Madhya Pradesh High Court
Ku.Archana Nagar vs The State Of Madhya Pradesh on 7 April, 2016
(1)
Criminal Appeal No. 2325/2006
Criminal Appeal No. 1398/2007
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Division Bench (1) Justice Shantanu Kemkar.
(2) Justice Rajendra Mahajan.
CRIMINAL APPEAL No. 2325 OF 2006
Ku. Archana Nagar, D/o Shri Basant Kumar
Nagar, aged 30 years, Sub-Inspector, S.H.O.
Dolriya, Tah. & District- Hoshangabad (M.P.),
R/o Police Line, District- Hoshangabad (M.P.)
Permanent resident of 125, Surana Nagar
Colony, Badghat, District- Khargone (M.P.).
APPELLANT
VERSUS
State of Madhya Pradesh, through Special Police
Establishment, Lokayukt, Special Police
Establishment, Bhopal (M.P.).
RESPONDENT
....................................................................................
For Appellant : Shri S.C. Datt, learned Senior counsel with
Shri Chandra Datt and Shri Siddharth Datt,
learned counsel.
For Respondent: Shri Pankaj Dubey, learned counsel.
.....................................................................................
CRIMINAL APPEAL NO.1398 OF 2007
State of Madhya Pradesh, through Special Police
Establishment, Lokayukt Office, Bhopal (M.P.).
APPELLANT
VERSUS
Maluk Chand, S/o Shri Nandu Dhrve, aged about
35 years, Constable No.530, Police Thana-
Dolriya, District- Hoshangabad (M.P.), R/o
Gram- Paihar, Thana- Rampur, Tah.- Ghoda
Dongri, District- Betul (M.P.).
RESPONDENT
.....................................................................................
For Appellant : Shri Pankaj Dubey, learned counsel.
For Respondent : Shri S.K. Gangrade, learned counsel.
.....................................................................................
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Criminal Appeal No. 2325/2006
Criminal Appeal No. 1398/2007
J U D G M E N T
(Pronounced on the 7 t h day of April, 2016 ) As per: Rajendra Mahajan, J.
Since both the aforesaid criminal appeals have arisen out of the common impugned judgment dated 20.11.2006 passed by the First Additional Sessions Judge and Special Judge under the Prevention of Corruption Act, 1988 (for short the 'Act') Hoshangabad in Special Case No.06 of 2004, titled State of M.P. Vs. Kumari Archana Nagar and another, they are being decided by this common judgment.
2. Vide the impugned judgment, appellant Archana stood convicted under Sections 7 and 13 (1) (d) r/w 13 (2) of the Act and sentenced thereunder to suffer on first count rigorous imprisonment (for short the R.I.) for a term of 2 years with a fine of Rs.5,000/- (rupees five thousands) in default of payment of fine to further undergo R.I. for 6 months and second count R.I. for a term of 2 years with a fine of Rs.5,000/- (rupees five thousands) in default of payment of fine to further undergo R.I. for 6 months. However, the substantive jail sentences in the aforesaid Sections are directed to run concurrently. Feeling aggrieved thereby, appellant Archana has filed the appeal under Section 374 (2) of the Cr.P.C.
3. Vide the impugned judgment, respondent Maluk Chand (3) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 stood acquitted of the charge under Section 12 of the Act. Feeling aggrieved thereby, the appellant S.P.E. Lokayukt has filed an appeal under Section 378 (1) of the Cr.P.C.
4. For convenience, in this judgment hereinafter appellant Archana and respondent Maluk Chand shall be referred to as accused Archana and acquitted accused Maluk Chand respectively.
5. The prosecution case is given in brief below:
(5.1) On 05.09.2003, complainant Yaswant Singh @ Lallu Singh (PW-10) made a complaint Ex.P-18 to the Superintendent of Police, Special Police Establishment, Lokayukt, Bhopal, Division Bhopal (for short the S.P.) stating that he is a permanent resident of village Dolriya and he is a farmer-cum-businessman by occupation. He does business of selling hardware in village Dolriya. On 15.08.2003 at Dev Isthan known as Bhangi Baba situated near village Dolriya (for short the place), he was talking to Gomti Bai (PW-4), a woman of his acquittance. At that time, accused Archana, the S.H.O. of Police Station Dolriya with one Constable, Bahadur Singh (not examined) came there on a (4) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 motorcycle. She asked him as to why he was standing with her. She took them to the Police Station Dolriya (for short the Police Station). Thereafter, she made him sit in her government residence, which is on the campus of the police station. There, she got a letter written by him forcing him to admit that he had sexual intercourse with Gomti Bai several times in the past and he had also intercourse with her today. Later, she had gone to the police station. She came back after some time therefrom and told him that Gomti Bai has made a written complaint against him that he had raped her.
She told him that if he wanted to avoid prosecution on her report, he had to pay her Rs.20,000/-, otherwise she would put him behind the bars. He told her that there was no such incident as she said. He did not want to get himself entangled in an embarrassing situation and wanted to get out of it. He, therefore, offered her Rs.1,000/- to 2,000/-. But she had not agreed upon the aforesaid money and demanded from him Rs.7,000/- within 2 to 4 days. She also took his mobile phone of Nokiya (5) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 company model No. 2100 saying that she would return it after getting Rs.7,000/- from him. Two days later, Constable, Bahadur Singh came to his shop and told him that accused Archana had called him. On the same day, he met her at her government residence. She told him that he had not paid her money so far. He replied that he had no money to give her. However, he would arrange the money in a week's time. She told him in a threatening tone that she would send him in jail upon the report of Gomti Bai. On 03.09.2003, she met him at a Petrol Pump.
There, she told him that she had not so far received the money. She again threatened to put him behind the bars in case of non-payment of the money. Thereupon, he told her that on 04.09.2003, he would give her Rs.1,000/-. On 04.09.2003 at about 08.00 p.m., he met her at the police station. He secretly tape recorded their conversation. In the course of which, she told him that if he could not give her Rs.7,000/-, then he had to pay at least Rs.5,000/- within 2 to 3 days. Thereupon, he gave her Rs.1,000/-. He asked her to return his mobile phone. She (6) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 told him that she would return him the mobile phone after getting the remaining amount. (5.2) The complainant has also stated in the complaint that he does not want to give her Rs.5,000/- as bribe. On the other hand, he wants to get her caught red handed accepting the bribe from him. He has brought with him a cassette in which he had recorded the conversation to prove the veracity of his complaint.
(5.3) Deputy Superintendent of Police, K.S. Sisodiya (PW-9), prepared the transcription Ex.P-2 of the tape recorded conversation in the presence of P.R. Banvanshi (not examined), Inspector Navratan Singh (PW-2) and the complainant. Thereafter, he removed the cassette from the tape recorder, marked ANB on both the side of the cassette, seized it with seizure memo Ex.P-3 and duly sealed it in their presence.
(5.4) On the basis of the complaint Ex.P-18 and the transcription Ex.P-2, on 05.09.2003, K.S. Sisodiya registered an FIR Ex.P-37 at Crime No.159/2003 against accused Archana for the offence punishable under Section 7 of the Act. (7)
Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 (5.5) On 04.09.2003, the S.P. wrote a letter Ex.P-38 to the Collector Bhopal requesting him to make available services of two Gazetted officers as panch witnesses on 05.09.2003 at about 10:00 a.m. and they be directed to remain present in his office. Thereupon, the Additional Collector on his behalf wrote a letter Ex.P-21 to him informing that Ajay Kumar Shrivastava (PW-7) and D.C. Mishra, both are the Assistant Commercial Tax Officers posted in Bhopal are appointed as panch witnesses and they are directed to remain present at the time and place mentioned in Ex.P-38.
(5.6) On 05.09.2003, K.S. Sisodiya prepared the exhaustive pre-trap panchnama/pre-raid proceedings Ex.P-19 in the presence of Ajay Kumar Shrivastava. As per the panchnama and record of the case, other panch witness D.C. Mishra did not turn up. In the panchnama, K.S. Sisodiya has mentioned the averments of complaint Ex.P-18, the details of Rs.3000/- to be given as bribe to accused Archana, their denominations and serial numbers, the names of members of the trap party with their official (8) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 designations, proceedings of treatment of currency notes with phenolphthalein powder, demonstration of its reaction with solution of sodium carbonate, necessary instructions given to the complainant as to the mode of giving bribe money to accused Archana, how he would send signals to the trap party after giving her bribe money, recording of their conversation on micro tape-recorder and as to how the trap would be arranged and executed.
(5.7) After completing the formalities, the trap party left Bhopal at 06:30 p.m. for village Dolriya in two vehicles. After reaching village Dolriya, the complainant made a call through his mobile phone to accused Archana and asked her as to where she would receive the money from him as per the deal. Thereupon, she told him to come over to her government residence. The complainant told K.S. Sisodiya that he would normally visit accused Archana's government residence riding on his motorcycle and if he went there on a motorcycle, she would not suspect any foul play on his part. Thereafter, he brought his motorcycle from his residence. At (9) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 about 10:00 p.m., he reached accused Archana's government residence. He told her that he has brought the money. She talked on the walkie- talkie and directed the person on other side to send a constable at her government residence. A short while later, acquitted accused Maluk Chand came. She asked him to take money from the complainant. Thereupon, he received the money from him. A short while later, he came out of her government residence and narrated the trap party of the happening. Thereafter, the trap party proceeded towards accused Archana's government residence. On the way, the trap party saw accused Archana coming towards the Police Station. K.S. Sisodiya introduced himself and the member of the trap party and also apprised her the purpose of their meeting. Thereupon, she told him that she would talk to them at the police station. On being questioned by K.S. Sisodiya, she denied having received any money from the complainant. Meanwhile, acquitted accused Maluk Chand came to the police station. The complainant told K.S. Sisodiya that acquitted accused Maluk Chand (10) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 had received the money from him at the behest of accused Archana. K.S. Sisodiya got the hands of accused Archana and acquitted accused Maluk Chand washed with the solution of sodium carbonate in the presence of the members of the trap party and the panch witness. There was no change in the colour of the solution when accused Archana washed her hands. But, when the acquitted accused Maluk Chand washed his hands, the solution turned pink. In this regard, he prepared panchnama Ex.P-22 and P-23, which are of accused Archana and acquitted accused Maluk Chand respectively. He also transferred the wash into clean glass bottles which were sealed and labelled.
(5.8) K.S. Sisodiya searched the office room of accused Archana at the police station in the presence of panch witness Ajay Kumar Shrivastava and others. In the course of search, he found three letters Ex.P-13, P-15 and P-20, which are prima facie appeared to have been written by Gomti Bai (PW-4), Kanchhedi (PW-5) and the complainant himself respectively, in the drawer of her official table. He seized the (11) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 aforesaid letters vide seizure memo Ex.P-25. Thereafter, K.S. Sisodiya proceeded to government residence of accused Archana with panch witness Ajay Kumar Shrivastava and others. He found her residence locked. Accused Archana unlocked it. He searched her residence and found one mobile phone of Nokiya company model No.2100 and a charger lying on a table. He seized the said articles vide seizure memo Ex.P-26 and sealed them as per procedure. Later, he went to acquitted accused Maluk Chand's government residence with the panch witness and others. Acquitted accused Maluk Chand opened his residence. He brought the bribe money from the kitchen and handed over to K.S. Sisodiya. He tallied the serial numbers of the seized currency notes and found matched with those noted in the pre-raid proceedings/pre-trap panchanama Ex.P-19. Thereafter, he seized the currency notes with seizure memo Ex.P-27 and sealed them.
(5.9) On 06.09.2003 at about 02:40 a.m., he took from the complainant the tape recorder back, got the cassette played and prepared the (12) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 transcription Ex.D-1 in the presence of the panch witness and the complainant. Thereafter, he duly seized the cassette and sealed it. In this regard, he prepared seizure memo Ex.P-30. He arrested accused Archana and acquitted accused Maluk Chand vide arrest-memos Ex.P-32 and P- 33 respectively and immediately released them on bail. At last, on 06.09.2003 at about 03:00 a.m., he prepared the post-trap panchnama/post-trap proceedings Ex.P-31. (5.10) On 05.09.2003, P.R. Vanbanshi, the member of trap party, prepared a spot-map Ex.P-28 of the residence of acquitted accused Maluk Chand, wherefrom the bribe money was recovered in the presence of the panch witness.
(5.11) On 14.06.2003, K.S. Sisodiya seized a receipt Ex.P-34 of the purchase of mobile phone from the possession of the complainant vide seizure memo Ex.P-40.
(5.12) On 18.09.2003, he had sent the seized articles for forensic examinations to FSL Sagar through the office of S.P. with covering letter Ex.P-16. The FSL gave report Ex.P-39. On various dates, he also recorded case diary statements of the (13) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 prosecution witnesses.
6. Upon completion of investigation, on 06.05.2004, K.S. Sisodiya filed a charge-sheet against accused Archana and acquitted accused Maluk Chand in the trial Court.
7. The learned trial Judge framed charges against accused Archana under Sections 7 and 13 (1) (d) r/w 13 (2) of the Act and acquitted accused Maluk Chand under Section 12 of the Act. They denied the charges levelled against them and claimed to be tried. Thereupon, they were put on trial.
8. Upon the closer of prosecution evidence, the learned trial Judge confronted accused Archana under the provisions of Section 313 of the Cr.P.C. with the circumstances appearing against her. She admitted the following circumstances and denied the remainder.
(8.1) At the time of alleged offence, she was posted as Station House Officer, Police Station Dolriya. (8.2) She resided in a government residence which is on the campus of the police station.
(8.3) On 05.09.2015, she met the members of the trap party.
(8.4) Her government residence was searched by K.S. Sisodiya in the presence of panch witness and others, wherefrom one mobile phone with (14) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 charger was seized vide seizure memo Ex.P-26, which belongs to the complainant.
(8.5) Prosecution-sanction Ex.P-1 is granted under Section 19 (1) (b) and (c) of the Act by the Law and Legislative Department Government of Madhya Pradesh for her prosecution in the case.
9. Accused Archana has taken the defence in her examination under Section 313 of the Cr.P.C. that at the relevant time of the alleged offence her personal mobile phone and the land line phone of the police station had gone out of order. Thereupon, Rajendra Singh Rajput (DW-2) brought the complainant's mobile phone with charger for her temporary use. At the relevant time, she registered a case against Rakesh Rajput under Sections 376, 341, 506 and 34 of the IPC. The complainant and Chandan Singh Parihar brought to bear pressure upon her not to arrest him. She refused to do so. Thereupon, they hatched a criminal conspiracy against her and got her implicated in the case. She examined in her defence Lachchhiram Yadav (DW-1) and Rajendra Singh Rajput (DW-2).
10. Acquitted accused Maluk Chand was also examined by the learned trial Judge under the provisions of Section 313 of the Cr.P.C. In the course of which, he admitted following (15) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 circumstances appearing against him and denied the rest.
(10.1) At the relevant time of offence, he was posted as Constable at the police station.
(10.2) He occupied a government residence which is on the campus of the police station.
(10.3) For his prosecution in the case, prosecution-
sanction Ex.P-1 is granted under Section 19 (1)
(b) and (c) of the Act by the Law and Legislative Department Government of Madhya Pradesh.
11. Acquitted accused Maluk Chand has taken the defence in his examination under Section 313 of the Cr.P.C. that at the material time, he was present at the police station. Havaldar, Gendalal asked him to go to accused Archana's government residence. Thereupon, he went there and saw accused Archana and the complainant. She hinted him to take money from the complainant. Thereupon, he took the money from the complainant without visualizing at the very moment that the money being bribe money. He neither examined any witness nor produced any document in his defence.
12. Upon the evaluation of evidence on record qua accused Archana, the learned trial Judge has recorded following findings.
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Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 (12.1) The testimony of the complainant is reliable and trustworthy with regard to the demand for illegal gratification by accused Archana from him.
(12.2) Seizure of letters Ex.P-13, Ex.P-15 and Ex.P-
20, which are either purportedly written by prosecution witnesses namely, Gomti Bai, Kanchhedi and the complainant or bear their signatures respectively, from a drawer of the table of accused Archana's office room at the Police Station, further proves that she demanded illegal gratification from the complainant.
(12.3) All the material times, accused Archana was keeping the complainant's mobile phone with her. There is no evidence on record that she had taken the complainant's mobile phone for time being use as her own mobile phone had gone out of order. On the contrary, it is proved that she took the complainant's mobile phone as security so that he would not back out of the so called deal struck between them. (12.4) Admissions made by acquitted accused Maluk (17) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 Chand in his examination under Section 313 of the Cr.P.C. that he had taken the money from the complainant at the instance of accused Archana at her government residence and the seizure of bribe money from his government residence, lend credence that she had demanded bribe from the complainant.
(12.5) Evidence of defence witnesses is not reliable being interested witnesses.
(12.6) Merely on the basis of Rojnamcha Entries Ex.D-7 and Ex.D-8, it cannot be held that on 15.08.2003 accused Archana had not met the complainant at the place.
The learned trial Judge having considered the aforesaid findings collectively has held that the prosecution has proved beyond a shadow of reasonable doubt that accused Archana had demanded illegal gratification from the complainant threatening him that she would book him in a rape case upon the report of Gomti Bai and thus she abused her official position. Upon the ultimate conclusion, he convicted her under Sections 7 and 13 (1) (d) r/w 13 (2) of the Act and sentenced thereunder as stated in para 2 of this judgment.
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Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007
13. On the analysis of evidence on record qua acquitted accused Maluk Chand, the learned trial Judge has given the following findings.
(13.1) There is no evidence on record that acquitted accused Maluk Chand had remained associated with accused Archana in demanding the bribe from the complainant at any point of time. (13.2) On the night of 05.09.2013, acquitted accused Maluk Chand had gone to the government residence of accused Archana upon the direction of the person who received her directions on the wireless set. At that time, he had no knowledge for what purpose she had sent him for.
(13.3) Acquitted accused Maluk Chand innocently took the money from the complainant at the instance of accused Archana without knowing that the money is none other than bribe money.
On the basis of aforesaid cumulative findings, the learned trial Judge has acquitted accused Maluk Chand of the charge under Section 12 of the Act.
14. Shri S.C. Datt, learned senior counsel appearing on (19) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 behalf of accused Archana, has assailed correctness and legality of the conviction recorded against her on the following grounds.
(14.1) The S.P. wrote a letter Ex.P-38 on 04.09.2003 to the District Magistrate, Bhopal requesting him to make available the services of two Gazetted Officers as panch witnesses, whereas the complainant lodged the written complaint Ex.P-18 with the S.P. on 05.09.2003 and whereupon, the FIR Ex.P-37 was registered against accused Archana on 05.09.2003. This means that the complainant had not made any complaint to the S.P. on 04.09.2003. This is a material discrepancy which impacts adversely upon the prosecution case.
(14.2) The learned trial Judge has held 'proved' the demand of illegal gratification by accused Archana on the sole oral evidence of the complainant. However, his testimony is wholly unreliable and untrustworthy on the following reasons. There are material contradictions and the omissions between complaint Ex.P-18 and the complainant's deposition. For instances, he (20) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 has stated in his complaint that on 15.08.2003 itself accused Archana had taken his mobile phone as security against the bribe money, whereas he has stated in paras 1 and 2 of his evidence that she had taken his mobile phone 2 to 3 days later by calling him at the police station when he told her that he could not so far arrange the money. He has stated in the complaint that accused Archana and Constable Bahadur Singh took him and Gomti Bai to the police station from the place where she saw him in the company of Gomti Bai, whereas he has stated in para 18 of his evidence that Constable Bahadur Singh took him on his motorcycle to the police station and accused Archana sent Gomti Bai and Kanchhedi Lal (PW-5) in a route-bus to the police station. He has stated in the complaint that at the place only accused Archana and Constable Bahadur Singh were present, whereas he has stated in para 18 of his evidence that Constable Devi Singh had also come to the place. If the para 7 of his evidence is read vis-a-vis his case diary statement Ex.D-4, it is manifest that he (21) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 has substantially and materially improved his Court version.
(14.3) The complainant has admitted in para 49 of his evidence that the police had registered cases against him under Sections 392, 397, 456, 294 and 506 of the IPC. In para 52, he has admitted that one Beena Thakur filed an application under Section 125 of the Cr.P.C. against him for grant of maintenance in which he had been arrested by the police. As per order-sheet dated 18.09.2006 of the trial Court and the admissions made by the complainant in para 26 of his evidence, it is evident that he came from jail to record his statement in the trial Court. This evidence demonstrates that the complainant has a criminal background.
(14.4) As per the prosecution, the transcriptions of cassettes Articles A1 and L are Ex.P-2 and Ex.D-1 respectively. It has not attached a certificate in terms of Section 65 (b) of the Indian Evidence Act for the authenticity of the transcriptions. Hence, they are inadmissible in (22) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 evidence as per the provisions of Section 65
(a) of the aforesaid Act. Moreover, the voices recorded in both the cassettes were inaudible when they were played at the time of recording of the evidence of the complainant in the trial Court. In this connection, the trial Court has recorded its observations below the paras 32 and 52 of the deposition of the complainant. Thus, there is no supporting evidence on record to the oral evidence given by the complainant.
(14.5) Gomti Bai (PW-4) is a star witness. She has not supported the complainant's statement that on 15.08.2003 accused Archana and constable Bahadur Singh brought her and the complainant to the police station. Mangal Singh (PW-3) is the brother of Gomti Bai. He has stated that Gomti Bai has never told him the police took her and the complainant together to the police station. Thus, the star witness does not support the complainant's version.
(14.6) The complainant has stated in para 18 of his (23) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 statement that on 15.08.2003 about 03:23 p.m., accused Archana took her and Gomti Bai from the place to the police station. As per the Rojnamcha Entries No.D-7 and D-8 on 15.08.2003 at about 12:40 p.m., accused Archana left the police station with police force with an objective to arrest accused Rakesh Rajput and she returned to the police station at about 05:50 p.m. after his arrest. These entries prove that accused Archana did not meet the complainant on the aforesaid date and time. The learned trial Judge ought to have placed reliance upon these entries because the Rojnamcha entries are the written record of every day activities of policemen of a police station and there is a presumption behind the Rojnamcha entries that they are truly recorded by the police personnel concerned unless and until this presumption is rebutted by any cogent and reliable evidence. There is no such evidence on record to prove that these entries are false. Moreover, on 15.08.2003 accused Archana could not anticipate even in her dream that in future the (24) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 complainant would make complaint against her over the demand of bribe money from him and that time the said entries would come to handy in her defence. Hence, the learned trial Judge has erred in law by not placing reliance upon the said Rojnamcha entries.
(14.7) Regarding the recovery of the complaint's mobile phone from the possession of accused Archana, there is strong evidence on record that at the relevant time, her personal mobile phone fell into disrepair. She, therefore, asked Rajendra Singh Rajput (DW-2), who was attached to the police station at the relevant time, to arrange a mobile phone for her time-
being use. Thereupon, he brought the complainant's mobile phone and gave her. He has also given evidence in this regard and he is subjected to gruelling cross-examination. But there is nothing adverse to disbelieve his evidence. Even the complainant has admitted in para 23 of his statement that when accused Archana took her mobile phone, she told him that her personal mobile phone is out of order and she has sent it for repairing. No sooner (25) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 did she get back her mobile phone after the repairing, she would return his mobile phone. In view of the aforesaid evidence on record, the learned trial Judge has given an absolutely erroneous finding that accused Archana had taken the complainant's mobile phone to ensure that the complainant would give her the bribe as settled between them.
(14.8) Panch witness/shadow witness Ajay Kumar Shrivastava (PW-7) has stated in paras 10 and 12 that the police personnel of the trap party first searched accused Archana's government residence and thereafter acquitted accused Maluk Chand's residence. Later, the trap party came back to the police station and it searched the office room of accused Archana at the police station and recovered letters Ex.P-13, Ex.P-15 and Ex.P-20 from the drawer of the table. The same evidence has been given by Navratan Singh (PW-2) in para 8 of his statement. However, K.S. Sisodiya (PW-9) has just given diametrically opposite evidence in paras 16 and 17. Thus, there is a strong possibility that when accused Archana went to (26) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 her government residence with the trap party and came back to the police station with the trap party in the interregnum someone would have implanted the aforesaid letters to implicate her because the prosecution witnesses namely, Gomti Bai and Kanchhedi Lal disowned completely the authorships of letters Ex.P-13 and Ex.P-15. Consequently, the learned trial Judge has grossly erred in holding that the aforesaid letters are recovered from the exclusive possession of accused Archana and that the letters prove the demand of bribe by accused Archana from the complainant.
(14.9) The complainant has admitted in paras 24, 28 and 29 of his statement the following facts that a case against Rakesh Rajput under Section 376 of the IPC was registered at the Police Station Dolriya at the relevant time, that he belongs to his community, that Chandan Singh Parihar is residence of village Dolriya and he is a leader of BJP party, and that the complaint Ex.P-18 is not in his handwriting on the other hand he got it (27) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 written by his advocate friend Pradeep Jaibar. It is mentioned in the Rojnamcha entry Ex.D-8 that accused Archana arrested said Rakesh Rajput on 15.08.2003 in Crime No.72/2003 under Sections 341, 376, 506 and 34 of the IPC. It is the defence of accused Archana that the complainant and Chandan Singh Parihar exerted pressure upon her not to arrest said Rakesh Rajput. But she had not give in to their pressure. Thereupon, the complainant lodged the complaint Ex.P-18 making false allegations against her that she has demanded bribe from him. If the said defence of accused Archana is read vis-a-vis the above admissions made by the complainant, it is clear like day time that when accused Archana did not bow down to their pressure, the complainant made the false complaint against her. Thus, it is proved on the prosecution evidence itself that it is a case of false implication of accused Archana. (14.10) Acquitted accused Maluk Chand has admitted in his examination under Section 313 of the Cr.P.C. in reply to a question No.78 that he took money from the complainant upon the (28) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 direction of accused Archana at her residence.
However, accused Archana had not been confronted with the aforesaid admission by the learned trial Judge in accordance with law. Hence, the learned trial Judge cannot use the admission, as a peace of evidence against her for holding that acquitted accused Maluk Chand had taken the bribe money from the complainant at her instance.
(14.11) Ajay Kumar Shrivastava's (PW-8) evidence is totally silent on the point that he overheard the conversation held between accused Archana and the complainant at the time of handing over the bribe money and saw acquitted accused Maluk Chand taking the bribe money from the complainant. Hence, his evidence has no evidentiary value.
(14.12) K.S. Sisodiya (PW-9) has not only arranged the trap, but also investigated the case. Hence, the investigation carried out by him cannot be said to be fair and impartial, which makes a dent in the prosecution case.
On the basis of aforesaid submissions, Shri S.C. Datt, (29) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 learned senior counsel for accused Archana, has contended that the prosecution has utterly failed to prove that accused Archana has demanded illegal gratification from the complainant. On the other hand, if her defence is analyzed in right perspective, it is proved that the complainant has falsely implicated her in the case as she arrested aforesaid Rakesh Rajput against his wishes.
15. In reply, Shri Pankaj Dubey, learned counsel for SPE Lokayukt, has submitted that with an objective to maintain the complete secrecy of the operation against accused Archana, the written report Ex.P-18 was taken from the complainant on 05.09.2013, though he approached the S.P. on 04.09.2003 itself. Hence, the discrepancy as claimed by the learned counsel for accused Archana is logically explainable. He further submitted that there are minor contradictions between the averments of the complaint Ex.P- 18 and the evidence of the complainant, which do not impinge upon the reliability of his evidence. Moreover, there is supportive evidence on record such as seizure of letters Ex.P-13, Ex.P-15 and Ex.P-20 from the drawer of official table of accused Archana and the complainant's mobile phone from her government residence and the admission made by acquitted accused Maluk Chand in his examination under Section 313 of the Cr.P.C. These supportive evidence lends (30) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 credence to the complainant's testimony. Hence, the learned trial Judge has rightly relied upon the complainant's testimony. He submitted that it is true that the voices of the cassettes Articles A1 and L were inaudible when they were played before the trial Court at the time of recording the complainant's statement. But this factor itself does not weaken the prosecution case because of the availability of overwhelming evidence on record. Upon these submissions, he supported the conviction and sentence entered by the trial Court against accused Archana.
16. Shri Pankaj Dubey has assailed the acquittal of accused Maluk Chand of the charge under Section 12 of the Act on the ground that he has admitted in his examination under Section 313 of the Cr.P.C. that he had received the tainted money from the complainant at the instance of accused Archana at her government residence and the same was recovered from his government residence. His aforesaid admission is sufficient to convict him under Section 12 of the Act. Thus, the learned trial Judge has grossly erred in acquitting him of the aforesaid charge.
17. Per contra, Shri S.K. Gangrade, learned counsel for acquitted accused Maluk Chand, has submitted that there is no iota of evidence on record that acquitted accused Maluk (31) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 Chand had ever associated with accused Archana in demanding bribe from the complainant overtly or covertly. He further submitted that there is no evidence on record to the effect that prior to taking the tainted money from the complainant at the instance of accused Archana, he had even the slightested knowledge that accused Archana had demanded bribe from the complainant and the money he is receiving at her instance being bribe money. In fact, he took innocently the money from the complainant upon the direction of accused Archana as he was then subordinate to her. Thus, the trial Court has rightly acquitted him of the charge under Section 12 of the Act.
18. We have considered the rival submissions meticulously and carefully and gone through the evidence on record and rulings submitted by the learned counsel in support of their contentions.
19. The prosecution has examined as many as ten witnesses. Pramod Kumar Shrivastava (PW-1) has proved the fact of granting prosecution-sanctions against accused Archana and acquitted accused Maluk Chand. Since they have not challenged the legality and the validity of prosecution- sanctions granted against them for their prosecution in the case, there is no need of analyzing his evidence. Constable (32) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 Virendra Singh (PW-6) took the seized articles to FSL Sagar for forensic test. Hence, his evidence as a carrier is formal. Anil Kumar Mehani (PW-8) has deposed that on 14.06.2003 the complainant had purchased from his mobile shop a mobile phone of Nokia company with accessories vide bill Ex.P-14. Accused Archana has not challenged the seizure of complainant's mobile phone from her residence. On the other hand, she has given the explanation in her defence as to why she had been keeping complainant's mobile phone at the relevant time? Hence, his evidence is of formal nature. The evidence of remaining prosecution witnesses requires close scrutiny by us.
20. Before entering into the merits of the case, it will be seen how the prosecution has to prove a trap case under the Act and what are the requirements of recording conviction under Sections 7, 12 and 13 of the Act?
21. The Supreme Court in A. Subair Vs. State of Kerala (2009 (6) SCC 587= 2009 AIR SCW 3994) has ruled that the prosecution has to prove the charge under Sections 7 and 13 of the Act beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital (33) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 ingredients necessary to be proved to record a conviction.
22. A Three Judge Bench of the Supreme Court in P. Satyanarayana Murthy Vs. Dist. Inspector of Police & another (AIR 2015 SC 3549) has held that the proof of demand of illegal gratification is the gravamen of the offences under Ss. 7 and 13 (1) (d) (i) & (ii) and in absence thereof, unmistakably the charges therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two Sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Ss. 7 and 13 of the Act would not entail his conviction thereunder. The similar view is taken by the Supreme Court in a catena of judgments including the recent judgment delivered by it in case of Krishan Chander Vs. State of Delhi (2016 (3) SCC 108).
23. The Supreme Court in B. Jayaraj Vs. State of A.P. (2014 (13) SCC 55) has held that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be (34) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Sections 13 (1) ( d) (i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasised, could follow only if there was proof of demand. Axiomatically, it was held that in the absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.
24. There is no gainsaying the fact that the tainted money is not recovered from the possession of accused Archana. In the circumstances, the first point falls for our consideration is whether accused Archana has demanded illegal gratification from the complainant?
25. Upon perusal of the examination-in-chief of complainant Yaswant Singh (PW-10), we find that it is almost reiteration of averments made by him in his written complaint Ex.P-18. Hence, there is no need to reproduce the same.
26. The complainant has stated in his complaint Ex.P-18 (35) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 that on 15.08.2003 accused Archana and Constable Bahadur Singh saw him talking with Gomti Bai (PW-4) at the place. Therefrom, they brought him and Gomti Bai to the police station, whereas he has stated in his evidence that a short while later, Constable Devi Singh also came to the place. Constable Bahadur Singh took him to the police station on his motorcycle. Constable Devi Singh took Gomti Bai and Kanchhedi Lal (PW-5) by a bus. Thus, he has improved his version in his court statement. The complainant in his complaint Ex.P-18 and examination-in-chief has stated that on 15.08.2003 itself accused Archana took his mobile phone as security against the bribe money to be given by him, whereas he has stated in paras 1 and 23 of his evidence that accused Archana took his mobile phone from him two or three days later from 15.08.2003 and while taking his mobile phone, she told him that his mobile phone was out of order and that she had sent the same for repairs. She also told him that she would return his mobile phone after her own mobile phone being repaired. In our considered opinion, these are material contradictions, which affects the truthfulness of the complainant's evidence.
27. The complainant has stated in his complaint Ex.P-18 and examination-in-chief that on 15.08.2003 accused Archana made him sit in his government residence for three long (36) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 hours. At that time, the mobile phone was with him. He has admitted that during the said period he had not made a call through his mobile phone to any person of his acquittance intimating that accused Archana has forcibly made him sit in her government residence. Upon reading of his entire evidence, we could say that his above conduct is very abnormal because he is schemer and wily as per evidence available on record. Had he been detained by accused Archana in her government residence for such a long hours, he would have informed politically influential persons of his area about his wrongful detention by accused Archana. There is no other evidence on record in this regard. In the circumstances, we are of the view that his aforesaid evidence is not reliable.
28. The complainant has stated in his complaint Ex.P-18 as well as in his evidence that accused Archana got a letter Ex.P-20 written by him after putting pressure upon him to the effect that he had sexual intercourse several times with Gomti Bai in past and he had sexual intercourse today itself (i.e. 15.08.2003) with her. The language of the letter is not such that he has admitted to have committed rape upon Gomti Bai. As per evidence of Gomti Bai (PW-4), she is a 33 years old woman and mother of two growing children. She has denied in her statement having written the letter Ex.P-13. Moreover, (37) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 the language of the letter Ex.P-13 is not such that the complainant committed rape upon her. At the most upon the tenor of letter, it can be said that it is a case of consensual sex for which the complainant could not be prosecuted in the court of law for the charge of rape. Hence, we strongly doubt that accused Archana would blackmail the complainant upon the letter Ex.P-13 threatening him that she would register a rape case against him upon the said letter in case of non- payment of bribe by him.
29. The complainant in para 20 of his evidence has admitted that he had not met Gomti Bai again the period between 15.08.2003 to 05.09.2003, the date of lodging the written report Ex.P-18 with the S.P. Hence, the complainant's evidence against accused Archana that she got a report forcibly written by Gomti Bai against him is false.
30. As per the admissions made by the complainant in paras 49 and 52 of his cross-examination, he had been twice prosecuted. First time, under Sections 456, 294 and 506 of the IPC and second time, under Sections 392 and 397 of the IPC. As per the order-sheet dated 18.09.2006 of the trial Court, it appears that the complainant came from jail to record his evidence in the case. The aforesaid evidence amply proves that the complainant is having criminal background. (38)
Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 The complainant has admitted in para 24 of his evidence that he got the report Ex.P-18 drafted by his advocate friend Pradeep Jaibar and the same is in the latter's handwriting. He also admitted in para 28 that he knows Rakesh Rajput as he is of his caste and at the relevant time, the police Dolriya had registered a case against him under Section 376 of the IPC. Taking into account the aforesaid attendant circumstances and criminal background of the complainant, we feel unsafe to rely upon his evidence.
31. Ex.P-2 and Ex.D-1 are the transcriptions of conversations recorded in the cassettes being marked as Articles A1 and L respectively. The prosecution has not attached a certificate of the authenticity and correctness of the transcriptions in terms of Section 65 (b) of the Indian Evidence Act. The learned trial Judge below the paras 34 and 52 of the complainant's deposition has observed thus: When both the cassettes were played at the time of recording of the complainant's evidence for the identification of accused Archana's voice and that of him. Their voices were inaudible. In view of the aforesaid reasons, the transcriptions have no evidentiary value as per the law laid down by the Supreme Court in Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke and others (2015 (3) SCC 123) and Ram Singh and others Vs. Col. Ram Singh (1985 (supp) SCC 611). Thus, we (39) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 cannot place reliance upon the transcriptions to support the complainant's statement.
32. In her statement Gomti Bai (PW-4) has denied having met the complainant on 15.08.2003 at the place and wherefrom both of them were brought by the police to the police station and accused Archana got the letter Ex.P-13 written by her or the letter bears her signature. On account of her aforesaid evidence, the prosecution has declared her hostile and subjected her to grueling cross-examination, but failed to elicit any material evidence in support of the complainant's statement. Thus, his statement is not corroborated by Gomti Bai on any material point.
33. Mangal Singh (PW-3), the brother of Gomti Bai, has denied in his statement that he left Gomti Bai on 15.08.2003 at the place, because of his motorcycle broke down there, that he had taken it for repairs and that in his absence the police took Gomti Bai to the police station. Since this witness corroborates the statement made by Gomti Bai, it is again proved that Gomti Bai and the complainant were not brought to the police station by accused Archana and other policemen.
34. Kanchhedi Lal (PW-5) has deposed that he has a hut on the road-side near the place. He further deposed that (40) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 nobody resides in the hut and that he does not know the complainant and Gomti Bai. He also denied that letter Ex.P-15 either in his handwriting or bears his signature. Thus, his evidence has no significance to the prosecution.
35. K.S. Sisodiya (PW-9) has stated in his evidence that vide seizure memo Ex.P-25, he seized letters Ex.P-13, Ex.P-15 and Ex.P-20 from the drawer of accused Archana's official table at the police station. He has stated in para 16 and 17 that first he seized the letters thereafter he searched the government residences of accused Archana and acquitted accused Maluk Chand, whereas panch witness Ajay Kumar Shrivastava (PW-7) in para 10 and 12 and Inspector Navratan Singh (PW-2) in para 8 of their statements have given just opposite evidence to that of K.S. Sisodiya as they have stated that K.S. Sisodiya first searched government residences of accused Archana and acquitted accused Maluk Chand and thereafter he searched the office room of accused Archana at the police station. There is evidence on record that the complainant had gone to his residence before going to the government residence of accused Archana in the night of 05.09.2003. As already stated that Gomti Bai and Kanchhedi Lal have denied that the letters Ex.P-13 and Ex.P-14 are in their handwritings or bear their signatures. Under the circumstances, there is a strong possibility that when the (41) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 government residences of accused Archana and acquitted accused Maluk Chand were being searched for recovery of the tainted money, someone on the side of prosecution has kept the aforesaid letters secretly in the drawer to implicate accused Archana. In view of the aforestated evidence and circumstances, we are of the view that it is unsafe to draw a conclusion on the basis of the letters that accused Archana had demanded illegal gratification from the complainant.
36. The complainant has admitted in para 23 of his statement that when he had given his mobile phone to accused Archana, she told him that her mobile phone had been in disorder and that she had sent it for repairs. In the light of aforesaid admission of the complainant, the recovery of his mobile phone from the government residence of accused Archana is not sufficient evidence to hold that she demanded bribe from the complainant keeping it as security.
37. Ex.D-7 and Ex.D-8 are the Rojnamcha entries dated 15.08.2003 of the police station, which is the material date in the case. There is no evidence on record to hold even remotely that these entries are tampered with and anti-dated. Moreover, their correctness is not challenged by the prosecution in the cross-examination of Constable Lachhi Ram (DW-1), who brought relevant Rojnamcha record in the trial (42) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 Court for proving the entries. In normal course, Rojnamcha entries are reliable as they are records of day to day working of a particular police station until they are disproved by cogent evidence. Hence, the aforesaid entries are reliable. It is mentioned therein without any overwriting that accused Archana with police force in government vehicle bearing registration No. MP-03-1700 left the police station at 12:40 p.m. for the arrest of accused Rakesh Rajput against whom a criminal case at crime No.72/2003 is registered under Sections 341, 376, 506 and 34 of the IPC and she brought him in the state of arrest at police station at 05:50 p.m. As per the evidence of the complainant appearing in para 18, accused Archana met him on 15.08.2003 at the place at about 03:00 p.m. to 03:30 p.m. It has been held by us that the aforesaid entries are reliable. Hence, these entries lay bare the falsehood of the aforesaid statement of the complainant. In para 28, the complainant has admitted that he knows Rakesh Rajput as he belongs to his caste. It is the defence of accused Archana that the complainant and one Chandan Singh Parihar, who is a leader of BJP party of Dolriya village, pressurized her not to arrest him. She refused to give in their pressure. Her refusal made them revengeful. In retaliation, the complainant has implicated her taking the advantage of his mobile phone being with her at the relevant time. In the (43) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 facts and circumstances of the case, her defence appears to be most probable. Therefore, we hold that there exists a strong possibility of false implication of accused Archana by the complainant.
38. Upon the perusal of entire evidence on record, we have found that learned trial Judge had not confronted and sought her explanation over the admissions made by acquitted accused Maluk Chand in his examination under Section 313 of the Cr.P.C. Hence, the learned trial Judge has committed a grave error in law by using his admissions in establishing that she has demanded illegal gratification from the complainant. In this regard, reference can also be made to the decisions rendered in Zwinglee Ariel Vs. State of M.P. (AIR 1954 SC 15), Narayan Swami Vs. State of Maharashtra (AIR 1968 SC 609) and Raju Paul Vs. State of H.P. (1985 CRL. L.J. 1501 H.P.).
39. It is expected of a panch witness of a trap case under the Act to overhear the conversation between the bribe-giver and bribe-taker and to see on the sly the bribe-giver giving bribe money to bribe-taker. We find that the evidence of panch witness Ajay Kumar Shrivastava is totally silent on the aforesaid material points. On the other hand, it is evident that he remained seated throughout the material time in the (44) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 government vehicle. Hence, his evidence has no evidentiary value at all.
40. Navratan Singh (PW-2) and K.S. Sisodiya (PW-9) are police officers. There is no denying the fact that they are connected with the investigation of the case, therefore, it is but natural that they would support the prosecution case. Despite that there is nothing in their evidence by which the inference may be drawn that accused Archana had demanded bribe money from the complainant.
41. In the aforesaid close analysis of evidence on record, we hold that the learned trial Judge has committed gross errors in law and on facts that the prosecution has proved beyond reasonable doubt the factum of demand of illegal gratification by accused Archana from the complainant on the basis of his sole oral evidence. Hence, the recovery of tainted money from the possession of acquitted accused Maluk Chand has no evidentiary value insofar as it relates to accused Archana's case. Consequently, his conviction and sentence recorded by the learned trial Judge are unsustainable in law and liable to be set aside.
42. Now, the next question falls for our determination is whether the acquitted accused Maluk Chand has abetted accused Archana in demanding illegal gratification from the (45) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 complainant at any material point of time?
43. As we have already held that the prosecution has failed to prove that accused Archana has demanded illegal gratification as a motive or reward from the complainant. Therefore, upon the said finding itself the charge against acquitted accused Maluk Chand under Section 12 of the Act would fail squarely (see-G.V. Nanjundiah Vs. State (Delhi Administration) 1987 (Supp) SCC 266).
44. The complainant in para 53 of his statement has honestly admitted that acquitted accused Maluk Chand had never talked him as to the demand of bribe on behalf of accused Archana. Having gone through the entire evidence on record, we find that there is no evidence on the issue that any material point of time acquitted accused Maluk Chand had associated with accused Archana in demanding bribe from the complainant or abetting him to give her bribe. The complainant in para 7 has stated that on the fateful night in his presence accused Archana asked the receiver of her directions on wireless set to send a person without naming to her government residence from the police station. This means that she had not called by name to send acquitted accused Maluk Chand to her government residence. It has not come in the evidence of the complainant that he had a little (46) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 conversation with accused Archana in the presence of acquitted accused Maluk Chand. Therefore, it cannot be held that through their conversation, he had come to know that accused Archana had demanded bribe from the complainant and the money which he was to receive from the complainant at her instance being bribe money. Hence, we are of the view that from the factual aspect of the case, it is proved that acquitted accused Maluk Chand had innocently taken money from the complainant upon the direction of accused Archana. Hence, the commission of offence under Section 12 of the Act by acquitted accused Maluk Chand is not proved.
45. In the examination under Section 313 of the Cr.P.C. acquitted accused Maluk Chand in reply to question No.78 has stated that at the relevant time he was present at the police station. Havaldar, Gendalal told him that accused Archana had directed him to send someone to her government residence. Thereupon, he went there. He took money from the complainant at her instance without knowing that it being bribe money. Hence, taking money by acquitted accused Maluk Chand upon the direction of accused Archana without knowing the background facts cannot be equated with the abetment as per the provisions of Section 12 of the Act.
46. It is a settled proposition of law that any admission (47) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 made by an accused in his examination under Section 313 of the Cr.P.C. cannot be made sole basis for conviction of the offence with which he is charged. In this regard, reference may be had to the decisions rendered in Mohan Singh Vs. Prem Singh (AIR 2002 SC 3582), Sanatan Naskar & Another Vs. State of West Bengal (AIR 2010 SC 3570) and Ashok Kumar Vs. State of Haryana (AIR 2010 SC 2839). In view of the aforesaid legal position, acquitted accused Maluk Chand cannot be convicted under Section 12 of the Act upon the admissions made by him in his examination under Section 313 of the Cr.P.C. even if the admissions are taken on their face value true without taking into account the background facts.
47. In view of the discussions supra, we hold that no offence under Section 12 of the Act is proved against acquitted accused Maluk Chand. Hence, the learned trial Judge has rightly acquitted him of the said charge.
48. In the result:-
(i). The criminal appeal No.2325 of 2006 preferred by accused Archana is allowed and her conviction and sentence as recorded by the trial Court under Sections 7 and 13 (1) (d) r/w 13 (2) of the Act are set aside and she is acquitted of the aforesaid charges. Her bail bonds stand discharged. The trial Court is directed to (48) Criminal Appeal No. 2325/2006 Criminal Appeal No. 1398/2007 return her amount of fine if it is found deposited.
(ii). The criminal appeal No.1398 of 2007 filed by the SPE (Lokayukt) against the order of acquittal of acquitted accused Maluk Chand passed by the learned trial Judge under Section 12 of the Act is dismissed confirming the order of acquittal. His bail bonds stand cancelled.
49. A copy of this judgment be placed on the record of criminal appeal No.1398 of 2007.
(Shantanu Kemkar) (Rajendra Mahajan)
Judge Judge
sp/-