B.P. Gautam vs State Of Sikkim on 10 April, 2015

[Cites 18, Cited by 0]

Sikkim High Court

B.P. Gautam vs State Of Sikkim on 10 April, 2015

[1] This Appeal is directed against the judgment dated 27.12.2013 in S.T. (Vigilance) Case No. 01 of 2010 passed by the Learned Special Judge, Prevention of Corruption Act, 1988, East & North Sikkim at Gangtok, by which the Accused/Appellant was convicted for offence under Sections 7, 13(1)(a) of the Prevention of Corruption, Act 1988 (in short "P.C. Act") and under Sections 384, 385 Indian Penal Code (in short "IPC") and sentenced to undergo simple imprisonment of one year and to pay a fine of Rs.10,000/- (Rupees ten thousand), in default of payment of which to undergo further simple imprisonment of one year for the offence under Section 7 of the P.C. Act, 1988; simple imprisonment of one year and fine of Rs.15,000/- (Rupees fifteen thousand) in default of payment of which to undergo further simple imprisonment of one year for the offence under Sections 13 (1) (a) P.C. Act, 1988 and, simple imprisonment of one year each for the offences under Sections 384 and 385 I.P.C. All the sentences were to run concurrently. [2] The gravamen of the Prosecution case put shortly, is that a written complaint dated 18.01.2009 was received by the Sikkim Vigilance Police Station from P.W.46, Sumitra Rai, a candidate in the recruitment process of Forest Guards in the Forest Environment and Wildlife Management Department, Government of Sikkim, who had sat for the test, stating that the Accused/Appellant, a Joint Secretary (Administration) of the Department, had demanded illegal gratification of Rs.50,000/- (Rupees fifty thousand) from her in exchange of her being appointed as Forest Guard which she was unwilling to pay.

[3] On the basis of this, Sikkim Vigilance Police Station Case No. R.C. 1/2009 under Section 7 of the P.C. Act, 1988 was registered against Accused/Appellant and investigation taken up. On the very day of the complaint i.e., 18.01.2009, Pre-trap exercise was conducted by the first Investigating Officer (in short the "I.O.") (K. B. Gadaily), in the presence of the Complainant, two independent witnesses, namely, Kunga Lepcha (P.W. 50), and Karma Thendup Bhutia (P.W. 1), and Officers of the Sikkim Vigilance Police .

[4] As a part of the Pre-trap exercise, chemical reaction of Phenolphthalein powder with Sodium Carbonate was demonstrated to the trap team. Thereafter currency notes amounting to a total of Rs.50,000/- (Rupees fifty thousand), in the denomination of Rs.500/- (Rupees five hundred) each produced by the Complainant (P.W. 46), was smeared with Phenolphthalein powder and put in an envelope also smeared with the powder which then was put into a bag to be carried by the Complainant. The Complainant was instructed not to touch the envelope and to deliver it only to the Accused/Appellant when demanded by him. [5] In the evening of 18.01.2009, a trap was laid in the residence of the Accused /Appellant by the I.O. by a team consisting of personnels from the Sikkim Vigilance Police, the Complainant and two independent witnesses duly observing the legal formalities and procedures. It is the case of Prosecution that the Accused/Appellant was caught red-handed demanding and accepting the illegal gratification of Rs.50,000/- from the Complainant in presence of independent witnesses. On verification of the currency notes accepted by the Accused/Appellant, they were found to bear the same numbers as the ones that were handed over to the Complainant after being smeared with Phenolphthalein powder during the Pre-trap exercise.

[6] When the fingers of both hands of the Accused/ Appellant and the fingers of the right hand of his wife, Mani Kala Sharma, (P.W.31), were dipped in the colourless solution of Sodium Carbonate, it turned pink in colour thereby indicating that both of them had taken into their hands the envelope containing the trap money of Rs.50,000/- (Rupees fifty thousand), in the currency denomination of Rs.500/- (Rupees five hundred). A Post- trap memorandum was then prepared and the Accused/Appellant arrested, their hand washes poured in separate bottles which were duly sealed and later forwarded to the CFSL Kolkatta for chemical analysis and opinion. The smeared of currency notes were also seized and other legal formalities and procedures completed on the spot. A search under Section 165 Code of the Criminal Procedure (in short "Cr. P.C.") was conducted in the residence of the Appellant/Accused and his office room from where various incriminating documents were recovered and seized. The opinion of the CFSL Kolkata, after analysis of the samples contained in the two bottles, confirmed that the hand washes contained chemical Phenolphthalein.

 [7]         Investigation             revealed              that         the

Accused/Appellant,        initially      appointed     in     the    Sikkim

Government Service on 15.03.1980, was serving as Joint Secretary in the Forest Environment and Wildlife Management Department in the month of August, 2008. The Complainant was one of the candidates who had appeared in the recruitment test for the posts of Forest Guard as a candidate and was successful in being shortlisted and included in the final merit list recommended by the Selection Committee for appointment. The Accused /Appellant who was the Member Secretary of the Selection Committee contacted her over her mobile phone on 14.1.2009 and demanded money as illegal gratification in exchange of her being appointed as Forest Guard and eventually asked her to meet him at his residence at Sichey, within two days. On 16.1.2009 when she had gone to his residence, the Accused/Appellant reiterated his demand for Rs.50,000/- (Rupees fifty thousand), and asked her to pay the sum by the evening of Sunday which led her to lodge the Complaint in the Sikkim Vigilance Police Station followed by the exercise conducted by the Vigilance Police briefly alluded to above. Investigation further revealed that such demands had also been made by the Accused/Appellant to several other persons who were candidates in the same recruitment process of Forest Guards.

[8] On completion of the investigation, the Accused/ Appellant having been found to have committed the offences under Sections 7, 13(2) r/w Section 13(i)(a) and 13 (i)(d) of the Prevention of Corruption Act 1988 r/w Sections 384/385 and 511 r/w Sections 384 and 511 of the Indian Penal Code, charge-sheet was accordingly submitted after duly obtaining sanction from the State Government Under Section 197 Cr.P.C. and Section 19(1)

(b) of the P.C. Act, 1988.

[9] The Learned Special Judge, upon consideration of the materials on record, being satisfied that a prima- facie case was made out against the Accused/Appellant, charge was framed against him under Sections 7,13(1)(a) r/w Section 13(2) of the P.C. Act 1988, Sections 384/511 and Section 385 I.P.C. which, when read over and explained to him in the Nepali vernacular, he pleaded not guilty and claimed trial. The trial thus commenced against the Accused/Appellant culminating in the impugned judgment being assailed in this appeal. [10] Although several grounds have been raised in the memo of appeal during the oral arguments the Learned Senior Counsel Mr. N. B. Khatiwada, appearing on behalf of the Accused/Appellant with Mrs. Gita Bista, chose to restrict himself to only a few of them. [11] It was submitted that from the entire evidence on record, the Prosecution had failed to prove demand and acceptance of the alleged illegal gratification. Resting on Satvir Singh v. State of Delhi thru. CBI 2014 CRI. L. J. 4399 (SC), it was submitted that mere recovery of the alleged tainted money without there being any demand and acceptance by the Accused/Appellant from the Complainant, does not prove the guilt of the Accused/Appellant. Even mere demand by itself is not sufficient to establish the offence. Acceptance is also a very important aspect when an Accused/Appellant comes forward with the plea that the currency notes had been planted without his knowledge. There has to be clinching evidence to show that it was placed with the tacit approval of the Accused/Appellant as an illegal gratification.

[12] It is submitted that the money was placed inside a closed envelope of which the Accused/Appellant was not aware. That the Prosecution case rests entirely on the evidence of the witnesses who are either interested witnesses or Police witnesses who were part of the team laying the trap for the Accused/Appellant. The evidence of P.Ws 3, 4, 5, 6, 7, 8, 9, 10, 18 and 46 who had successfully appeared in the test for the post of Forest Guard, cannot be believed in as much as the Accused/Appellant who is alleged to have demanded illegal gratification, was not the sole member but was only one amongst several others in the Selection Committee as would appear from the evidence of P.W.22, Sonam Choden Bhutia. The brother of the Complainant, who allegedly arranged Rs.50,000/- (Rupees fifty thousand) for the purpose of the trap and was said to have been present throughout the Pre-trap and Post-trap proceedings, was not cited as a witness.

[13] Referring to the evidence of Sumitra Rai (P.W.46), the Complainant, it was submitted by Mr. Khatiwada that it was doubtful as to whether the witness had at all met the Accused/Appellant on the day of the raid when, as per her oral testimony, as she and P.W.50 entered his house they had first only met a lady and then one girl who led them to the sitting room. That even in his statement recorded under Section 313 Cr.P.C., answering to question no. 97, the Accused/Appellant had stated that he did not demand or receive any gratification but an envelope was handed over to him by his wife which he later came to know contained money and, that it is also in the evidence of P.W.31, Mani Kala Sharma, the wife of the Accused/Appellant, that the envelope was handed over to her by P.W.46, without saying anything about its content. Other than P.Ws 1, 46 and 50, no other Prosecution witness has deposed that they had seen the Accused/Appellant accepting the envelope except that when they entered the house they found Accused/Appellant sitting on a sofa and the envelope lying on the table in front of him.

[14] On these premises it is submitted that the Prosecution has failed to establish that the Accused/Appellant had accepted the envelope containing the currency notes worth Rs.50,000/- (Rupees fifty thousand) thereby belying the Prosecution Case that the Accused/Appellant had accepted the illegal gratification. [15] Mr. Karma Thinlay Namgyal, Learned Additional Public Prosecutor, on the other hand, would submit that the demand of illegal gratification by the Accused/Appellant was proved by the call made by him to the Complainant on 14.1.2009 vide Exhibit 17, the records of the call proved by Khairul Alam Rabbani, SDE Mobiles BSNL, Gangtok, P.W. 47, and Indu Mati Chettri, Telephone Technical Assistant, BSNL, Gangtok, P.W.12. The Post-trap memo Exhibit 37 considered with the evidence of P.W.50, Kunga Lepcha, P.W.1, Karma Thendup Bhutia and the Complainant, P.W.46, clearly establishes the factum of acceptance of the illegal gratification by the Accused/Appellant. [16] It is submitted that there was no reason to disbelieve the evidence of P.W.1 and P.W.50, as they were independent witnesses. Their evidence, as per him, stand fully corroborated by P.W.13, Phigu Tshering Bhutia, P.W.14, Doma Chamzo, O.C. Sikkim Vigilance Police, P.W.43, Kul Bdr. Gadaily, the first Investigating Officer, who was the author of the Pre-trap memorandum Exhibit 36 and Post-Trap memorandum Exhibit 37, P.W.44, Hem Raj Century, Dy S.P. Sikkim Vigilance Police and P.W.45, Nike Purna Bdr. Gurung.

[17] As per the Learned Additional Public Prosecutor, the sequence of events commencing from the lodging of the FIR by the Complainant (P.W.46), the Pre- Trap exercise at the Vigilance Police Station and the Post- Trap exercise following the acceptance of the trap money of Rs.50,000/- (Rupees fifty thousand), by the Accused/ Appellant, have been proved beyond reasonable doubt unimpeded by any other incident that would cause doubts on the Prosecution story. It is submitted that when in the circumstance as in the present case where the money was recovered from the possession of the Accused/Appellant, presumption under Section 20 of the Prevention of Corruption Act, 1988 becomes obligatory and, such presumption can be dislodged by the Accused/Appellant only by bringing on record some evidence, either direct or circumstantial, to rebut such presumption and that the explanation offered by the Accused/Appellant would also require consideration by the Court. It is submitted that the Accused/Appellant has failed to give any explanation as to how he had come into possession of the trap money.

[18] Referring to C. M. Sharma v. State of Andhra Pradesh (2010) 15 SCC 1, it was submitted that when the evidence of the shadow witness (P.W.50) was reliable there was no reason to disbelief the evidence of the Complainant, P.W.46, whose evidence was corroborated by the independent witnesses P.W.1, Karma Thendup Bhutia, on the factum of the Accused/Appellant having accepted the trap money. He would then submit that the discrepancies in the evidence of the Prosecution pointed out on behalf of the Accused/Appellant, are minor discrepancies which does not shake the foundation of the Prosecution case. On this, reference was made to Syed Ahmed v. State of Karnataka (2012) 8 SCC 527. Resting on Rohtash Kumar v. State of Haryana (2013) 14 SCC 434, it was submitted that simply because most of the trap witnesses were Police witnesses, their evidence need not necessarily be discarded unless it is shown that those witnesses had cause to bear enemity against the Accused/Appellant so as to implicate him falsely. All that the Court would require to do is to be circumspect and look for corroboration to their evidence.

[19] It was thus submitted that in the light of the evidence of the Prosecution witnesses, Pre-trap and Post- trap memoranda Exhibits 36 and 37 respectively and the Forensic Report Exhibit 112 proved by the scientific expert, P.W.53, the case of the Prosecution that the Accused/Appellant demanded the illegal gratification of Rs.50,000/- (Rupees fifty thousand), from the Complainant, P.W.46, and had been accepted from her, stands proved beyond reasonable doubt and, therefore, there was no reason to interfere with the impugned judgment of the Learned Special Judge.

[20] I have considered the submissions of the Learned Counsel for the parties, carefully examined the oral and documentary evidence and the impugned judgment. The thrust of the Accused/Appellant case in assailing the impugned judgment is on the trap proceedings culminating from the complaint lodged by Sumitra Rai, P.W.46. Although some discrepancies have been pointed out as regards the Pre-trap and the Post- trap proceedings as to the persons said to have been present, particularly during the Pre-Trap exercise, nothing of substance has been pointed out to cause any doubt on the exercise carried out by the Vigilance Police. [21] As already noted earlier, the genesis of the present case is traced to a written Complaint dated 18.1.2009 lodged by the Complainant P.W.46 to P.W.14, the Officer In-charge, Sikkim Vigilance Police Station, substance of which is that on 14.1.2009 she had received a call on her mobile phone No.9733411617 from mobile phone No. 9434866875 made by the Accused/Appellant demanding gratification in exchange of her appointment as Forest Guard for the recruitment of which she had appeared as a candidate. After confirming the mobile number as being that of the Accused/Appellant from the Forest Secretariat, on 16.1.2009 and after unsuccessfully trying to contact him, she went to his residence with the help of a lady Forest Guard and, when she met him there at about 6 p.m., he had asked her as to whether she had brought the money and that she should pay at least Rs.50,000/- (Rupees fifty thousand) by the next Sunday evening otherwise she would not get the appointment. [22] Being unwilling to make the payment, she chose to lodge the Complaint. The Complainant appearing as P.W.46 has unerringly deposed on all the above facts in her evidence apart from the Pre-trap and the Post-trap exercise already alluded to earlier.

[23] P.W.2, Nir Maya Rai, has corroborated the Complainant P.W.46 on all material particulars in her evidence. She has deposed that on 16.1.2009, the Complainant Sumitra Rai, had come and met her in the W.T. Room of her Department where she was then posted and asked her to check out a mobile number from the diary maintained by the W.T. room. When she checked the said number from the diary, it was found to be that of the Accused/Appellant. Later at about 3 p.m. the Complainant had come back again to her office and asked her to accompany her to the residence of the Accused/Appellant. She agreed to her request and after her duty got over at 5 p.m., she accompanied the Complainant to the residence of the Accused/Appellant situated at Sichey Busty, where they found him standing outside his house. The Complainant then introduced herself to the Accused/Appellant who then invited them in to the house. While she waited in the sitting room, the Complainant and the Accused/Appellant entered into an adjacent room and talked to each other for 4 to 5 minutes but was unable to hear their conversation. [24] P.W.12, Indumati Chettri, Telephone Technical Assistant, in the office of BSNL, Cherry Building, Gangtok, in her evidence testified that the Vigilance Police Officer had seized call details, Exhibit 17, in respect of cell no. 9434866875, containing 22 pages vide seizure memo Exhibit 16. On a perusal of Exhibit 17 and the entry therein made by P.W.12, mobile No.9434866875 is found registered in the name of Pranita Sharma, Sichey, Suchakgang, P.S. Sadar, Gangtok, from which two calls appear to have been made to the number of Complainant 9733411617, once at 9:12:54 and later at 12:21:57, on 14.1.2009 thereby confirming the Complainant's version of the Accused/Appellant having made calls to her on that day.

[25] Mr. Khatiwada, Learned Senior Counsel for the Accused/Appellant, would submit that there was no reason for the Accused/Appellant to have called the Complainant from the number of Pranita Sharma, when he had his own mobile phone. However, Exhibit 19, the application form for new mobile phone connection submitted by Pranita Sharma, shows that she is the daughter of the Accused/Appellant and from the evidence of P.W.2, Nir Maya Rai, the employee of the Forest Department, working in the W.T. Room, the very mobile number was recorded as that of the Accused/Appellant. This would establish that the Accused/Appellant had been using the cell number registered in the name of his daughter. All these would lead to the only conclusion that the Accused/Appellant had indeed made a call to the Complainant on 14.1.2009 demanding illegal gratification. This fact gets reinforced by the evidence of P.W.2, who accompanied the Complainant, P.W.46, to the house of the Accused/Appellant at Sichey Busty in the evening of 16.1.2009, where, as per the uncontroverted evidence of the Complainant P.W.46, the Accused/Appellant had made a demand of Rs.50,000/- (Rupees fifty thousand) from her in exchange of her appointment as Forest Guard. Thus demand of illegal gratification, a pre-condition to fall within the purview of Section 7 of the P. C. Act, 1988, stands established. [26] In so far as the second ingredient of the offence is concerned, the acceptance of the illegal gratification is evident from the Post-trap proceedings as shall be discussed in brief hereafter. As per the evidence of the Complainant, P.W.46, after the Pre-trap exercise she accompanied the trap team to the residence of the Accused/Appellant and when they entered the house accompanied by Kunga Lepcha, P.W.50, the Accused/Appellant enquired from her as to whether she had brought the cash. Replying him in the affirmative, she took out the cash from the bag and handed it over to him who after accepting it kept the envelope containing the cash on the table and after confirming her name as being "Sumitra Rai", he wrote down her name and roll no on the envelope with a pencil.

[27] P.W.50, Kunga Lepcha, in his evidence has corroborated the evidence of P.W.46 most categorically when he is found to have stated that after the Complainant, P.W.46, affirmatively replied to the Accused/Appellant that she had brought the cash demanded by him, she handed it over to him in a brown envelope who accepted it and started counting the money.

[28] I find that even P.W.13, Phigu Tshering Bhutia, Deputy Director, Vigilance Department, has corroborated the evidence of P.Ws 46 and 50, as it is in his evidence that he had seen the Accused/Appellant accepting the bribe with his own eyes which could not be contradicted at all on behalf of the Accused/Appellant. In view of the firm and uncontradicted evidence of P.Ws 46, 50 and 13, I have no hesitation in holding that the second ingredient necessary for constituting offence under Section 7 of the P.C. Act, 1988, also stands established. [29] I, therefore, find no force in the contentions raised on behalf of the Accused/Appellant to assail the impugned judgment on these aspects.

[30] On an examination of the evidence of P.Ws 13, 14, 40, 43, 44, 45, 46, 50 and 52, it stands established that on a Complainant received from P.W.46, case was registered by P.W. 14, the O.C. Sikkim Vigilance Police Station, on 18.1.2009 under Section 7 of the P.C. Act, 1988 against the Accused/Appellant which was endorsed to the first I.O. P.W. 43. After drawing a formal FIR Exhibit 35, requisition was made by the Officer In-charge for the presence of the Police Officers and staff of Vigilance Police including the I.O. for initiating investigation into the case and for conducting the necessary exercise for the purpose. Thereafter, P.Ws.13, 40, 42, 43 (the first I.O.), P.W. 44, 45, 46, (Complainant), P.W. 50 (independent witness) and P.W. 52 (the second I.O.), gathered in the office of P.W.44 where Pre-Trap exercise was carried out which involved demonstration of use of Chemical and its reaction by S.I. Churamani Poudyal (P.W.42). The cash amount of Rs.50,000/- (Rupees fifty thousand) produced by the Complainant in Rs.500/- currency notes were put in a brown coloured envelope after applying Phenolphthalein powder on both the envelope and money which was then put into a carry bag and handed over to the Complainant P.W.46, with the instructions not to touch the envelope until it was handed over to the Accused/Appellant. The Complainant was asked to accompany the trap team by P.W.44 who instructed all not to carry any belongings including their mobile handset except for the Complainant at the time of the raid at the residence of the Accused/Appellant. After that P.W.43, the first I.O., had prepared a Pre-Trap memorandum, Exhibit 36, and was signed by all those present in during the exercise before proceeding for the residence of the Accused/Appellant. [31] As was planned, on reaching the place, the Complainant and a witness, P.W.50, first entered the residence of the Accused/Appellant and later upon a signal by P.K. Einstein, the rest of the trap team followed. As they entered, they found the Accused/Appellant seated on a sofa and the Complainant, P.W. 46, and P.W.50 also present there and saw the brown envelope containing the cash and a pencil beside it lying on the table in front of the sofa. Then P.W.43 (the first I.O.) introduced himself to the Accused/Appellant as the Investigating Officer of the case and asked him if he had demanded and accepted bribe money from the Complainant. Initially, the Accused/Appellant got flustered and remained speechless but later, on being questioned repeatedly, he admitted having demanded and received the bribe amount.

[32] P.W.43, then conducted the trap proceedings and prepared Post-Trap memorandum Exhibit 37. Search of the residence of the Accused/Appellant was then conducted by the I.O. when certain documents were seized against a seizure memo and the trap team thereafter returned to the Vigilance Police Station. [33] No discrepancy of substance could be pointed out on behalf of the Accused/Appellant to cause any doubt on the Pre-Trap and Post-Trap exercises. The evidence of P.W.40 and P.W.42, who had conducted the Pre-Trap exercise and P.Ws.43, 44, 45, 46, 50 and 52 (the second I.O.) are found convincing to establish those. The only discrepancy of some significance do appear as regards the factum of the Accused/Appellant demanding the money from the Complainant P.W.46 and the money being handed over and being accepted by him on the day of the raid. It is pertinent to note that the raid conducted in the residence of the Accused/Appellant include two episodes that took place i.e., (i) the Accused/Appellant accepting the money and, (ii) Accused/Appellant writing the name and roll no of the Complainant on the envelope.

[34]           The    Learned   Senior    Counsel      for   the

Accused/Appellant     while   dealing    with   episode      (ii)

pertaining to the second episode, referred to the evidence of P.W.31, Mani Kala Sharma, the wife of the Accused/Appellant, and pointed out that in her cross- examination by the Appellant's Counsel after she was tendered by the Prosecution, she had stated that in January, 2009 a boy and a girl had come to her home between 6 to 6.30 p.m. and said that they had to deliver some papers to her husband and handed over to her a brown envelope without saying what it contained. Immediately thereafter 4-5 Police personnel in civil dress entered the house who, on seeing the envelope, said that the whole plan was ruined. The Police Officers then asked her husband, the Accused/Appellant, to write the name and number of the Complainant on the envelope with a pencil as dictated by the Police Officer. The Learned Senior Counsel submits that this witness was not re-examined and, therefore, her testimony stands admitted by the Prosecution.

[35] As pointed out by the Learned Counsel, on a perusal of the statement of the Accused/Appellant recorded under 313 Cr.P.C., answer to questions number 250 and 311 appear to corroborate the evidence of P.W.31. The question Nos. 249, 250 and 311 and answers thereto given by the Accused/Appellant are reproduced below:-

Q.No.249. It is in the evidence of PW 44 that the writings by pencil marked MO V(a) were not written on the envelope MO V when the cash was handed over to you by the complainant at the time of trap. What have you to say?

Ans. Yes it is true.

Q.No.250. It is in the evidence of PW 44 that the writings MO V(a) were found written in the envelope by pencil at the time of seizure and MO VI is the same pencil.

What have you to say?

Ans. I was told to write on it by PW 43. Q.No.311. It is in the evidence of PW.46 that MO V(a)is the writings in pencil which was written by you and MO VI is the same pencil which you used to write MO V(a) on MO V. What have you to say?

Ans. Yes, I wrote the same after P.W.43 insisted that I write the same.

[36] From the above, as the Learned Counsel would submit, it would appear that the Accused/Appellant was forced by P.W.43 to write on the envelope. Again this appears to be clearly in conflict with the evidence of P.Ws 43 and 46. While P.W.43 testified that when he had entered the house of the Accused/Appellant, he was seated on a sofa and saw a brown coloured envelope and a pencil lying on a table in front and, that it was the same envelope which was prepared during the Pre-Trap proceedings. P.W.46, the Complainant, however, is more categorical when in her evidence she has stated that she took out the cash from the bag that she was carrying and handed it over to the Accused/Appellant who, after accepting it, kept the envelope containing the cash on the table and, that after confirming from her that she was "Sumitra Rai", wrote her name and roll number on the envelope with a pencil. P.Ws 14, 40, 44, 45 and 52 only saw the envelope and a pencil beside it placed on the table in front of the Accused/Appellant who was seated on a sofa.

[37] Considering the evident contradictions in the evidence discussed above, the fact as regards, the writing on the envelope appears to be mired in controversy. In view of the glaring contradictions in the evidence, serious doubt arises as to whether or not the Accused/Appellant had written on the envelope as testified by the Complainant, P.W.46.

[38] However, the above discrepancy on episode (ii) appears to be of no consequence to the Prosecution case in view of episode (i) i.e., of the Accused/Appellant having accepted the gratification, having been proved by the Prosecution. The fact that P.W.46, the Complainant, took out the cash which she was carrying and handed it over to the Accused/Appellant who accepted it and kept the envelope containing the cash on the table appearing in her, testimony stands undemolished in her cross- examination. In fact, P.W.13, Phigu Tshering Bhutia, who took the photographs of the entire trap procedure, in most unequivocal terms, has corroborated this when he volunteered to state in his evidence that he had seen the Accused/Appellant accepting the bribe with his own eyes. This part of his evidence has remained firm when this witness was cross-examined.

[39] Therefore, despite the contradictions as regards the writing on the envelope, I find that the Prosecution has been able to prove conclusively that the Accused/Appellant had accepted gratification of Rs.50,000/- (Rupees fifty thousand) from the Complainant, P.W.46, after having demanded it from her firstly over her mobile phone on 14.1.2009 and later in the evening of 16.1.2009, at his residence. [40] This is so far as the case that relate to the Complainant Sumitra Rai, P.W.46. However, the charge framed against the Accused/Appellant also pertain to similar offence committed against several other persons, namely:-

1. Bikash Pradhan - P.W.3

2. Suresh Kumar Rai - P.W.4

3. Suraj Kumar Limboo - P.W.5

4. Prem Kumar Subba - P.W.6

5. Tara Hang Subba - P.W. 7

6. Kharki Maya Gurung - P.W.8

7. Sona Gurung - P.W.9

8. Tara Devi Chettri - P.W.10 and

9. Reeta Chettri - P.W. 18.

[41] Of these persons, although demand was made to all who were also successful candidates in the selection of Forest Guards by the Accused/Appellant for payment of illegal gratification, only P.Ws 5, 6 and 7 had conceded and paid him Rs.10,000/- (Rupees ten thousand) Rs.5000/- (Rupees five thousand) and Rs. 5000/- (Rupees five thousand), respectively. These facts were revealed during the course of the investigation of the case registered on the basis of the Complaint lodged by the Complainant P.W.46. [42] It is pertinent to note that except for mentioning in the passing, the Accused/Appellant chose not to address on the findings against the Accused/Appellant for commission of the offences in respect of P.Ws 5, 6 and 7 in the impugned judgment. It is, therefore, assumed that he has nothing to state on this, thereby accepting the conviction and sentence on this score.

[43] When the facts and the evidence are so clear it is felt unnecessary to deal with the various decisions cited at the Bar which in any case re-emphasize the settled positions of law. Other discrepancies pointed out on behalf of the Accused/Appellant also appear to be minor discrepancies having no consequence to the Prosecution Case for the same reason and are accordingly rejected as such.

[44] For all the reasons, as discussed above, I find no merit in the Appeal which, therefore, has to fail and accordingly uphold the conviction and sentence passed by the Learned Special Judge in the impugned judgment and the order of sentence.

[45] In the result, Appeal is dismissed.

[46] However, on the question of sentence it has been informed that the Accused/Appellant has already undergone certain periods in police and judicial custodies during the investigation and in the course of the trial. The order of sentence shall therefore, stand modified to the extent that the periods of custody already undergone by the Accused/Appellant, shall be adjusted against the sentence passed by the Learned Special Judge. [47] Having held so, the Accused/Appellant ought to be directed to face the process of sentence immediately but, on the prayers made on his behalf by Mr. N. B. Khatiwada, Learned Senior Counsel, to permit some time for the purpose, it is directed that the Accused/Appellant shall appear before the Court of the Learned Special Judge, P.C. Act, 1988, East & North at Gangtok, on 13- 04-2015 at 10.30 a.m., and not later than that, to face the process of execution of the sentence. [48] Let a copy of this judgment along with the original records of the case be transmitted to the Special Judge, P.C. Act, 1988, East & North Sikkim at Gangtok, forthwith for its due compliance.

( S. P. Wangdi ) Judge 10.04.2015

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