Allahabad High Court
State Of U.P. vs Pramod Pathak on 8 February, 2017
Author: Harsh Kumar
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 52 Criminal Misc. Leave to Appeal Application No. 32717 of 2017 IN Case :- GOVERNMENT APPEAL No. - 9 of 2017 Appellant :- State Of U.P. Respondent :- Pramod Pathak Counsel for Appellant :- G.A. Hon'ble Harsh Kumar,J.
The application for leave to appeal has been moved by State against the judgment and order dated 27.7.2016 passed by Special Judge (Anti-Corruption) Court No.2, District Gorakhpur, acquitting the respondent Pramod Pathak from the charges under Sections 7 and 13(2) of Prevention of Corruption Act.
The brief facts relating to the case are that Vinod Kumar Yadav, Dy. Superintendent of Police, Anti-Corruption Cell, Gorakhpur caught the respondent Pramod Pathak and Bhism Yadav at the time of taking a bribe of Rs.50/- by each of them from the drivers/owners of Vehicle No.U.P.-32-CN-3864 Mahindra Pick-up and U.P.-32-CN-4413 Tata 207 which were loaded with Gooseberry (Aonla). According to the prosecution case, Mansa Ram and Soni @ Sanjeev, the two drivers of above vehicles accompanied with traders Mohd. Ajiz and farmer Ramdeo Dwivedi reported the first informant that they are fed-up with demand of Rs.50/- from each vehicle by the policemen at Nausad Chauki, upon which the two currency notes of Rs.50/- each one provided by each of them bearing no.5CQ237644 and 1DQ721048 were treated with Phenolphthalein powder and returned after wrapping the notes separately in white papers. It is also alleged that in vehicle no.U.P.-32-CN-3864 Constable Ram Samujh Yadav and in vehicle no.U.P.-32-CN-4413 Constable Chandrabhan Mishra were got seated and Inspector Mahima Pratap Rao accompanied with Inspector Ajay Kumar Rai, Constable Shailendra Kumar Rai and the first informant followed the two vehicles by Government Jeep and when the respondent and another asked for entry fee from the traders of the two vehicles the duly treated two currency note of Rs.50/- were provided by them each one to the respondent and another and the raid team caught them red-handed on the spot and completed the further proceedings.
In order to prove its case, the prosecution has produced P.W.-1 Ramdeo Dwivedi (vehicle owner), P.W.-2 Mansa Ram (driver), P.W.-3 Sanju @ Sanjeev (driver), P.W.-4 Vinod Kumar Yadav (first informant and In-charge of Trap Team), P.W.-5 Mohd. Ajiz (vehicle owner), P.W.-6 Constable Upendra Sharma (Scriber of Chik F.I.R.) and P.W.-7 Lok Nath Yadav (Investigating Officer). Out of the above prosecution witnesses P.W.-1, P.W.-2, P.W.-3 & P.W.-5, who all are witnesses of fact have not supported the prosecution case and have been declared hostile. P.W.-4, P.W.-6 and P.W.-7 are formal witnesses. Upon analysis of evidence on record, the learned Special Judge, (Anti-Corruption) Court No.2, District Gorakhpur, came to the conclusion that from the evidence on record, the charges of offence under Sections 7 and 13(2) of Prevention of Corruption Act have not been proved against the accused-respondent beyond reasonable doubt and consequently the accused has been acquitted. Feeling aggrieved with which the State preferred this appeal with an application for leave to file appeal.
Heard learned A.G.A. and perused the record as well as the impugned judgment of acquittal.
It is settled principle of law that in a case of acquittal if on one point two views are possible and the trial court has taken one in favour of accused, the appellate court shall not interfere with the order of acquittal merely because the other view could have been taken, unless there is a manifest error of law in the impugned judgment, or the trial court has failed to take into consideration any material evidence on record or the impugned judgment suffers from perversity.
The perusal of record shows that the trial court has analysed the evidence on record in detail in paras 6 to 14 wherein it has been observed by trial court that the statement of P.W.-1 is self-contradictory as he has corroborated the prosecution case in his examination-in-chief but has not supported the prosecution case in his cross-examination. P.W.-2 Mansa Ram, the driver of Mahindra Pick-up has stated that he does not drive any vehicle rather carries three wheeled Thela and no proceedings with regard to treatment of notes were ever conducted in his presence. P.W.-3 Sanju @ Sanjeev the alleged driver of another vehicle has also stated that he has never done work as driver rather carries his Thela between Sahabganj and Gupta Transport and even does not know the driving. He has also stated that processing of note was not done before him. Similarly, P.W.-5 the alleged trader on Mahindra Pick-up by whom the duly treated currency note of Rs.50/- was allegedly given to accused as gratification money has also stated that he is an agriculturist and use to do private work on wages and that he had never made any trade of Gooseberry (Aonla) and neither he owned any four wheeler nor he carried the Jeep loaded with Gooseberry (Aonla) on the alleged date of incident. The above witness has also stated that he never seen any policemen taking gratification money of Rs.50/- and has seen the accused in court for the first time.
In view of the above evidence of fact on record, merely on the evidence of formal witnesses the prosecution case may not be considered to have been proved. It is also noteworthy that none of the two constables, who were got seated in each of the two vehicles have been produced by the prosecution, who could have been best witnesses being alleged eye witnesses and no reason has been given for their non-production. It has also been contended that Investigating Officer was in subordination of the first informant and so also the investigation may not be considered to be fair investigation.
In view of the above evidence on record, I find that the trial court has not committed any error of fact or law in coming to the conclusion that prosecution has failed to prove its case against the accused beyond doubt. Learned A.G.A. has not pointed out to any evidence which was ignored by trial court or was misread by the trial court.
It is settled principle of law as held by Hon'ble the Supreme court in the case of K. Prakashan Vs. P.K. Surenderan, (2008) 1 SCC 258 "When two views are possible, appellate Court should not reverse the Judgment of acquittal merely because the other view was possible. When Judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified".
Upon hearing the parties counsel and perusal of record, I have come to the conclusion that learned A.G.A. has failed to show that learned trial court has not considered any evidence on record or has misread the evidence on record or to show any legal infirmities, incorrectness or perversity in the findings given in the impugned order of acquittal and there is no sufficient ground for interfering with or setting it aside the acquittal order and substituting it with conviction order. The application u/s 378 (3) Cr.P.C. has no force and is liable to be dismissed.
The application u/s 378 (3) Cr.P.C. for leave to file appeal is dismissed accordingly and the appeal also stands dismissed.
Order Date :- 8.2.2017 Kpy Order on Memo of Appeal Hon'ble Harsh Kumar,J.
Dismissed.
For order see order of date passed on Application U/s 378 (3) Cr.P.C. for grant of leave to file appeal.
Order Date :- 8.2.2017 Kpy