Orissa High Court
Section 13(1)(D) And Section 7 Of The ... vs State Of Orissa on 20 May, 2024
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No. 132 of 2010
(Arising out of the Judgment of conviction on dated 27th of February,
2010 passed by Shri M. K. Panda, Special Judge (Vigilance), Balangir
in C.T.R. No. 7/60 of 2003-2007, for the offence under 13(2) read with
Section 13(1)(d) and Section 7 of the Prevention of Corruption Act,
1988)
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A. Venkat Rao .... Appellant
Mr. S. K. Dash, Advocate
-versus-
State of Orissa .... Respondent
Mr. M. S. Rizvi, ASC, Vigilance
P R E S E N T:
HONOURABLE SHRI JUSTICE CHITTARANJAN DASH
Date of Judgment: 20.05.2024
Chittaranjan Dash, J.
1. The Appellant, namely A. Venkat Rao faced the trial on the charges under Section 13(2) read with Section 13(1)(d) and Section 7 of the Prevention of Corruption Act, 1988 (in short, herein after referred to "P.C. Act") before the learned Special Judge (Vigilance), Balangir for having demanded ₹1000/- bribe wherein, the learned court found him guilty in the offences charged as above, convicted and sentenced the Appellant to undergo rigorous imprisonment for six months and to pay a fine of ₹1000/- in default to suffer one-month rigorous imprisonment for the offence under section 7 of Prevention of Corruption Act and to undergo rigorous imprisonment for one year and to pay fine of ₹2000/- in default to suffer rigorous imprisonment or two months for the offence under section 13(2) read with section 13(1)(d) of Prevention of Corruption Act with a direction that both the sentences shall run concurrently.
2. The prosecution case in brief is that the complainant, Dinger Mahakud, P.W.2, filed a case under Section 144 of the Cr.P.C. in the Court of Sub-collector, Birmahrajpur, against his cousins for disturbing his possession of ancestral land. The Sub-collector's office directed R.I. Subalaya and the A.S.I. of Police, Subalaya Out-post, to demarcate the land on a specified date. However, neither the cousin brothers of the complainant were served with any notice nor was the disputed land demarcated. When approached by the complainant, the Appellant claimed to not have received any order from the Sub-collector's office. Subsequently, upon further interaction, the Appellant demanded ₹1000/- and instructed the complainant to inquire about the matter at the R.I.'s office. Similar demands were made by the R.I. himself. On September 26, 2002, the complainant lodged a written report with the S.P. Vigilance, Sambalpur, which led to the registration of a Vigilance case followed by laying a trap.
3. In the process of trap setup, a preparatory meeting, attended by executive magistrate Harichandan Mishra, among others, was held on CRLA No. 132 of 2010 Page 2 of 19 September 27, 2002. During this meeting, the complainant presented ₹2000/- worth of G.C. notes of 100-rupee denomination, intended for payment to the Appellant-A.S.I. and R.I. Subalaya. Chemical testing was conducted during the meeting, using Phenolphthalein powder on the G.C. notes. A junior clerk, Sri Tiwari, was instructed to accompany the complainant and signal upon the payment of the bribe money. Upon completion of formalities, a preparatory note was drafted and signed by the meeting attendees. Around 11 A.M., members of the raiding party arrived near Subalaya out-post. The complainant and Sri Tiwari entered the out-post, where the Appellant-A.S.I. of Police, asked if the demanded bribe money of ₹1000/- had been brought. The complainant handed over the tainted money, which the A.S.I. placed in his wallet. He then proceeded to keep ₹200/- in a wooden box and instructed the complainant to deliver a message to Gram Rakhi. Sri Tiwari signaled the raiding party, who then confronted the A.S.I., accusing him of accepting the bribe amount. Initially, the Appellant denied receiving any money, but subsequently, tainted G.C. notes were discovered in his wallet and in a box at his quarters adjacent to the out-post. Hand wash and wallet wash tests with sodium carbonate solution indicated contamination, leading to its seizure. A Detection Report, signed by all witnesses, including the Appellant, was prepared after the completion of the investigation. Inspector of Vigilance, B.B. Patel, filed a charge- sheet against the Appellant, resulting in the current case.
4. The case of the defense is one of complete denial and false implication. Further case of the defense is that the evidence of the Decoy that the Overhearing Witness was offered a chair in the outpost CRLA No. 132 of 2010 Page 3 of 19 and that he introduced him as his cousin could not have been accepted since the Overhearing Witness deposed that he was at a distance of 25 cubits and was able to see the decoy only and has not heard their conversation.
5. To bring home the charge, the Prosecution examined 4 witnesses in all. P.W.1, Rajesh Kumar Tiwari being the accompanying witness; P.W.2, Dinger Mahakud being the Complainant; P.W.3, Binodbihari Patel being the I.O.; and P.W.4, Harichandan Mishra being the trap procedure and seizure witness. The defense on the other hand examined none.
6. The learned trial court having believed the evidence of the prosecution witnesses found the prosecution to have proved its case beyond all reasonable doubt and held the Appellant guilty and convicted him awarding sentence as described above.
7. The learned counsel for the Appellant asserts that the lower court failed to address the discrepancies and contradictions evident in the evidence, particularly concerning the essential elements of the alleged offense. He submits that convicting the Appellant based solely on the testimony of a decoy is not only illegal but also imprudent, highlighting the lack of corroboration. Furthermore, the lower court's reliance on circumstantial evidence failed to dispel conjecture and suspicion, leaving legal proof unresolved and the emphasis on Section 20 of the Prevention of Corruption Act, 1988, was misplaced, as it does not apply, and surrounding circumstances suggesting rebuttal of presumption were ignored. Regarding the hand wash and chemical CRLA No. 132 of 2010 Page 4 of 19 examination report, the learned counsel asserts that their significance is diminished without evidence to establish their timing in relation to the recovery of tainted money. He also challenges the credibility of the decoy's testimony regarding the overhearing witness, highlighting inconsistencies in their versions. The learned counsel further alleges unfairness in the investigation conducted by a member of the raiding party, claiming prejudice against the Appellant. He criticizes the absence of examination of the sanctioning authority and deem the prosecution's case as thoroughly illegal. Lastly, he argues that the lower court erred in dismissing the defense's plea as an alibi without considering its probability, thereby misdirecting itself in passing the judgment of conviction.
8. The learned counsel for the State (Vigilance), Mr. Rizvi, argues that positive results of the hand wash of the Appellant, the tainted G.C. Notes, and the recovery from the Appellant's wallet collectively corroborate against the Appellant. He furthers that his assertion finds support in established legal principles, as exemplified in the case of Raghubir Singh Vs. State of Haryana (1974) 4 SCC 560, where it was held that the possession of tainted GC Notes by the Appellant, especially when demanded and received, speaks for itself (res ipsa loquitor). Similarly, in T. Shankar Prasad Vs. State of A.P. (2004) 3 SCC 753, it was observed that the legal presumption can be drawn if it's proven during trial that the Appellant accepted or agreed to accept gratification. He adds that the recent judicial precedents such as Vinod Kumar Garg Vs. State (Govt. of NCT of Delhi) (2020) 77 OCR (SC) 310, Para-13 and 14, reinforce the necessity of drawing such presumptions under Section 20 of the Act when the Appellant fails to CRLA No. 132 of 2010 Page 5 of 19 rebut them. The defense's contention that the Appellant was unaware of the matter concerning the issuance of notice to the complainant's brother is contradicted by the Appellant's statement and the Investigating Officer's report. Additionally, the false explanations provided by the Appellant further weaken their defense. In line with the recent ruling by the constitutional bench of the Hon'ble Supreme Court in Neeraj Dutta Vs. State (Govt. of NCT of Delhi) (Criminal Appeal No.1669 of 2009, Judgment Dtd 15 December 2022), culpability of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act can be inferred from other evidence presented by the prosecution in the absence of direct evidence from the complainant. Here, the oral testimonies of the Decoy/Complainant, Accompanying Witness, and Official Witness consistently support the prosecution's case. Furthermore, the demand for bribery need not be explicit when there is voluntary or conscious acceptance of money, as highlighted in the case of B. Noha Vs. State of Kerala and Another (2006) 12 SCC 277, Para-10. He concludes that the Appellant's voluntary acceptance and retention of the tainted money in his wallet, subsequently recovered during the trap, substantiate this argument.
9. To appreciate the aforesaid submissions, the relevant provisions with respect to the charges are required to be referred to -
Prevention of Corruption Act 1988
7. Offence relating to public servant being bribed.--Any public servant who,-- (a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or CRLA No. 132 of 2010 Page 6 of 19
(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation 1.--For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper. Explanation 2.--For the purpose of this section,--
(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.
13. Criminal misconduct by a public servant.--
(1) A public servant is said to commit the offence of criminal misconduct,--
(a) ***
(b) ***
(c) ***
(d) If a public servant, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
Explanation 1.--A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or CRLA No. 132 of 2010 Page 7 of 19 property disproportionate to his known sources of income which the public servant cannot satisfactorily account for. Explanation 2.--The expression ''known sources of income'' means income received from any lawful sources.] (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four years] but which may extend to 3[ten years] and shall also be liable to fine.
10. To sustain the charge under sections 7/13(1)(d) read with Section 13(2) of the Act, the prosecution is obliged to establish the basic ingredients of demand and acceptance of bribe as an illegal gratification which is sine qua non to attract the offences
11. Having regard to the oral evidence led to by the prosecution, the evidence of P.W.1 and 2 are found relevant even though P.W.1 has been declared hostile.
12. P.W.1, the accompanying witness, stated that on 26.09.2002, he was a junior Clerk in the R. & B. Division, Sambalpur. On that day, his authority directed him to attend the Vigilance office the following day. Accordingly, on 27.09.2002 at 6:20 A.M. morning, he went to the Vigilance Office and found Vigilance D.S.P., One Mishra, A.C.F., Vigilance staff, and one Mahakud of Subalaya present. The complainant narrated before him that the A.S.I. of Subalaya outpost and R.I. of Subalaya were demanding a bribe of ₹1000/- each for the demarcation of his land. In response, the complainant produced ₹2000/- in the form of twenty numbers of hundred-rupee G.C. notes. Sri Mishra noted down the numbers of the G.C. notes in a chit paper. A.S.I. (Vigilance) demonstrated the reaction of Sodium carbonate solution CRLA No. 132 of 2010 Page 8 of 19 with Phenolphthalein powder. Some powder was smeared on those G.C. notes by A.S.I. (Vigilance), and they were kept in the pocket of the complainant with instructions to hand over the notes to the accused person on demand. Only Sri Mishra & A.S.I. had handled Phenolphthalein Powder and solution, and they both washed their hands after the demonstration with soap and water. Members of the raid party proceeded to the spot. They were instructed to follow the complainant and witness the transaction of bribe money, relaying a signal by brushing their head with both hands. P.W.1 first accompanied the complainant to the office of R.I., Subalaya, who was found absent. He then moved to the Subalaya police outpost along with the complainant and other members of the raiding party. They parked the vehicle a little away from the spot. The complainant entered inside the outpost while he (P.W.1) was only instructed to watch the transaction and relay signals to the raid party members. On receiving a signal from the complainant, he relayed it to the raid party members who arrived at the spot. According to P.W.1 the D.S.P. (Vigilance) disclosed the identity of raid party members to the Appellant-ASI of the outpost, challenging him to have received the bribe money to which the Appellant-ASI fumbled and was perturbed. The hand wash of the Appellant ASI was thereafter taken in Sodium Carbonate Solution, which turned into pink color. The Appellant-ASI brought out the money from his pocket and produced it before the raiding party. He produced seven to eight G.C. notes of rupees hundred from his pocket and two or three G.C. notes of rupees hundred each from a trunk. Vigilance DSP seized the G.C. notes produced by the Appellant, and seizure lists were prepared. The Vigilance police also seized the wearing apparels of the Appellant.
CRLA No. 132 of 2010 Page 9 of 1913. P.W.2, the Decoy/Complainant in his deposition identified the Appellant standing in the dock. According to him, the occurrence took place in the year 2002 after the death of his father. He possessed the ancestral land, and when he was going to the agricultural land, the sons of the elder brother of his father protested. He filed a case u/s 144 of Cr.P.C. against his cousin brothers in the Court of Sub-collector, Birmaharajpur. A date was fixed by the Court for the demarcation of the land. Orders were sent to the R.I. of Subalaya and A.S.I. of Subalaya police outpost. No notice was served on his cousin brothers, and the land was not demarcated. He went to the outpost and requested the ASI to serve the notice on his cousin brother. On the first occasion, the Appellant told him that he had received no order from the office of the Sub-collector. On his subsequent approach, the Appellant demanded a bribe of ₹ 1000/- from him and asked him to inquire about the matter in the office of R.I. He also approached the R.I. Nabaghana Suna, who also demanded Rs. 1000/- from him for the demarcation of the land. On 23.9.2002 and 25.9.2002, he again approached the ASI and RI to reduce the demanded amount, but they did not concede. On 26.9.2002, he went to the office of S.P. Vigilance, Sambalpur, and submitted a written report. Being asked by the S.P., he returned and again went to the office of the S.P., Vigilance on the next day. A preparation meeting was held in the office of S.P., Vigilance where members of Vigilance staff, executive Magistrate Sri Mishra, and One Tewari babu were present. He was introduced to the members present in the meeting, and he narrated the incident. He paid ₹2000/- of 100- rupee denomination. The G.C. notes were counted, and the serial number was noted on a separate sheet of paper. Chemical CRLA No. 132 of 2010 Page 10 of 19 demonstration was held by Sri Mishra, and the chemical solution was prepared. Sri Mishra dipped his fingers in the solution, which did not change color, but after applying chemical powder, he again dipped his finger in another bottle, which turned pink. The G.C. notes of ₹2000/- were treated with Phenolphthalein Powder. The amount of ₹2000/- was wrapped in two separate packets, each containing ₹1000/-. One Tewari babu was instructed to accompany him to the office of A.S.I. and R.I. of Subalaya and to observe silently the transaction. A preparatory note was made (Ext.1). They went in the vehicle of the vigilance department to Subalaya and reached there at 11 A.M. They got down from the vehicle at a distance of about 50 meters from the Subalaya Police Outpost. Tewari Babu and he went to the Police Outpost. The Appellant ASI who was sitting in the chair of his office asked him whether he had brought the demanded ₹1000/-. On query, he introduced Tiwari Babu as his cousin brother. The Appellant-ASI asked him to sit in the chair. On demand, he paid ₹1000/- to the Appellant who kept the same in his wallet. The Appellant then left his chair, went inside, and kept ₹200/- inside a wooden box. He wrote something on a piece of paper and asked him to hand it over to the Gram Rakhi. Tewari Babu came out and passed a signal to the raiding party. Immediately thereafter, the D.S.P. along with other members of the party arrived there and asked him as to whom he had paid the amount. He replied that he had paid the amount to the Appellant. The Appellant-A.S.I. first denied to have accepted any money from him but subsequently brought out the wallet and produced ₹800/-. The Appellant also brought out ₹200/- from the wooden box. The hand wash of the Appellant was taken in sodium carbonate, and the solution was kept in two separate bottles. Sri Mishra CRLA No. 132 of 2010 Page 11 of 19 who had noted down the serial number of the tainted money tallied with the serial number of the note which he had previously noted on another sheet of paper.
14. In his cross-examination, the complainant states that he had visited the Subalaya police outpost on 29.06.2002, 10.07.2002, 23.07.2002, and 06.08.2002 to request the ASI to serve the concerned notice of demarcation. During these visits, Jatru Budhia was the ASI at the outpost. The complainant asserts, "It is not a fact that the Appellant was not the ASI of Subalaya police outpost on the above four dates." He further mentions seeing the Appellant at the outpost about 12 days before the trap, suggesting that Jatru Budhia was the ASI until 12 days prior to the trap, after which the Appellant took over.
15. P.W.2 describes arriving at the Subalaya police outpost at 11 A.M. with P.W.1, where the Appellant ASI. was sitting in a chair on the verandah of the outpost and asked P.W.2 about the accompanying witness (P.W.1) to which he replied him to be his brother. The Appellant invited P.W.1 to have a seat and asked P.W.2 if he had brought the demanded ₹1000./- He states that upon his arrival, the Appellant inquired about the money, which he confirmed and then handed over to him. According to him, the Appellant took the money, placed it in his wallet, and later put out ₹200 and kept in a wooden box inside the outpost. In contrast, P.W.1 provides a different version. He states that he and the complainant, along with the members of the raiding party, went to the Subalaya outpost. P.W.1 was instructed to watch the complainant from a distance and relay a signal to the raiding CRLA No. 132 of 2010 Page 12 of 19 party once the transaction takes place. P.W.1 stated that he followed the complainant and remained at a distance of 15 cubits and standing 25 cubits away from the Appellant, and further that it was neither clearly visible nor audible from where he stood and further stated that he only saw the tainted money lying on the table.
16. P.W.3's testimony adds another layer of complexity. According to P.W.3, P.W.1 stated during his examination that when they arrived at the police outpost, the Appellant-ASI, inquired whether the complainant had brought the money to which the complainant gave the ₹1000/- bribe that was then accepted by him, placing it in his wallet and subsequently in his back pocket. The detection report describes the ASI seated on the verandah with the complainant standing on his left side and the accompanying witness below the verandah. The I.O. observed that the Appellant had demanded and accepted the bribe, as confirmed by the witness.
17. According to P.W.1, upon receiving the signal from the complainant, he relayed it to the raiding party, which then arrived at the Subalaya police outpost. The D.S.P. (Vigilance) introduced the members of the raiding party to the Appellant ASI, and confronted him of accepting bribe money to which the ASI appeared perturbed and fumbled. His hand was then washed in a sodium carbonate solution, which turned pink, indicating the contact with the tainted G.C. Notes. P.W.1 further detailed that the ASI produced money from his pocket and a trunk, and seizure lists were prepared, documenting the events.
CRLA No. 132 of 2010 Page 13 of 19P.W.1 admitted that due to the passage of time, his memory of the facts might not be accurate, leading to minor discrepancies in his recounting.
18. P.W.2, the complainant, on the other hand, described how he paid ₹1000/- to the appellant on demand. The appellant then allegedly placed ₹200/- inside a wooden box after initially keeping the full amount in his wallet. P.W.1 then signalled the raiding party, which promptly arrived. Upon confrontation, the appellant initially denied accepting the money but eventually produced ₹800/- from his wallet and ₹200/- from the wooden box. P.W.2 noted that the appellant's hand wash turned pink in a sodium carbonate solution. The vigilance staff matched the serial numbers of the tainted money with those noted previously during preparation. P.W.2 also gave an observation that the appellant wrote a note to be given to the Gram Rakhi and stated that the entire trap operation lasted until approximately 3:30 P.M., during which the vigilance staff restricted the appellant's movements.
19. The detection report corroborates some details but introduces additional context. It notes that the appellant, upon being challenged, claimed the complainant had voluntarily given him ₹1000/- to expedite his work, which he accepted and placed in his wallet. The report also reveals that some of the currency notes fell out of his purse while paying a washerman who had come to take his dues, which he then kept in a trunk from where the alleged ₹200/- was seized later on. This version highlights a partial acknowledgment of accepting money but under different circumstances than alleged by the prosecution.
CRLA No. 132 of 2010 Page 14 of 1920. P.W.4 provided a different perspective, emphasizing the logistical details of the raid. He noted the presence of several people outside the police outpost and mentioned that the raiding party did not involve any outside witnesses. The raiding operation, according to P.W.4, lasted about five hours, ending around 6 P.M. He gave a detailed story of the subsequent visit to the appellant's house, where they found and seized currency notes from a trunk. P.W.4 noted that no family members were present at the appellant's house, and the trunk was not locked. He confirmed that no other articles were seized from the box, and no chemical test was conducted at the house. The chemical test on the tainted notes and the appellant's hands was performed later, around 1:30 P.M.
21. The timeline discrepancy raises substantial doubts about the prosecution's claim that the Appellant was involved in the alleged bribe demands during the specified dates. The complainant's conflicting timeline and acknowledgment of Jatru Budhia's presence during the relevant period cast significant doubt on the prosecution's ability to unequivocally involve the appellant in the bribery and the demand thereof. Furthermore, the complainant admitted that the notice was kept on the table to be served on his cousins upon their arrival at the outpost. As also discussed by this Court in the matter of Sudam Pattanaik Vs. State of Orissa CRLA 293 of 2009, this admission strongly suggests that no pending work of the complainant required the Appellant's intervention, negating any motive for the alleged bribe. These contradictions, combined with inconsistencies in the testimonies of CRLA No. 132 of 2010 Page 15 of 19 other witnesses, such as P.W.3 and P.W.4, significantly weaken the prosecution's case.
22. In his cross-examination, the complainant denied certain assertions related to the case. He had submitted an application to the Sub-Collector, Birmaharajpur regarding the non-service of notice, and clarified that in the application, he had only alleged misconduct against the R.I., not against the A.S.I. of Police. This testimony further complicates the prosecution's case raising questions about the complainant's credibility and suggesting that the allegations against the A.S.I. might have been influenced by external factors. This discrepancy casts doubt on the authenticity of the charges against the appellant and suggests that the evidence may not be as straightforward or reliable as required to uphold a conviction.
23. Moreover, the version of the I.O. is inconsistent with the testimonies of P.W.1 and P.W.2 regarding the exact details of the transaction and their positions. P.W.2 mentioned that the Appellant was not allowed to go anywhere by the vigilance staff. According to P.W.1, they arrived at the outpost around 11:40 A.M., while P.W.4 stated that the signal was sent to the raiding party approximately half an hour after their arrival. Furthermore, the seizure story involving ₹200 from the Appellant's residence is questionable, particularly since the handwash of the Appellant was taken at 1:30 P.M.
24. Given these contradictions, coupled with the discrepancies regarding the location and timing of the chemical test, as highlighted by CRLA No. 132 of 2010 Page 16 of 19 P.W.4, significantly undermine the prosecution's narrative. The conflicting details about the number of currency notes and their seizure, as described by P.W.1 and P.W.2, further cast doubt on the reliability of the evidence and fail to establish the appellant's guilt beyond a reasonable doubt. The contradictions in testimonies, the delayed recording of statements under Section 164 CrPC, and the selective targeting of individuals in earlier complaints significantly weaken the case against the appellant. Therefore, the conviction based on such flawed evidence is unsustainable.
25. The examination under section 164 CrPC is also found discrepant to the prosecution's case regarding the alleged acceptance of bribe by the Appellant. While P.W.4's testimony aligns with the seizure story presented, it fails to conclusively establish the Appellant's acceptance of tainted money from the complainant knowing it to be bribe. The Appellant's response during examination indicated that he produced a money purse containing a different number of denominations of G.C. notes than what was alleged to have been received as a bribe. He produced his wallet which contained 8 numbers of 100-rupees notes, one 500-rupees note, three 10-rupees notes. This discrepancy further casts doubt on the prosecution's version of events. Moreover, the complainant's version of the seizure story contradicts P.W.4's testimony. According to the complainant, he handed over ₹1000/- to the Appellant, who then kept ₹800/- in his wallet before placing ₹200/- inside a wooden box. This version of events differs from P.W.4's testimony as discussed above and raises eyebrow to the consistency and reliability of the prosecution's evidence. Additionally, CRLA No. 132 of 2010 Page 17 of 19 it is noteworthy that P.W.4 stated that the chemical test was conducted after the tainted notes were seized, rather than at the location where the ₹200/- was allegedly found in the Appellant's possession. This discrepancy further undermines the prosecution's case and highlights inconsistencies in the evidence presented. In light of the same and lacunae in the prosecution's story, it cannot be conclusively established that the Appellant voluntarily accepted the bribe. The prosecution has failed to provide clear and consistent evidence to prove the Appellant's guilt beyond a reasonable doubt. Therefore, the argument stands that the prosecution's case lacks the necessary credibility and coherence to sustain the charges against the Appellant.
26. It is disturbing to notice that the statements under Section 164 CrPC were recorded after an inordinate delay of eight years from the date of the trap. It is highly improbable for any person to recall the precise details of an incident that transpired eight years earlier. Any discrepancies found in the evidence vis-à-vis the statements recorded under Section 164 cannot be used for any substantive purpose. The prosecution's failure to provide an explanation for this significant delay further undermines the credibility of these statements. The long delay in recording the statements raises serious doubts about their reliability and relevance. Such statements, recorded after an unreasonable amount of time, cannot be taken as evidence against the Appellant. This lapse highlights a procedural flaw, suggesting that the statements recorded under Section 164 CrPC lose their evidentiary value and should not be relied upon to establish the guilt of the Appellant.
CRLA No. 132 of 2010 Page 18 of 1927. Based on a thorough review of the impugned judgment and the evidence presented, this Court finds that the learned Special Judge erred in recording findings and appreciating the evidence, leading to an unsustainable conviction. The evidence available does not provide clear, cogent, and reliable proof beyond reasonable doubt to support the conviction and the prosecution has failed to unequivocally establish the ingredients of offence under Section 7 of the P.C. Act. Consequently, the offence under Section 13(1)(d) will not be attracted. Hence, it is irresistible to hold that the prosecution has not been able to prove the charges against the Appellant beyond all reasonable doubt and the Appellant as such is entitled to an acquittal.
28. In this result, the Appeal is allowed. The Appellant is acquitted of the charge. As a necessary corollary, the judgment of conviction and order of sentence convicting the Appellant for commission of offence punishable under section 7 and section 13(2) read with section 13(1)(d) of the P.C. Act are hereby set aside.
(Chittaranjan Dash) Judge Bijay Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 21-May-2024 10:08:05 CRLA No. 132 of 2010 Page 19 of 19