Jammu & Kashmir High Court
Mangat Ram Sharma S/O Sh. Swami Dass R/O vs State Of Jammu & Kashmir on 27 June, 2022
Author: Mohan Lal
Bench: Mohan Lal
Sr. No. 1.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRA No.53/2015
IA No.1/2015
Reserved on: 21-05-2022
Pronounced on: 27-06-2022
Mangat Ram Sharma S/O Sh. Swami Dass R/O .... Appellant(s)
Village Nor-Jagir Tehsil Akhnoor District
Jammu.
Through :- Sh. Abhinav Sharma, Sr. Advocate with
Ms. Saba Atiq, Advocate.
Sh. Rahul Pant, Sr. Advocate with
Sh. Anirudh Sharma, Advocate.
V/s
State of Jammu & Kashmir. ....Respondent(s)
Through :- Sh. Raman Sharma, AAG.
Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
J U D G M E N T
1. Instant criminal appeal is directed by the appellant against the judgment and order dated 18-12-2015 rendered by the court of Ld. Special Judge Anti-Corruption Jammu in file No. 222/Challan titled State through Police Station Vigilance Organization Jammu V/S Mangat Ram Sharma, whereby, appellant has been tried, held guilty, convicted and sentenced to undergo one (1) year imprisonment for commission of offence u/s 161 RPC and one (1) year imprisonment for commission of offence u/s 5(1)
(d) r/w Section 5(2) P.C. Act.
2. Aggrieved of and dissatisfied with impugned judgment and order dated 18-12-2015, appellant/convict has questioned it's legality, propriety and correctness and has sought it's quashment/setting aside on the following grounds:-
(i) that on account of a false complaint lodged by complainant Ajay Kumar Badyal, FIR bearing No. 15/2007 came to be registered against appellant for commission of offences u/s 5(1) (d) r/w Section 5(2) P.C. Act and finally after conclusion of the investigation chargesheet came to be presented before the court of Ld. Special Judge Anti Corruption Jammu on 09- 09-2008;
(ii) that the charges were framed against the appellant by the trial court on 02-02-2009 to which appellant denied and accordingly he was tried by the court below for the 2 CRA No.53/2015, IA No.1/2015 commission of aforesaid offences, and after conclusion of the trial, Ld. Special Judge Anti-Corruption Jammu through the medium of impugned judgment dated 18-12-2015 convicted the appellant for commission of offences u/s 161 RPC r/w sections 5(1) (d) r/w 5(2) of P.C. Act and sentenced the appellant separately for one year's imprisonment for commission of the offences which were directed to be run concurrently;
(iii) that the impugned judgment is against facts and law, in as much as, prosecution has failed to establish that appellant/convict ever demanded the bribe amount or accepted the same and in the absence of establishing the aforesaid two elements by the prosecution during the trial, court below was not justified in recording the finding of conviction against the appellant;
(iv) that the impugned judgment requires to be set aside on the grounds, that the court below convicted the appellant without their being any evidence connecting the appellant with the commission of offence, court below did not appreciate the evidence in it's true prospective and failed to consider the aspect of the matter that complainant namely Ajay Kumar Badyal in his statement in the court has categorically stated that it was Patwari Deep Raj who had demanded bribe amount and to whom the same was paid and similar is the statement of independent witness namely Kulraj Singh, yet the court below did not assign any reason muchless a cogent reason to discard their statements;
(v) that the impugned judgment suffers from inherent contradictions, in as much as, statement of none of the prosecution witnesses was supported by other prosecution witnesses, yet the court below has recorded the finding of conviction against appellant;
(vi) that the finding recorded by the trial court in para 20 of the judgment at page 21 is to the effect, "the accused leaves the room and sometime after he comes back and the tainted notes were passed on to him on his demand", the said statement has been attributed by the court below to the complainant which statement was never made by the complainant.
3. Respondent has contested the appeal by filing objections and contending therein, that appellant has been convicted u/ss 5(1) (d) r/w 5(2) of P.C. Act r/w 161 RPC after full trial, whereby, appellant has been given full opportunity to participate and contest the prosecution. It is contended, that the Ld. Trial Judge has found appellant guilty of the aforesaid offences and sentenced him accordingly, therefore, appellant cannot say that judgment is not sustainable, the appeal filed by the appellant is devoid of any ground for setting aside the conviction, prayer has been made for dismissal of the appeal. Be it noted, that appellant/convict was 3 CRA No.53/2015, IA No.1/2015 convicted and sentenced vide impugned judgment dated 18-12-2015 rendered by the trial court, however, vide judgment/order of this court dated 28-12-2015 the sentences imposed upon appellant/convict were suspended and appellant/convict was released on bail on his furnishing surety bond in an amount of Rs. 25000 to the satisfaction of Registrar Judicial of this court and personal recognizance of the same amount before Superintendent District Jail Jammu. Record of the trial court as summoned was sent to this court vide No. 132/SJAC dated 04-01-2016 of the trial court.
4. Sh. Abhinav Sharma Ld. Sr. Counsel for appellant/convict has strenuously putforth arguments, that the prosecution has utterly failed to prove the demand, acceptance and recovery of the bribe money from the accused and by no stretch of any imagination the guilt of appellant/convict can be said to have been proved by the prosecution, and therefore, has sought the acquittal of appellant/convict and setting aside of the impugned judgment of conviction & sentence on the following counts:-
(i) Demand And Acceptance Of Bribe Money Not Proved:-
It is argued, that as per the report submitted by the prosecution before the trial court in terms of section 173 Cr.pc, it is the prosecution story, that PW-1 Ajay Kumar Badyal (complainant) wanted to purchase 3.75 marlas of land from one Manga Ram against consideration of Rs. 60000/- and to obtain the revenue record of the said land he went in the office of revenue department in Gole Gujral Jammu on 15-05-2007 wherein Patwari concerned advised him to apply to Naib Tehsildar and come after 2/4 days, when complainant again approach the Patwari/accused he demanded bribe of Rs. 3000/- whereas after negotiations the bribe amount was settled at Rs. 2000/- out of which complainant paid Rs. 200 to accused on spot as advance and the rest of the amount was agreed to be paid to accused Patwari on 04-06-2007 on which date complainant went in the office of SSP Vigilance Jammu to register his protest, SSP Vigilance satisfied about the genuineness of the complaint and constituted a trap team headed by M.S. Jamwal Dy.SP (TLO), the trap team accompanied by independent witnesses PW-3 Rajeev Singh Salaria CDPO Vijaypur (shadow witness) & PW-4 Kulraj Singh CDPO Khour (independent witness) after completing the pre-trap proceedings went on spot, complainant alongwith shadow witness entered the room of accused located in 1 st floor of the building of revenue department complex Gole Gujral Jammu, accused was present in the room alongwith one more person, as complainant demanded the revenue papers accused told him that he would get the papers attested 4 CRA No.53/2015, IA No.1/2015 from Naib Tehsildar, complainant and shadow witness remained waiting whereas accused returned back to his room alongwith attested revenue papers, accused Patwari Mangat Ram Sharma demanded the balance amount of Rs. 1800/-, on his specific demand complainant took out tainted GC Notes from his pocket and gave them to accused Patwari who accepted the same and after counting the money accused kept it in the pocket of his shirt, signal was passed on to the trap team by shadow witness and the money was recovered from the possession of accused, the money/currency notes so recovered were tallied with already noted numbers and again a demonstration was conducted to show effect of phenolphthalein (P) powder on sodium carbonate solution, the test conducted on accused showed positive result as pink whereafter documents were prepared on spot;
It is moreso argued, that PW-1 Ajay Kumar Badyal (complainant) during his testimony before the trial court has categorically tendered evidence, that he alongwith shadow witness PW-3 Rajeev Singh Salaria entered the room of accused in the 1st floor of the building and he demanded the revenue papers from the accused who told him that he will get the revenue papers attested from Naib Tehsildar, thereby, he and shadow witness remained waiting and the accused returned back in his room alongwith attested revenue papers, then the money was passed on to the accused who counted the money and kept it in his pocket of his shirt, then signal was passed on to the trap team by shadow witness and the money was then recovered from the accused, while in cross- examination PW-1 complainant Ajay Kumar Badyal has made a summersault by categorically testifying that he had given application for obtaining the fard to Deep Raj Patwari who had told him that his name is Mangat Ram, amount of Rs. 2000/- was settled with Deep Raj Patwari and Rs. 200 were also paid to him as advance while remaining amount of Rs. 1800 was promised to be paid to Deep Raj, he had handed over the bribe money to Deep Raj Patwari with whom it was settled;
It is further argued, that PW-3 Rajeev Singh Salaria CDPO Vijaypur and an independent witness was to act as shadow witness in the trap proceedings and was required to remain as close as possible with the complainant to hear the conversation which would take place between complainant and the accused at the time of demand and acceptance of bribe money, however, PW-3 in his deposition before the trial court has categorically stated that he and the complainant went inside the room where two person were present in the room, one of them asked the complainant whether he has brought the rest of the money and the complainant asked for papers, the person who asked for money left the room saying that he would get the papers attested from Naib Tehsildar, that person came after 7/8 minutes, that person asked for money from the complainant again and the complainant advanced him the money, the said person accepted it and kept it in his pocket, he passed the signal, team members came on spot, complaint 5 CRA No.53/2015, IA No.1/2015 pointed towards the accused stating that he has accepted the money, on search the money was recovered from the accused;
It is argued, that PW-4 Kulraj Singh CDPO Khour is also independent witness in the case and has been declared hostile by the prosecution, however, in his cross-examination by CPO has specifically tendered evidence, that it is incorrect that the complaint was against accused and in fact it was against some other Patwari, complaint EXT-P1 is not the complaint in respect of which pre-trap exercise was conducted, after trap it was being stated that the person against whom complainant had grievance was not arrested and instead someone else was caught, he told SSP vigilance that accused has been caught unnecessarily, this thing is correct that complaint was against Deep Raj Patwari, complainant had told that he had paid Rs. 200 to Deep Raj Patwari, trap team had caught hold and taken Deep Raj Patwari with them, this thing is correct that vigilance officials had changed the complaint and made it against Mangat Ram, he was closely standing by the side of shadow witness Rajeev Salaria at the time of trap so no signal was required for him, he neither saw Patwari accused demanding the bribe money nor accepting it;
It is further argued, that from the depositions of PW-1 complainant Ajay Kumar Badyal, PW-3 Rajeev Singh Salaria CDPO Vijaypur (shadow witness) and PW-4 Kulraj Singh CDPO Khour (independent witness) by no stretch of any imagination the prosecution has proved that the appellant/convict has reiterated his demand of bribe money at the time of trap, neither the complainant (PW-1) has proved demand of bribe from him nor acceptance by the accused nor the initial demand of Rs. 3000/- and settlement of Rs. 2000/- with complainant by accused and payment of Rs. 200 as advance has also not been proved by the prosecution, DW-1 defence witness Chanchal Singh has also supported the complainant and PW-4 Kulraj Singh by deposing that on the day of trap he had gone to Patwari Mangat Ram for obtaining copy of revenue record where another Patwari was also sitting, in the meantime a man came inside and offered some money to Deep Raj who told him to pay the said money to Mangat Ram as he is the concerned Patwari, the said man (complainant) then offered the money to accused Mangat Ram who decline to accept it by saying that he had never demanded the same and he does not know about it, none of these witnesses in their highly contradictory/distorted versions before the trial court have conclusively proved that appellant/convict demanded any bribe money from the complainant at the time of trap; it is argued, that the proof of demand of bribe by a public servant and its acceptance by him in sine-qua-none for establishing the offence u/s 5(1) (d) r/w Sec. 5(2) P.C. Act r/w Sec. 161 of RPC, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offences would not entail his conviction. To buttress his arguments, Ld. Counsel for appellant/convict has relied upon the judgments of Hon'ble 6 CRA No.53/2015, IA No.1/2015 Supreme Court reported in, (i) 2022 Live Law (SC) 192 (Criminal Appeal No. 261 of 2022, arising out of SLP (Criminal) No. 7182 of 2019) [ K. SHANTHAMMA V THE STATE OF TELANGANA] & (ii) CRIMINAL APPEAL NOS. 100-101 of 2021 , arising out of S.L.P. (Crl) Nos. 7429- 7430 of 2020) [N. Vijayakumar ...Appellant Versus State of Tamil Nadu ... Respondent].
(ii) Hand Wash Of Accused Not Proved:-
It is argued, that as per prosecution story, hand wash of accused prepared on spot was pink colored; PW-1 complainant Ajay Kumar Badyal in his deposition before the trial court has deposed that the bottles shown to him in the court contain white colored solution, PW-2 Mahadeep Singh Jamwal (TLO) has stated in the court that the solution which he saw in the court its color has faded, PW-3 Rajeev Singh Salaria CDPO Vijaypur (Shadow witness) has deposed that both the bottles present in the court and shown to him contain milky colored compound, PW-7 Neeraj Sharma Constable (witness to trap proceedings) in his deposition has stated that the solution in the two bottles shown him in the court is not pink. It is moreso argued, that the glaring contradictions in the trap proceedings and the evidence putforth by the aforesaid witnesses throws lot of suspicion on the genuineness and creditworthiness of the trap proceedings, meaning thereby, that the allegations against appellant/convict are untrue, false and unworthy of reliance.
(iii) Glaring Contradictions In The Deposition Of PWs In Regard To Dusting Of P-Powder On The Currency Notes:-
It is argued, that as per the prosecution story depicted in the charge sheet laid in the trial court in terms of section 173 Cr.pc, the currency notes of Rs. 1800/- produced by the complainant were treated with Phenolphthalein (P) powder by constable Uksha Anand No. 75/SVO; PW-6 Uksha Anand (reader to SSP PRK VOJ, witness to trap proceedings) has corroborated the prosecution version by tendering evidence that he was directed to dust the currency notes; PW-7 Neeraj Sharma (constable PRK Wing VOJ Jammu, witness to trap proceedings) has demolished the very edifice of the prosecution case and the evidence putforth by PW-6 Uksha Anand by projecting the contradictory evidence that he dusted the P-Powder on the notes, again deposes that the notes were dusted with P-Powder by witness Rajeev, but again on court question deposes that P-Powder was dusted on the notes by Ct. Uksha Anand; it is argued, that the glaring contradictions emerging out in the evidence of aforesaid witnesses regarding the dusting of the P-Powder upon the currency notes when both of them were the eyewitness to the effect of dusting of currency notes with P-Powder cast huge suspicion upon the credibility & genuineness of the prosecution case, meaning thereby, that the allegations against the accused are false, untrue and unworthy of reliance.
(iv) Inordinate Delay In Recording Statements Of PWs:-
It is vehemently argued, that the trap against accused was laid on 04-06-2007 on the complaint of PW-1 Ajay Kumar 7 CRA No.53/2015, IA No.1/2015 Badyal (complainant) and FIR No. 15/2007 was registered against appellant/convict/accused on the same day of 04-06- 2007 at 1100 hours in VOJ Jammu for commission of offences u/ss 5(2) J.K. P.C. Act r/w Section 161 RPC; it is noteworthy to mention here, that the statements of all the prosecution witnesses have been recorded under the scheme of Section 161 of Code of Criminal Procedure by the investigating officer (I/O) PW-12 Parshotam Lal Sharma after much/much delay from the date of trap/occurrence; statements of PW-1 Ajay Kumar Badyal (complainant) & PW-2 Mahadeep Singh Jamwal Dy.SP PRK Wing VOJ Jammu Incharge trap team (TLO) have been recorded during investigation u/s 161 Cr.pc by I/O on 19-06-2007 after a delay of 15 days of occurrence;
statement of PW-3 Rajeev Singh Salaria (shadow witness) has been recorded on 10-07-2007 after a delay of 37 days; statement of PW-4 Kulraj Singh (independent witness) has been recorded on 12-07-2007 after a delay of 38 days; statement of PW-5 Neetan Sharma Constable has been recorded on 19-07-2007 & 23-07-2007 after a delay of more than 45 days of occurrence; statement of PW-6 Uksha Anana constable has been recorded on 10-07-2007 after a delay of 36 days; statement of PW-7 Neeraj Sharma constable has been recorded on 12-07-2007 after a delay of 38 days; statement of PW-9 Madan Lal Choudhary Inspector PRK Wing VOJ Jammu has been recorded on 19-07-2007 & 23-07-2007 after a delay of more than 45 days of occurrence & statement of Dev Raj Khajuria (Naib Tehsildar) has been recorded on 03-08- 2007 after a delay of 59 days; it is strenuously argued, that neither the aforesaid witnesses nor the I/O of the case have furnished any plausible explanations regarding the recording of their delayed statements which gives rise to grave suspicion regarding the credibility and genuineness of the prosecution case; if the delay in recording the statements of prosecution witnesses is not explained satisfactorily, the evidence of prosecution witnesses is, therefore, not truthful, reliable and trustworthy, and their presence on spot becomes highly unnatural, which casts serious doubt upon the genuineness of the prosecution case entitling the accused benefit of doubt leading to his acquittal.
5. Sh. Raman Sharma Ld. AAG for respondent has supported the impugned judgment and order dated 15-12-2015 and has sought the confirmation/affirmation of the conviction and sentences imposed upon the appellant/convict on the following grounds:-
(i) It is argued, that PW-1 Ajay Kumar Badyal (Complainant) as per his deposition before the trial court has categorically stated that accused Patwari for issuance of revenue extract viz; fard for purchase of 3.75 marlas of land demanded bribe of Rs.
3000/- from PW-1 complainant which was settled at Rs. 2000/- on negotiations, out of which complainant paid Rs. 200/- as advance and rest of the amount was agreed to be paid on 04- 06-2007, and when he accompanied by shadow witness PW-3 Rajeev Singh Salaria entered the room of accused located in 1st 8 CRA No.53/2015, IA No.1/2015 floor of the revenue complex at Gole Gujral Jammu and when he demanded the revenue papers, accused told him that he would get the papers attested from Naib Tehsildar, he and shadow witness remained waiting for the accused who returned back to his room alongwith attested revenue papers, the money was passed on to the accused who after counting it kept in his shirt, signal was passed to the trap team by shadow witness and the currency notes were recovered from the possession of accused, hands of accused were treated with Phenolphthalein test which solution turned pink and confirmed the recovery of tainted money from the accused; it is argued, that PW-3 Rajeev Singh Salaria (shadow witness) has corroborated the deposition of PW-1 complainant Ajay Kumar Badyal by deposing that on the day of trap on 04-06-2007 he alongwith complainant went inside the room, two persons were present in the room, one of them asked the complainant has he brought the rest of the money, complainant ask for papers, the person who asked the money left the room saying that he would get the papers attested from Naib Tehsildar, and after 7/8 minutes he came back and asked for money from the complainant again, complainant advanced money to him, the person who accepted it kept it in the pocket of his shirt, he passed on the signal and the trap members reached there, complainant pointed towards the accused that he has accepted the money, search of accused was conducted and the bribe money was recovered from his pocket; it is argued, that PW-4 Kulraj Singh (CDPO Khour) independent witness although has turned hostile towards the prosecution, but has proved the recovery of currency notes from the possession of accused by deposing that the personal search of accused was conducted by him and currency notes were recovered from his possession which were tallied with already noted down numbers, and the hand wash/pocket wash of the accused turned pink solution which prove that the accused had received the bribe money from the complainant which is one of the pre-requisite for proof of offence of bribery; it is vehemently argued, that the complainant (PW-1 Ajay Kumar Badyal) & shadow witness (PW-3 Rajeev Singh Salaria) have proved the demand and acceptance of bribe money from the accused and even if the independent witness (PW-4 Kulraj Singh) has turned hostile it would not result in the collapse of whole of the prosecution case, there is incriminating evidence of the prosecution witnesses that the accused has been caught red handed with currency notes and no reasonable explanation came forth as regards to the recovery of notes that may rebut the presumption, therefore, in the case in hand, the condition precedent to drawing such a statutory presumption u/s 20 of P.C. Act that the accused has demanded and was paid the bribe money has been proved and established by the incriminating evidence of the aforesaid prosecution witnesses, therefore, prosecution has proved the guilt of accused beyond hilt, the conviction and sentences rendered by the trial court vide it's judgment of conviction and sentence dated 15-12-2015 need to be affirmed/maintained. Reliance has been placed on, (i) B. 9 CRA No.53/2015, IA No.1/2015 Noha Vs. State Of Kerala and Anr. [Appeal (Crl.) 1122 of 2006 decided on 06-11-2006], (ii) N. Narsinga Rao Vs State of Andhra Pradesh [Appeal (Crl.) 719 1995 decided on 12-12- 2000, (iii) AIR 2015 SUPREME COURT 1206 (Vinod Kumar Vs. Satte of Punjab), (iv) AIR 2015 SC (Supp) 1956 (Nayankumar Shivappa Waghmare V State of Maharashtra) &
(v) AIR 2020 SUPREME COURT 1797 [Vinod Kumar Garg V. State (Government of National Capital Territory of Delhi)].
6. I have heard Sh. Sh. Abhinav Sharma Ld. Counsel for appellant/convict & Sh. Raman Sharma Ld. AAG for respondent. I have also perused the record of the trial court, have meticulously scanned the evidence led by the prosecution witnesses during the trial and have also gone through the case laws relied upon by Ld. Counsel for the parties.
7. To prove the case against appellant/convict, the prosecution has led oral as well as documentary evidence before the trial court. The prosecution has examined as many as 12 witnesses out of listed 15. The prosecution examined oral witnesses as under:-
PW Name Role
1 Ajay Kumar Badyal Complainant, witness to corroborate FIR
and trap proceedings.
2 Mahadeep Singh The then Dy.SP PRK wing VOJ, Incharge
Jamwal trap team.
3 Rajeev Singh Salaria Employee as CDPO in Social Welfare
Department will prove trap proceedings as
shadow witness.
4 Kulraj Singh Employee as CDPO in Social Welfare
Department will prove trap proceedings as
independent witness.
5 Neetan Sharma Constable I/C receipt and dispatch section
PRK Wing VOJ, witness to prove trap
proceedings.
6 Uksha Anand Reader to SSP PRK VOJ, witness to prove
trap proceedings.
7 Neeraj Sharma Constable PRK Wing VOJ Jammu,
witness to prove trap proceedings.
9 Madan Lal Choudhary Inspector PRK Wing VOJ Jammu, witness
to prove whole trap proceedings.
10 Dev Raj Khajuria Naib Tehsildar Settlement Gole Gujral
Jammu, witness to prove veracity of
application marked to the accused Patwari
Halqa concerned dated 28-05-2007.
11 Deep Raj Sharma Patwari Halqa Settlement Mandal Jammu,
witness to circumstantial evidence.
12 Parshotam Lal Sharma Inspector PRK Wing VOJ Jammu,
investigating officer (I.O), witness who
completed the investigation.
14 S.D. Singh IPS The then SSP PRK VOJ, witness to prove
formation of trap team and supervision of
investigation.
10 CRA No.53/2015, IA No.1/2015
Apart from the aforesaid oral evidence, prosecution has brought on record and relied upon the following documentary evidence:-
S. No. Particulars Exhibit No.
1. FIR Ext-P1/1.
2. Appointment order of investigating officer Ext-P12
3. Sanction order dated 25.6.2008.
4. Complaint Ext-P1
5. Movement order Ext-P14
6. Pre-trap memo Ext-P1/2
7. Seizure memo of currency notes Ext-P1/4
8. Seizure memo of hand wash Ext-P1/3.
9. Seizure memo of shirt wash Ext-P1/5
10. Seizure memo of shirt Ext-P1/6.
11. Seizure memo of documents Ext-P1/7
12. Seizure memo of slips Ext-P1/8.
13. Arrest memo Ext-P3/2.
14. Supurdnama seal Ext-P1/10
15. Site map Ext-P2
16. Revenue record mark RS/1, RS/2
17. Seizure memo Ext-P8
18. Service record of accused Mark-NS
19. Joining report of accused Mark-NS/2
20. Application of complainant before Naib Mark-NS/1
Tehsildar
21. Paper slips containing the record of numbers of Ext-P3/3 & Ext-
currency notes P/3.
8. Before coming to the conclusion, whether prosecution has successfully substantiated charges against appellant/convict beyond hilt, I have found it pertinent to give a brief resume of the evidence tendered by the prosecution witnesses before the trial court, as the trial court has not fully translated the evidence of some of the prosecution witnesses from Urdu transcript into English. Relevant portions of the testimonies of the prosecution witnesses can be summarized as under:-
PW-1 Aiay Kumar Badyal (complainant, witness to corroborate FIR and trap proceedings) in his examination-in-chief on 06-05-2009 has deposed, that he wanted to purchase 3.75 marlas of land from one Mangat Ram against a consideration of Rs. 60,000/-. To obtain the revenue record of the said land, he went to the office of Revenue Department at Gole Gujral Jammu on 15.05.2007. Patwari concerned advised him to apply to Naib Tehsildar and he would get the same marked by Naib Tehsildar on his own and advised him (complainant) to come after 2/4 days, and when he was again approached, the accused (Patwari) demanded a bribe of Rs. 3000/- and after negotiation the amount of bribe was settled at Rs. 2000/-. He paid Rs. 200/- to accused on spot as advance and rest of the amount was agreed to be paid to the accused on 04.06.2007, but on 04.06.2007, he went to the office of SSP Vigilance to register his protest. SSP Vigilance after satisfying himself about the genuineness of the written complaint constituted a trap team to be headed by M.S. Jamwal Dy.SP. In the meantime, five more men 11 CRA No.53/2015, IA No.1/2015 reached there, two among whom Sh. Rajeev Singh Salaria and Kul Raj Singh were civilians. The complaint was shown to the witnesses and thereafter he produced Rs. 1800/- comprising of three currency notes of rupees five hundred denominations each and three notes of rupees hundred denomination each. The numbers of these notes were recorded by the independent witnesses on separate slips whereafter these currency notes were dusted with P-powder and the solution of sodium carbonate was prepared with the assistance of independent witness Rajeev Singh Salaria. A demonstration was conducted to show the effect of P-powder on Sodium Carbonate Solution. PW Rajeev Singh Salaria was nominated as shadow witness. He (complainant) was advised to advance the tainted currency notes to the accused on his demand. A pre-trap memo was prepared and at 11.45 a.m the team left towards the destination and at about 12.15 p.m, the team reached revenue complex Gole Gujral. He alongwith shadow witness entered the room of the accused located in the first floor of the building. The accused was present in the room along with one more person. As he demanded the revenue papers, the accused told him that he would get the papers attested from Naib Tehsildar. He and shadow witness remained waiting and as the accused returned back to his room alongwith attested revenue papers, the money was passed on to him and after counting the money, he kept it in the pocket of his shirt. Signal was passed on to the trap team by shadow witness and the money was recovered from the possession of accused. The numbers of the currency notes so recovered were tallied with the already noted numbers and again a demonstration was conducted to show the effect of P-powder on Sodium Carbonate Solution. The test conducted on accused proved to be positive (pink). The Sodium Carbonate Solution was seized alongwith the shirt worn by accused after the test conducted on it also proved to be positive (pink). The documents were prepared. The contents of his complaint Ext- P1, the FIR Ext-P1/1 and other documents Ext-P1/2 to Ext- P1/10 are correct. In cross-examination deposes, that the land which he wanted to purchase was belonging to one Manga Ram, again deposes, that Manga Ram was having only power of attorney, however, in reality the land was in the name of Vikas Chouhan and Preetam Singh. Manga Ram had got the attorney from the owners, which he had seen and which was lying in his possession, but he has not brought it with him today. In regard to the advance of Rs. 20000/- which he had given to Manga Ram, no written document was prepared. He does not remember on whose name he had written the application for obtaining the fard No. This thing is correct, that the said application was addressed to Incharge General Mahafaz Khana, however, name of Incharge Mahafaz Khana was cut and Naib Tehsildar Niabat Gole Gujral was written on it. These words are under the handwriting of Deep Raj Patwari. He does not remember whether before the posting of accused, Deep Raj Patwari was posted there. In the writing of the application about 1 ½ or ¾ hours time was consumed. After dusting the currency notes with powder, independent witnesses had caught hold of the currency notes and had prepared two slips separately by recording the currency note numbers. Powder which was dusted upon the notes was taken out from the bottle and was kept on a paper and thereafter, notes were picked up from the newspaper and the powder was sprinkled by hands. The glass in which liquid was prepared was brought by constable of the vigilance. That glass was taken out from a briefcase in which liquid was prepared. SSP and independent witnesses 12 CRA No.53/2015, IA No.1/2015 had only asked from him whether he had any enmity with accused or not. On the pre-trap memo prepared in the vigilance office, whole of the vigilance team which had gone on spot was made to append their signatures on it. The team members which had washed the hands of accused, had brought the water from the office of the Dy.SP. Seven (7) members of vigilance team had proceeded for the spot. These team members had gone on spot in two vehicles. The vehicles were made to park by the team members at a distance of 50/60 yards from main gate. In further cross-examination on 06-07-2009 deposes, that when vigilance team from vigilance office had proceeded for the spot, his search and search of vigilance team was got conducted jointly by independent witnesses whose names he does not remember at this time. When he had given the application for obtaining fard No. in the room of accused, he had given that application to Deep Raj Patwari. Deep Raj Patwari had told him that his name is Mangat Ram and he is the concerned Patwari. Amount of Rs. 2000/- which he promised to pay was settled to be paid to Deep Raj because he had told him his name as Mangat Ram. Rs. 200/- was paid by him alongwith the application, and the remaining amount of Rs. 1800/- was promised to be paid lateron. This amount of Rs. 200/- was paid by him to Deep Raj by pretending him as Mangat Ram. He does not remember whether the papers prepared in the office of SSP were signed all team members. The vehicles were parked outside the gate of Revenue Complex Gole Gujral. Some of the team members after crossing the gate had come inside and some had remained outside, whereas, all of them were ordered to remain at their respective places by Dy.SP Jamwal. The main gate is covered by the compound walling having height of 6/7 feet. Office of the accused was located at 1st floor. Shadow witness had accompanied him in the room of accused where Deep Raj Patwari was present, while accused was also present there. He had handed over bribe money to Deep Raj Patwari with whom it was settled. Deep Raj had told him that this amount be given to Mangat Ram. He does not remember whether he had kept the bribe money on the ground or not. The day he had submitted application for obtaining fard No., on that day he only met Deep Raj and had not met the accused present in the court. When vigilance team was given the signal, then 1st of all in the room of accused Dy. SP Jamwal had entered, however, rest of the team members had entered after 2/4 minutes. Team members immediately encircled the accused. He does not remember whether both hands of accused were washed in one glass or in separate glasses. Pocket of the shirt was overturned and washed in separate glass. One of the constables of the vigilance team had washed the pocket of the accused. His statement was got recorded in the vigilance office after few days of occurrence. The bottles which have been shown to him in the court today contain white colored solution. No more questions. PW-2 Mahadeep Singh Jamwal (the then Dy.SP PRK wing, VOJ, Incharge trap team) in examination-in-chief has deposed, that in June 2007 he was posted as Dy.SP Vigilance PRK Wing. In June 2007 investigating officer had handed over file to him whereby, he was authorized by SSP Vigilance to laid trap. This trap was to be laid against Patwari Mangat Ram. Allegations against the concerned Patwari were that he had demanded Rs. 1800/ as bribe money from the complainant for issuance of copy of revenue extract. After receiving the file of the case he called complainant of the case namely Ajay Kumar in his office room, and additionally he also called two (2) independent witnesses 13 CRA No.53/2015, IA No.1/2015 namely, Kuljeet and Rajeev employees of CDPO office in his room. In addition to it, two inspectors and two constables who were members of the trap team were outside the office room. The complaint was given to independent witnesses and in order to satisfy themselves about the genuineness of the complaint, they asked some questions from the complainant and finally got satisfied where after complainant produced three five hundred rupees currency notes and three hundred rupees denomination currency notes. The numbers of these currency notes were recorded by the independent witnesses on separate slips which they retained with themselves. The currency notes were dusted with P- powder and in order to demonstrate the effect of phenolphthalein on Sodium Carbonate Solution independent witness PW Rajeev was associated. Necessary documents were prepared and the dusted currency notes were placed in the pocket of the complainant. The trap team members offered their search. Independent witness PW Rajeev Salaria was nominated as shadow witness who was advised that on receiving the money by accused he will pass on the signal by rubbing his head, and he was also advised to remain always with the accused. The trap team proceeded towards the Revenue Complex Gole Gujral. The complainant and independent witness Rajeev Salaria were advised to meet the accused in his office and pay the tainted currency notes to him on his demand. Both of them went inside the room of the accused and soon thereafter the pre-decided signal was passed on by the shadow witness, upon which the trap team also reached on spot. The independent witness Rajeev conducted the search of the accused and recovered Rs. 1800/ comprising of three five hundred and three hundred rupees denomination currency notes from him. The numbers on these currency notes tallied with the numbers recorded by independent witnesses on their slips. The recovered money was seized and again a Sodium Carbonate Solution was prepared to conduct the hand wash of the accused which tested positive. The accused was arrested on spot and Naib Tehsildar was also summoned and two documents which were handed over by accused to the complainant were also seized. The documents were prepared on spot and so on. In cross-examination, the witness has deposed, that during his tenure in VOJ he remained associated with money traps. He had himself read the complaint filed by the complainant according to which accused had demanded Rs. 3000 as bribe money from the complainant, however, on negotiation it was settled that Rs. 2000/- will be paid by the accused to the complainant as bribe money, however, Rs. 200 was paid in advance. Regarding the contents of the complaint, complainant was asked, but he was not asked on which date accused had demanded bribe money from him. He had not enquired from the complainant that in whose presence accused had demanded Rs. 3000 from him and in whose presence Rs. 2000/- was settled to be paid. He did not enquire from the complainant that in whose presence Rs. 200 were paid. After completion of all the pre-trap formalities, pre-trap memo was prepared. In pre-trap memo the numbers of currency notes were typed by him. He did not see the application which the complainant had submitted to the revenue department for obtaining the revenue extracts. On spot, during trap proceedings he did not see the said application and even he did not made efforts to see that application. In this case the trap team was constituted by SSP (PRK) Vigilance. PRK means Poonch Rajouri & Kathua. He had neither written any application for calling the independent witnesses nor he had received any letter from their officers. How the independent 14 CRA No.53/2015, IA No.1/2015 witnesses came in the office he has no knowledge, however, when he received the file he called them in the office room. He does not remember whether one independent witness or independent witnesses had conducted search of whole of the trap team. Adjoining to his office room, from a bathroom, trap team members had washed their hands. On pre-trap memo independent witnesses had appended their signatures, however, he does not remember which of the witnesses had appended signature. Witness was shown EXT-P1/2 pre-trapment who said that it contains the signatures of independent witnesses and complainant, but does not contain the signatures of trap members. He does not remember whether I/O had recorded his statement. Witness on seeing the statement has stated that his statement has been recorded on 19 June, 2007. From the date of occurrence till 19 June, 2007 he remained posted in the office of vigilance. When complainant and shadow witness entered in the office room of accused, he was standing outside in the balcony, and this thing is incorrect that he was standing in the 2nd floor of the building. The place where he was standing, Patwari was not seen by him. He does not remember that he had pass orders to both the persons who had gone in the room in addition to the complainant to raise their hands. In addition to accused and complainant, the other person who was in the room was Deep Raj Patwari. This thing is incorrect, that from the spot both accused Mangat Ram and Deep Raj Patwari were brought in vigilance office, however, Deep Raj was instructed to remain present in vigilance office. This thing is incorrect, that when trap team members went inside the room they had caught hold of Mangat Ram by his arms. He does not remember that Mangat Ram had told that he had not taken the bribe money. This thing is incorrect, that the search of accused Mangat Ram was conducted by witness Kul Raj Singh, however, his search was conducted by witness Rajeev. In his statement recorded u/s 161 Cr.pc it is wrongly written that witness Kul Raj conducted search of the accused. The solution which he saw in the court, its earlier color was pink, however, its color had faded. This thing is not correct that on spot both the hands of accused were put in one solution. He does not remember whether both hands of accused were put in the solution or only one hand was put. He has seen seizure memo EXT-P1/3 appended with the file which contains only words ―Hands‖. Therefore, this thing is correct that one seizure memo was prepared and in one bottle solution was prepared and sealed which means that both the hands were washed in only one solution. On this seizure memo word ―Halqoo‖ has been written on the next line.
PW-3 Rajeev Singh Salaria (employee as CDPO in Social Welfare Department shadow witness) in examination-in-chief has deposed, that on 4.6.2007 he was posted as CDPO Vijaypur. On that day he had come in the office of Director Jammu where his colleague Kulraj Singh CDPO was present. On the instructions of Director they went in the office of SSP VOJ, who introduced them to Dy.SP M.S. Jamwal, who took them to a separate room, where four/five persons were present out of them two/three were policemen. Dy. SP read over the contents of the complaint lying on his table which was made available to them for reading also. In that complaint it was alleged that for obtaining fard Mangat Ram Patwari use to demand Rs.2000/- from the complainant out of which Rs. 200 were paid as advance. They also put some questions to the complainant who stated that on repeated asking for fard, he has not been provided the fard. Then the complainant took out Rs. 1800/-
15 CRA No.53/2015, IA No.1/2015comprising of 3 Indian Currency Notes of 500 denomination each and put them on the table of Dy.SP. The numbers of these notes were recorded by him and his colleague on the paper slips and retained those paper slips with them. A Solution of Sodium Carbonate was prepared and the currency notes were dusted with P-Powder. A pre-trap demonstration was conducted to demonstrate the effect of P-Powder on Sodium Carbonate Solution. He was nominated as shadow witness. A pre-trap memo was prepared. He and PW Kulraj Singh searched the team members and thereafter the entire team alongwith complainant proceeded towards Gole Gujral. At about 12.15 p.m, they reached revenue complex Gole Gujral. The office of accused was located in the ground floor of the building. He and the complainant went inside the room. There were two persons present in the room, one of them asked the complainant has he brought the rest of the money and the complainant asked for papers. The person who had asked for money from complainant left the room saying that he would get the papers attested from Naib Tehsildar. After seven/eight minutes he was back. He asked for money from the complainant again and the complainant advanced him the money. The person who accepted it and kept it in the pocket of his shirt. He passed on the signal and the team members reached there. The complainant pointed towards the accused and stated that he had accepted the money. The search of the accused was conducted and the bribe money was recovered from his pocket. The numbers of the currency notes so recovered were tallied with the already recorded numbers of slips and the numbers tallied. Again a solution was prepared and the accused was asked to dip his hand in the solution, the Solution turned pink. The pocket of the shirt of the accused was also dipped in the solution and the solution again turned pink. Seizure etc. were prepared and the accused was arrested on spot. His statement was recorded in vigilance office on 10-07-2007. In cross-examination, deposes, that Director had verbally told them to attend VOJ. On that day, he had come in the office of Director in connection with the Budget. Complainant had not told that in whose presence accused had demanded the bribe money and in whose presence it was settled to give Rs. 2000/-. Constable had dusted the P-powder on the currency notes with his hand. Pre-trap memo was taken out from the computer, its contents were read over to them, and on it he, Kulraj and Dy.SP had appended signatures, but he does not remember regarding others. On receiving the signal, firstly, Dy.SP & Kulraj witness had entered in the room. None of the team members had captured the accused. Firstly, for effecting search of accused Dy.SP had asked the accused to lift/up his hands, however, accused had himself uplifted his hands. This thing is wrong that complainant had told the person sitting with accused to take rest of the money. This thing is also wrong that the said person told that the copy has been prepared by accused therefore the money be given to him, and accused refused to take the money and complainant kept the money on the ground. This is incorrect that the 2nd person told his name as Mangat Ram. Accused had not counted the bribe money however, without counting, he had put the money in his pocket. This is incorrect, that left hand of accused was also washed. It is incorrect, that both the hands of accused were washed. Both the bottles which are present in the court contain milky colored compound. When he and complainant were in the room of accused, in addition to the accused, only one person and none other was present there. In EXT-P1/3 there is mention of hand wash of 16 CRA No.53/2015, IA No.1/2015 both hands of accused, but as per his memory the right hand of accused was only washed. In EXT-P1/3, in the second line a word has been written by hand at the same time.
PW-4 Kulraj Singh (employee as CDPO in Social Welfare Department, independent witness) in examination-in-chief has deposed, that in June 2007 he was posted as CDPO Khore. He and Rajeev Salaria CDPO, were asked by Director to report in VOJ Office. There was a person who was saying that Patwari had demanded bribe from him and he only paid Rs. 200/- to said Patwari and he was supposed to pay Rs. 1800/- more to him. The complaint was handed over to SSP. Rajeev Singh Salaria, complainant and other officials of Vigilance Department reached there. The complainant produced three Indian Currency Notes of 500 denomination each. The numbers of these notes were noted by him and Rajeev Salaria and the said notes were dusted with P-powder. A solution was prepared and one police official dipped his hand in the solution which turned pink. The witness has been declared hostile by the prosecution, and during cross-examination by CPO, witness has stated, that this is incorrect to say the complaint was against accused. It was in fact against some other Patwari. The complaint Ext-P1 is not the complaint in respect of which a pre-trap exercise was conducted. After trap it was being stated that the person against whom the complainant had grievance was not arrested and instead someone else was caught. He told SSP Vigilance that the accused had been caught unnecessarily. The trap was conducted in Revenue Complex Gole Gujral. It is a fact that on the signal, PW Rajeev Salaria, the team members reached on spot but he was closely standing by the side of Rajeev Salaria, so no signal was required for him. The personal search of accused was conducted by him, and it is correct to say that the currency notes were recovered from his possession and the numbers of those currency notes tallied with already noted down numbers. It is also a fact that at the trap scene, Sodium Carbonate Solution was prepared twice. Once the right hand wash of accused was conducted and thereafter the left hand wash and third time also Sodium Carbonate Solution was prepared in which the pocket of the shirt of accused was washed and all the three times the Sodium Carbonate Solution turned into pink. In cross examination by defence, deposes, that he was verbally directed by the Director to attend the office of VOJ. When he reached in the office, only the complaint of complainant was read over, but contents of FIR were not read over. This thing is correct, that the complaint which the complainant had registered was against Deep Raj Patwari. This thing is also correct, that the complainant had told that he had paid Rs. 200/- to Deep Raj Patwari. Trap team had caught hold and taken Deep Raj Patwari with them. In pre-trap memo EXT-P1/2 and EXT-P14 movement order does not contain name of accused. This thing is correct, that when he went on the place of trap, two Patrwaries were sitting in the room, and out of the two, one was Deep Raj Patwari. This thing is correct, that both these Patwaries were brought by the vigilance team in their office. It is correct, that in the office during the enquiry complainant had stated that he had made complaint against Deep Raj and Mangat Ram has been falsely captured. This thing is also correct, that vigilance team members use to say that they have captured Mangat Ram, therefore, the complaint is against him. The witness of his own deposed, that vigilance members use to say that Mangat Ram is a tout. This thing is correct that vigilance officials had changed the complaint and made it against Mangat Ram.
17 CRA No.53/2015, IA No.1/2015He neither saw the Patwari demanding the bribe money nor accepting it. The hands of Patwari were washed in different glasses. In addition to the case in hand, he had remained the witness of the vigilance in other cases also. He was provided the copy of his statement recorded u/s 161 Cr.pc. This thing is wrong that the vigilance had put pressure upon him to record his statement in tune with his statement recorded u/s 161 Cr.pc. The witness of his own deposed, that the vigilance officials had told him to record his statement in the court as per his own wishes, however, they said that whatever statement they have recorded u/s 161 Cr.pc, they will keep it.
PW-5 Neetan Sharma (constable I/C receipt and dispatch section PRK Wing VOJ, witness to prove trap proceedings) in examination-in-chief has deposed, that on 4.6.2007 he was posted in PRK wing of VOJ as receipt/dispatch clerk. On the direction of SSP, he joined Dy.SP Mahdeep Singh Jamwal in his room. Some police officials and civilians were also there. He was introduced to complainant and independent witnesses Kul Kaj and Rajeev Singh Salaria. The complaint lodged by the complainant was read over by independent witnesses. It was alleged by the complainant that Patwari was demanding Rs. 3000/- from him as bribe but it was finally settled at Rs. 2000/-, an amount of Rs. 200/- was paid by him in advanced and remaining sum of Rs. 1800- was to be paid later. The complainant produced three five hundred rupees notes and three one hundred rupees notes. The numbers of these notes were recorded on separate slips by independent witnesses and the notes were dusted. A pre-tape exercise was conducted on spot. PW Rajeev Singh was nominated as shadow witness. The team proceeded towards Revenue Complex Gole Gujral. The complainant and shadow witness entered the room of the accused. Sometime after, the shadow witness passed on the signal and the bribe money was recovered from the pocket of the accused, the numbers of these currency notes were tallied with the already recorded numbers. The hand of the accused was dipped in the solution which turned pink and so did the Solution of Sodium Carbonate turn pink when the pocket of the shirt of the accused was dipped in it. In cross-examination witness has deposed, that he has been associated with trap proceedings in a number of cases. For summoning witnesses he had not dispatched any letter. When he went inside the room of Dy.SP, independent witnesses were already present there. In his statement recorded u/s 161 Cr.pc it is not written that the complainant told that Patwari had demanded Rs. 3000/- out of which Rs. 2000/- were settled. Complainant had not disclosed the date on which Patwari had demanded Rs. 3000/-. Paper was kept on the table upon which the currency notes were kept which were dusted with powder by hands. Pre- trap memo was printed out from the computer and kept on the table. On the dictation of Dy.SP, in his presence, type was conducted on the computer. It took about ½ hour to complete pre-trap proceedings. Outside his room there is a compound walling. Dy.SP and other officers were standing. Room of accused was located up the stairs on left side and from this room to the room of Dy.SP there was distance of about 15 feet. He had not narrated in his statement u/s 161 Cr.pc that the accused came out of his room and went in the room of Naib Tehsildar. When they entered in the room, accused, Deep Raj were sitting on the floor on a carpet. The search of Deep Raj was not conducted.
18 CRA No.53/2015, IA No.1/2015PW-6 Uksha Anand (reader to SSP PRK VOJ, witness to prove trap proceedings) in-examination-in-chief has deposed, that on 4.6.2007 he was posted as a reader in the office of Vigilance. He was directed to dust the notes and accordingly he reported to Dy.SP M.S. Jamwal. He found complainant also there alongwith some constables and Inspectors. After sometime, two independent witnesses Kul Raj Singh and Rajeev Singh of Social Welfare Department also reached there. After introduction, the complaint of the complainant was read over once again. The complainant produced Rs. 1800/- comprising of three currency notes of rupees five hundred denomination each and three hundred rupees notes. The numbers of these notes were recorded by independent witnesses on separate slips whereafter a pre-trap exercise was conducted with the help of PW Rajeev Singh to demonstrate the effect of Phenolphthalein on Sodium Carbonate Solution. In cross-examination deposes, that he has participated in the process of dusting the powder on the currency notes. In those cases who were the independent witnesses and the complainant he cannot say. He had not read the complaint but Dy.SP read over the complaint. He has no knowledge whether for summoning the independent witnesses some letter was written or not. In his presence, neither the team members were searched nor their hands were washed, because after dusting the notes he was made to remain separate. Independent witnesses had noted the numbers of the currency notes by keeping them in their hands.
PW-7 Neeraj Sharma (constable PRK Wing VOJ Jammu, witness to prove trap proceedings) in examination-in-chief has deposed, that on 4.6.2007 he was posted in PRK Wing of VOJ. On that day he was summoned by SSP to his office and was later asked to join Dy.SP Mahadeep Singh. As he went to see him, there were some police officials and three civilians, which included the complainant, Rajeev Singh and Kul Raj. The complainant was saying that he had applied for issuance of revenue record but the accused demanded bribe of Rs. 3000/- from him and ultimately it was settled at Rs. 2000/- The complainant had paid Rs. 200/- in advance to accused and rest of the bribe money i.e. Rs. 1800/- was to be paid after the accused would provide the copies of revenue record to him. The complainant produced three five hundred rupees denomination currency notes and three hundred rupees denomination currency notes which were dusted with P- powder. A solution of Sodium Carbonate was prepared to demonstrate the effect of P-powder on Sodium Carbonate Solution. The dusted currency notes were thereafter kept in the pocket of the shirt of the complainant. PW Kul Raj conducted the search of the team members and at about 11.45 a.m, the team left for Gole Gujral. PW Kul Raj was nominated as shadow witness. At 12/12.15 they reached Revenue Complex Gole Gujral. The complainant and PW Rajeev went inside the room of the accused. Ten minutes after, the shadow witness PW Rajeev passed on the signal and the team went inside the room. Accused and one Deep Raj were present in the room. PW Kulraj on the directions of Dy.SP conducted the search of the person of accused, and from the left pocket of the shirt of accused Rs. 1800/- consisting of three notes of 500 denomination each and three notes of 100 denomination were recovered. The numbers of those currency notes tallied with the already recorded numbers. A Solution of Sodium carbonate was again prepared and it tested positive when the accused dipped his hand in the solution, and so did the pocket of the shirt of the accused. Personal search of accused 19 CRA No.53/2015, IA No.1/2015 was conducted, but who conducted it, he does not remember. Record viz; fard was recovered from complainant Ajay. Post-trap proceedings papers were prepared. The witness pointed towards the accused and stated that from his custody money was recovered. His statement was recorded by I/O. In cross-examination deposes, that in addition to the case in hand, he has been kept as witness in other cases. He had gone in the room of Dy.SP at 10.30/10.45 am in the morning. Independent witnesses were already present there. The written complaint was read over by the Dy.SP. In the said complaint, it was not written that in whose presence accused has demanded the money from complainant. Note:- P-Powder was dusted by Neeraj witness by his hands. Pre-trap memo was printed out from the computer, but was not prepared in his presence. Again deposes, that the notes were dusted with P-Powder by Rajeev witness. Office of the accused is surrounded by compound wall. Room of accused is located on the 1st floor. They i.e. team members were standing inside the compound walling and they had taken positions in the complex on the ground floor. He had not seen anyone passing the signal. Two vigilance officials namely Nitan Sharma and another had caught hold of the accused from his arms. The pocket of shirt of accused was overturned and was immersed in a liquid. Inspector Parshotam Sharma had not gone on spot. He has seen the two bottles containing the solution and in these bottles the solution which he saw today is not pink, but was pink at that time. On court question deposes, that P-Powder was dusted on the notes by constable Uksha Anand.
PW-9 Madan Lal Choudhary (Inspector PRK Wing VOJ Jammu, witness to prove whole trap proceedings) in examination-in-chief has deposed, that on 4.6.2007 he was posted in PRK Wing. He was also associated with the trap proceedings. Complainant Ajay Badyal and other team members were also present there. Independent witnesses Rajeev Kumar Salaria and Kul Raj Singh also reached there. After introduction, Dy.SP read over the complaint. The complainant had alleged that accused was demanding Rs. 2000/- as bribe from him and he had already paid Rs.200/- to accused. The complainant thereafter produced Rs. 1800/- which comprised of three currency notes of five hundred rupees denomination and three currency notes of rupees hundred denomination each. These Currency notes were dusted with P- powder and a Solution of Sodium Carbonate was prepared. A pre-trap exercise was conducted to show the effect of P-powder on Sodium Carbonate Solution. The dusted currency notes were placed in the pocket of the complainant and he was advised that he should pay it to the accused on his demand. Thereafter, the team proceeded towards Revenue Complex Gole Gujral. The complainant and PW Rajeev Salaria went inside the room of the accused and sometime after PW Rajeev Salaria passed on the signal, and the entire team reached on spot. Apart from accused, Deep Raj Patwari was also in the room. Recovery of the tainted currency notes was made from accused and the numbers of those currency notes tallied with the already recorded numbers. Again a Sodium Carbonate Solution was prepared which tested positive when the accused dipped his hand in it, and so did the solution turn pink when the pocket of the shirt of accused was dipped in it. The currency notes were seized. In cross- examination deposes, that for about 4 ½ years he has remained posted in vigilance and in about five cases he has remained associated with the trap team and has also remained I/O. He had seen the complaint whose contents were read over by Dy.SP. He had not 20 CRA No.53/2015, IA No.1/2015 personally read over the contents of the complaint. Complainant had stated that on 15-05-2007 he had gone to the accused who had demanded the money. Complainant had not told that to whom he has given Rs. 200. Independent witnesses had conducted search of the team members, however, he does not remember that which of the team members were searched by the witness. He does not remember that where the articles from the search of complainant were kept. Notes were dusted with the powder on the table. Pre-trap memo was not handwritten, but was printed out from the computer on the directions of Dy.SP. They had kept the vehicles on the main gate of the Revenue Complex, from where the room of accused Patwari is at a distance of 100/150 meters. They had taken different positions outside the room of the Patwari in the ground and on the stairs. Nearer to him, inspector of the case namely Madan was standing. On receiving the signal they went upstairs and went in the room of the accused. In the room first of all Dy.SP reached, while other team members reached alongwith Dy.SP. Firstly, right hand of accused was washed and then in the same solution the other hand was washed. The hands of accused were washed by constable Neeraj in presence of all team members. The hands of accused were caught hold by team members, however, they were not made to uplift. Dy.SP had caught the wrists of accused, again deposes, that the accused was caught from by the elbows. The pocket of the accused was overturned and washed by constable Neeraj. I/O Parshotam Lal was not present on spot. His statement was recorded on 19-07-2007. PW-10 Dev Raj Khajuria (Naib Tehsildar Settlement Gole Gujral Jammu, witness to prove veracity of application marked to the accused Patwari Halqa concerned dated 28-05-2007) in examination- in-chief has stated, that on 28.5.2007 he was posted as Naib Tehsildar Gole Gujral. Accused was posted as Patwari Halqua Prahladpur. On 28.5.2007 he marked an application for issuance of revenue record. The application was presented before him by accused. On 4.6.2007 also he attested the revenue extracts on being presented before him by accused. Dy.SP VOJ summoned him in the room of the accused and told him that accused had been trapped. In cross-examination deposes, that the room in which accused Patwari use to sit, Patwari Deep Raj also use sit there. To him no complaint was lodged against the accused.
PW-11 Deep Raj Sharma (Patwari Halqa Settlement Mandal Jammu, witness to circumstantial evidence) in examination-in-chief has stated, that on 4.6.2007 he was posted in Halqua Mandal. Accused was the Patwari of Halka Prahladpur. In his room which is located in the Niabat 4/5 persons use to sit. On 04-06-2007 at about 12.30/12.45 pm he as usual was sitting in the room in the Niabat and was performing his work. Accused Patwari was present there in his presence. Two persons came to Mangat Ram. He was working in one corner of the room while Mangat Ram was working on another corner of the room. Two person have come to Mangat Ram Sharma, had some talks with him, whereafter, Mangat Ram went alongwith them outside, then Mangat Ram and those two person came in the room. As soon as, Mangat Ram and those two persons sat in the room, then some persons in civil came there, they introduced themselves as Dy.SP vigilance. Complainant was asked by Dy.SP as how much money has been taken from him, then complainant signaled towards Mangat Ram. Vigilance team members in presence of other people conducted search of the accused. From the left pocket of the shirt of accused money was recovered. The money was seized by the 21 CRA No.53/2015, IA No.1/2015 Dy.SP. He was standing at far of a distance. The hands of accused were washed and the color of solution turned pink. This solution was put in a bottle. Vigilance people prepared some documents and made the seizure memos. Shirt of accused was seized. In this regard vigilance officials recorded his statement. At this stage CPO requested that the witness is hostile and he may be permitted to cross-examine him. In cross- examination by CPO the witness deposes, that in his statement recorded u/s 161 Cr.pc he has narrated that in one room he and Mangat Ram were sitting, which means that both of them were sitting in the room on the 1st floor. In his statement it is written that Mangat Ram had gone out from the room alongwith some documents, while those two persons remained in the room, it has been wrongly written. He does not remember that out of the two persons one went towards the door and then team came there. He had not personally counted the notes nor tallied their numbers. Team had told him that money has been recovered from the accused. In his presence, no seizure memo was prepared. The articles regarding which in his statement vigilance officials have written that Rs. 1800 were recovered in his presence, and if he had told the police that it is wrongly written, then the vigilance people would have locked him. However, he had not lodged any complaint in this regard to his any superior officer or in the court that his statement has been wrongly written. He does not know the complainant. He and accused use to work jointly for 1/2 years and the accused is batch mate. In cross- examination by counsel for accused, witness has deposed, that his statement was not recorded on the day of occurrence, however, vigilance officials had taken him alongwith them and on that day his statement was not recorded. For 6/7 times he was taken by vigilance officials for recording his statement, however, they did not record his statement and after 4/5 months his statement was recorded. Complainant neither approached him for issuance of fard nor talked about this fact with him. This thing is correct, that vigilance officials use to say that he and accused both are the accused in the case. On spot his signatures were not appended on any paper.
PW-12 Parshotam Lal Sharma (Inspector PRK Wing VOJ Jammu, investigating officer (I.O), witness who completed the investigation) in his examination-in-chief has deposed, that he was posted as Inspector in VOJ in June 2007. Case FIR No. 15/2007 was investigated by him. He got an order that a trap team to be headed by M. S Jamwal Dy.SP was constituted and so he handed over the documents to him. On the same day at about 3/4 p.m, the trap team completed the process and the accused was handed over to him in the VOJ office. He recorded the statements of the witnesses u/s 161 of Cr.P.C, got the posting details of accused and also procured the application which the complainant had filed in revenue office for getting the copies of the revenue record. He prepared the seizure memo EXT-P8 which is in his handwriting, bear his signature and its contents are true and correct. He has seen the documents in terms of memos Mark-NS, Mark-NS/1 and Mark-NS/2. The order vide which investigation was entrusted to him has been seen by him in the court upon which he identifies the signatures of SSP Vijay Singh Sambyal as he is conversant with his signature and it is exhibited as EXT-P/2. Application EXT-P1, copy of FIR, EXT-P1/1 annexed with the file have been seen by him. By his investigation against accused offences u/ss 5(1)(d) r/w 5(2) PC. Act and section 161 RPC have been established. In cross-examination deposes, that from the year 2005 upto 22 CRA No.53/2015, IA No.1/2015 year 2007 he remained posted as Inspector in VOJ. Complainant had mentioned in his application that the occurrence has taken place within the jurisdiction of District Jammu. Cases pertaining to District Jammu were within the jurisdiction of SSP Sambyal. In those days the jurisdiction of cases of PRK were with S.D. Singh. He was not shown such an order vide which commissioner of vigilance had handed over instant case to PRK Wing. The witness of his own deposes, that as per the need of work, any case can be entrusted by SSP VOJ to any police station of VOJ regarding the investigation. SSP VOJ can entrust the jurisdiction to investigate any case by SSP PRK, because VOJ has been declared as police station for whole of the Jammu Province. In those days Incharge of VOJ was SSP Sambyal. S.D. Singh Jamwal was Incharge of PRK wing. He did not see any written order in the court vide which S.D. Singh Jamwal was entrusted with the jurisdiction to proceed with the case in hand. Trap team was constituted in the case in hand by SSP PRK. According to the complaint, accused had demanded Rs. 3000/- as bribe amount from the complainant, but it was settled at Rs. 2000/-, however, out of Rs. 2000/-, Rs. 200 were paid in advance to the accused before the constitution of the trap team and Rs. 1800/- were to be given lateron. As per investigation, the bribe amount was neither demanded by the accused in presence of any witness nor it was settled in presence of any witness. Amount of Rs. 200/- was not paid by the complainant to the accused in presence of any 3 rd person. The application which the complainant had written for obtaining the record was addressed to Naib Tehsildar Gole Gujral. This thing is correct that in the aforesaid application, the name of officer has been inserted by cutting the word Incharge General Mahafaz Khana Jammu. As per the statement of Naib Tehsildar the cutting has been done on the application by Dev Raj. This application has been written on 18-05-2007 while there is endorsement of Naib Tehsildar Gole Gujral dated 28-05-2007. This endorsement as per the investigation is of Naib Tehsildar Dev Raj. This thing is incorrect, that the cutting inserted words and endorsement words are of the same person. When he enquired from the complainant that from 28-05-2007 to 04-06-2007 why he did not lodge any complaint, the complainant stated in his statement that during this period number of times he went to the accused, but the accused did not do his work and after this he lodged report in VOJ. Complainant had not told him in his statement that he had gone against the accused to the higher officers of the accused. He has no knowledge whether any letter was written for summoning the independent witnesses and during investigation he did not receive any such letter. Site map of the occurrence was prepared by TLO and not by him. He had not gone on the place of trap, and even during investigation he had not visited the place of occurrence. During investigation nothing came to fore from which it could be evident that the complainant has lodged complaint against Deep Raj Patwari which was changed and converted against the accused. The trap team after conducting the proceedings came in VOJ office, and then handed over all the papers prepared by them on spot to him. Trap team had brought only Mangat Ram Patwari before him and not Deep Raj Patwari. On that day he did not record statement of any trap members or any witness because it was night time and there was no time left with him. For the first time, on 19 June 2007 he had recorded the statement of complainant because he was busy in another case of Rajouri District of FIR 16/2007, that is why he could not record the statement of any witness till 19 June 23 CRA No.53/2015, IA No.1/2015 2007. He remembers it perfectly that it take 4/5 days to complete a case. The statements of trap team and vigilance officers were recorded by him on 19 June 2007 and 3 July 2007. Witness Rajeev Singh Salaria was nominated as shadow witness in the case and in those days he was posted in Vijaypyur. The other independent witness Kulraj Singh was posted in Khour. Because both of these witnesses were Govt. officials and were busy in their official duties, therefore, their statements too were not recorded by him upto July 2007. In addition to this, due to his other official engagements there has been delay in recording the statements of these witnesses. This thing is correct, that the vigilance officials which do successful traps, they get good ACRs. PW-14 S.D. Singh IPS (the then SSP PRK VOJ, witness to prove formation of trap team and supervision of investigation) in examination-in-chief has stated, that on 04-06-2007 he was posted as SSP PRK VOJ. In the capacity of SSP PRK he constituted the trap team in the case and supervised the investigation. The order by which he constituted the trap team is part of the file, bear his signature, its contents are true and correct and it is exhibited as EXT-P14. Letter dated 26.6.2008 bearing No.SVO-FIR-15/2007-J-6885 on record was received from Central Office of VOJ where through sanction order was received which he had marked to his reader, he identifies his signature on it and it is exhibited as EXT-P-14/1. In cross-examination deposes, that in EXT-P-14 there is no mention of name of accused, however, in FIR name of accused is mentioned. The letter which was issued in regard to independent witnesses, he did not see it in the court. In EXT-P-14 there is no mention of name of independent witnesses. 2/3 weeks after receiving EXT-P14/1, it was transferred to the vigilance.
9. Appellant/convict to demolish the case of prosecution, has examined only one witness in defence namely DW-1 Chanchal Singh. Testimony of defence witness DW-1 Chanchal Singh is summarized as under:-
DEFENC E E V I D E N C E:-
DW-1 Chanchal Singh on questions by defence counsel has deposed, that he knows accused Mangat Ram who was Patwari of his Halka patwar. In the year 2007 in the month of June, he had gone to Patwari Mangat Ram in his office in connection with obtaining copy of revenue record. At about 12pm/1pm when he went in the office of the accused, one more Patwari was present there. He demanded copy of record regarding the land from accused Patwari who hold him to wait for sometime till the copy is prepared. He remained in the office, and then one person came there and went to the other Patwari who was sitting there. That person told that Patwari that the amount which he had demanded, he has brought it with him, but his work must be done. That Patwari told that person to go to accused Mangat Ram because he is his Patwari. When that person came to the accused, accused told him that because no deal has been struck with him, he will not take the bribe amount, however, he will hand over the copy of the record to him. After this, that person kept the bribe money on the ground. During this time, 3/4 people in civil dress came from outside into the room. Those people caught hold of accused Mangat Ram from both his hand and accused started crying that he has committed no wrong. The other Patwari was taken by those people. Accused started weeping and telling that he has not received any bribe amount. The person who had come to give the 24 CRA No.53/2015, IA No.1/2015 bribe amount also said that he has no concern with the accused. Those people who had caught hold of accused told him to leave the place. After this, he went from there. He did not get the copy of the record as Patwari was arrested. In cross-examination by CPO deposes, that he had verbally demanded the copy of the record, but had not given any application. He has no knowledge that a complaint regarding bribe was lodged against Mangat Ram Patwari in vigilance. He has no knowledge from where the bribe money was recovered. In regard to the aforesaid events he neither informed Tehsildar nor Naib Tehsildar.
st
10. The 1 argument canvassed by Ld. Counsel for appellant/convict/ accused is, "that the demand and` acceptance of the bribe money has not been proved by the prosecution". Reiterating his arguments, Ld. Counsel has vehemently argued, "that PW-1 Ajay Kumar Badyal (complainant) during his testimony before the trial court has categorically tendered evidence, that he alongwith shadow witness PW-3 Rajeev Singh Salaria entered the room of accused in the 1 st floor of the building and he demanded the revenue papers from the accused who told him that he will get the revenue papers attested from Naib Tehsildar, thereby, he and shadow witness remained waiting and the accused returned back in his room alongwith attested revenue papers, then the money was passed on to the accused who counted the money and kept it in his pocket of his shirt, then signal was passed on to the trap team by shadow witness and the money was then recovered from the accused, while in cross-examination PW-1 complainant Ajay Kumar Badyal has made a summersault by categorically testifying that he had given application for obtaining the fard to Deep Raj Patwari who had told him that his name is Mangat Ram, amount of Rs. 2000/- was settled with Deep Raj Patwari and Rs. 200 were also paid to him as advance while remaining amount of Rs. 1800 was promised to be paid to Deep Raj, he had handed over the bribe money to Deep Raj Patwari with whom it was settled; PW-3 Rajeev Singh Salaria CDPO Vijaypur (shadow witness) has not specifically named the accused demand bribe, PW-4 Kulraj Singh CDPO Khour (independent witness) in the case though declared hostile by the prosecution, however, in his cross-examination by CPO has specifically tendered evidence, that it is incorrect that the complaint was against accused and in fact it was against some other Patwari, complaint EXT-P1 is not the complaint in respect of which pre-trap exercise was conducted, after trap it was being stated that the person against whom complainant had grievance was not arrested and instead 25 CRA No.53/2015, IA No.1/2015 someone else was caught, he told SSP vigilance that accused has been caught unnecessarily, this thing is correct that complaint was against Deep Raj Patwari, complainant had told that he had paid Rs. 200 to Deep Raj Patwari, trap team had caught hold and taken Deep Raj Patwari with them, this thing is correct that vigilance officials had changed the complaint and made it against Mangat Ram; it is vehemently argued, that from the depositions of PW-1 complainant Ajay Kumar Badyal, PW-3 Rajeev Singh Salaria CDPO Vijaypur (shadow witness) and PW-4 Kulraj Singh CDPO Khour (independent witness) by no stretch of any imagination the prosecution has proved that the appellant/convict has reiterated his demand of bribe money at the time of trap, neither the complainant (PW-1) has proved demand of bribe from him nor acceptance by the accused nor the initial demand of Rs. 3000/- and settlement of Rs. 2000/- with complainant by accused and payment of Rs. 200 as advance has also not been proved by the prosecution, even DW-1 defence witness Chanchal Singh has also supported the complainant and PW-4 Kulraj Singh by deposing that on the day of trap he had gone to Patwari Mangat Ram for obtaining copy of revenue record where another Patwari was also sitting, in the meantime a man came inside and offered some money to Deep Raj who told him to pay the said money to Mangat Ram as he is the concerned Patwari, the said man (complainant) then offered the money to accused Mangat Ram who decline to accept it by saying that he had never demanded the same and he does not know about it; it is strenuously argued, that none of the aforesaid witnesses in their highly contradictory/distorted versions before the trial court have conclusively proved that appellant/convict demanded any bribe money from the complainant at the time of trap, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offences would not entail his conviction". To buttress his arguments, Ld. Counsel for appellant/convict has relied upon the judgments of Hon'ble Supreme Court reported in, (i) 2022 Live Law (SC) 192 (Criminal Appeal No. 261 of 2022, arising out of SLP (Criminal) No. 7182 of 2019) [ K. SHANTHAMMA V THE STATE OF TELANGANA] & (ii) CRIMINAL APPEAL NOS. 100-101 of 2021 , 26 CRA No.53/2015, IA No.1/2015 arising out of S.L.P. (Crl) Nos. 7429-7430 of 2020) [N. Vijayakumar ...Appellant Versus State of Tamil Nadu ... Respondent].
The prosecution is pregnant with a story projected in terms of the charge sheet submitted before the trial court u/s 173 Cr.pc that a written complaint was lodged by complainant Sh. Ajay Kumar Badyal S/O Sh. Rattan Chand R/O Alora (Sohanjana) Tehsil and District Jammu on 04.06.2007 alleging therein, that a few days back in order to purchase a commercial land he contacted one Sh. Manga Ram S/O Late Sh. Dheru Ram R/O Prahladpur Colony Phallain Mandal Jammu and after negotiations said Manga Ram agreed to sell land measuring 3.75 Marlas falling under survey No.290/Min, Khewat No. 47/Min situated at Prahladpur colony Phallain Mandal Jammu. Accordingly, an application was submitted by him in the office of Naib-Tehsildar Settlement Jammu through Patwari concerned Sh. Mangat Ram Sharma who assured him that he would get it marked on his own and demanded Rs.3000/- as bribe for preparing the revenue papers of land in question. Despite repeated requests for revenue papers of the land, the papers were not given to him by the Patwari concerned. Finally, after negotiations, the Patwari concerned agreed to prepare the documents for a consideration of Rs.2000/- out of which he paid Rs.200/- in advance and rest of the amount of Rs.1800/- was decided to be paid on 04.06.2007 in the office chamber of Patwai Mangat Ram Sharma at Revenue complex Gole Gujral Jammu. Complainant after arranging the bribe money approached the State Vigilance Organization with a written complaint and told that he was going to pay Rs.1800/- to Patwari Mangat Ram Sharma under compelling circumstances and requested for necessary action under law. Accordingly, the instant case was registered in Police Station Vigilance Organization Jammu and investigation started. During the course of investigation, a trap team was constituted headed by Sh. M.S.Jamwal, the then Dy.SP VOJ. Services of two (2) independent witnesses were arranged to associate the trap proceedings. Consequently, Sh. Kul Raj Singh, CDPO Khour and Sh. Rajeev Singh Salaria CDPO Vijaypur of Social Welfare Department Jammu were associated with the trap proceedings as independent witnesses. The complainant was introduced to both the independent witnesses and his written complaint dated 04.06.2007 was shown to them, whereby, the independent witnesses 27 CRA No.53/2015, IA No.1/2015 satisfied themselves about genuineness of the complaint. Thereafter, the complainant produced an amount of Rs. 1800/- in the form of Six Govt. currency notes comprising of three notes of Rs.500/- denomination and three notes of Rs.100/- denomination each, which he intended to pay as illegal gratification to the accused on demand. Serial Nos. of these currency notes were recorded by the independent witnesses on separate slips of paper and kept in their individual possession. Rs.1800/- currency notes produced by the complainant were thereafter treated with phenolphthalein powder by Ct. Uksha Anand No.75/SVO. Sh. Rajeev Singh Salaria, independent witness was asked to touch the treated G. C. notes with his right hand fingers and wash the same in freshly prepared colorless solution of Sodium Carbonate. On his doing so, colour of the solution turned pink. The importance and significance of the reaction was explained to all and pink color solution was destroyed on spot. The pre-trap memo was prepared on spot in presence of the complainant, independent witnesses and trap team members. Sh. Rajeev Singh Salaria independent witness was requested to act as shadow witness and to massage his head as a signal to inform the trap members after the transaction of money to the alleged accused Patwari was completed. Ct. Uksha Anand No.75/SVO was also dissociated from the trap team alongwith phenolphthalein powder. After completing the pre-trap proceedings, the trap team accompanied by the complainant and the independent witnesses proceeded to the spot i.e. office of the Naib- Tehsildar Settlement Jammu. The complainant and shadow witness Sh. Rajeev Singh Salaria entered into the office room of Patwari Mangat Ram Sharma located at the 1st floor of the building. The other members of trap team took positions at stairs and in the balcony in a casual manner. The complainant approached Patwari Mangat Ram Sharma who was found busy in his official work and requested him for revenue papers pertaining to the piece of land mentioned above. Another Official later identified as Patwari Deep Raj Sharma was also present in the said room busy with his own work. The Patwari Mangat Ram Sharma demanded the balance amount of Rs.1800/-, but the complainant asked him to handover the documents. The accused Patwari then told that documents were not attested and yet to be signed by the Naib Tehsildar Settlement Jammu. The Patwari asked complainant to wait till 28 CRA No.53/2015, IA No.1/2015 he gets the documents completed and went down stairs alongwith documents towards the office of Naib Tehsildar Settlement Jammu which is located on the ground floor of same building, whereas, complainant and shadow witness kept waiting. After sometime, Patwari Mangat Ram Sharma came back to his office room alongwith the documents, but before handing over the same to the complainant, he again demanded Rs 1800/. On his specific demand, the complainant took out tainted G.C. notes from his pocket and gave them to the accused Patwari, who accepted the same. On this, shadow witness went out of the room and gave signal by massaging his head to I/C Trap team as per pre-fixed signal, confirming the transaction of bribe money. On this, the trap team members alongwith independent witnesses rushed to the office room of Patwari Mangat Ram Sharma who had demanded and accepted the bribe money. Complainant Sh. Ajay Kumar Badyal pointed towards accused Mangat Ram Sharma who had demanded and accepted bribe money. The VC trap team requested Sh. Kul Raj Singh Independent witness to take search of Patwari Mangat Ram Sharma for recovery of bribe money accepted by him. On his search, an amount of Rs.1800/- was recovered from the left pocket of the shirt worn by the accused Patwari. The numbers of recovered notes were tallied by both the independent witnesses with the numbers noted down by them on separate slips prepared at the time of pre-trap demonstration, which tallied in to. The recovered G.C. notes and paper slips were seized on spot. A solution of Sodium carbonate was prepared on spot in which fingers of accused were washed. On doing so, colour of the solution turned pink. The solution thus obtained was also sealed in a bottle and seized on spot. The pocket wash of the shirt worn by accused was also taken in a similar manner separately which also tested positive. The solution thus obtained was sealed in a separate bottle and seized on spot. Two revenue documents produced by complainant were also seized on spot through a seizure memo. The seal used for sealing exhibits was given on Supurdnama to the complainant. The other legal formalities like personal search memo, site plan and arrest memo were also prepared on spot. During the course of investigation, the papers like 1st three pages of service book, original posting order, joining report of accused and original application submitted by the complainant 29 CRA No.53/2015, IA No.1/2015 Ajay Kumar Badyal were obtained and seized in the instant case as a matter of proof. Statements of witnesses conversant with the facts of case were recorded u/s 161 Cr.PC in terms of section 161(1-A) of J&K Criminal Law Amendment Act 2007. The accused being a public servant was found to have demanded and accepted Rs.1800/- as an illegal gratification for himself for issuing revenue documents which tantamounts to sheer abuse of his official position/criminal misconduct while functioning in his official capacity in the office. On the basis of evidence oral, documentary as well as circumstantial collected during the course of investigation, offences u/s 5(1)(d) r/w section 5(2) J&K P.C. Act Svt.2006 and section 161 RPC were prima-facie established against accused Mangat Ram Sharma Patwari, and after obtaining Govt. Sanction for prosecution vide Govt. order No. 50-GAD (VIG) of 2008 dated 25.06.2008 chargesheet as envisaged u/s 173 Cr.PC against the accused person was submitted before the trial court of Ld. Special Judge Anti-corruption Jammu for its Judicial determination, the accused lateron was convicted and sentenced, hence the criminal appeal.
To prove the allegations of demand and acceptance of bribe money against accused, prosecution has heavily relied upon the testimonies of PW-1 Ajay Kumar Badyal (complainant), PW-3 Rajeev Singh Salaria (shadow witness) and PW-4 Kulraj Singh (independent witness).
PW-1 Ajay Kumar Badyal (complainant) in his deposition in examination-in-chief before the trial court, has categorically putforth evidence, that he alongwith shadow witness (PW-3 Rajeev Singh Salaria) entered the room of accused in the 1st floor of the building of revenue complex Gole Gujral Jammu and he demanded the revenue papers from accused Patwari who told him that he will get the revenue papers attested from Naib Tehsildar, therefore, he and shadow witness remained waiting, accused returned back in his room with attested revenue papers, the money was passed on to the accused, who counted it and kept it in his pocket of his shirt, then signal was passed on and money was recovered from the accused. In his cross-examination, PW-1 complainant Ajay Kumar Badyal has made a huge summersault and has totally demolished the entire edifice of the prosecution story by testifying, that he had given application for obtaining the fard to Deep 30 CRA No.53/2015, IA No.1/2015 Raj Patwari who had told him that his name is Mangat Ram, amount of Rs. 2000 was settled with Deep Raj Patwari, Rs. 200 were also paid to Deep Raj Patwari as advance amount while remaining amount of Rs. 1800 was promised to be paid to Deep Raj and he had handed over the bribe money to Deep Raj Patwari with whom it was settled. It is apt to reiterate here, that PW-1 complainant Ajay Kumar Badyal has resiled from his earlier version recorded before VOJ and even in his examination-in-chief he has not reiterated that at the time when accused Patwari handed over the revenue extracts (fard) to him accused Patwari demanded the balance amount of Rs. 1800 from him, however, his evidence only confirms that the money was passed on to the accused, which clearly establishes/proves that there was no demand of bribe money was made by accused Patwari. It is the specific evidence of PW-1 complainant Ajay Kumar Badyal in his cross-examination that Rs. 2000 as bribe money for obtaining fard was settled with Deep Raj Patwari, Rs. 200 was paid as advance money to Deep Raj Patwari and the remaining bribe amount of Rs. 1800 was also paid to Deep Raj Patwari, therefore, the critical appraisal of evidence of PW-1 complainant Ajay Kumar Badyal clearly proves the fact that accused/appellant/convict has never demanded and accepted the bribe money from him. PW-3 Rajeev Singh Salaria (CDPO Vijaypur) is shadow witness in the case and was required to remain as close as possible with the complainant to hear the conversation which would take place between the complainant and accused at the time of demand and acceptance of bribe money. PW-3 Rajeev Singh Salaria has categorically deposed, that two persons were sitting in the room, one of them asked the complainant whether he has brought the rest of the money, complainant advanced the money to him, that person kept the money in his pocket which was recovered by the trap team. The deposition of PW-3 Rajeev Singh Salaria (shadow witness) demonstrates that he has not named appellant/accused demanding the bribe amount, and it is mystery/uncertainty as who demanded the bribe money from the complainant. PW-4 Kulraj Singh (CDPO Khour) is also independent witness in the case and was associated with the post-trap proceedings of demand and acceptance of bribe money by the accused. He has been declared hostile by the prosecution, however, in his cross-examination by the CPO before the 31 CRA No.53/2015, IA No.1/2015 trial court, he has putforth highly contradictory/distorted version of the prosecution case by tendering evidence, ―that it is incorrect that the complaint was against accused and in fact it was against some other Patwari, complaint EXT-P1 is not the complaint in respect of which pre- trap exercise was conducted, after trap it was being stated that the person against whom complainant had grievance was not arrested and instead someone else was caught, he told SSP vigilance that accused has been caught unnecessarily, this thing is correct that complaint was against Deep Raj Patwari, complainant had told that he had paid Rs. 200 to Deep Raj Patwari, trap team had caught hold and taken Deep Raj Patwari with them, this thing is correct that vigilance officials had changed the complaint and made it against Mangat Ram, he was closely standing by the side of shadow witness Rajeev Salaria at the time of trap so no signal was required for him, he neither saw Patwari accused demanding the bribe money nor accepting it‖. From the depositions of PW-1 complainant Ajay Kumar Badyal, PW-3 Rajeev Singh Salaria CDPO Vijaypur (shadow witness) and PW-4 Kulraj Singh CDPO Khour (independent witness) by no stretch of any imagination it can be said that the prosecution has proved that the appellant/convict has reiterated his demand of bribe money at the time of trap, neither the complainant has proved demand of bribe from him nor acceptance by the accused, the initial demand of Rs. 3000/- and settlement of Rs. 2000/- with complainant by accused and payment of Rs. 200 as advance has also not been proved by the prosecution. It is noteworthy to mention here, that defence witness DW-1 Chanchal Singh has also supported the testimonies of the complainant and PW-4 independent witness Kulraj Singh by deposing, that on the day of trap he had gone to Patwari Mangat Ram for obtaining copy of revenue record where another Patwari was also sitting, in the meantime, a man came inside and offered some money to Deep Raj who told him to pay the said money to Mangat Ram as he is the concerned Patwari, the said man (complainant) then offered the money to accused Mangat Ram who declined to accept it by saying that he had never demanded the same and he does not know about it. The star witnesses of the prosecution viz; PW-1 Complainant Ajay Kumar Badyal, shadow witness PW-3 Rajeev Singh Salaria & independent witness PW-4 Kulraj Singh by tendering highly 32 CRA No.53/2015, IA No.1/2015 contradictory and distorted versions before the trial court have suffered major contradictions/discrepancies which have fundamentally destroyed the very edifice of the prosecution case that accused/appellant demanded and accepted the bribe amount from the complainant. Law is well settled, that every contradiction, discrepancy or improvement is not fatal for prosecution, but it is only major contradiction, discrepancy or improvement on material facts shaking very genesis of prosecution case which matters for creating doubt on prosecution case.
Hon'ble Apex Court in case Pawan Kumar Alias Monu Mittal Vs. State of Uttar Pradesh and another reported in (2015) 7. SCC 48 has held as under:-
"35. As regards the allegation of contradictions in the statements of prosecution witnesses, we do not find any major contradictions which require out attention and consideration. When a witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence‖. Hon'ble Apex Court in case Bhagwan Jagannath Markad and others Vs. State of Maharashtra reported in (2016) 10 SCC 537 while discussing the scope of the discrepancies/draw backs/infirmities in the evidence of prosecution witness and observing that the evidence of a witness has to be assessed/read as a whole to assess its truthfulness has observed as under:-
"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and 33 CRA No.53/2015, IA No.1/2015 trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behavior of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical. Rejection of evidence even of a 'partisan' or 'interested' witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.
20. Exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape".
Ratios of the judgments (Supra) of "Pawan Kumar @ Monu Mittal"
& "Bhagwan Jagannath Markad" make the legal proposition manifestly clear, that only the major contradictions/discrepancies/ improvements on material facts made by the witness shakes the very foundation of the prosecution case and creates doubt regarding its creditworthiness and truthfulness. The principles of law deduced in the case laws (Supra) squarely apply to the facts of the case in hand. In the case in hand, as per the prosecution story, accused/appellant/convict is alleged to have demanded bribe from complainant PW-1 Ajay Kumar Badyal for issuance of fard/revenue extract. Complainant of the case PW-1 Ajay Kumar Badyal being star witness of the prosecution has demolished the very genesis of the prosecution case by testifying before the trial court that Deep Raj Patwari had demanded Rs. 2000/- from him for issuance of fard, advance amount of Rs. 200 was paid to Deep Raj Patwari and remaining amount of Rs. 1800 as promised was handed over Deep Raj Patwari. None of the aforesaid witnesses viz; PW-1 Ajay Kumar Badyal (complainant), PW-3 Rajeev Singh Salaria (shadow witness) & PW-4 Kulraj Singh (independent witness) in their highly contradictory/ distorted versions before the trial court have conclusively 34 CRA No.53/2015, IA No.1/2015 proved that appellant/convict demanded any bribe money from the complainant at the time of trap.
Now, I would like to refer the rulings relied upon by Ld. Counsel for appellant/convict & Ld. AAG for respondent to find out whether the principles of law and the ratios of judgments deduced therein apply to the facts and circumstances of the case in hand.
In 2022 Live Law (SC) 192 (Criminal Appeal No. 261 of 2022, arising out of SLP (Criminal) No. 7182 of 2019) [K. SHANTHAMMA V THE STATE OF TELANGANA], relied by Ld. Counsel for appellant/convict, Hon'ble Supreme Court of India while discussing the proposition of law regarding proof of demand and acceptance of bribe by public servant, and while setting aside the impugned judgments of conviction by observing that proof of demand of bribe by a public servant is sine quo non for establishing offence u/s 7 of PC Act, in head note of the case law, and in paras 7,10,11,12,15 & 16 of the judgment held as under:-
Prevention of Corruption Act, 1988--Section7, 13--The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the PC Act--The Failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7&13 of the Act would not entail his conviction thereunder.
7. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the PC Act.
In the case of P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another (2015) 10 SCC 152 this Court has summarized the well-settled law on the subject in paragraph 23 which reads thus:
―23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction there under‖.35 CRA No.53/2015, IA No.1/2015
10. Therefore, PW1 is the only witness to the alleged demand and acceptance. According to PW1, firstly, the demand was made of Rs.3,000/- by the appellant on 24th February 2000.
Thereafter, continuously for three days, she reiterated the demand when he visited the appellants office. Lastly, the appellant made the demand on 29th February 2000 and 23rd March 2000. On this aspect, he was cross-examined in detail by the learned Senior Counsel appearing for the appellant. His version about the demand and acceptance is relevant which reads thus:
―In the vicinity of office of AO the jeep, in which we went there was stopped and I was asked to go into the office of AO and the trap party took vantage positions.
Accordingly, I went inside the office of AO. I wished AO. At that time apart from AO some other person was found in the office room of AO and he was talking to the AO. AO offered me a chair. After discussion with the AO the said other person left the room of AO. I informed AO that I brought the bribe amount as demanded by her and also asked her to issue the Final Assessment Orders. Then I took the said tainted currency notes from my shirt pocket and I was about to give the same to the AO and on which instead of taking the same amount directly by her with her hands she took out a diary from her table drawer, opened the diary and asked me to keep the said amount in the diary. Accordingly, I kept the amount in the said diary. She closed the said diary and again kept the same in her table drawer and locked the drawer and kept the keys in her hand bag which was hanging to her seat. She pressed the calling bell and a lady attender came into the room of AO, then she instructed the lady attender to call concerned ACTO to her along with the concerned society records. Accordingly, ACTO came to AO along with record. After going through the Ledger and Cash Book etc., AO signed on the last page of the said Ledger and Cash Book mentioning 26.02.2000 below her signature in the said register though she signed on 27.03.2000 in my presence. AO directed her attender to affix official rubber stamp below her signature in the Ledger and Cash Book and accordingly attender affixed the same. AO also signed on the office note of Final Assessment Orders at that time. Thereafter, I collected the General Ledger and Cash Book from the attender after affixing the said rubber stamp thereon and came out of the office of AO and relayed the pre-arranged signal to the trap party.
11. Thus, PW1 did not state that the appellant reiterated her demand at the time of trap. His version is that on his own, he told her that he had brought the amount. What is material is the cross-examination on this aspect. In the cross-
examination, PW1 accepted that his version regarding the demand made by the appellant on various dates was an improvement. The relevant part of the cross-examination of the appellant reads thus:
―I did not state to ACB Inspector in section 161 Cr.P.C. statement that on the evening of 24.02.2000 I met the AO and that she demanded the bribe. I did not mention in Ex.P3 complaint that continuously for 3 days after 24.02.2000 I met the AO and the AO reiterated her demand. I did not mention in Ex.P3 complaint that on 36 CRA No.53/2015, IA No.1/2015 29.02.2000 I approached the AO and the AO demanded bribe of Rs.3,000/- and that unless I pay the said bribe amount she will not issue final assessment orders. I did not state in my Sec.164 statement before the Magistrate that 13.03.2000 to 16.03.2000 I was on leave and from 01.03.2000 to 12.03.2000, I was engaged in recovering the dues of the society. It is not true to suggest that I did not meet the AO continuously 3 days i.e., on 25th, 26th and 27th of February, 2000 and that 27.02.2000 is Sunday. It is not true to suggest that I did not meet the AO in the evening of 24.02.2000 and that AO did not demand any money from me. I did not state in my section 161 Cr.P.C. statement to Inspector of ACB that before I left the office of DSP on the date of trap I made a phone call enquiring about the availability of AO and the AO was in the office and informed me that she should be available in the office from 6.00 to 7.00 P.M. on that day so also in my Sec.164 Cr.P.C. I made such a phone call from the office of the DSP, ACB. I do not remember as to from which phone number I made phone call on that day. I cannot describe office telephone number of the AO. It is not true to suggest that I did not make any such phone call to AO and that she did not give any such reply to me. I did not state to ACB Inspector in my 161 Cr.P.C. statement or to the Magistrate in my S.164 Cr.P.C. statement that I went inside the office of AO and I wished AO and at that time apart from AO some other person was found in the office room of AO and that he was talking to the AO and that the AO offered me a chair and that after discussion with the AO the said person left the room of AO and then I informed the AO that I brought the bribe amount.
I did not state that said aspects to DSP during the post trap proceedings also.
12. Thus, the version of PW1 in his examination-in-chief about the demand made by the appellant from time to time is an improvement. As stated earlier, LW8 did not enter the appellant's chamber at the time of trap. There is no other evidence of the alleged demand. Thus, the evidence of PW1 about the demand for bribe by the appellant is not at all reliable. Hence, we conclude that the demand made by the appellant has not been conclusively proved.
15. Thus, this is a case where the demand of illegal gratification by the appellant was not proved by the prosecution. Thus, the demand which is sine quo non for establishing the offence under Section 7 was not established.
16. Hence, the impugned Judgments will have to be set aside. Accordingly, the appeal is allowed. The conviction of the appellant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act is set aside and the appellant is acquitted of the charges framed against her.
In CRIMINAL APPEAL NOS. 100-101 of 2021 , arising out of S.L.P. (Crl) Nos. 7429-7430 of 2020) [N. Vijayakumar ...Appellant Versus State of Tamil Nadu ... Respondent], relied by Ld. Counsel for appellant/convict, Hon'ble Supreme Court of India while setting aside 37 CRA No.53/2015, IA No.1/2015 the impugned judgments of conviction dated 28-08-2020 & 22-09-2020 and orders of sentence imposed dated 15-09-2020 & 29-09-2020 and observing that the presumption u/s 20 of the Prevention of Corruption Act 1988 can only be drawn after the demand for and acceptance of illegal gratification is proved, in paragraphs 12, & 14 of the judgment held as under:-
12. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 and in the case of B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe . Absence of proof of demand for illegal [email protected].(Crl.)Nos.4729-30 of 2020 gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court. The relevant paragraphs 7, 8 and 9 of the judgment in the case of B. Jayaraj (supra) read as under:
7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. [(2010) 15 SCC 1:
(2013) 2 SCC (Cri) 89] and C.M. Girish Babu v. CBI [(2009) 3 SCC 779: (2009) 2 SCC (Cri) 1].
8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant [email protected].(Crl.)Nos.4729-30 of 2020 to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P−11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P−11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by 38 CRA No.53/2015, IA No.1/2015 the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section
7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.
9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. [email protected]. (Crl.)Nos. 4729-30 of 2020 As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent‖.
The above said view taken by this Court, fully supports the case of the appellant. In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cell phone by the appellant, is not proved beyond reasonable doubt.
Having regard to such evidence on record the acquittal recorded by the trial court is a possible view as such the judgment of the High Court is fit to be set aside.
Before recording conviction under the provisions of Prevention of Corruption Act, courts have to take utmost care in scanning the evidence. Once conviction is recorded under provisions of Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record.
14. For the reasons stated supra, these appeals are allowed and the impugned judgments of conviction dated 28.08.2020 and 22.09.2020 and orders imposing sentence dated 15.09.2020 and 29.09.2020 are hereby set aside. The appellant be released forthwith from the custody, unless otherwise his custody is required in connection with any other case.
39 CRA No.53/2015, IA No.1/2015Ratios of the judgments (Supra) of "K. SHANTHAMMA's" & "N. Vijayakumar's" cases relied by Ld. Counsel for appellant/convict lay down an invariable rule of law and settles the legal position, "that the failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the bribe amount from the person accused of the offence under Section 7&13 of the Act would not entail his conviction thereunder and even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved". Ratios of the judgments (Supra) squarely apply to the facts and circumstances of the case in hand. In the present case PW-1 complainant Ajay Kumar Badyal has not supported the prosecution case in so far as demand by accused/appellant/convict is concerned. Evidence of the complainant in the examination-in-chief is to the extent only that the money was passed on to the accused who counted the same kept it in the pocket of his shirt which were lateron recovered from his possession and the hand wash of accused tested positive/pink, and there is no iota of evidence that accused/appellant demanded bribe money from the complainant. In cross-examination complainant by taking huge summersault has demolished the very core of the prosecution case by testifying, that he had given application to Deep Raj Patwari for issuance of fard, bribe amount of Rs. 2000 was settled with Deep Raj Patwari, Rs. 200 as advance bribe amount was given to Deep Raj Patwari and he handed over the remaining bribe money to Deep Raj Patwari. The evidence of PW-3 Rajeev Singh Salaria (shadow witness) demonstrates that he has not named specifically the appellant/convict demanding the bribe money from the complainant. Furthermore, PW-4 Kulraj Singh (independent witness) has putforth evidence that the complaint EXT-P1 was not against the accused, which was in fact against some other Patwari namely Deep Raj, the complainant had told in his presence that he had paid Rs. 200 to Deep Raj who was caught hold by the trap team and taken with them, the vigilance officials had changed the complaint and made it against Mangat Ram who in his presence neither demanded the bribe money nor accepted it from the complainant. PW-11 Deep Raj Sharma (Patwari Halqua Settlement Mandal Jammu) who as per prosecution story was sitting with appellant/accused in the room in which trap was laid by the 40 CRA No.53/2015, IA No.1/2015 VOJ, has been examined by the prosecution as witness to strengthen it's case against appellant/accused. PW-11 Deep Raj Sharma has been declared hostile by the prosecution, however, in his examination-in-chief he has only deposed to the extent that in the room he was working in one corner whereas Mangat Ram Sharma was working on another corner, two person came to Mangat Ram and had some talks with him whereafter Mangat Ram went outside alongwith them, when Mangat Ram and those two person came in the room and sat there, some persons in civil came there and introduced themselves as Dy.SP Vigilance who in presence of other team members conducted search of the accused and recovered money from left pocket of shirt of accused, the hands of accused were washed and color of solution were turned pink, however, in cross-examination PW-11 Deep Raj Sharma Patwari has specifically stated that the articles regarding which in his statement recorded by the VOJ it has been written that Rs. 1800 was recovered in his presence, and if he had told the VOJ that it is wrongly written then the vigilance people would have locked him, his statement was recorded after 4/5 months of the occurrence. The evidence of PW-11 Deep Raj Sharma (Patwari) clearly demonstrates that appellant/convict did not demand the bribe money from the complainant and the statement made by Deep Raj Sharma regarding recovery of tainted money of Rs. 1800/- from the possession of accused is made by him under duress and fear of arrest by the VOJ. When the complainant himself has disowned what he has stated in his initial complaint (EXT-P1) before VOJ, the prosecution has failed to prove that accused had made any demand, therefore the evidence of PW-1 complainant Ajay Kumar Badyal, the contents of his complaint (EXT-P1) & FIR (EXT-P1/1) coupled with the evidence of PW-3 Rajeev Singh Salaria (shadow witness), PW-4 Kulraj Singh (independent witness) & PW-11 Deep Raj Sharma (Patwari) cannot be relied upon to come to the conclusion that the above material furnishes proof of demand allegedly made by appellant/convict/ accused.
Sh. Raman Sharma Ld. AAG has vehemently portrayed arguments, that PW-1 complainant Ajaya Kumar Badyal & PW-3 Rajeev Singh Salaria (shadow witness) have proved the demand and acceptance of bribe money by accused from the complainant, accused was caught red handed with currency notes, no reasonable explanation 41 CRA No.53/2015, IA No.1/2015 came forth from the accused as regards the recovery of the notes that may rebut the presumption, therefore, the condition precedent for drawing statutory presumption u/s 20 of the Act is attracted, which means that prosecution has proved the guilt of accused beyond hilt, whereby, the conviction and sentences rendered by the trial court dated 15-12-2015 need to be maintained/affirmed. Now, I would like to appreciate the case laws referred to me by Ld. AAG for respondent to find out, whether in the facts and circumstances of the case, the principles of law deduced therefrom apply to the arguments/case projected by the Ld. AAG.
In B. Noha Vs. State Of Kerala and Anr. [Appeal (Crl.) 1122 of 2006 decided on 06-11-2006] relied by Ld. Counsel for respondent, Hon'ble Supreme Court maintained the conviction on the ground that the accused had demanded and accepted the bribe amount from the complainant.
In N. Narsinga Rao Vs State of Andhra Pradesh [Appeal (Crl.) 719 1995 decided on 12-12-2000, relied by Ld. Counsel for respondent, Hon'ble Supreme Court maintained/affirmed the conviction and sentence imposed upon the appellant by the trial court for rigorous imprisonment for 2 years and fine of Rs. 2000/- on the ground that the prosecution had proved that the appellant/convict had received the gratification from complainant PW-1 and legal presumption was drawn that such gratification was accepted as a reward for doing the public duty.
In AIR 2015 SUPREME COURT 1206 (Vinod Kumar Vs. Satte of Punjab), relied by Ld. Counsel for respondent, Hon'ble Supreme Court affirmed the conviction of the appellant and dismissed the appeal on the ground that the prosecution case was proved in it's entirety about the demand, acceptance and recovery of bribe money from the accused.
In AIR 2015 SC (Supp) 1956 (Nayankumar Shivappa Waghmare V State of Maharashtra) relied by Ld. Counsel for respondent, the trial court acquitted accused/appellant from charges of offences punishable u/s 7 & 13(1) (d) r/w Section 13 (2) of Prevention of Corruption Act 1988, High Court came to the conclusion that trial court has erred in law in acquitting the accused giving him benefit of doubt and imposed punishment of 1 year rigorous imprisonment and fine of 10000 to the 42 CRA No.53/2015, IA No.1/2015 accused. In appeal by the appellant, Hon'ble Supreme Court upheld the conviction and sentence imposed by the High Court by observing that prosecution has proved that accused had demanded Rs. 1000/- from PW- 9 for clearance of amount of GPF.
In AIR 2020 SUPREME COURT 1797 [Vinod Kumar Garg V. State (Government of National Capital Territory of Delhi)] also relied by Ld. Counsel for respondent, Hon'ble Supreme Court upheld the conviction of appellant imposed by Special Judge Delhi dated 27-03- 2002 sentencing him to undergo rigorous imprisonment for 1 ½ year and fine of Rs. 1000 on the grounds, that statutory presumption u/s 20 of the Act was attracted as the condition precedent to draw such legal presumption that accused has demanded and was paid the bribe money has been proved and established by the prosecution.
The judgments (Supra) relied by Ld. AAG also make the legal proposition abundantly clear, that the proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing offences u/ss 5(1) (d) r/w 5(2) PC Act r/w 161 RPC and in absence thereof the charge would fail, and the presumption u/s 20 of the Act can be drawn only after demand for an acceptance of illegal gratification is proved. The evidence of prosecution in the nature of PW-1 complainant Ajay Kumar Badyal, PW-3 Rajeev Singh Salaria (shadow witness), PW- 4 Kulraj Singh (independent witness) & PW-11 Deep Raj Sharma (Patwari) as discussed above, cannot be relied upon to come to conclusion that the demand of bribe made by appellant/convict has been proved. Therefore, I am inclined to hold that Ld. Trial Court was not correct and landed itself in error in holding the demand alleged to be made by accused as proved. The only other material available is the recovery of tainted currency notes from the possession of accused. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence u/ss 5(1)(d) r/w Section 5(2) PC. Act r/w Section 161 RPC.
11. The 2nd argument portrayed by Ld. Counsel for appellant/convict/ accused is, "that the hand wash of accused has not been proved by the prosecution."
As per prosecution story, hand wash of accused prepared on spot on 04-06-2007 was pink colored. EXT-P1/3 is seizure memo of the hand 43 CRA No.53/2015, IA No.1/2015 wash of the accused prepared by the I/O on spot on 04-06-2007 in presence of witnesses viz; PW-1 complainant Ajay Kumar Badyal, PW- 3 Rajeev Singh Salaria CDPO Vijaypur (shadow witness) & PW-4 Kulraj Singh CDPO Khour (independent witness). PW-1 complainant Ajay Kumar Badyal in his deposition before the trial court has deposed that the bottles shown to him in the court contain white colored solution. PW-2 Mahadeep Singh Jamwal (TLO) has stated in the court that the solution which he saw in the court, it's color has faded. PW-3 Rajeev Singh Salaria CDPO Vijaypur (Shadow witness) has deposed that both the bottles present in the court and shown to him contain milky colored compound. PW-4 Kulraj Singh CDPO Khour (independent witness) has not been shown the hand wash EXT-P1/3 (bottles) in the court. PW-7 Neeraj Sharma Constable (witness to trap proceedings) in his deposition has stated that the solution in the two bottles shown him in the court is not pink. It is reiterated here, that regarding the pink colored hand wash of the accused, the aforesaid prosecution witnesses have putforth highly contradictory and distorted versions before the trial court, and none of them have corroborated the prosecution case that the hand wash of the accused shown to them in the court was pink. The glaring contradictions emerging out in the depositions of aforesaid prosecution witnesses shake the very truthfulness of the entire edifice of the prosecution case, meaning thereby, that the prosecution has failed to substantiate the charges against appellant/convict/accused.
12. The 3rd argument putforth by Ld. Counsel for appellant/convict/ accused is, "that there are glaring contradictions in the depositions of PWs 6&7 Uksha Anand constable No. 75/SVO & Neeraj Sharma constable PRK Wing VOJ in regard to the dusting of Phenolphthalein (P) powder on the currency notes which demolishes the very foundation of the prosecution case".
It is noteworthy to mention here, that as per the prosecution story depicted in the charge sheet laid in the trial court in terms of section 173 Cr.pc, the currency notes of Rs. 1800/- produced by the complainant were treated with Phenolphthalein (P) powder by constable Uksha Anand No. 75/SVO. PW-6 Uksha Anand (reader to SSP PRK VOJ, witness to trap proceedings) has corroborated the prosecution version by tendering evidence before the trial court that he was directed 44 CRA No.53/2015, IA No.1/2015 to dust the currency notes of Rs. 1800/- with Phenolphthalein Powder. PW-7 Neeraj Sharma (constable PRK Wing VOJ Jammu, witness to trap proceedings) has demolished the very edifice of the prosecution case and the evidence putforth by PW-6 Uksha Anand by tendering highly contradictory evidence before the trial court by testifying that he dusted the P-Powder on the currency notes, again deposes that the notes were dusted with P-Powder by witness Rajeev, but again on court question deposes that P-Powder was dusted on the currency notes by Ct. Uksha Anand. The glaring contradictions emerging out in the evidence of PW-6 Ct. Uksha Anand & PW-7 Constable Neeraj Sharma in regard to the dusting of the P-Powder upon the currency notes when both of them were the eyewitness to the effect of dusting of currency notes with P- Powder, cast serious doubt upon the credibility & genuineness of the prosecution case, meaning thereby, that the allegations against the accused are false, untrue and unworthy of reliance.
13. The 4th argument canvassed by Ld. Counsel for appellant/convict/ accused is, "that the inordinate delay in recording the statements of prosecution witnesses by the I/O during the course of investigation of the case loses the significance and credibility and demolishes the very edifice of the prosecution case". It is vehemently argued, that the trap against accused was laid on 04-06-2007 on the complaint of PW-1 Ajay Kumar Badyal (complainant) and FIR No. 15/2007 was registered against appellant/convict/accused on the same day of 04-06-2007 at 1100 hours in VOJ Jammu for commission of offences u/ss 5(2) J.K. P.C. Act r/w Section 161 RPC, however, the statements of prosecution witnesses viz; PW-1 Ajay Kumar Badyal (complainant), PW-2 Mahadeep Singh Jamwal Dy.SP PRK Wing VOJ Jammu Incharge trap team (TLO), PW-3 Rajeev Singh Salaria (shadow witness), PW-4 Kulraj Singh (independent witness), PW-5 Neetan Sharma Constable, PW-6 Uksha Anana constable, PW-7 Neeraj Sharma constable, PW-9 Madan Lal Choudhary Inspector PRK Wing VOJ Jammu, PW-10 Dev Raj Khajuria (Naib Tehsildar) & PW-11 Deep Raj Sharma (Patwari) have been recorded after an inordinate delay of 15 days, 37 & 38 days, more than 45 days, 36 days, 38 days, more than 45 days, 59 days & 4/5 months (120/150 days) respectively, and therefore, the prosecution case loses its significance and credibility, whereby, the testimonies of the 45 CRA No.53/2015, IA No.1/2015 prosecution witnesses become unreliable and no conviction can be recorded on their testimonies. Reliance is placed on, (i) 2017 CRI. L.J 169 (SUPREME COURT) (Harbeer Singh v. Sheeshpal and others) &
(ii) 2003 (3) JKJ 506 HC (DB) [Prem Singh & Anr. Versus State of J&K].
In 2017 CRI. L.J 169 (SUPREME COURT) (Harbeer Singh v. Sheeshpal and others) Hon'ble Supreme court of India while acquitting the accused for commission of offence of murder u/s 303 IPC on the ground of recording of the delayed statements of prosecution witnesses by the investigating officer of the case, in paragraphs 15, 16 & 17 of the judgment held as under:-
15. We have given careful consideration to the submissions made by the parties and we are inclined to agree with the observations of the High Court that PW3 and PW9 were not witnesses to the alleged conspiracy between the accused persons since not only the details of the conversation given by these two prosecution witnesses were different but also their presence at the alleged spot at the relevant time seems unnatural in view of the physical condition of PW9 and the distance of Sheeshpal's Dhani from Sikar road. Besides, it appears that there have been improvements in the statements of PW3. The Explanation to Section 162 Cr.pc. provides that an omission to state a fact or circumstance in the statement recorded by a police officer under Section 161 Cr.P.C., may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. Thus, while it is true that every improvement is not fatal to the prosecution case, in cases where an improvement creates a serious doubt about the truthfulness or credibility of a witness, the defence may take advantage of the same. [See Ashok Vishnu Davare Vs. State Of Maharashtra, (2004) 9 SCC 431; Radha Kumar Vs. State of Bihar (now Jharkhand), (2005) 10 SCC 216; Sunil Kumar Sambhudayal Gupta (Dr.) & Ors. Vs. State of Maharashtra, (2010) 13 SCC 657 and Baldev Singh Vs. State of Punjab, (2014) 12 SCC 473]. In our view, the High Court had rightly considered these omissions as material omissions amounting to contradictions covered by the Explanation to Section 162 Cr.pc. Moreover, it has also come in evidence that there was a delay of 15-16 days from the date of the incident in recording the statements of PW3 and PW9 and the same was sought to be unconvincingly explained by reference to the fact that the family had to sit for shock meetings for 12 to 13 days. Needless to say, we are not 46 CRA No.53/2015, IA No.1/2015 impressed by this explanation and feel that the High Court was right in entertaining doubt in this regard.
16. As regards the incident of murder of the deceased, the prosecution has produced six eye-
witnesses to the same. The argument raised against the reliance upon the testimony of these witnesses pertains to the delay in the recording of their statements by the police under Section 161 of Cr.pc. In the present case, the date of occurrence was 21.12.1993 but the statements of PW1 and PW5 were recorded after two days of incident, i.e., on 23.12.1993. The evidence of PW6 was recorded on 26.12.1993 while the evidence of PW11 was recorded after 10 days of incident, i.e., on 31.12.1993. Further, it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The Court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the Court. [See Ganeshlal Vs. State of Mahrashtra, (1992) 3 SCC 106; Mohd. Khalid Vs. State of W.B., (2002) 7 SCC 334; Prithvi (Minor) Vs. Mam Raj & Ors., (2004) 13 SCC 279 and Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1].
17. However, Ganesh Bhavan Patel Vs. State Of Maharashtra, (1978) 4 SCC 371, is an authority for the proposition that delay in recording of statements of the prosecution witnesses under Section 161Cr.P.C., although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case.
[See also Balakrushna Swain vs. State of Orissa, (1971) 3 SCC 192; Maruti Rama Naik Vs. State of Mahrashtra, (2003) 10 SCC 670 and Jagjit Singh Vs. State of Punjab, (2005) 3 SCC 68]. Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution case.
In 2003 (3) JKJ 506 HC (DB) [Prem Singh & Anr. Versus State of J&K], Division Bench of J&K High Court while acquitting the accused for commission of offence of murder u/s 302 RPC on the ground of delayed recording of statement of eyewitness, in head note of the case law & in paragraphs 11,12, & 14 of the judgment held as under:-
Criminal Trial Murder-FIR-Contradiction as to lodging of - prosecution case that oral report lodged while prosecution witness stated that FIR was written by witness Ghulam Nabi who handed it over to PW Sakhi Mohd. for presenting before Police- No written complaint on record -Statement of eyewitness u/s 161 Cr.pc recorded after one month and 20 days of murder-Loses legal significance and credibility.47 CRA No.53/2015, IA No.1/2015
Criminal Trial Murder - Contradiction in prosecution story and report of expert as to weapon used-Forensic Lab. Expert opining that gun shot fired from deceased's gun whereas prosecution case that accused fire from his gun
-This vital defect smashes whole case of prosecution. Criminal Trial Murder-Conviction on uncorroborated testimony of solitary eyewitness
-Unsustainable.
11. Another damaging circumstance to the case of the prosecution is that the statement of PW Ghulam Mohi-ud-Din was recorded on 13.12.1997 after a period of one month and 20 days of the occurrence. This witness was available but the statement could not be recorded and reason therefore has also not been explained.
According to this witness, he sent his son Shakhi Mohd to lodge a report written by PW Ghulam Nabi, Chowkidar who is his brother. He has further stated that he saw the accused taking the deceased from Walnut trees to the place of occurrence. One accused had caught hold the deceased from the arms and the other from legs. This incident was narrated by him to Ghulam Nabi, Chowkidar In police statement he has stated quite differently. There is no written complaint on record. His statement has been recorded after a period of one month and 20 days and from the evidence, it is manifest that he has remained tight lipped for the said period and did not disclose this fact to the police till his statement was recorded Under Section 161 Cr.pc. PW Ghulam Nabi has not corroborated him, as a result of which his evidence cannot be relied upon for recording conviction. It is settled principle of law that if a statement is recorded after a long delay, it loses its legal significance and credibility. Learned counsel for the appellants in support of this plea has relied upon judgments delivered in cases titled Balakrishna Swain v. State of Orissa, (AIR 1971 SC 804) Ganesh Bhavan Patel and Anr. v. State of Maharashtra, (AIR 1971 SC
135) and Satnam Singh v. State of Rajasthan (AIR 2000 SC 423). Defence counsel has also relied on judgment delivered in case titled Chanchal Kumari and Ors. v. Union Territory, Chandigarh, (AIR 1986 SC 752).
12. Ghulam Mohi-ud-Din is the only eye witness to prove the charge of murder. Testimony of solitary witness is very important from the point of accused and prosecution both. This witness remained tight lipped for over one and half month and assuming that he disclosed it to Ghulam Nabi Chowkidar, his version has not been supported by the said prosecution witness. Therefore, this witness cannot be said to be reliable witness and no conviction can be recorded on his solitary testimony.
14. For the aforesaid reasons, we are of the considered view that the learned trial court has not looked to these aspects of the case, as a result of which has come to erroneous conclusion in holding the accused guilty of commission of offence. The judgment of trial of the trial court, therefore, cannot be maintained and is set aside and the accused- appellants are acquitted of the charge. Bail bonds are discharged. From the ratios of judgments (Supra), the legal position which emerges is, that it is settled principle of criminal jurisprudence that mere delay in recording statements of prosecution witnesses cannot be a ground itself for throwing away the entire prosecution version, however, the court has further to seek explanation for delay and check the truthfulness of the version to inquire, and if the court is satisfied then the case of 48 CRA No.53/2015, IA No.1/2015 prosecution cannot fall on this ground. Now, I proceed to test the credibility of the delayed recording of the statements of prosecution witnesses aforesaid in the case in hand on the touch stone of the aforesaid principle and evaluate and scrutinize the evidence on record with the object of assessing whether the delay in recording of statements of prosecution witnesses has been satisfactorily explained. It is noteworthy to mention here, that the statements of all the prosecution witnesses have been recorded under the scheme of Section 161 of Code of Criminal Procedure by the investigating officer (I/O) PW-12 Parshotam Lal Sharma after much/much delay from the date of trap/occurrence of 04-06-2007. Statements of PW-1 Ajay Kumar Badyal (complainant) & PW-2 Mahadeep Singh Jamwal Dy.SP PRK Wing VOJ Jammu Incharge trap team (TLO) have been recorded during investigation u/s 161 Cr.pc by I/O on 19-06-2007 after a delay of 15 days of occurrence. Statement of PW-3 Rajeev Singh Salaria (shadow witness) has been recorded by the I/O on 10-07-2007 after a delay of 37 days of occurrence. Statement of PW-4 Kulraj Singh (independent witness) has been recorded on 12-07-2007 by I/O after a delay of 38 days. Statement of PW-5 Neetan Sharma Constable has been recorded on 19-07-2007 & 23-07-2007 by I/O after a delay of more than 45 days of occurrence. Statement of PW-6 Uksha Anana constable has been recorded by I/O on 10-07-2007 after a delay of 36 days. Statement of PW-7 Neeraj Sharma constable has been recorded by I/O on 12-07-2007 after a delay of 38 days of occurrence. Statement of PW-9 Madan Lal Choudhary Inspector PRK Wing VOJ Jammu has been recorded by I/O on 19-07-2007 & 23-07-2007 after a delay of more than 45 days of occurrence. Statement of PW-10 Dev Raj Khajuria (Naib Tehsildar) has been recorded by I/O on 03-08-2007 after a delay of 59 days & statement of PW-11 Deep Raj Sharma (Patwari) has been recorded by I/O after a delay of 4/5 months (120/150 days) of the occurrence. It is apt to mention here, that the aforesaid witnesses are eyewitnesses to the trap laid against appellant/accused on 04-06-2007. None of the aforesaid witnesses nor the I/O of the case have furnished any plausible explanation before the trial court during the recording of the evidence of these prosecution witnesses regarding the recording of their delayed statements by I/O which gives rise to grave suspicion regarding the 49 CRA No.53/2015, IA No.1/2015 credibility and genuineness of the prosecution case. If the delay in recording the statements of prosecution witnesses by the I/O is not explained satisfactorily, the evidence of prosecution witnesses is, therefore, not truthful, reliable and trustworthy, and their presence on spot becomes highly unnatural, which casts serious doubt upon the genuineness and creditworthiness of the prosecution case. For the delayed statements of the prosecution witnesses aforesaid recorded by the I/O, the prosecution case loses its significance and credibility, meaning thereby, that the witnesses cannot be said to be reliable witnesses and no conviction can be recorded on their testimonies.
14. I am conscious of the fact that corruption in a civilized society is a disease like cancer, which, if not detected in time, is sure to led to the disastrous consequences. Corruption is termed as a plague. It is also termed as a royal thievery and the socio-political system exposed to such a communicable disease is likely to crumble in its own weight. The evil of corruption has persistently crept into various levels despite the stringent history of the Act since 1947 and this hydra-headed dragon of corruption has to be lynched at the earliest or it is likely to cause turbulence shaking the socio-economic fabric. But at the same time, equally important is that an individual, who is booked in Corruption Act case, should not be punished without testing his case on the touchstone of judicial scrutiny, as it is not only the accused who goes to jail with the stigma of being a corrupt official, it has its far reaching effect on the entire family. The person does not only lose his livelihood but earns ignominy also. Therefore, the court is expected to be very careful and circumspect keeping in view that a corrupt does not go scott-free and the innocent is not taken to task at the whims of someone. These cases are to be judged on a very sensitive platform of judicial scrutiny. The said exercise has been done by me in the case in hand, and thereafter, only I have come to the conclusion that the prosecution case is not proved to the hilt against the appellant/convict/accused.
15. In the present case, on a cumulative reading and appreciation of the entire evidence on record, I am of the considered view, that the case of the prosecution, thus, suffers from proven improbabilities, infirmities, contradictions, and therefore, the testimonies of prosecution witnesses are not reliable and worthy of credence.
50 CRA No.53/2015, IA No.1/201516. As a sequel to aforesaid discussion, the net result is, that the prosecution in the case in hand has miserably failed to prove the demand of bribe money made by appellant/convict from the complainant which is sine qua non for establishing offence U/S 5(1 (d) r/w S. 5(2) PC Act 2006 r/w Sections 161 RPC. The failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the appellant/convict in the case in hand would not entail his conviction, and even the presumption u/s 4 of J&K Prevention of Corruption Act 2006 (1949 AD [which is parameteria to Section 20 of the PC Act 1988 (Central)] that the appellant/convict/accused has accepted gratification other than legal remuneration cannot be drawn. The Ld. Trial Court is, therefore, not correct and has landed in error in holding the demand alleged to be made by the accused as proved. From the above discussion, the demand and acceptance of bribe is doubtful and mere recovery of tainted notes from the possession of accused is not enough, rendering the whole prosecution story doubtful entitling the accused benefit of doubt. The witnesses examined by the prosecution, have not been able to putforth in their evidence a ring of truth, so as to inspire confidence in this court. Evidence of prosecution witnesses, is therefore, qualitatively and quantitatively insufficient to bring home the guilt of appellant/convict for commission of the offences indicted against him. This renders the entire story of prosecution as incredible and unbelievable in the manner projected by the prosecution. On proper assessment, evaluation and estimation of the evidence adduced by the prosecution, the evidence appears to be weak, fragile, lacking in credibility, does not prove connecting link between the accused and commission of offences. It would be highly dangerous and hazardous to hold the appellant/convict guilty of offences alleged against him on the basis of weak, shaky and unacceptable evidence. The whole case of the prosecution, therefore, becomes doubtful. For the foregoing reasons and discussion, I am of the considered view, that prosecution has miserably failed to prove the guilt of the appellant/convict beyond reasonable doubt for commission of offences u/s 5(1) (d) r/w Section 5(2) r/w Section 161 RPC. The criminal conviction appeal, therefore, deserves to be allowed and the same is allowed. Resultantly, the impugned judgment of conviction and order of sentence dated 18-12-2015 rendered by the 51 CRA No.53/2015, IA No.1/2015 court of Ld. Special Judge Anti-Corruption Jammu based on surmises, assumptions and presumptions is unsustainable in the eyes of law and the same is set aside/quashed. Appellant/convict Mangat Ram Sharma S/O Sh. Swami Dass R/O Village Nor-Jagir Tehsil Akhnoor District Jammu, who is presently on bail, is therefore, cleanly acquitted of the charges leveled against him for commission of offences u/s 5(1) (d) r/w Section 5(2) r/w Section 161 RPC. He shall stand discharged from his bail and personal bonds. Seized case property shall be destroyed after the period of appeal is over. Criminal conviction appeal is disposed of, and after due compilation under rules, shall be consigned to record. Record of the trial court be sent back forthwith alongwith copy of the judgment for information of the trial court.
17. Disposed of accordingly.
(Mohan Lal) Judge Jammu:
27-06.2022 Vijay Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No