Rajasthan High Court - Jodhpur
Vijay Singh & Anr vs State on 15 May, 2018
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 625 / 2015
1. Vijay Singh S/o Shri Ganga Singh, by caste Charan, resident
of Lalpura, Police Station Dechu, District Jodhpur, Presently
suspended Constable No.252 attached with ACB Jaisalmer.
2. Jagdish Prasad S/o Shri Mohan Lal, by caste Saraswat
(Brahmin), resident of Noova, Police Station Rajaldesar,
District Churu, Presently Lohiyapada Mohangarh, District
Jaisalmer
----Appellants
Versus
The State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. J.S. Choudhary, Senior Advocate with Mr.
Tarun Dhaka.
For Respondent(s) : Mr. O.P. Rathi, Public Prosecutor.
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment 15/05/2018 Appellants, feeling aggrieved by conviction for offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 120-B, 384 r/w 120-B IPC in case of appellant No.1 Vijay Singh, and Sections 120-B, 384 r/w 120-B IPC in case of appellant No.2 Jagdish Prasad, have preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'). The learned Special Judge, Sessions Court (Prevention of Corruption Act), Jodhpur (for short, 'learned trial Court'), by the impugned judgment dated 29th of June, 2015, while indicting the appellants for aforesaid offences handed down following sentences:
(2 of 16) [CRLA-625/2015] Sentences awarded to appellant Vijay Singh:
U/s. 7 of P.C. Act Rigorous imprisonment for one year with fine of Rs.1,000/-, in default of payment of fine to further undergo one month's rigorous imprisonment.
U/s. 13(1)(d) r/w 13(2) of P.C. Rigorous imprisonment for three Act years with fine of Rs.5,000/-, in default of payment of fine to further undergo three months' rigorous imprisonment.
U/s. 120 B IPC Rigorous imprisonment for six months with fine of Rs.1,000/-, in default of payment of fine to further undergo one month's rigorous imprisonment.
U/s. 384 r/w 120-B IPC Rigorous imprisonment for three years with fine of Rs.5,000/-, in default of payment of fine to further undergo three months' rigorous imprisonment.
Sentences awarded to appellant Jagdish Prasad:
U/s. 120 B IPC Rigorous imprisonment for six months with fine of Rs.1,000/-, in default of payment of fine to further undergo one month's rigorous imprisonment.
U/s. 384 r/w 120-B IPC Rigorous imprisonment for three years with fine of Rs.5,000/-, in default of payment of fine to further undergo three months' rigorous imprisonment.
2. Apposite facts, for the purpose of this appeal, are that complainant Manoj Kumar Khatri, Manager, Thar Anchalik Gramin (3 of 16) [CRLA-625/2015] Bank, Mohangarh Branch, submitted a report on 23rd of January 2006 to Deputy Superintendent of Police, Anti Corruption Bureau, Jaisalmer Outpost, stating inter-alia therein that on 10 th of January 2006 at about 11 AM, while he was discharging his duties in the Bank, he received a telephonic call from a person projecting himself as Dy. S.P., ACB, Jaisalmer, who after taking some details informed him about one complaint received against him in the Bureau and asked him to contact Reader Vijay Singh on telephone No.253707. After about 10-15 minutes, he again received a call from a person saying that he was Vijay Singh, Reader of ACB, and referring to conversation of complaiant with Dy.S.P., stated about pendency of a complaint against him in connection with demand of illegal gratification of Rs.2,500 and asked him to call him on mobile No.9414660606 in evening. On calling Vijay Singh in evening, he asked the complainant to talk with one Jagdish Saraswat, a resident of Mohangarh on telephone No.228416 with regard to the complaint made against him and he in turn called Jagdish, who visited Bank in the evening of 11.01.2006 and there after talking with Vijay Singh on telephone informed the Complainant that Vijay Singh has demanded a sum of Rs.40,000 for dropping the complaint but he would get the matter settled in Rs.30,000.
3. The report further unfurled that on 12.01.2006 complainant was again contacted on phone and asked to bow to their wishes else to face the proceedings and consequences including loosing bank job and he was further told that instead of Rs.40,000, an (4 of 16) [CRLA-625/2015] amount of Rs.30,000, as asked previously, be paid at Jaisalmer. The report also disclosed that ultimately the complainant reached Jaisalmer and on telephonically contacting Vijay Singh, he was called behind Neeraj Hotel with money but then was again called in evening at 6 PM at SBBJ Jaisalmer where a sum of Rs.30,000 was handed over by him (the complainant) to Reader Vijay Singh. With all these allegations, complainant craved for taking action against first appellant and other incumbent for blackmailing him to extort money and acceptance of illegal gratification by public servant Vijay Singh.
4. Pursuant to report, as per prosecution, complainant was examined and when first appellant is confronted in his presence, while admitting mistake appellant Vijay Singh produced the notes of Rs.30,000/-. Thereafter, FIR No.18/2006 was registered and investigation commenced. Upon completion of investigation, charge-sheet is submitted against both the appellants for offences under Section 7, 13(1)(d) read with Section 13(2) of the P.C. Act and under Section 384, 109 and 120-B IPC.
5. The learned trial Court, after hearing prosecution and the defence, framed charges under Section 7, 13(1)(d) read with 13(2) of the P.C. Act and Section 384 & 120-B IPC against the first appellant whereas second appellant is charged for offences under Section 384 and 120-B IPC.
(5 of 16) [CRLA-625/2015]
6. In order to prove charges against the appellants, prosecution examined 12 witnesses, including the complainant, and exhibited 17 documents. After conclusion of prosecution evidence, both the accused-appellants were examined under Section 313 Cr.P.C. Appellants, to authenticate their defence, examined one witness DW1 Rajveer Singh Rawal and tendered 7 documents, which were exhibited. Subsequently, final arguments were heard by the learned trial Court and both the appellants were convicted with the charged offences for handing down sentences aforesaid.
7. Assailing the impugned judgment, learned Senior Counsel contends that first appellant's indictment for offence of taking gratification other than legal remuneration in respect of an official act is not based on sound appreciation of evidence. Learned Senior Counsel submits that basic ingredient for offence under Section 7 of the P.C. Act, i.e. demand and acceptance of illegal gratification, is conspicuously missing in the matter. Learned Senior Counsel would urge that factum of no pending work of complainant with the first appellant too has not been considered by the learned trial Court while convicting him for offences under Section 7, 13(1)(d) r/w 13(2) of the P.C. Act. Mr. J.S. Choudhary, learned Senior Counsel, has strenuously urged that impugned judgment is patently infirm inasmuch as presumption under Section 20 of the P.C. Act drawn by the learned trial Court for offence under Section 7 of the P.C. Act, ex-facie, falls short of requirements envisaged therein. Learned Senior Counsel further submits that presumption under Section 20 is absolutely alien vis-
(6 of 16) [CRLA-625/2015] a-vis offence under Section 13(1)(d) of the P.C. Act.
8. Taking exception to the affirmative finding of learned trial Court for offence under Section 384 IPC, Mr. Choudhary, learned Senior Counsel, has vehemently argued that lack of clinching evidence to prove that appellants put the complainant in fear of any injury, per se, renders the finding vulnerable. Learned Senior Counsel has contended with full emphasis that entire case set up against first appellant to show recovery of bribe from him at Police Station and his alleged admission of guilt is wholly unrealistic and unreliable. Buttressing his arguments, learned Senior Counsel submits that in absence of any transcript, identity of currency notes allegedly recovered from the appellant, and proof about handwriting on paper/slip given to the complainant with recitals of Rs.30,000/-, findings recorded by the learned trial Court are not sustainable. Learned Senior Counsel further urged that Auto Driver Nandu, in whose presence complainant allegedly paid amount of bribe to the appellant, has not been examined is sufficient to discredit his (complainant's) testimony for want of corroboration. Not producing independent witness of recovery Vasudeo Bhootra, though a listed witness, too has casted shadow of doubt on entire prosecution case according to submission of learned Senior Counsel.
9. Learned Senior Counsel has contended that the prosecution case against first appellant for offences under Section 7, 13(1)(d) r/w 13(2) of the P.C. Act and offence under Section 120-B, 384 (7 of 16) [CRLA-625/2015] IPC being founded on wholly unreliable evidence, conviction of second appellant for offences under Section 120-B and 384 cannot be sustained. Elaborating his submission in this behalf, learned Senior Counsel submits that sans any cogent evidence about conspiracy between both the appellants and lack of proof beyond reasonable doubts, finding of guilt against appellants for charged offences is clearly vitiated.
10. Per contra, learned Public Prosecutor has stoutly defended the impugned judgment. Mr. O.P. Rathi, learned Public Prosecutor, submits that evidence of complainant Manoj Kumar Khatri (PW9) is clear and unequivocal showing demand and acceptance of gratification by first appellant and involvement of second appellant in the entire conspiracy. It is also submitted by learned Public Prosecutor that both the appellants put the complainant intentionally in fear by falsely implicating him in offence of illegal gratification and extorted money, therefore, offence under Section 384 IPC is clearly established. Lastly, learned Public Prosecutor submits that appellant No.1 himself has produced the currency notes which he received from the complainant, while admitting that he had accepted illegal gratification, which is evident from recovery memos and other allied documents, therefore, no interference with the impugned order is warranted.
11. I have given my thoughtful considerations to the arguments of the learned counsel for parties, perused the impugned judgment and thoroughly examined entire record of the trial.
(8 of 16) [CRLA-625/2015]
12. Conviction of the appellants for charged offences is essentially based on testimony of complainant (PW9) Manoj Kumar Khatri, recovery witness PW7 Ashok Kumar, PW10 Keshar Singh, Dy. S.P. ACB, and I.O. PW12 Hamir Singh. The learned trial Court, upon appreciation of evidence of these four witnesses and other alleged incriminating materials, indicted both the appellants. Therefore, at the threshold, it would be just and appropriate to make judicial scrutiny of the statements of these witnesses.
13. Complainant PW9 has deposed during his examination-in- chief that first appellant gave him a phone call for demand of money to settle case of bribery against him. He has further asserted that he ascertained identity and other details about first appellant from Jagdish Prasad (second appellant). The witness has also castigated second appellant for his direct nexus with Vijay Singh - appellant No.1 to show their conspiracy in commission of charged offences under the P.C. Act and extortion pertaining to payment of Rs.30,000 to first appellant on 12.01.2006 near Indira Colony, Jaisalmer, besides repeated phone calls are also traceable from the statements of PW9. In order to prove offence against the appellants, PW9 has also narrated his conversation with second appellant - Jagdish Prasad regarding settlement of bribe amount and not showing him any proof about the alleged crime much less tape recorded conversation. As the witness PW9 is subjected to extensive cross-examination, it would be just and (9 of 16) [CRLA-625/2015] appropriate to consider his testimony in cumulative so as to test its credibility. During his cross-examination, the witness has admitted that he did not personally met first appellant on 10 th of January 2006 and 11th of January 2006 respectively and before this incident also he never had any access with accused-appellant No.1. A very candid disclosure by the witness during his cross- examination that first appellant never demanded money from him personally and he did not record telephonic conversations of these two dates, is significant for creating grave suspicion about demand of gratification by first appellant. Suspicion howsoever high it may be cannot take the shape of a proof because under criminal jurisprudence proof beyond reasonable doubts is required and not based on mere preponderance of probabilities.
14. While it is true that PW9 has made a positive assertion about demand of Rs.30,000 by first appellant but has not furnished any explanation much less plausible explanation for submitting complaint Ex.P-13 after a lapse of 11 days, i.e. on 23 rd of January 2006. It is also noteworthy that when amount of Rs.30,000 was paid by PW9 to first appellant, he went to the spot boarding his car driven by its Driver Nandu Khatri. Therefore, as per version of the witness, the amount was paid in presence of Nandu Khatri but surprisingly Nandu Khatri was not examined during trial. This sort of situation is sufficient to show that complainant's version is not corroborated by a material witness who was present at the spot when alleged gratification was paid to the first appellant. Witnesses, PW6 Murlidhar Khari and PW8 Ramswaroop Meena, (10 of 16) [CRLA-625/2015] whose names find mention in the complaint Ex.P-13, showing their presence when second appellant rang up the complainant on 11th of January 2006 with a threatening tone, too have not supported the prosecution case by turning hostile.
15. The recovery of the alleged amount of bribe in the office of ACB Outpost, Jodhpur when the first appellant brought the same after admitting his alleged mistake of accepting the amount, is also not inspiring confidence. In absence of transcript of conversation and the recovered notes being unsigned and unidentified, it is rather difficult to comprehend that recovery memo Ex.P-10 is worthy of any credence. Not signing the recovery memo by appellant No.1 and his alleged confession being hit by Section 25 & 26 of the Evidence Act, has also rendered the recovery memo vulnerable. At this stage, one glaring loophole of the prosecution case cannot be eschewed inasmuch as at the time of allegedly producing currency notes by the first appellant before the ACB Outpost, Jodhpur and preparation of recovery memo Ex.P-10, an independent witness Vasudeo Bhootra was also present, who has signed the same as attesting witness but he has not been examined as prosecution witness though he was a listed witness dropping the witness by the prosecution without any justifiable reason also exposes serious discrepancies and pitfalls in the prosecution case.
16. The other witness of recovery PW7 Ashok Kumar has though in his examination-in-chief has asserted that Vijay Singh admitted (11 of 16) [CRLA-625/2015] his mistake and promised to return back the money and thereafter also handed-over envelope containing Rs.30,000 to Deputy Superintendent of Police Keshar Singh but during his cross- examination he has pleaded ignorance about Rs.30,000. As a matter of fact, during his cross-examination, witness has said that he cannot recall as to why appellant No.1 produced currency notes of Rs.30,000 before the Deputy Superintendent of Police. The witness has also admitted during his cross-examination that in his presence Vijay Singh never admitted acceptance of Rs.30,000 from complainant Manoj Kumar Khatri, nor promised to refund said amount to the complainant.
17. Therefore, a meaningful consideration of his testimony has also created a situation wherein reliability of recovery memo is under serious cloud lest to rely on its authenticity. Likewise, testimony of PW10 Keshar Singh, who was Deputy Superintendent of Police, ACB, if read in conjunction with the testimony of complainant and PW7 Ashok Kumar, then, the same too is lacking requisite sting to bring home guilt for the alleged offences against the appellants. The witness, during his cross- examination, has admitted in clear and unequivocal terms that prior to this case he never received any complaint against appellant No.1 and appellant No.2, who was informer of the ACB. Admission of the witness that appellant No.1 refused to sign recovery memo coupled with the fact of his alleged confession before police officer too cannot be underplayed for repudiating recovery memo and discrediting his testimony on the anvil of (12 of 16) [CRLA-625/2015] mandate under Section 25 & 26 of the Evidence Act. It is candid disclosure of PW10 Keshar Singh that Vasudeo Bhootra was one of the attesting witness of recovery memo but his non-examination as witness during trial has also rendered his testimony vulnerable. Not producing an independent attesting witness of the alleged recovery despite being a listed witness, therefore, has also put the recovery memo under jeopardy.
18. Supreme Court in case of Mukhtiar Singh (since deceased) through LRs. Vs. State of Punjab [(2017) Cr.L.R. (SC) 641], while examining such serious omissions of the prosecution has held:
"It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs.3,000/- which had been paid or of Rs.2,000/- as made on the day of trap operation is wholly inadequate to comply with the pre- requisites to constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs.3,000/- at the first instance is alleged to have been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and payment of Rs.3,000/- as well as the demand of Rs.2,000/- has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under section 7 or 13 of the Act."
(13 of 16) [CRLA-625/2015]
19. As regards statements of I.O., suffice it to observe that by and large these statements are confined to investigation and not inculpatory in nature. However, it may be observed that I.O. has also not put any question mark on character and antecedents of the first appellant.
20. Therefore, in totality of circumstances, in absence of demand and proof about acceptance of gratification, offences under Section 7, 13(1)(d) r/w 13(2) of P.C. Act are not proved against first appellant beyond reasonable doubts. The learned trial Court, while convicting the first appellant for the aforesaid offences, has not cared to appreciate the evidence in right perspective and also seriously erred in invoking Section 20 of the P.C. Act for drawing presumption against first appellant without any cogent evidence about demand and acceptance of illegal gratification, proof of demand is sine qua non for drawing presumption under Section 20 vis-a-vis offences under Sections 7 or 11 or clause (a) or (b) of sub section 1 of Section 13 of the P.C. Act. Legislature has nowhere envisaged presumption under Section 20 qua offence under Section 13(1)(d) of the P.C. Act.
21. Now adverting to offence under Section 120-B IPC, suffice it to observe that when the prosecution case to bring home guilt against first appellant for offence under Sections 7, 13(1)(d) r/w 13(2) of P.C. Act has backfired, obviously, conviction of both the appellants for offence under Section 120-B IPC cannot be (14 of 16) [CRLA-625/2015] sustained. In order to constitute offence of criminal conspiracy, the requisite ingredients are existence of agreement between persons who are alleged to have conspired and factum of agreement for doing of an illegal act, or for doing by illegal means an act which may itself be not illegal. I am afraid, the evidence available on record is grossly inadequate to establish conspiracy between the appellants. No work of the complainant was pending with the first appellant and his nexus with the second appellant as guarantor of a defaulter borrower of the bank are also some significant facts which are completely overlooked by the learned trial Court while indicting both of them for offence under Section 120-B IPC. Delayed report by the complainant and other evidence showing role of second appellant in loan transaction with the bank are also vital to discredit testimony of complainant being an afterthought to project conspiracy between both the appellants.
22. At this stage, it is also pertinent that prosecution witnesses PW3 Gayad Singh, PW4 Dayanand, PW5 Samander Singh and PW6 Murlidhar Khatri have not supported prosecution case by turning hostile and likewise, PW8 Ramswaroop Meena has also turned hostile. Therefore, I propose to examine the findings recorded by the learned trial Court regarding indictment of both the appellants under Section 384 IPC. A bare perusal of Para 24 of the judgment makes it abundantly clear that learned trial Court for recording finding of guilt against the appellants vis-a-vis offence of extortion has simply relied on the alleged confessional statement of first appellant. As a matter of fact, learned trial (15 of 16) [CRLA-625/2015] Court has not at all cared to examine the basic ingredients for constituting offence of extortion besides admissibility of the alleged confessional statement.
23. There cannot be two opinions that any confession caused by inducement, threat or promise is irrelevant under Section 24 of the Evidence Act. Likewise, confession made by an accused to police officer is inadmissible in evidence under Section 25 of the Evidence Act. Similarly, by virtue of Section 26 of the Act, no confession made by any person whilst he is in custody of police officer shall be used as evidence against such person, and therefore, finding of the learned trial Court, solely on the basis of alleged confessional statement, is per se vulnerable. Even otherwise, if evidence of the complainant is scrutinized properly, then, I am afraid, it is rather difficult to infer that appellants had put the complainant in fear of any injury and thereby dishonestly induced him to deliver any property or valuable security. When demand of money itself is not proved so also payment of money by the complainant, obviously, requisite ingredients for constituting offence of extortion are unimaginable. Therefore, the finding of the learned trial Court for indictment and conviction of the appellants for offence under Section 384 IPC is wholly unsustainable.
Upshot of the above discussion is that the instant appeal is allowed and the impugned judgment passed by the learned trial Court is quashed and set aside. The appellant No.1 is acquitted of (16 of 16) [CRLA-625/2015] the offence under Section 7, 13(1)(d) r/w 13(2) of P.C. Act as well as for offence under Section 120-B IPC and Section 384 r/w 120-B IPC and appellant No.2 is also acquitted of offence under Section 120-B IPC and Section 384 r/w 120-B IPC by giving them benefit of doubt.
The appellants are on bail, and therefore, they need not surrender. Their bail bonds are cancelled.
(P.K. LOHRA)J.