Jharkhand High Court
Against The Judgment Of Conviction And ... vs The State Of Jharkhand Through Central ... on 12 April, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 Cr. Appeal (SJ) No.308 of 2002
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 308 of 2002
[Against the Judgment of conviction and Order of sentence
dated 09.05.2002, passed by the learned Additional Judicial
Commissioner-II-cum-Special Judge, C.B.I., Ranchi in R.C.
Case No. 22 (A)/93-(R)]
M.P. Madhup, son of Ramautar Poddar, resident of Co-
operative Colony, P.S. Bokaro, District- Bokaro
..... Appellant
Versus
The State of Jharkhand through Central Bureau of
Investigation, Ranchi
..... Respondent
.....
For the Appellant : Mr. Ajay Kumar Trivedi, Advocate For the C.B.I. : Mr. Prashant Pallav, ASGI : Mr. Navneet Sahay, AC to ASGI .....
PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court: - Heard the parties through video conferencing.
2. The appellant-convict has preferred this appeal being aggrieved by the Judgment of conviction and Order of sentence dated 09.05.2002, passed by the learned Additional Judicial Commissioner-II-cum-Special Judge, C.B.I., Ranchi in R.C. Case No. 22 (A)/93-(R) whereby and where under, the learned court below has held the appellant-convict guilty for the offences punishable under Section 7 of Prevention of Corruption Act, 1988 and under Section 13(2) read with 2 Cr. Appeal (SJ) No.308 of 2002 Section 13(1)(d) of the Prevention of Corruption Act, 1988 and has sentenced him to undergo Rigorous Imprisonment for two and half years and to pay a fine of Rs.20,000/- for the offences punishable under Section 7 of Prevention of Corruption Act, 1988 and in case of default of payment of fine, further sentenced to undergo Rigorous Imprisonment for three months. Further, the appellant-convict has been sentenced to undergo Rigorous Imprisonment for two and half years and to pay a fine of Rs.7,000/- for the offences punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and in case of default of payment of fine, further sentenced to undergo Rigorous Imprisonment for six months. It was ordered that both the sentences shall run concurrently.
3. The case of the prosecution in brief is that while the appellant-convict was posted as Superintendent (Civil), Bhawnathpur Lime Stone Mines, Raw Material Division (SAIL), on 03.11.1993 demanded a bribe of Rs.3,000/- for making the payment of the final bill amount which bribe amount was later on scaled down to Rs.1,000/- and instructed the complainant who was the contractor engaged in construction of the Explosive Building in the said Bhawnathpur Mines of SAIL to give the said bribe amount of Rs.1,000/- on 05. 11.1993 to the appellant-convict. As the complainant was not desirous of giving the said bribe, he 3 Cr. Appeal (SJ) No.308 of 2002 submitted a written complaint to the Superintendent of Police, C.B.I., S.P.E., Ranchi on 05.11.1993. The complaint was verified by Sri Shravan Kumar, Deputy Superintendent, C.B.I., S.P.E., Ranchi and on finding the allegation to be genuine, F.I.R. vide R.C. Case No. 22 (A)/93-(R) was registered on 05.11.1993. A trap team was constituted including the complainant, independent witnesses and the officers of the C.B.I. On the same day, a trap was laid at Bhawnathpur. The complainant knocked the door of the drawing room of the residence of the appellant-convict. The appellant-convict opened the door and allowed the complainant to go inside the drawing room. Inside the drawing room, the appellant-convict demanded the bribe upon which, the complainant handed over the currency notes amounting to Rs.1,000/- smeared with phenolphthalein powder to the appellant-convict. The conversation between the appellant-convict and the complainant was overheard by the shadow witness. Upon receiving the bribe amount, the appellant-convict counted the same using both his hands and kept the same in his left side pocket of his Kurta. Upon receiving the pre-fixed signal, the members of the trap party rushed to the drawing room of the appellant-convict and after disclosing their identity challenged the appellant-convict of having demanding and accepting the illegal gratification of Rs.1,000/- as bribe from the complainant. The fingers of both the hands as well as the pocket of the Kurta of the appellant-
4 Cr. Appeal (SJ) No.308 of 2002 convict in which the bribe amount was kept were washed separately by dipping the same in the sodium carbonate solution upon which the colour of the milky white solution of sodium carbonate turned pink. The currency notes were seized. Post-trap formalities were completed. The sanction for prosecution of the appellant-convict was obtained.
4. After completion of investigation, charge sheet for the offences punishable under Section 7 as well as Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 was submitted against the appellant-convict. Separate charges for the said to offences were framed against the appellant-convict. The charges were read over and explain to the appellant-convict, to which he pleaded not guilty and claimed to be tried.
5. In support of its case, the prosecution altogether examined 7 witnesses besides proving the relevant documents and material exhibits while 6 witnesses were examined on behalf of the defence.
6. Out of the 7 witnesses examined by the prosecution, the P.W.6- Murli Prasad Singh is the complainant. He has deposed that in the year 1986, he did the work of Explosive Magazine in Bhawnathpur Township. Four of his Running on Account bills were passed. After completion of work, fifth and final bill was prepared. The appellant-convict was to pass the fifth and final bill. On 03.11.1993, P.W.6 met 5 Cr. Appeal (SJ) No.308 of 2002 the appellant-convict. The appellant-convict told him to bring Rs.3000/-. P.W.6 requested the appellant-convict to pass the bill upon which, the appellant-convict became ready to pass the bill upon payment of Rs.1000/- and called the P.W.6 on 05.11.1993 with Rs.1000/-. P.W.6 was not intending to pay the money hence, he went to the office of C.B.I on 05.11.1993 at Ranchi and met D.S.P. P.W.6 submitted written complaint to the S.P., C.B.I. and proved his complaint in court during his examination in chief, which was marked Ext.6. He has deposed in detail about the pre trap preparations. He reached the Bhawnathpur along with the trap team at about 07:00 pm. P.W.6 went to the residence of appellant-convict. He knocked the door of the appellant-convict. The appellant-convict opened the door. The appellant-convict enquired as to whether the P.W.6 has brought the money and if brought then to give the same to the appellant-convict. The P.W.6 handed over the money to the appellant-convict. Those were the same currency notes, the numbers of which notes were noted earlier. The P.W.6 thereafter came out by sneezing. All the members of the trap team reached there. The appellant-convict after taking the money kept the same in the left pocket of his kurta after counting the same. The solution was prepared and the hands of the appellant-convict were washed in the said solutions upon which the colour of the solution turned pink. He identified the notes in Court which were given by him as 6 Cr. Appeal (SJ) No.308 of 2002 bribe to the appellant-convict. The pocket of the kurta of the appellant-convict was also washed in the solution. Upon the search of the house of the appellant-convict, cash of Rs.32,000/- and two keys of the lockers were found and the documents relating to the work of the complainant was also found. Out of Rs.32,000/-, Rs.25,000/- were seized and Rs.7000/- was given to the wife of the appellant-convict. In his cross-examination, he has stated that the bottles which were shown to him were empty. On 03.11.1993 for the first time, the appellant-convict talked about the money to the P.W.6. He stayed in the room of the appellant-convict for 4-5 minutes.
It is pertinent to mention here that there is no cross- examination of the P.W.6 regarding the portion of his testimony wherein he has stated about demand, recovery and acceptance of the bribe. Hence the said portion of the testimony of the P.W.6 is to be treated as true as the same has remained unchallenged in the absence of any cross- examination.
7. P.W.4 -Gopi Chand Ram is an independent shadow witness posted as Sub-Inspector in Security Department of Central Coal Fields Limited at the relevant time. P.W.4 -Gopi Chand Ram has inter-alia deposed that on 05.11.1993, he reached the office of C.B.I. at 10:00 am. He was informed by the officers of the C.B.I; about the complaint made by the complainant. He has described in detail about the pre-trap 7 Cr. Appeal (SJ) No.308 of 2002 preparations made including the complainant -Murli Prasad handing over 20 notes of Rs.50/- denominations each to the Deputy Superintendent of Police which were smeared with phenolphthalein powder and handing over the same to the complainant to be given to the appellant-convict upon his demand. The P.W.4 went to Bhawnathpur along with the members of the trap team. The P.W.4 and the complainant went to the house of the appellant-convict. The complainant knocked the door. The appellant-convict came out. The complainant went inside the house. The P.W.4 was standing by the side of the window. The appellant-convict sat upon the sofa while the complainant sat upon a chair. The appellant- convict enquired from the complainant as to whether, he has come with the money, to which the complainant replied that he has brought Rs.1,000/- as instructed by the appellant- convict. Then the appellant-convict demanded the money, at which the complainant gave Rs.1,000/-. The appellant-convict took the money and kept in his pocket, upon which, the complainant asked as to whether, his bill will be passed now. The appellant-convict told that the same will be passed within a day or two. The complainant sneezed, that being the pre- determined signal and the P.W.4 also signaled to the officers of the C.B.I. and they came and revealed their identity. The C.B.I. officers challenged the appellant-convict by saying that the appellant-convict has taken a bribe. The colour of the face 8 Cr. Appeal (SJ) No.308 of 2002 of the appellant-convict became pale. Thereafter, the right hand of the appellant-convict was washed with the solution, the colour of which turned pink. The solution was kept in a bottle and sealed. The P.W.4 identified his signatures on the material exhibits and other documents. The P.W.4 further stated that in similar manner, both the hands of the appellant- convict were washed with the solution and the colour of the solution turned pink. On being demanded by the officers of the C.B.I., the appellant-convict brought out the bribe money. The numbers of the notes were compared with the numbers mentioned in the pre-trap memorandum; which tallied. The currency notes were kept and sealed in an envelope which was signed by the P.W.4 and others. Upon the pocket portion of the Kurta of the appellant-convict being washed with the solution, the colour of the solution turned pink. The Kurta was also sealed after being put in an envelope. Upon the search of the house of the appellant-convict, cash of Rs.32,000/- and two keys of the locker were found. After the preparation of the seizure memo, the appellant-convict was arrested and was brought to Ranchi. In his cross-examination, the P.W.4 has stated that he received verbal information to go to the office of the C.B.I. and apart from him, P.W.3 also went to the office of C.B.I. at Bhawnathpur, they stopped the vehicle, half a kilometer away before the house of the appellant-convict and went to his house by walking. The house of the appellant-
9 Cr. Appeal (SJ) No.308 of 2002 convict is in the colony. The house of the appellant-convict is bounded by compound wall of about 6 feet height. It was one of the twin quarters. When the complainant went inside the house, the P.W.4 was standing on the verandah and there was one window with two window panes which could be opened. There was curtain in the window. P.W.4 was standing close to the window and was watching from that window. Nobody objected to the peeping by the P.W.4 through the window. The complainant remained in the room of the appellant-convict for 10-15 minutes. Money was brought out from the almirah; kept in the bedroom of the appellant-convict. The wife of the appellant-convict was standing there. When the appellant- convict was being taken away, his wife was crying. He stayed in the house of the appellant-convict for about an hour. At about 08:15 pm from there, they went to the guest house of Bhawnathpur Mines. The paper work was done in the guest house. He stayed in the guest house till 11:30 pm. The washing of hand of the appellant-convict was done in his house but the memorandum was prepared in the guest house. The washing of the hands was done in the dining room of the appellant- convict. Mercury light was on in the dining room. The hands of the appellant-convict were washed first and later on the appellant-convict voluntarily brought out the money from his left pocket. Several documents and files were also seized from the place of the appellant-convict. P.W.4 went in plain clothes.
10 Cr. Appeal (SJ) No.308 of 2002 It is pertinent to mention here that there is no cross- examination of the P.W.4 in respect of his testimony in his examination in chief to the effect that he heard the appellant- convict demanding the bribe money from the P.W.6 and upon that the P.W.6 handed over the bribe money to the appellant- convict and thereafter the appellant-convict assured to pass the bills of the P.W.6. Thus in the absence of any cross- examination, these portion of the testimony of the P.W.6 has remained unchallenged hence the same is to be accepted as the truth in the absence of any cross-examination.
8. P.W.7- Narayan Jha was also the member of the trap team. He has proved the various documents relating to the case and described in detail about the pre-trap preparations. The members of the trap team reached Bhawnathpur at about 07:00 pm. They parked their vehicles at a distance from the house of the appellant-convict. P.W.6- complainant entered inside the house of the appellant-convict followed by P.W.4. P.W.6 knocked the door of the house of the appellant-convict. P.W. 4 was standing on the verandah hiding by himself. The appellant-convict opened the door and P.W.6 entered inside the drawing room. P.W.4 took the position behind the window. The window was open. A curtain was hanging on it. Through the gap in the curtain, the drawing room in which a tube light was on; was visible. After sometime, the complainant- P.W.6 sneezed and P.W.4 also 11 Cr. Appeal (SJ) No.308 of 2002 signaled and the P.W.7 and others went to the drawing room of the appellant-convict. The P.W.7 disclosed his identity and also the identity of the other team members and challenged the appellant-convict that he has taken bribe of Rs.1000/- from P.W.6. The appellant-convict became nervous and his face became pale. He admitted that he received a bribe of Rs.1000/- from P.W.6. The sodium carbonate solution was prepared. The fingers of the hands of the appellant-convict were washed in separate solutions and the colour of the solution turned pink. On being told the appellant-convict removed his kurta. The pocket of the kurta was washed in separate solution and the colour of the solution turned pink. The Kurta was seized and kept in an envelope and sealed. The appellant-convict on being asked, admitted that bills of the P.W.6 relating to construction of Explosive Building was with him and so the measurement book and file was kept in the house, the same was taken and house of the appellant-convict on being searched, Rs.32,000/- cash was found from his Almirah out of which Rs.25,000/- was seized and Rs.7000/- was left for his expenses. The keys of the two lockers were seized. A copy of memorandum was given to the appellant-convict and he was arrested. In his cross-examination, P.W.7 has stated that they went to the guest house of Bhawnathpur at that night.
It is pertinent to mention here that there is no cross- examination of the P.W.7 regarding his testimony made in his 12 Cr. Appeal (SJ) No.308 of 2002 examination in chief about the appellant-convict admitting on being challenged that he has admitted the bribe amount and also the appellant-convict admitting that the files relating to the work of the P.W.6 was in his house and the same were seized by the P.W.7. In the absence of any cross-examination of the P.W.7 in this respect, these portions of the testimony of the P.W.7 is to be accepted as the truth, as the same has remained unchallenged, in the absence of any cross examination thereof.
9. P.W.1- S. Mukhopadhya was the Assistant Director of Central Forensic Science Laboratory, Hyderabad. He has proved the scientific examination report prepared by him in respect of the solution with which the hands and pocket of the kurta of the appellant-convict were sent for chemical examination and he has stated that both the sodium carbonate and sodium phenolphthalein, the latter being formed by the action of phenolphthalein and sodium solution were present in the contents of each of the bottles.
10. P.W.2- Sapan Banerjee was the P.A. to Director Raw Material Division SAIL Calcutta. He has proved the sanction order of prosecution of the appellant-convict.
11. P.W.3- Dr. Tapan Kumar Sarkar is the other independent witness. He has stated about going to the office of C.B.I on 05.11.1993 and he was informed about the complaint submitted by P.W.6 and he has also stated in detail 13 Cr. Appeal (SJ) No.308 of 2002 about the pre-trap formalities. P.W.3 along with the member of the trap team reached Bhawnathpur at about 07:10 pm. P.W.6 showed the house of the appellant-convict. P.W.6 was sent with P.W.4. P.W.3 and others were near the gate. P.W.4 was on the corner of a verandah. P.W.6 knocked the door. The door was opened. P.W.6 went inside. The P.W.4 was standing by the side of the window. Thereafter, the P.W.6 sneezed loudly and the P.W.4 signaled. P.Ws.3 and 6 went inside the house of the appellant-convict. The appellant-convict was challenged by saying that he has accepted the bribe. The sodium carbonate solution was prepared. The hands of the appellant-convict as well as the pocket of the kurta of the appellant-convict were washed in separate solutions, the colour of the solution turned pink. Upon the house of the appellant-convict being searched, Rs.32,000/- cash and two keys of the locker were recovered. In his cross-examination, P.W.3 has stated that he is a witness in two trap cases of C.B.I.
12. P.W. 5- Manzaunil Haq Ansari has proved the documents relating to the work of the P.W.6 including the Detailed Measurement Book, Abstract Measurement Book, R.A. bills. In his cross-examination, on being confronted by the defence, he proved that the book was issued by his personnel department which was marked Ext. B.
13. After closure of the evidence of the prosecution, the statement of the appellant-convict under Section 313 of the 14 Cr. Appeal (SJ) No.308 of 2002 Code of Criminal Procedure was recorded regarding the circumstances appearing in evidence against the appellant- convict and the appellant-convict denied all the questions relating to the circumstances appearing in evidence against him and stated that he is innocent.
14. Out of the six witnesses examined by the defence, D.W.1- Ram Krishan Prasad has stated that the appellant- convict was the President of Saraswati Shishu Mandir situated at Bhawnathpur town. On 05.11.1993 at about 07:00 pm, the D.W.1 went to the house of Dr. C.S.K. Das along with others. He met with P.W.6 and P.W.6 stated that he was going to the appellant-convict to give him donation for construction of Ketar Temple. The appellant-convict was the General Manager of the said temple. They stayed in the balcony of Dr. C.S.K. Das from which the house of the appellant-convict was visible. Both, the appellant-convict and P.W.6 went inside the house and closed the door. The window was closed. After about 8-10 minutes, P.W.6 came out from the house of the appellant- convict followed by the appellant-convict. No third person was present there. In his cross-examination, he has stated that he has no documentary evidence regarding the discussion he held with Dr. C.S.K. Das regarding the facility to be given to the teachers nor he has any document to show that the appellant-convict is the General Manager of the temple. On 15 Cr. Appeal (SJ) No.308 of 2002 the next day, he came to know that C.B.I. has raided the house of the appellant-convict and arrested him.
15. D.W.2- Kailash Uraon is a pump attendant of Bhawnathpur Lime Stone Mines, Civil Engg. Department. The D.W.2 has deposed that P.W.5 told him to take 2-3 files and two measurement books to the house of the appellant-convict relating to the bills of P.W.6. D.W.2 went with P.W.6 in his motorcycle to the house of the appellant-convict. A person was already there and the appellant-convict told P.W.6 that upon checking files and materials, the payment of the final bill will be made. P.W.6 told him that he will give Rs.1000/- as donation for Maha Kali temple. In his cross-examination, he has stated that there is no documentary evidence in his department regarding the documents which he took to the house of the appellant-convict. He cannot say the registration number of the motorcycle by which he came to the house of the appellant-convict. There is no document to show that the appellant-convict was the General Manger of the temple, the receipt of payment made by the D.W.2 of the said temple was eaten by termites. One or two days thereafter, it was known that the appellant-convict was caught while taking the bribe.
16. D.W.3- Yaswant Singh. He has deposed that on 05.11.1993, the complainant told him that he has obtained a receipt for giving a donation of Rs.1000/- to the Ketar Kali Temple and D.W.3 once gave Rs.11,001/- as donation. In his 16 Cr. Appeal (SJ) No.308 of 2002 cross-examination, he has stated that he has not seen any register to the effect that the appellant-convict was the General Manager of Ketar Kali Temple and he might have the receipt of Rs.11,001/- in his house and he is not an income tax payee. He does not remember the registration number of his four buses.
17. D.W.4- Baijnath Prasad Gupta has stated that he is the Manager of the committee constituted for renovation of the temple and the appellant-convict was the General Manager of the committee. P.W.6 promised to donate Rs.2001/-. D.W.4 told the P.W.6 to pay money to the appellant-convict and obtain a receipt from him. He proved the counter foil of the receipt which was marked Ext. F. In his cross-examination, he has stated that he has no document to show that the committee was constituted for renovation of the temple.
18. D.W.5- Rameshwar Prasad Singh has stated that he is the member of the committee constituted for renovation of the Ketar Mahakali temple and the appellant-convict was the General Manager of the said committee since 1987. He has further stated that P.W.6 promised to donate Rs.1001/- and obtained a receipt but on that day, he did not pay the money. In his cross-examination, he has stated that there is no document to show that he is the member of the committee for renovation of the temple. He further stated that later on he 17 Cr. Appeal (SJ) No.308 of 2002 came to know that the appellant-convict has been caught by C.B.I.
19. D.W.6- Md. Salman Siddiqui has stated that he has joined as Deputy Chief Manager in Bhawnathpur Lime Stone Stores and he was staying at room no.3 in the guest house. On 05.11.1993 at about 08:00 pm 8-9 persons alighted from two ambassador vehicles in the guest house along with appellant-convict. They stayed in the guest house for 2-3 hours in room no.1 and 2. The appellant-convict told D.W.6 that one contractor with surname Singh was giving donation for temple to him and got him caught by C.B.I. The D.W.6 had also donated for construction of the Ketar Kali temple. In his cross-examination, he has stated that he was not the officer of the guest house and on that day, no attendant was present to welcome the guests in the guest house. D.W.6 stayed in the guest house as a guest but the D.W.6 does not have any document to show that he was staying there. C.B.I. personnel caught the appellant-convict for taking bribe of Rs.1000/- .
20. Learned court below after taking into consideration the evidence both oral and documentary put forth in this case, has come to the conclusion, that the appellant-convict has compelled the complainant to give the bribe to him by creating circumstances with the help of the other officers of the Department and accepted the bribe money which was recovered from him and held that the evidence in 18 Cr. Appeal (SJ) No.308 of 2002 record is sufficient to establish both the charges for the offences punishable under Sections 7 and Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 and the learned court below has convicted and sentenced the appellant-convict as already indicated above.
21. Mr. Ajay Kumar Trivedi, the learned counsel for the appellant-convict submits that the learned court below has failed to appreciate the evidence in the record in it proper perspective. It is then submitted by the learned counsel for appellant-convict that the prosecution has miserably failed to establish the factum of demand of bribe in question. It is further submitted by the learned counsel for the appellant- convict that the learned court below has failed to consider the non-examination of two constables who were the members of the trap team which raises serious doubt over the case of the prosecution. It is further submitted by the learned counsel for the appellant-convict that in the course of investigation, the statement of the witnesses were not recorded under Section 161 Cr.P.C. by which the defence has been prejudiced. It is also submitted by the learned counsel for the appellant-convict that the P.Ws.3 and 4 could not be treated as independent witnesses and their testimonies are highly improbable. It is next submitted by the learned counsel for the appellant- convict that the final and fifth bill was not at all ready in any aspect for payment hence, there was no occasion for the 19 Cr. Appeal (SJ) No.308 of 2002 appellant-convict to demand and accept the bribe amount from P.W.6. Mr. Trivedi next submitted that the learned court below has failed to consider that Rs.1000/- paid by P.W.6 to the appellant-convict was for donation to the local temple at village Ketar and the fact that C.B.I. did not call any independent witness during the trap makes the case of the prosecution doubtful. Mr. Trivedi next relied upon the judgment of Hon'ble Supreme Court of India in the case of Som Prakash vs. State of Punjab reported in AIR 1992 SC 665, paragraph no.2 of which reads as under:-
"2. The High Court found that the witnesses who were associated in the conduct of the raid for recovery of tainted money from the appellant could not be termed as independent who could be associated with such raids. The High Court further expressed doubt about veracity of the witness who claimed that money was actually handed over in his presence. The High Court, however, drew an adverse inference against the appellant from the circumstance that the, bill which was delayed for unreasonable period had suddenly been passed by the appellant On an overall assessment the High Court entertained some suspicion about the credibility of the prosecution witnesses but at the same time did not find the suspicion to be strong enough to raise doubt about the guilt of the appellant. We agree with the learned Counsel for the appellant that in the face of the finding that the witnesses who formed part of the raiding party were not independent and the evidence regarding handing over money to the appellant being unbelievable, the conviction of the appellant cannot be sustained. The guilt of the appellant has not been proved beyond reasonable doubt and as such the benefit must go to him."
20 Cr. Appeal (SJ) No.308 of 2002 Hence, it is submitted by the learned counsel for the appellant-convict that the impugned judgment of conviction and order of sentence be set aside and the appellant-convict be acquitted by at least giving him the benefit of doubt.
22. Mr. Prashant Pallav assisted by Mr. Navneet Sahay, learned counsel for the C.B.I. on the other hand defended the impugned judgment of conviction and order of sentence and submitted that the witnesses of the prosecution has amply proved the case of the prosecution beyond all reasonable doubt. It is next submitted by the learned counsel for the C.B.I. that P.W.6 being the complainant has categorically stated about all the three ingredients required to bring home the charges for the offence punishable under Section 7 as well as Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988, being;
(i) demand of bribe,
(ii) acceptance of bribe and,
(iii) recovery of the bribe amount, and his testimony has been corroborated with the testimony of P.W.4 who is an independent shadow eye- witness to the occurrence and the P.W.3 who is also an independent witness of course, who was waiting near the gate of the house of the appellant-convict at the time of trap and the P.W.7 who was leading the trap team has also deposed about the post trap formalities including recovery of the 21 Cr. Appeal (SJ) No.308 of 2002 demanded money. It is next submitted by learned counsel for the C.B.I. that there is absolutely no cross-examination of the material prosecution witnesses being the P.W.6, P.W.4, P.W.7, and P.W.3 vis-à-vis their testimony made in their examination in chief regarding the ingredients of the charges which the appellant-convict was facing in the trial hence such unchallenged and trustworthy testimony of such witnesses is itself sufficient to bring home both the charges against the appellant-convict. It is further submitted that nothing has been elicited in the cross-examination of any of the witnesses to discredit or disbelieve their testimonies. Hence, it is submitted that the learned court below having rightly convicted and sentenced the appellant-convict and the same ought not to be set aside, this appeal being without any merit is dismissed.
23. Having heard the submissions made at the Bar and after going through the evidence in record, so far as the contention of the appellant-convict regarding the testimony of P.W.4 and P.W.3 are concerned, it is a settled principle of law that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely as has been held by the honourable Supreme Court of India in the case of Dalip Singh v. State of Punjab, 1954 SCR 145 : AIR 1953 SC 364 :
1953 Cri LJ 1465. Now coming to the facts of the case though the defence has examined 6 witnesses besides carrying out lengthy 22 Cr. Appeal (SJ) No.308 of 2002 cross examination of the witnesses of the prosecution yet nothing could be put forth by the defence in this case to either show any anonymity between the P.W.3 and 4 on one hand and the appellant-convict on the other hand; which could have been an motive for false implication of the appellant-convict by the P.W.3 and 4. Under such facts this Court is of the considered view that there is no justifiable reason to support the contention of the appellant-convict to hold that the P.W.3 and 4 are not independent witnesses.
So far as the contention of the appellant-convict regarding the defence put forth by the appellant-convict that the said acceptance of Rs.1000/- was for donation of a temple, this Court is of the considered view that neither the P.W.6 in his cross-examination nor any other witnesses of the prosecution in their respective cross-examination has been asked any question regarding the said money being paid as donation to the temple and at best, it is an afterthought by the defence to cook up a story that the appellant-convict was the General Manager of the committee constituted for renovation of a temple in village- Ketar more so, in the absence of any documents whatsoever in relation to the constitution of such committee in which the appellant-convict was the General Manager where thousands of rupees as per the case of the defence was paid by various persons to that committee.
24. After carefully going through the evidence in the record, this Court is of the considered view that there is 23 Cr. Appeal (SJ) No.308 of 2002 absolutely no cross-examination of the material witnesses being the P.W.6 and P.W.4 regarding their testimonies of demand of bribe money, acceptance of bribe money and recovery of bribe money by the appellant-convict and in the absence of any cross-examination, the testimonies of the witnesses in this respect remains unchallenged. Hence, the same is to be accepted as true. Similarly, P.W.7 and P.W.5, though have stated about the recovery of money and post trap formalities including admission by the appellant-convict that he has accepted the bribe on being confronted by the P.W.7 has deposed by the P.W. 7, have not been cross-examined in that respect. It is a settled principle of law that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue and without this, it is not possible to impeach his credibility. The Hon'ble Supreme Court in the case of Laxmibai (Dead) Thr. LRs. & Anr. vs. Bhagwantbuva (Dead) Thr. LRs. & Ors. reported in AIR 2013 (SC) 1204 in para-31 in this respect held as under :-
31. "Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards
24 Cr. Appeal (SJ) No.308 of 2002 information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226 :
(1993 AIR SCW 3675); State of U.P. v. Nahar Singh (dead) & Ors., AIR 1998 SC 1328 : (1998 AIR SCW 1200); Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.), AIR 2001 SC 3207 : (2001 AIR SCW 3042); and Sunil Kumar & Anr. v. State of Rajasthan, AIR 2005 SC 1096) : (2005 AIR SCW 589)."(Emphasis given) Thus, in the considered view of this court, the evidence in the record put forth by the prosecution, is sufficient to establish the following ingredients for the offences punishable under Section 7 as well as 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988 being
(i) Demand of Bribe.
(ii) Acceptance of Bribe.
(iii) Recovery of Bribe amount.
In fact, it is the admitted case of the defence that the appellant- convict received Rs.1000/- which was ultimately recovered from him but the only defence is that the same is accepted by the appellant-convict as donation for construction of a temple.
25. So far as the judgment of Som Prakash vs. State of Punjab (supra) is concerned, the facts of that case is entirely different from the facts of this case as in that case, the High Court expressed doubt about veracity of the witness who 25 Cr. Appeal (SJ) No.308 of 2002 claimed that money was actually handed over in his presence whereas in this case, there is absolutely no doubt about the evidence put forth by P.Ws.6 and 4 regarding all the three essential ingredients i.e. demand of bribe, acceptance of bribe and recovery of bribe money from the appellant-convict and it is admitted case of the defence that the appellant-convict has accepted the money as donation for a temple, of course which for reasons already discussed above in this Judgment which does not appear to be trustworthy. Thus, the ratio of Som Prakash vs. State of Punjab (supra), in the considered view of this Court, is not applicable to the facts of the present case.
26. After going through the evidence put forth by the prosecution, this Court is of the considered view that the evidence in record is sufficient to establish both the charges for the offence punishable under Section 7 of Prevention of Corruption Act, 1988 as well as Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988. Accordingly, the appellant-convict has rightly been convicted for the said offences by the learned trial court.
27. Thus, this Court does not find any justifiable reason to interfere with the conviction of the appellant-convict for the offence punishable under Section 7 of Prevention of Corruption Act, 1988 as well as Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988.
26 Cr. Appeal (SJ) No.308 of 2002 Accordingly, the conviction of the appellant-convict is confirmed.
28. So far as the sentence is concerned, it is pertinent to mention here that rampant corruption is seen in every walk of our life. People, particularly those holding high office, are frequently seen accepting illegal gratification. In such serious cases showing mercy to such corrupt official may send wrong signals. The Hon'ble Supreme Court of India, in the case of Narendra Champaklal Trivedi v. State of Gujarat, (2012) 7 SCC 80 has observed thus in paragraph -30 "Xxxxxxxxxxx It should be paramountly borne in mind that corruption at any level does not deserve either sympathy or leniency. In fact, reduction of the sentence would be adding a premium. The law does not so countenance and, rightly so, because corruption corrodes the spine of a nation and in the ultimate eventuality makes the economy sterile." Thus in this backdrop, considering the amount of bribe taken by the appellant-convict as also the fact that neither in the appeal memo nor during the hearing of this appeal the appellant- convict expressed any grievance regarding the quantum of sentence, the sentence also appears to be proper. Hence, the sentence is also confirmed.
29. Accordingly, the impugned Judgment of conviction and Order of sentence dated 09.05.2002, passed by the learned Additional Judicial Commissioner-II-cum-Special Judge, C.B.I., Ranchi in R.C. Case No. 22 (A)/93-(R) is upheld and this appeal being without any merit is dismissed.
27 Cr. Appeal (SJ) No.308 of 2002
30. Perusal of the record reveals that the appellant- convict- M.P. Madhup is on bail. In view of his conviction, his bail is cancelled and he directed to surrender before the learned trial court within four weeks from the date of this Judgment to serve out the remaining sentence, failing which, the learned trial court is directed to take all coercive steps against him for undergoing the sentence.
31. Let the Lower Court Records be sent to the learned court below along with a copy of this judgment forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 12th April, 2022 AFR/ Sonu-Gunjan/-