Rajasthan High Court - Jaipur
Mukut Behari And Anor vs State on 12 October, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S. B. CRIMINAL APPEAL No.726/2001. : : Mukut Bihari & Anr. Vs. State of Rajasthan. : : Date of Order : 12.10.2011 HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr. Satyavrat Sharma for the appellants. Mr. Laxman Meena, P. P. for the State. BY THE COURT :
REPORTABLE Heard learned counsel for the parties.
2. The accused-appellants have preferred this appeal under Section 374 Cr.P.C. read with Section 27 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act) against the judgment of conviction and order of sentence dated 7.9.2001 passed by Special Judge (ACD Cases) Jaipur in Regular Special Criminal Case No.26/95, whereby the accused-appellant Mukut Bihari has been convicted for the offences under Section 7, 13 (1) (d) read with Section 13 (2) of the Act and under Section 120-B IPC and has been sentenced for rigorous imprisonment of two years for each count whereas accused-appellant Kalyan Mal has been convicted for the offences under Section 13 (1) (d) read with Section 13 (2) of the Act and for offence under Section 120-B IPC and has been sentenced for rigorous imprisonment of two years for each count.
2. The brief relevant facts for the disposal of this appeal are that the complainant Rafiq Alam (PW.2) on 16.11.1994 submitted an application (Ex.P/2) before ACD, Tonk alleging therein that his father Shri Deen Mohd (PW.8) underwent his treatment in Surgical Ward of Sahadat Hospital, Tonk under the supervision of Dr. B. S. Babel from 24.10.1994 to 12.11.1994 and during that period he was operated upon on 28.10.1994 and he was ultimately discharged on 12.11.1994. It was also stated in the application that while discharging his father, Dr. Bavel asked the appellant Mukut Bihari, then posted as a compounder in that ward, to give discharge ticket to the complainant and when he requested the appellant to handover discharge ticket to him, he demanded Rs.100/- as bribe to give discharge ticket and when he expressed his inability to pay by saying that he has no money, the appellant insisted that the discharge ticket would not be given unless and until his demand is met. It was further stated that on 14.11.1994 also the demand was repeated and when he offered him Rs.75/- for that purpose, the appellant refused to accept that much amount and said discharge ticket would be given only when Rs.100/- as demanded by him would be paid. It was further stated in the application that he is not in favour of paying any money as bribe to the appellant Mukut Bihari as demanded by him and he wants that the appellant may be caught red handed while accepting bribe from him. On the basis of written application filed by the complainant, it was decided to lay trap and for that purpose Shri Ramesh Chand and Mohd. Rashid were called as Motbir witnesses and their written consent was obtained for that purpose. Ten Currency notes each of Rs.10/- were taken from the complainant and they were treated with phenolphthalein powder and Police Inspector, ACD, Tonk Shri Keshar Singh put his signature also on each of the currency notes and a memo was prepared in which number of currency notes were mentioned. The currency notes smeared with phenolphthalein powder were put in the front pocket of shirt weared by the complainant and the raiding party including both the Motbir witnesses and complainant proceeded from the Office of the ACD, to the Sahadat Hospital. The further case of the prosecution is that in the staff room of the surgical ward of the hospital the complainant met with appellant and some conversation took place between them and the appellant Mukut Bihari took the complainant to the store room where appellant Kalaynmal was sitting. On the asking of the appellant-Mukut Bihari the complainant handed over Rs.100/- to the appellant Kalyan Mal who after counting, put them on the table and by taking water from a bottle washed his hands. Thereafter, on signal being given by the complainant, the raiding party alongwith Motbir witnesses entered into the store room and recovery of the notes was effected from the table. It is also the case of the prosecution that when the left hand and the right hand of the appellant Kalyanmal were separately dipped into the solution of sodium carbonate, the colour of the solution turned pink and each solution was separately sealed in glass bottles. Similarly, when the piece of cotton bandage, by which the appellant Kalyan Mal wiped his hands, was dipped into solution of sodium carbonate, its colour turned pink and that solution was also sealed in two separate glass bottles. The cotton bandage as well as the currency notes of Rs.100/- were also seized and sealed. Thereafter, the appellant Mukut Bihari was asked to produce discharge ticket of father of complainant, whereupon he produced it from an Almira and that discharge ticket was also taken into possession by the Investigating Officer. Necessary memos were prepared, both the appellants were arrested and after conducting all the formalities, the raiding party alongwith the arrested appellants and complainant came back to Office and formal FIR was registered. Thereafter, further investigation in the case was undertaken and during investigation oral as well as documentary evidence was collected and after completion of investigation charge-sheet for the above offences was submitted before the Court below. The learned trial Court framed necessary charges against each of the accused-appellants and to prove its case, the prosecution produced oral as well as documentary evidence. In his statement recorded under Section 313 Cr.P.C., appellant Mukut Bihari specifically stated that he has been falsely implicated in the case, he neither demanded nor accepted bribe money and the discharge ticket was not in his possession. The appellant Kalyanmal denied the evidence produced on behalf of the prosecution and specifically stated that he has been falsely implicated in the case. It is to be noted that each of the appellants separately submitted his written statement under Section 313 Cr.P.C. read with Section 243 (1) Cr.P.C. In their defence, the appellants produced DW.1 Shri Dharmraj Gupta as a witness and during the course of cross-examination of prosecution witnesses some of the previous statements recorded under Section 161 & 164 Cr.P.C. were exhibited.
3. The learned trial Court after appreciating and evaluating the evidence available on record and hearing both the parties by passing the impugned judgment and order, convicted and sentenced each of the accused-appellants as aforesaid and hence, the instant appeal.
4. Assailing the impugned judgment, learned counsel for the appellants first of all submitted that it is an admitted fact that in the present case the most part of the investigation (including the trap and the recovery of bribe money) has been conducted by Shri Keshar Singh (PW.10), who at the relevant time was posted as Inspector in the office of ACD, Tonk whereas according to Section 17 of the Act, no officer below the rank of Dy. S. P. is competent to conduct investigation in case involving an offence under the Act and thus, the whole investigation and subsequent proceedings based on such investigation is against law and vitiated and the appellants are liable to be acquitted on this ground alone. It was further submitted that the appellants took this objection before the trial Court at the time of framing of charge, but the trial Court rejected that only by the reason that the State Government by order dated 10.2.1978 has authorised all Police Inspectors to investigate a case under the provisions of the Act. The submission of learned counsel for the appellants is that it is an admitted fact that under the provisions of Act, the State Government has not authorised a Police Inspector to conduct investigation and in absence of that, a Police Inspector is not competent to investigate a case, on the authority of an order dated 10.2.1978 issued under the provisions of the Prevention of Corruption Act, 1947 (hereinafter referred as the Repealed Act). It was also submitted that Shri Keshar Singh (PW.10) did not make fair investigation and it resulted into miscarriage of justice and the rights of the appellants were prejudiced. In this regard, the learned counsel for the appellants referred that it is an admitted fact that at the time of incident at the place of incident, one Smt. Laxmi Devi was also present, but her statement was not recorded during investigation. No investigation was made from her and she was not produced as a witness during trial. During investigation the water bottle, from which the appellant Kalyanmal washed his hands, was not seized. Investigation was also made from Dharmraj (DW.1), but his statement under Section 161 Cr.P.C. was not produced alongwith the charge-sheet and he was also not made a prosecution witness and his statement was concealed from the Court perhaps by the reason that he supported the appellants. On the basis of all these facts, the learned counsel for the appellants contended that if in a case an unauthorised and incompetent Police Officer conducts unfair investigation in a biased manner, miscarriage of justice and prejudice to the accused is to be presumed and inferred. In support of his submissions, learned counsel relied upon the cases of Bhagwati Prasad Vs. State of Rajasthan reported in 1991 Cr.L.R. (Raj.) 644, Harnek Singh Vs. State of Punjab reported in 1999 Cr.L.J. (Punjab & Haryana High Court )635.
5. On the other hand, learned Public Prosecutor submitted that Shri Keshar Singh (PW.10), the then Police Inspector posted at ACD, Tonk, was an authorised and competent officer to investigate the case as the State Government under the provisions of the Repealed Act, by an order dated 10.2.1978, authorised all Inspectors also, to investigate a case under the provisions of the Repealed Act. According to learned Public Prosecutor, although under Section 17 of the Act, an order has not been issued by the State Government empowering a Police Inspector also to undertake investigation in such a case, but the order issued under the Repealed Act is still inforce and under the authority of that order Shri Keshar Singh (PW.10) was a competent and authorised officer to conduct investigation. It was further submitted that if for the sake of arguments, it is admitted that Shri Keshar Singh (PW.10) was not a competent officer to undertake investigation even then only by that reason the whole proceedings cannot be said to be vitiated and the appellants are not entitled to be acquitted on that ground alone. It was submitted that any irregularity and illegality committed in the course of collection of evidence does not vitiate a legal proceeding. In support of his contentions, the learned Public Prosecutor relied upon the case of State of M.P. Vs. Virendra Kumar Tripathi reported in (2009) 15 SCC, 533.
6. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as relevant legal provisions and the case law.
7. It is an admitted fact that Shri Keshar Singh (PW.10) was posted as Inspector at the relevant time in the Office of ACD, Tonk. From the material available on record, it appears that by a notification dated 10.2.1978, the State of Rajasthan under Section 5-A of the Repealed Act authorised all Police Inspectors posted in ACD of Rajasthan to investigate and to arrest without warrant an accused. It is an admitted fact that under Section 17 of the Act, the State Government has not issued an order empowering a Police Inspector to investigate a case and arrest an accused under the provisions of the Act. It is nobody's case that the order dated 10.2.1978 has been withdrawn by the State Government. It is to be considered whether under the authority given by the order dated 10.2.1978, whether a Police Inspector posted in ACD, Rajasthan is authorised/empowered to investigate a case even under the provisions of Act.
8. For considering the submissions made on behalf of the respective parties, it would be useful to refer relevant legal provisions of the Act, which are as below :
17. Persons authorised to investigate.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank, --
(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;
(b) in the metropolitan areas of Bombay, Calcultta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of Section 8 of the code of Criminal Procedure, 1973, of an Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan or Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant :
Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant :
Provided further that an offence referred to in clause (e) of sub-section (1) of Section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.
30. Repeal and saving.- (1) The Prevention of Corruption Act, 1947 and the Criminal Law Amendment Act, 1952 are hereby repealed.
(2) Notwithstanding such repeal, but without prejudice to the application of Section 6 of the General Clauses Act, 1897, anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not consistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provisions of this Act.
9. From the perusal of Section 17 of the Act, I am of the view that following persons are authorised to conduct investigation for an offence punishable under the provisions of the Act :
(1) All Inspector of Police and Officers of the higher rank in the case of Delhi Special Police Establishment. For such an Officer order of a Metropolitan Magistrate or a Magistrate of a first class is not required. Their mere posting in Delhi Special Police Establishment is sufficient.
(2) All Assistant Commissioner of Police and other Officers of the higher rank posted in the metropolitan areas and in such a case also no order of a Metropolitan Magistrate or a Magistrate of a first class is required.
(3) In all other areas, all Deputy Superintendent of Police or a Police Officer of equivalent rank and other officers of higher officer and in such a case also order of a Metropolitan Magistrate or a Magistrate of first class is not required.
(4) Police Officer of any rank with the order of a Metropolitan Magistrate or a Magistrate of the first class.
(5) Any Officer, not below the rank of an Inspector of Police if he is authorised by the State Government in this behalf by a general or special order. In such a case no further order of a Metropolitan Magistrate or a Magistrate of the first class is required.
The first proviso appended to Section 17 of the Act provides that the State Government by a general or special order may authorise any Police Officer not below the rank of an Inspector of Police to undertake investigation under the provisions of the Act and in such a case to conduct investigation such an officer does not require any order of a Metropolitan Magistrate or a Magistrate of the first class. Thus, the State Government is empowered to authorise even an Inspector of Police to conduct investigation under the provisions of this Act.
Section 30 of the Act provides that anything done or any action taken or purported to have been done or taken under or in pursuance of the Repealed Act, in so far as it is not inconsistent with the provisions of the Act, be deemed to have been done or taken under or in pursuance of the corresponding provisions of the Act.
10. I am of the considered view that when under the provisions of the Repealed Act, the State Government by a general order dated 10.2.1978 has authorised every Inspector of Police of ACD to undertake investigation and that order is still in force, under the authority of that order every Inspector of Police of ACD is empowered to undertake and to conduct investigation even under the provisions of the Act. An Inspector of Police authorised by the State Government under the provisions of the Repealed Act cannot conduct investigation under the provisions of the Act only when it is found that the provisions of the Act are inconsistent with the provisions of the Repealed Act or the order dated 10.2.1978 has been withdrawn by the State Government. The comparison of provisions of two Acts does not reveal any inconsistency. Similarly, there is no material on record to hold that the order dated 10.2.1978 has been withdrawn by the State Government I am of the view that it was not necessary for the State Government to issue a general or special order under first proviso to Section 17 of the Act authorising an Inspector of Police to conduct investigation under the provisions of the Act and under the authority of order dated 10.2.1978 every Inspector of Police posted in the Anti Corruption Department of State of Rajasthan is authorised to conduct investigation even under the provisions of the Act.
A similar question arose in the case of State of Punjab Vs. Harnek Singh reported in AIR 2002 (SC) 1074. The State of Punjab by a notification issued under the provisions of Repealed Act, authorised all Inspectors of Police posted in State Vigilance Department to undertake investigation for an offence punishable under the provisions of Repealed Act. After the repeal of old Act and enforcement of the Act, no order or notification was issued under the provisions of the Act authorising such Police Inspectors to conduct investigation. In the case before the Hon'ble Supreme Court an Inspector of Police undertook investigation for an offence punishable under the provisions of the Act and the accused challenged that by filing a petition under Section 482 Cr.P.C. The Hon'ble Punjab & Haryana High Court by allowing the petition quashed the FIR and the investigation on the ground that investigation has not been conducted by an authorised Officer under the provisions of the Act as no general or special order has been issued by the State of Punjab under Section 17 of the Act authorising an Inspector to conduct investigation and the order issued under the Repealed Act cannot be said to have been saved. But on appeal being filed by the State of Punjab, the Hon'ble Supreme Court reversed the order of the High Court and held that there being no inconsistency between the provisions of Repealed Act and the Act and looking to the Section 30 of the Act, Section 6 & 24 of the General Clauses Act, the order issued under the provisions of the Repealed Act is still in force and under the authority of that order an Inspector of Police is also competent to undertake investigation even under the provisions of the Act. In my opinion, present case is wholly covered by the law laid down by Hon'ble Supreme Court in the above case. Here in Rajasthan also, the State Government by notification dated 10.2.1978 authorised all Police Inspectors posted in the Anti Corruption Department to conduct investigation under the provisions of the Repealed Act and and that notification is still in force and thus, Shri Keshar Singh (PW.10), an Officer of rank of Police Inspector posted at the relevant time in the Office of ACD, Tonk was authorised and competent to investigate in the present case. It is relevant to note that the learned counsel for the appellants in support of his submissions relied upon the case of Harnek Singh Vs. State of Punjab reported in 1999 Cr.L.J. 635, but it is the same case which has been reversed by Hon'ble Supreme Court in the case of State of Punjab Vs. Harnek Singh reported in AIR 2002 (SC) 1074.
11. Apart from that, it is well settled that an investigation and subsequent proceedings based on such investigation cannot be vitiated only by the reason that the investigation was undertaken or conducted by an unauthorised or incompetent Officer unless prejudice has been caused to the accused or miscarriage of justice is resulted. The Hon'ble Supreme Court in the case of State of M.P. Vs. Virendra Kumar Tripathi reported in (2009) 15 SCC, 533 has held that the function of investigation is merely to collect evidence and any irregularity and illegality in the course of collection of evidence can hardly be considered by itself to affect the legality of trial by a competent Court of the offence so investigated. A conviction is not violated because there has not been strict compliance with the provisions of the Act in the manner of investigation of a Police Officer unless the accused is shown to have been prejudiced. Recently, the Hon'ble Supreme Court in the case of Ashok Tshering Bhutia Vs. State of Sikkim reported in (2011) 4 SCC 402 has held that a defect or irregularity in investigation has no direct bearing on the competence of court or procedure relating to cognizance or trial and, therefore, where the cognizance of the case has infact being taken and the case is proceeded to termination, the invalidity of the precedent investigation does not vitiate the result unless a miscarriage of justice has been caused thereby. The defect or irregularity in investigation has no bearing on the competence of the Court or procedure relating to cognizance or trial.
12. Thus, the whole of the proceedings cannot be invalid or vitiated only by the reason that the investigation was conducted by an unauthorised or incompetent officer unless it is shown by the accused that as a result of such an investigation his right prejudiced or miscarriage of justice has been caused. In my opinion, the various facts indicated by the learned counsel for the appellants, are not of such a nature so as to hold that the case of the appellants has been prejudiced or miscarriage of justice in any way was caused. From the evidence available on record, it appears that at the place of incident at the time of incident one Smt. Laxmi Devi, an employee of the Hospital was also present. Although, no investigation was conducted from her, but looking to the facts of the case, it was not essential for the Investigating Officer to undertake investigation from her by the reason that she was not in any way connected with the laying of trap. As already stated two independent panch witnesses were associated with the trap and in such circumstances Smt. Laxmi Devi cannot be said to be a witness of the incident. There is no such legal requirement that each and every person, present even by chance at the place of incident at the time of incident, is required to be investigated or produced as a witness on behalf of the prosecution during trial. Similarly, although the water bottle used by the appellant Kalyan Prasad to wash his hands was not seized by the Investigating Officer, but by no stretch of the imagination it can be said that the Investigating Officer did not seize the bottle due to some oblique motive and with an intention to conceal a material fact from the Court. Mere an investigative lapse committed by the Investigating Officer does not result into miscarriage of justice or prejudice to the accused. So far as non-production of Shri Dharmraj as a prosecution witness is concerned, although it appears that he was examined during investigation, but that does not mean that the prosecution was bound to cite him as a prosecution witness in the charge-sheet and then examine him as a witness during trial. It is not a legal requirement that each and every person, examined by the Investigating Officer during the course of investigation, has to be made a prosecution witness and then produce him during trial. Apart from that, when Shri Dharmraj has appeared as a defence witness, the appellants cannot be allowed to submit that the Investigating Officer was not fair to them. Non-production of copy of Rojnamcha cannot make an investigation unfair and prejudical to the accused. In my view, when the original complaint submitted by the complainant and the other documents prepared on that basis have been produced during trial, non-production of copy of 'Rojnamcha' is of no consequence.
13. The result of this discussion is that the Investigating Officer Shri Keshar Singh (PW.10) was an authorised and competent Officer to conduct and undertake investigation in the present case and even if for the sake of arguments, it is admitted that he was not competent and authorised even then in absence of prejudice and miscarriage of justice, the cognizance and the trial undertaken by the trial Court and the resultant judgment of conviction cannot be said to be illegal or vitiated and appellants are not entitled to be acquitted by that reason alone.
14. The learned counsel for the appellants on the basis of the evidence available on record further raised the following grounds :
(1) There are several material improvements and contradictions in the statement of the complainant Shri Rafiq Alam (PW.2) recorded during trial in comparison to written complaint (Ex.P/2), statement under Section 161 Cr.P.C. (Ex.D/2) and statement recorded under Section 164 Cr.P.C. (Ex.D/1) and thus, he is not a reliable witness. There is contradiction about the fact that the how much amount was demanded as bribe money and when and where it was demanded. In the written complaint, it has been mentioned that only appellant Mukut Bihari demanded bribe whereas in his statement under Section 164 Cr.P.C. he has named both the appellants as the persons demanding bribe money from him. There is contradiction regarding this fact also that the money was first paid to accused Mukut Bihari who then handed over it to accused Kalyan Mal or it was paid to accused Kalyan Mal directly on the asking of accused Mukut Bihari. Similarly, there is contradiction regarding this fact also whether hands of accused Mukut Bihari were dipped into solution of sodium carbonate or not ?
(2) For an offence under Section 7 of the Act to be made out demand, acceptance and recovery of bribe money is required to be proved and mere recovery of some money from the possession of accused is not sufficient. The fact of demand of bribe should be corroborated by independent witnesses whereas the complainant, the panch witnesses, the Investigating Officer and other members of the raiding party can never be independent witnesses and on the basis of evidence of such witnesses the fact of demand and acceptance of bribe cannot be held to be proved. It is also necessary that the panch witnesses must specifically depose before the Court that in their presence and hearing demand of bribe was made by the accused and then he accepted the money from the complainant. In absence of such evidence, the fact of demand and acceptance cannot be found to be proved. In the present case, none of the panch witnesses has deposed that in his presence and hearing, the appellants or any of them demanded and accepted money from the complainant.
(3) It is an admitted fact that at the time of incident at the place of incident i.e. in the store room one Smt. Laxmi Devi was also present, but the Investigating Officer did not make any investigation from her, although, she could have been an independent witness of the incident. She was a material witness and her evidence was withheld without any reason and thus, adverse inference should be taken against the prosecution.
(4) According to prosecution itself, the appellant Kalyan Mal after counting the currency notes washed his hands by water contained in a bottle, but that bottle was not seized without any reason. Thus, a material fact withheld from the Court. The appellant Kalyan Mal used his both hands for counting the currency notes, but according to FSL Report (Ex.P/25) traces of phenolphthalein powder were not found in the solution of sodium carbonate in which the right hand of the accused was dipped. This fact clearly indicates that the currency notes were neither handed over to appellant Kalyan Mal nor he counted them by his hands as alleged by the prosecution. Similarly, phenolphthalein powder was also not found in the solution of sodium carbonate in which the piece of cotton bandage was dipped by the Investigating Officer although, the prosecution case is that the appellant wiped his hands by that piece of cotton bandage.
(5) The prosecution itself is not certain what is the actual place of incident. The complainant has made contradictory statements with regard to the fact that on the date of incident, the appellant Mukut Bihari met him in the staff room or in male general ward or female general ward.
(6) There are several material and major inter-se contradictions between the statements of prosecution witnesses regarding the incident. According to prosecution, the appellant Kalyan Mal washed his hands by taking water from a bottle lying nearby whereas PW.7 Jahir Ahmed has deposed that the accused washed his hands by a tap installed in the store room. In the site map, no such tap or washbasin has been shown and this fact alone makes the presence of PW.7 doubtful at the time of incident. There is contradiction regarding these facts also that at the time of incident, the appellants were sitting on chairs or bed, the discharge ticket (Ex.P/5) was recovered at the instance of appellant Mukut Bihari or Shri Kalyan Mal, what was the signal to be made by the complainant when bribe money was to be accepted by the accused, whether the complaint was made only against the appellant Mukut Bihari or against both the appellants. There is contradiction regarding this fact also that both the appellants went alongwith complainant from the staff room to the store room or only the appellant Mukut Bihari went alongwith him and Kalyan Mal was already sitting in the store room. When there are several material and major contradictions in the proseuction evidence, it is liable to be rejected and accused cannot be convicted on the basis of such evidence.
(7) It is an admitted fact that the discharge ticket around which the whole incident revolved was prepared by Dr. Bavel (PW.5) on 12.11.1994. There is no evidence on record so as to show that the appellants or any of them was in any way in power and possession of the discharge ticket and it was to be handed over by them to the complainant or his father and thus there was no occasion for the appellant or any of them of demand of bribe money. A person can demand bribe from another only when he is in a position to compel the other to satisfy his demand for a work which is in the power of the person demanding bribe. When the appellants were not having any authority either to prepare or to hand over discharge ticket to the complainant, there is no question of demanding bribe.
(8) It is an admitted fact that the tainted currency notes were recovered from the table and thus, it cannot be said that at the time of recovery they were in the possession of appellants or anyone of them. This possibility cannot be ruled out that the complainant himself put the notes on the table and more particularly looking to the fact that there is no corroborative evidence on record supporting the statement of the complainant. It is well settled that in trap cases, the complainant is an accomplish and conviction cannot be based only on the basis of evidence of such witness and it is a legal requirement that his evidence should be corroborated in material particulars by some reliable independent evidence, but in the present case there is no corroborative evidence available on record.
(9) From the evidence available on record, it appears that the complainant was not satisfied with the care and treatment given to his father and he was annoyed with the staff posted in the surgical ward of the Hospital and perhaps by that reason a false report was lodged to teach a lesson to the appellants.
(10) According to the prosecution itself although, written complaint was made against appellant Mukut Bihari, but no recovery of bribe money was made from his possession and discharge ticket was also not recovered at his instance and thus, in absence of recovery, no offence can be made out against him, whereas no complaint of demand of bribe was made against appellant Kalyan Mal and even if for the sake of arguments, it is admitted that the bribe money was recovered from him and discharge ticket was also recovered at his instance even then in absence of demand and acceptance, no offence is made out against that accused also.
(11) According to the complainant and his father on 14.11.1994, Rs.75/- and a box of sweets were offered to appellant Mukut Bihari, but he refused to accept them. This alone is a clear indication of the fact that bribe was never demanded by him and he has been falsely implicated. If there was any demand of bribe, the accused would not have refused to accept Rs.75/- and the sweets offered by the complainant.
(12) In the light of evidence available on record, presumption under Section 20 of the Act cannot be raised. For presumption to be raised, the prosecution is required to prove that the bribe money was demanded and accepted by the accused. The evidence available on record instead of corroborating the case of the prosecution, supports the defence of the appellants, which is to the effect that when the father of the complainant was discharged, Dr. Bavel (PW.5) asked the complainant to donate some tube light to the Hospital and when on the date of incident, the complainant instead of giving tube light as asked by Dr. Bavel, offered to pay Rs.100/- in cash to the appellants, they refused to accept that saying that amount in cash in lieu of tube light cannot be accepted from him and upon that the complainant put that money on the table and that was seized by the raiding party taking it as bribe. Although, Dr. Bavel in his statement before the Court has denied that he asked the complainant or his father to donate tube light to the Hospital, but in his statement under Section 161 Cr.P.C. (Ex.D/3) the witness has specifically stated that he asked the complainant to donate tube light to the Hospital and the witness has failed to offer any explanation for this contradiction. PW.3 Shri Ramesh Chand in his examination-in-chief itself has stated that as soon as the complainant handed over the tainted money to the accused, they told the complainant that if he is desiring to donate anything to the Hospital, it should be in form of some article and not in cash. This witness has also admitted that there are several ceiling fans, clocks, tube lights installed in the Hospital bearing the names of their donors, which is a clear indication of the fact that the Hospital accepts articles in donation. From the very beginning the defence of the appellants has been that no bribe was ever demanded and the tainted money recovered from the table was the cash amount offered by the complainant as donation to the hospital in lieu of tube light. The accused is not required to prove his defence behind reasonable doubt and it is sufficient to prove it to the extent of probability.
15. Learned counsel in support of his submissions relied upon the following cases :
(1) State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede reported in 2009 Cri.L.J. 4425 (SC).
(2) Mangeshbhai Bhabhutabhai Patel Vs. State of Gujarat reported in 2011 Cri.L.J. 2627.
(3) G. V. Nanjundiah Vs. State (Delhi Administration) reported in 1988 Cri.L.J. 152 (SC).
(4) Sita Ram Vs. State of Rajasthan reported in 1975 Cri.L.J. 1224 (SC).
(5) State of U. P. Vs. Ram Asrey reported in 1990 Cr.L.R. 188 (SC).
(6) Amar Nath Vs. State of Rajasthan reported in 1994 Cr.L.R. (Raj.) 25.
(7) Bikaram Singh Vs. State of Rajasthan reported in 1991 Cr.L.R. (Raj.) 315.
(8) Ghasi Ram Vs. State of Rajasthan reported in 1989 RCC 98.
(9) Arjun & Ors. Vs. State of Rajasthan reported in 1995 RCC 241.
(10) Bhopal Chand Jain Vs. State of Rajasthan reported in 1991 RCC 496.
(11) Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh reported in 1979 Cr.L.J 633 (SC).
(12) Maha Singh Vs. State (Delhi Administration) reported in 1976 Cri.L.J. 346.
(13) Bhagwati Prasad Vs. State of Rajasthan reported in 1991 Cr.L.R. (Raj.) 644.
(14) Mohmoodkhan Mahboobkhan Pathan Vs. State of Maharashtra reported in 1997 (1) Crimes 186 (SC).
16. On the other hand, learned Public Prosecutor supporting the impugned judgment and order submitted that any of the grounds raised on behalf of the appellants individually or cumulatively is not of such a nature so as to adversely effect the prosecution case and there is no reason to convert the order of conviction passed by the trial Court into an order of acquittal.
17. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the case law.
18. Before considering the grounds raised on behalf of the appellants, it would be useful to refer the prevalent well settled legal position relevant for the disposal of corruption cases. From the various rulings of the Hon'ble Supreme Court, the emerging legal position may be summerised as below :
(1) To constitute an offence under Section 7 of the Act, all the three ingredients, viz; demand, acceptance and recovery of the amount of illegal gratification are to be proved and merely recovery of bribe money is not sufficient. To arrive at a conclusion whether all the three ingredients have been satisfied or not, the Court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, the presumptive evidence, as is laid down in Section 20 of the Act, must also to be taken into consideration. Before the accused is called upon to explain as to how the amount in question was found in his possession, the fundamental facts i.e. demand and acceptance must be proved by the prosecution. The explanation offered by the accused is required to be considered by the Court only on the touch stone of preponderance of probability and not on the touch stone of proof beyond all reasonable doubt. The probable defence brought by the accused should also to be considered for the purpose of arriving to the conclusion as to whether he accepted the amount or not, or that the accused had infact demanded the amount and only the evidence produced by the prosecution is not sufficient to be considered.
(2) There is no rule of law that even if a witness is otherwise reliable and independent, his association in a prearranged raid about which he had became acquainted, makes him an accomplice or a partisan witness. In absence of anything to warrant a contrary conclusion, conviction is not untenable merely because it is based on the testimony of such a witness. Every witness of a raiding party cannot be dubbed as an accomplice perse or even as an interested witness in total absence of materials justifying such an inference.
(3) A person concerned in the commission of crime, a partner in crime and associate in guilt is an accomplice. He takes part in the crime and is privy to the criminal act. A witness forced to pay on promise of doing or forbearing to do any official act by a public servant, is not a partner in crime and associate in guilt and therefore cannot be said to be an accomplice. It has long been rule of practice, which has become equivalent to rule of law, that the evidence of an accomplice is admissible but to be acted upon, ordinarily, requires corroboration. Even those who give illegal gratification to the accused cannot be considered as accomplice as the same is extorted from them.
(4) Corroboration of evidence of a witness is required when his evidence is not wholly reliable. In case of a partly reliable witness, the Court seeks corroboration in material particulars from other evidence. However, in a case in which a witness is wholly reliable, no corroboration is necessary. Seeking corroboration in all circumstance of the evidence of a witness forced to give bribe may lead to absurd result. Bribe is not taken in public view and, therefore, there may not be any person who could see the giving and taking of the bribe.
19. Hon'ble Supreme Court in the case of State of U.P. Vs. Dr. G. K. Ghosh reported in AIR 1984 SC 1453 has observed as under :
By and large a citizen is somewhat reluctant, rather than anxious, to complain to the Vigilance Department and to have a trap arranged even if illegal gratification is demanded by a Government servant. There are numerous reasons for the reluctance. In the first place, he has to make a number of visits to the office of Vigilance Department and to wait on a number of officers. He has to provide his own currency notes for arranging a trap. He has to comply with several formalities and sign several statements. He has to accompany the officers and participants of the raiding party and play the main role. All the while he has to remain away from his job, work, or avocation. He has to sacrifice his time and effort whilst doing so. Thereafter, he has to attend the court at the time of the trial from day to day. He has to withstand the searching cross-examination by the defence counsel as if he himself is guilty of some fault. In the result, a citizen who has been harassed by a Government officer, has to face all these hazards. And if the explanation offered by the accused is accepted by the court, he has to face the humiliation of being considered as a person who tried to falsely implicate a Government servant, not to speak of facing the wrath of the Government servants of the department concerned, in his future dealings with the department. No one would therefore be too keen or too anxious to face such an ordeal. Ordinarily, it is only when a citizen feels oppressed by a feeling of being wronged and finds the situation to be beyond endurance, that he adopts the course of approaching the Vigilance Department for laying a trap. His evidence cannot therefore be easily or lightly brushed aside. Of course, it cannot be gainsaid that it does not mean that the court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict Government official may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving a go-bye to the rules, the official refuses to yield.
The Hon'ble Supreme Court has further held that :
It is now time to deal with the criticism urged as a matter of course in the context of the police officer leading the raiding party-namely that he is an interested witness. This is true, but only to an extent a very limited extent. He is interested in the success of the trap to ensure that a citizen, who complains of harassment by a Government officer making a demand for illegal gratification, is protected and the role of his department in the protection of such citizens is vindicated. Perhaps it can be contended that he is interested in the success of the trap so that his ego is satisfied or that he earns a feather in his cap. At the same time it must be realised that it is not frequently that a police officer, himself being a Government servant, would resort to perjury and concoct evidence in order to rope in an innocent Government servant. In the event of the Government servant concerned refusing to accept the currency notes offered by the complainant, it would not be reasonable to except the police officer to go to the length of concocting a false seizure memo for prosecuting and humiliating him merely in order to save the face of the complainant, thereby compromising his own conscience. The court may therefore, depending on the circumstances of a case, feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the police officers even if the trap witnesses turn hostile or are found not to be independent. When therefore besides such evidence there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case.
20. In the light of the well settled legal position and the evidence available on record, my findings with reasons on each of the grounds raised by the appellants are as below :
(1) From the evidence available on record, it cannot be said that the improvements and contradictions in the statement of the complainant Rafiq Aalam are material and major in nature so as to discard his whole evidence and label him as an unreliable witness. Although, there are some improvements and contradictions in his Court statement in comparison to written complaint (Ex.P/2), statement under Section 161 Cr.P.C. (Ex.D/2) and his statement recorded under Section 164 Cr.P.C. (Ex.D/1), but the improvements and contradictions as pointed out by the learned counsel for the appellants are of a minor and immaterial nature. From the evidence available on record, it is clear that initially the appellant Mukut Bihari demanded Rs.200/- as bribe from the complainant and out of that Rs.100/- were paid to him on 29.10.1994 and thereafter when his father was discharged from Hospital on 12.11.1994, the remaining amount of Rs.100/- was demanded. According to the complainant, initially the amount was demanded when his father was undergoing treatment and Rs.100/- were paid in the ward in which his father was admitted whereas the rest amount of Rs.100/- was demanded in duty room on 12.11.1994 when his father was discharged. Thus, there is no contradiction regarding the fact how much amount was demanded and what was its place and time. Although, in the written complaint allegation against only appellant Mukut Bihari was levelled whereas in his statement under Section 164 Cr.P.C., both the appellants have been named as the person demanding bribe from the complainant, but looking to the fact that statement under Section 164 Cr.P.C. was recorded after few days of the incident in which both the appellants were involved if the complainant in his statement has stated that both the appellants demanded money from him it is not an unnatural behavior on his part and only by that reason, it cannot be held that there is a major contradiction in his statement. It is pertinent to mention that on the basis of statement under Section 164 Cr.P.C., explanation of the complainant has not been sought during his cross-examination and in absence of that appellants are not entitled to contend that there is contradiction about the fact whether appellant Mukut Bihari alone or both the appellants demanded money from him. Similarly, from the evidence available on record, it is more than clear that when on the date of incident i.e. 16.11.1994, when the money was offered to appellant Mukut Bihari he asked the complainant to hand over that to appellant Kalyanmal and upon that the complainant handed over the money to Shri Kalyanmal who accepted it and after counting put it on a table. In his cross-examination also, the complainant has explained in very clear words that money was not handed over to appellant Mukut Bihari, but it was handed over to Kalyanmal on the asking of Mukut Bihari. From the evidence available on record, I do not find any such fact that hands of accused Mukut Bihari were also dipped into solution of sodium carbonate. In my opinion even if in his Court statement the complainant has stated that hands of appellant Mukut Bihari were also dipped into solution of sodium carbonate even then this fact is not so much material as to adversely effect the entire prosecution case.
(2) It is well settled that for an offence under Section 7 of the Act to be made out, all three ingredients i.e. demand, acceptance and recovery of bribe money are required to be proved and mere recovery of tainted money from the possession of accused is not sufficient, but it is not a legal requirement that the fact of demand and acceptance must be corroborated by evidence of independent witnesses other than the evidence of complainant, panch witnesses, Investigating Officer and other members of the raiding party. Similarly, I do not find such a legal requirement that in each and every case and in all circumstances the panch witnesses must specifically depose before the Court that in their presence and hearing demand of bribe was made by the accused and he accepted money from the complainant. The Hon'ble Supreme Court has held that seeking corroboration in all circumstances of the evidence of a witness forced to give bribe may lead to absurd result. Bribe is not taken in public view and, therefore, there may not be any person who could see the giving and taking of the bribe. In the present case, although none of the panch witnesses has deposed that he overheard the appellants or any of them to demand money from the complainant, but each of the panch witnesses has clearly stated that he saw that a conversation between the complainant and appellant Mukut Bihari took place, the complainant alongwith the appellant went from the staff room of the female ward to the store room and he also saw that the complainant handed over the money to the appellant Kalyanmal and he after counting put it on the table. Similar are the statements of Investigating Officer Shri Keshar Singh and other members of the raiding party. Apart from that, the complainant in his statement has very categorically deposed that on the date of incident i.e. 16.11.1994 when he asked Mukut Bihari to give him the discharge ticket, he asked him whether he has come with rest of the amount, upon which he told him that he has the money with him and he alongwith appellant Mukut Bihari went into store room where he asked him to hand over the money to appellant Kalaynmal. Although, the complainant was subjected to a lengthy cross-examination, but nothing has come out from his mouth so as to disbelieve him. Thus from the evidence available on record, it is well proved that on the date of incident also accused Mukut Bihari demanded bribe money and on his asking it was accepted by appellant Kalyanmal.
(3) Although from the evidence available on record, it appears that at the time of incident at the place of incident i.e. in the store room, one Smt. Laxmi Devi an employee of the hospital was also present and it is an admitted fact that the Investigating Officer did not make any investigation from her, but it cannot be held that she was a material witness and her evidence was deliberately withheld. Looking to the facts and circumstances of the case, in absence of her evidence adverse inference cannot be taken against the prosecution and it does not adversely effect the prosecution case. From the evidence available on record, at the most it can be said that Smt. Laxmi Devi was present in the store room by chance, but only by that reason she cannot said to be witness of the incident and thus it was not essential for the investigation officer to conduct investigation from her. She was not in anyway associated with the laying of the trap and two independent panch witnesses were already with the raiding party. There is no legal requirement that each and every person present at the place of an incident is required to be investigated and produced as a witness on behalf of the prosecution during trial. If the appellants were of the view that Smt. Laxmi Devi is a material witness and she could depose what actually happened during the incident, they could have produced her as defence witness. Being employee of the hospital and associate of appellants, she could have helped the appellants in comparison to prosecution. In my opinion, in these circumstances, the appellants are not entitled to contend that a material witness has been withheld from the Court.
(4) Although, water bottle from which the appellant Kalyanmal washed his hands, was not seized during investigation, but by that reason it cannot be held that a material evidence has been withheld from the Court and thus, in absence of that no adverse inference can be drawn against the prosecution. In my view, seizure of that bottle could have corroborated the other evidence available on record, but absence of that cannot adversely effect the prosecution case. Although, traces of phenolphthalein powder were not found in the sodium carbonate solutions in which the right hand of the accused Kalyanmal and the piece of cotton bandage were dipped, but the reason is obvious and in absence of positive test, it cannot be said that the currency notes were neither handed over to appellant Kalyanmal nor he counted them by his hands. The prosecution case is that on the asking of appellant Mukut Bihari currency notes were handed over to appellant Kalyanmal and he counted them by taking them into his hands and then put them on a table. It is also the case of the prosecution that immediately thereafter the appellant washed his hands by water and wiped his hands by a cotton bandage. From the evidence available on record it can be easily inferred that the currency notes were held in the left hand and right hand was used for counting them. In these circumstances, there is every possibility that comparatively a larger quantity of phenolphthalein powder stuck on the left hand whereas in the right hand only a small quantity of powder stuck. When the appellant washed his hands with water, it is possible that the traces of powder stuck on right hand were completely washed out. Similarly, after washing his hands, when appellant wiped his hands by a cotton bandage, it is possible that traces of powder did not stick on the bandage. In these circumstances, even if in sodium carbonate solution traces of powder were not found, it cannot adversely effect the prosecution case. Apart from that, the sodium carbonate test conducted in such cases is of only corroborative value. The main evidence is of the complainant and other witnesses in whose presence the demand, acceptance and recovery of bribe money was made.
(5) From the evidence available on record, it cannot be said that the prosecution itself is not certain what was the actual place of incident and there is contradictory evidence with regard to the place of incident. From the evidence available on record, it is clear that on the date of incident when the complainant alongwith raiding party arrived at the hospital, the appellant Mukut Bihari was in the staff room situated in male surgical general ward of the hospital and there the complainant met with the appellant and thereafter both of them went into the store room. From the evidence available on record and more particularly from the site plan, it is clear that male and female surgical general ward of the hospital are adjacent to each other and the store room is situated adjacent to the female ward. Thus, there is no confusion with regard to actual place of incident.
(6) Although, there are some contradictions between the statements of prosecution witnesses, but in my considered view none of the contradictions is of a material and major nature so as to discard the whole of the prosecution evidence. Although, the prosecution case is that appellant Kalyanmal washed his hand by taking water from a bottle whereas Jahir Ahmed (PW.7) has deposed that he washed his hands by a water tap installed in the store room, but this contradiction is not such a nature as to discard the prosecution case or the very presence of Jahir Ahmed as a member of the raiding party becomes doubtful. Each and every prosecution witness of the incident other then the Jahir Ahmed has in very clear words has deposed that appellant Kalyanmal washed his hands by taking water from a bottle and in this set of facts the version of Jahir Ahmed is of no value. Similarly, there is no material and major contradictions regarding the fact that at the time of incident the appellants were sitting on chairs or on a bed, the discharge ticket was recovered at the instance of appellant Mukut Bihari or Kalyanmal, what was the signal to be made by the complainant. From the evidence available on record, it is clear that after the recovery of the tainted money, Investigating Officer asked the appellants to hand over the discharge ticket to him and upon that the discharge ticket was taken out from an Almira situated in the store room and handed over to the Investigating Officer who seized it. In my opinion, it is immaterial whether it was appellant Mukut Bihari or Kalyanmal who took out the discharge ticket from the Almira and handed over it to the Investigating Officer. From the evidence available on record, it is clear that on the date of incident, the complainant initially met with appellant Mukut Bihari alone in the staff room and after some conversation both of them went into the store room where the money was handed over to appellant Kalyanmal. If one of the prosecution witnesses has deposed that both the appellants went alongwith the complainant from staff room to the store room, it does not adversely affect the basic prosecution story and it cannot be held that there is material contradictions in the prosecution evidence. It is well settled that during the course of trial, it is very much natural that some minor and immaterial contradictions are bound to appear between statements of prosecution witnesses but only by that reason the whole prosecution case cannot be rejected. If from the evidence available on record, the basic prosecution case by and large is proved, then some immaterial and minor improvements, infirmities, discrepancies and contradictions here and there are of no value.
(7) Although, it is an admitted fact that the discharge ticket was prepared by Dr. Bavel (PW.5) on 12.11.1994, but from the evidence available on record, it cannot be said that it was not in power and possession of the appellants and they were not in any way concerned with it and it was not their duty to hand over it to the complainant or his father. Dr. Bavel (PW.5) in his examination-in-chief has stated that discharge ticket (Ex.P/5) was prepared by him on 12.11.1994 and he handed over it to incharge compounder for the purpose of giving it to the patient and on 12.11.1994 appellants were in charge. In his cross-examination, the witness has stated that it was not the duty of the doctor to hand over the discharge ticket to the patient, but it was the duty of the compounder of the unit to hand over it to the concerned patient. He has further stated that he sent the discharge ticket through a peon to the compounder with a direction it may be handed over to the patient. Although, the witness failed to name the peon through him the discharge ticket was sent to the incharge compounder but the witness very categorically has stated that the discharge ticket was prepared during hospital hours when he was on round and it was sent through a peon to the compounder incharge. In his cross-examination, the witness has further stated that it was the duty of the incharge to hand over the discharge ticket to the patient and if by any reason the patient goes away without taking discharge ticket, it remains in the store room and at the relevant time appellant Kalyan Mal was incharge of the store room.
From the evidence available on record, it is very much clear that the father of the complainant was admitted in the surgical ward of the hospital on 24.10.1994 and he remained in the hospital upto 12.11.1994 and he was operated upon on 28.10.1994 and ultimately discharged on 12.11.1994. It is also clear that during the relevant time both the appellants were posted as compounder in the surgical ward and they were also incharge of the ward. Even appellants have not disputed these facts. From the evidence of Dr. Bavel, it is clear that the discharge ticket, around which the whole incident revolved, was prepared by him on 12.11.1994 during hospital hours and it was sent to appellants through a peon for the purpose of handing over it to the patient to which it belonged. Thus, at the relevant time the discharge ticket was in power and possession of appellants and it was their duty to hand over it to the complainant or his father. Thus, the appellants were also in a position to demand bribe from the complainant in lieu of handing over of discharge ticket and to compel him to satisfy their demand. Therefore, this contention of appellants cannot be accepted that they were not having any authority to hand over discharge ticket to the complainant and in absence of that there was no question to demand bribe.
(8) It is not a legal requirement that in each and every case in which bribe is demanded and accepted by a public servant, recovery of the bribe money is to be made from the physical possession of the accused. In the present case, it is clear that on the asking of the appellant Mukut Bihari, the tainted currency notes were handed over to Kalyanmal and he after counting put them on a table. In this set of facts if the recovery was made from the table, it cannot be held that they were not in possession of the appellants. It is not a legal requirement that the accused after accepting the tainted money must put it in his pocket and if recovery is made from his pocket only then it can be held that recovery has been made from the possession of the accused. In the light of the latest legal position, it cannot be held that in trap cases the complainant is an accomplish and conviction cannot be based only on the basis of his evidence. In the present case, acceptance of bribe money on the asking of appellant Mukut Bihari by appellant Kalyanmal is proved not only by the evidence of the complainant, but also from the evidence of other witnesses.
(9) I did not find any evidence on record so as to hold that the complainant was not satisfied with the treatment given to his father or the care taken in the hospital and he was annoyed with the appellants posted in the ward and by that reason a false report was lodged to teach a lesson to them. Even during cross-examination of the complainant no such suggestion was made to him.
(10) Although, in the present case written complainant was made only against appellant Mukut Bihari for demanding money and no specific allegation was levelled against appellant Kalyan Mal but the peculiar facts of the case are that on the date of incident, appellant Mukut Bihari again demanded bribe from the complainant in lieu of handing over of the discharge ticket to him, but he himself did not accept the money but he asked his colleague appellant Kalyan Mal to accept money from the complainant and therefore the money was handed over to Kalyanmal and he after counting put it on the table. Thus, both the appellants were jointly involved in demanding and accepting the bribe money. In the complaint, allegation against appellant Kalyan Mal was not levelled by the reason that he did not directly demand money from the complainant. Appellant Mukut Bihari cannot escape from his liability by saying that recovery of bribe money was not made from his possession and thus, mere demand of money is not sufficient to make out a case against him. Similarly appellant Kalyan Mal cannot escape from the liability by saying that even according to the complainant no demand was made by him.
(11) The prosecution case cannot be held to be falsified by the reason that even according to the complainant and his father appellant Mukut Bihari on 14.11.1994 refused to accept Rs.75/- and sweets offered to him by the complainant. The complainant and his father very categorically have stated that the appellant was very much insistent not to accept less then Rs.100/- and when they offered Rs.75/- and a box of sweets to him, he refused their offer and even threw away the money offered.
(12) Although, it is well settled that before presumption under Section 20 of the Act can be raised, it is for the prosecution to prove beyond reasonable doubt the basic facts regarding demand and acceptance of bribe by the accused and only thereafter, the accused is required to explain under what circumstances the tainted money was recovered from his possession and he is required to prove his explanation to the extent of preponderance of probability only and not on the touch stone of proof beyond all reasonable doubt, but in the present case from the evidence available on record, it cannot be held that the appellants have been able to prove their defence even to that extent. From the evidence available on record, it appears that there was practice in the hospital to ask a patient or his attendant to donate some articles to the hospital at their will, but from the evidence it cannot be said that when father of the complainant was discharged on 12.11.1994, Dr. Bavel or any other doctor asked the complainant to donate a tube light to the hospital and on the asking of Dr. Bavel, the complainant instead of a tube light offerred Rs.100/- in cash to the appellants. Dr. Bavel in his Court statement has denied that he asked the complainant or his father to donate tube light to the hospital. It cannot be said that the witness in this regard has made a contradictory statement from his statement recorded under Section 161 Cr.P.C. The complainant has denied that Dr. Bavel asked him to donate a tube light to the hospital and he instead of donating tube light offered Rs.100/- in cash to the appellants. In absence of any convincing evidence, merely by the reason that at the time of incident, the appellants stated before the raiding party that the money was offered as donation in lieu of tube light, it cannot be held that in fact the money was offered as donation and when the appellants refused to take it by saying that donation in cash cannot be accepted, the complainant put it on the table. There is no evidence on record indicating any previous enmity between the complainant and the appellants and also there is no evidence showing that the complainant was in any way annoyed or dissatisfied with the appellants and with some oblique motive in order to falsely implicate them, he in grab of donation, offered tainted money to the appellants. From the evidence available on record, it appears that the complainant is a labour residing at a distance place from Tonk. The complainant's father took his treatment in the care of appellants and he was discharged from the hospital after treatment and in such a situation there appears no possibility of false implication of the appellants. Thus, the explanation offered by the appellants cannot be accepted.
21. To assail the judgment of conviction no such other submissions were made on behalf of the appellants requiring consideration and decision by this Court. The contentions made on behalf of the appellants are of no substance and merit and are liable to be rejected. The result is that judgment of conviction passed by the trial Court does not require any interference and the appeal to that extent is liable to be dismissed.
22. In so far as the order of sentence is concerned, taking into consideration the large scale increase in corruption in public life from top to bottom and more particularly to the fact that a patient was compelled to give bribe for handing over discharge ticket alongwith medical prescriptions essential for follow up treatment, the punishment awarded by the trial Court cannot be said to be excessive. There is no reason for interfering with the same. Accordingly, even on that score, no relief can be granted to the appellants.
23. Consequently, by affirming and maintaining the judgment and order dated 7.9.2001 of trial Court passed in Special Case No.26/1995, the appeal stands dismissed. The appellants are directed to surrender before the trial Court on or before 31.10.2 011, failing which their bail bonds will stand forfeited and an appropriate action shall be taken by the trial Court for securing the attendance of the appellants and taking such other action as is permissible in law to ensure that the appellants undergo the sentence awarded to them. The record of the trial Court alongwith a copy of this judgment may be sent back forthwith.
(PRASHANT KUMAR AGARWAL),J.
A.Arora/-
(Reserved/Hearing) All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
AMIT ARORA JUNIOR PERSONAL ASSISTANT.