and his fingers were dipped, then the colour of solution remained unchanged and thereafter in remaining half portion of solution, when fingers of the appellant were dipped, its colour had changed to pink, which was separately sealed in glass bottle and thereafter it was informed by the complainant that the appellant had kept the bribe amount in his back pocket of his full-pant, then on his direction, panch witness Raghunath Prasad Parashar (P.W.11) searched the appellant and recovered Rs.25,000/- from back pocket of worn full-pant of the appellant and the numbers of the recovered notes were tallied with the numbers recorded in the preliminary panchnama (Ex.P.9) and recovered notes were separately enclosed in an envelope and seizure memo (Ex.P.10) was prepared and thereafter, appellant's worn full-pant was taken out from his body and when the back pocket of appellant's full-pant was dipped in freshly prepared solution of sodium carbonate, then its colour was also changed, which was separately sealed in a glass bottle and thereafter, appellant's full-pant was seized through seizure memo (Ex.P.18). Even hostile declared panch witness P.R.Rathore (P.W.6) had admitted in last line of cross-examination in para 11 that in his presence, when appellant’s full-pant was washed, then its colour was changed to pink later on.

35. Police constable of Lokayukt office, Sagar who treated the currency notes given by complainant with phenolphthalein powder, Rajesh Sonkar was examined as defence witness No.1 by the appellant, but he also deposed that on 13.5.2003 at Damoh in complainant’s hospital, he had treated the notes with phenolphthalein powder and in para 7, he had clearly deposed that he himself had put the treated currency notes of Rs.25,000/- in upper pocket of shirt worn by complainant Dr.Peetamber and thereafter he was removed from the trap party. Much emphasis has been given by the learned counsel for the appellant that according to complainant’s evidence, on 13.5.2003 in evening after appellant’s entering into his hospital’s chamber, he had shaken the hand with the appellant, thus during this shaking of hands, the possibility of shifting of crystal of phenolphthalein from complainant’s hand to the appellant’s hand could not be ruled out, but complainant Dr.Peetamber Budhwani and other examined member of trap party and even hostile declared panch witness Raghunath Prasad Parashar (P.W.11) in para 5 of his deposition has clearly deposed that constable had put the treated currency notes in shirt’s pocket of complainant with instruction that he should touch currency notes only when necessity generates. According to complainant’s evidence, after shaking hands, treated currency notes put in his shirt's pocket were given by him to the appellant, thus above mentioned argument advanced for the appellant could not be accepted.

36. The ward-boy of complainant’s hospital Amit Balmiki (P.W.2) had deposed that on the date of incident i.e. 13.5.2003, he was working as ward-boy in complainant’s hospital and at about 7:45 p.m., appellant Rajkumar had come to hospital and asked about Dr.Peetamber, then he had asked that whether he had to meet with doctor for treatment, then appellant had replied that he is not desirous of treatment, but he had to meet the doctor personally. In cross-examination, he has deposed that he had not thereafter entered into complainant’s chamber. Thus, from evidence of Amit Balmiki (P.W.2), it is clear that the appellant had not come to complainant’s hospital in late evening of 13.5.2003 for treatment of any abdominal ailment.

37. Appellant’s sanction for prosecution was proved by Hukumchand (P.W.3), who was Assistant Grade-III employee of Secretariat of Law Department of Bhopal. He had proved the signature of then Secretary Shri Naval Kishore Garg on sanction order (Ex.P.2). Various articles seized bottles of solutions including the full-pant of appellant were duly identified by relating prosecution witnesses at the time of recording of their evidence.

38. Much emphasis has been given by learned counsel for the appellant on the fact came in cross-examination of member of trap party constable Awadhesh Khare (P.W.12) as he admitted that when he entered into complainant’s chamber, at that time appellant’s pant was hanging on the chair but in next breathe, he deposed that he did not remember that at that time any son was with appellant or not. Awadhesh Khare (P.W.12) in his examination-in-chief had clearly deposed that after entering into complainant’s chamber, Devvrat Mishra (P.W.9) and Niranjan Singh (P.W.16) had caught hold of hands of the appellant and on instruction of Devvrat Mishra (P.W.9), he had prepared solution of sodium carbonate, in whose remaining part, appellant’s fingers were dipped, then the colour of solution had changed to pink and it was separately sealed and appellant’s full-pant’s back pocket was also dipped in solution, then colour had also changed and it was also separately sealed. Awadhesh Khare (P.W.12) had not deposed that currency notes were recovered from back pocket of appellant’s full- pant hanging on chair. Similarly he had not deposed that at time of his entering into complainant’s chamber, appellant was lying on examination table of doctor or was standing without wearing full-pant. Similarly, he did not remember that whether any son of appellant at that time was present or not, thus it is clear that at the time of his Court’s evidence, he was not having accurate memory of the incident. As stated above, this fact is a part of prosecution story that appellant’s worn full-pant was removed from his body and it was separately seized by seizure memo on 13.5.2003, thus in all these facts and circumstances, it was not necessary for the prosecution to declare Awadhesh Khare (P.W.12) hostile when he admitted in cross-examination that when he entered into hospital’s chamber, appellant’s full- pant was hanging on a chair, because according to evidence of Awadhesh Khare (P.W.12) himself and other witnesses, appellant’s full pant after its removal from the appellant’s body was dipped into solution of sodium carbonate and after removal of full-pant from appellant’s body naturally it could be hanged on a chair before dipping it in the solution. Thus, above mentioned admission of Awadhesh Khare (P.W.12) did not falsify the prosecution’s case as Awadhesh Khare (P.W.12) had not deposed that the bribe amount was recovered from any pocket of hanging pant.

39. On placing reliance on the citation of Panalal Damodar Rathi Vs. State of Maharashtra (AIR 1979 SC 1191), it has been argued by the learned senior counsel for the appellant that corroboration of complainant's evidence in material particulars connecting the accused with the crime is required. In present case, the corroboration of complainant's evidence is available regarding first demand of bribe made by the appellant in the night of 11.5.2003 provided by call-details of his mobile phone itself. On the point of acceptance of amount of bribe, complainant's evidence is substantially corroborated by the members of trap party, Inspector Devvrat Mishra (P.W.9), Head-constable Niranjan Singh (P.W.16), Inspector N.K.Parihar (P.W.7) and constable Awadhesh Khare (P.W.12). Hostile declared both panch witnesses P.R.Rathore (P.W.6) and Raghunath Prasad Parashar (P.W.11) have also admitted their signatures on all the memos prepared in their presence, though they tried to deviate from recorded facts in memos. The various sealed bottles and seized pant of appellant were identified by Devvrat Mishra (P.W.9) and some other prosecution witnesses at the time of recording of their depositions.

40. In the light of cases in Hazarilal Vs. State of Delhi Administration (AIR 1980 SC 873) and Gian Singh Vs. State of Punjab (AIR 1974 SC 1024), it is clear that if the evidence of the police officer who laid the trap is found entirely trustworthy, there is no need to seek any corroboration and police officials cannot be discredited in a trap case merely because they are police officials and basically the Court has to view evidence in the light of the probabilities and the intrinsic credibility of those who testify. In light of above mentioned cases, it is clear that the evidence of above mentioned police officials prosecution witnesses appears to be totally reliable, who were at the relevant time posted at Sagar and were not having any enmity with the appellant. It was also held by the Apex Court in Hazarilal Vs. State of Delhi Administration (AIR 1980 SC 873) that it is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance.

41. It has been argued by the learned senior counsel that in present case, there is no evidence of any shadow witness, who had seen taking of bribe by the appellant from the complainant. In this reference, it has been observed in the case of Rajasingh Vs. State [1995 Cr.L.J. 955 (Madras)] that it is not a rule that along with the trap witness (complainant) another independent witness should accompany. Sometimes too may persons or even one stranger along with a trap witness may create suspicion in the mind of the accused to behave differently. In the case of Dharmraj Vs. State of M.P. [1989 (1) Crimes 265], even when the complainant and one of the trap witnesses turned hostile to the prosecution and were declared hostile but after taking the available direct evidence and the circumstances into consideration, it was held that the prosecution established acceptance of bribe by the accused.

42. In this case, as complainant Dr.Peetamber (P.W.4)'s evidence is corroborated by Devvrat Mishra (P.W.9), Niranjan Singh (P.W.16), N.K.Parihar (P.W.7) and Awadhesh Khare (P.W.12) on the point that after entering into complainant's chamber by the members of the trap party, when the fingers of the appellant dipped in solution of sodium carbonate, then its colour had changed to pink and as before shaking of hands, the complainant had not touched the treated currency notes, thus above mentioned fact is indicative of acceptance of bribe amount by the appellant Rajkumar Jaiswal, otherwise the colour of solution concerned would not have changed. In the present case, the demand of bribe by the appellant and its acceptance from the complainant is proved by the evidence available on record.

43. In our considered opinion, the learned trial Court has rightly found the facts proved that the appellant being an investigator of Crime No.240/2003 misusing his position put the complainant in fear or threat of accusation under above mentioned crime for offence of rape, which is punishable with life imprisonment, compelled him to be ready for giving him bribe and thereby committed extortion and also cheated the complainant by intimating him that there is evidence available against the complainant for offence of rape and thus, thereby dishonestly induced the complainant to deliver the bribe amount of Rs.25,000/- on the date 13.5.2003 and the appellant being a public servant demanded illegal gratification of Rs.1,00,000/- to save the complainant from accusation in relation to offence of rape and after negotiations with complainant agreed to receive Rs.25,000/- and accepted Rs.25,000/- from complainant as illegal gratification on 13.5.2003 at about 8:00 p.m. and by above mentioned acts, the appellant as public servant abused his position and obtained for himself the above mentioned bribe amount and committed criminal misconduct. All the relating ingredients of all the charged offences by the trial Court against the appellant were established by prosecution evidence beyond reasonable doubt. In light of the case of Muralidharan Nair Vs. State of Kerala [2004 Cr.L.J. 3739 (Ker.)], the conviction of appellant under Section 420 of the I.P.C. appears to be justified. It is clear that appellant's criminal appeal is not having any substance.

44. In our considered opinion, the learned trial Court had properly and legally analysed the evidence available on record and had not committed any error in convicting and sentencing the appellant. Legal position explained in various citations relied on by the learned counsel for the appellant could not be disputed, but each case has to be decided on its own evidence. After the demand of bribe by first mobile call, subsequent conduct of the appellant established by call details of his mobile phone and on 13.5.2003 in the night appellant's reaching to complainant’s hospital provides an additional reliability to complainant’s applications (Ex.P.3 and Ex.P.5). The reasons of turning of panch witnesses hostile could be understood. The sentences awarded by the trial Court looking to the total facts and circumstances of the case and its social impact do not appear to be harsh and unbalanced.

45. Consequently, this criminal appeal filed by the appellant is dismissed and the above mentioned conviction and sentence recorded by the learned trial Court are affirmed. The appellant has been released on bail after suspension of his jail sentence. He is directed to immediately surrender before the trial Court to serve out his remaining jail sentence. With copy of this judgment, record of the trial Court be returned.

     (Ravi Shankar Jha)                    (Ashok Kumar Joshi)
          Judge                                   Judge
       2.5.2017                                        2.5.2017
C.