Jharkhand High Court
Balram (B.Ram) vs State Of Jharkhand on 18 August, 2009
Author: Pradeep Kumar
Bench: Pradeep Kumar
Cr. Appeal No. 53 of 2002
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Against the judgment and order of conviction and sentence dated 25.1.2002 passed by Sri Devendra Kumar Lal, VIIth Additional Judicial Commissioner-cum-Special Judge ( Vigilance), Ranchi, in Special Case No. 12 of 1988 ( Patna Vigilance P. S. Case No. 38 of 1988) Balram ( B.Ram) .......................................Appellant
-Versus-
The State of Jharkhand ...... Opposite party.
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For the Appellant: Mr. Shailendra Jit.
For the Vigilance: Mr. A. K. Kashyap,
PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR
RESERVED ON 30.6.2009 PRONOUNCED ON 18 /8/2009
Pradeep Kumar, J, This appeal is directed against the order of conviction
and sentence dated 25.1.2002 passed by Sri Devendra Kumar Lal, VIIth Additional Judicial Commissioner-cum-Special Judge ( Vigilance), Ranchi, in Special Case No. 12 of 1988 ( Patna Vigilance P. S. Case No. 38 of 1988), by which judgment the learned trial court found the sole appellant, Balram ( B. Ram) guilty under Section 5(i)(d) of the Prevention of Corruption Act, 1947 read with corresponding to Section 13(i)(d)(ii) of the Prevention of Corruption Act, 1988 and Section 7/13(ii) of the Prevention of Corruption Act, 1988 and sentenced him to undergo R.I. for one year under Section 13(i)(d)(ii) of the Prevention of Corruption Act, 1988 and Section 7/13(ii) of the Prevention of Corruption Act, 1988 each.
2. The prosecution case was started on the basis of a written complaint made by the informant, Sheo Dayal Oraon on 17.8.1988 stating therein that his father had three brothers. His elder uncle had died issueless one year ago leaving behind his wife, who wanted to sell the share of his elder uncle. The informant and his brothers had made objection. Whereupon an inquiry was made by the Anchaladhikari (Circle Officer), Lapung, who had demanded Rs. 2000/- as bribe to give report in their favour.
3. On the basis of the said complaint, a case was registered under Section 5(ii) and 5(i) (d) of the Prevention of Corruption Act. The S.I. (Vigilance) then submitted a written report to the 2 Superintendent of Police (Vigilance), Ranchi on 26th of August, 1988, the day on which the appellant, Balram (B. Ram) received money. The Dy.S.P. (Vigilance) got the number of currency notes, which was to be given to the accused. On the same day the informant and his brothers went in the office of the Circle Officer and gave money to him and brother of the informant left the place. Then, Dy. S. P. (Vigilance) with other team members entered into his office and in presence of independent witnesses the money was recovered from his pocket of the full pant. Thereafter, the fingers of the accused were deeped in the solution of sodium carbonate and after chemical examination, the accused was apprehended and remanded to jail custody. .
4. After investigation the police submitted charge-sheet against the accused-appellant, Balram (B.Ram) and the case was tried by 7th Additional Judicial Commissioner-cum-Special Judge (Vigilance), Ranchi, who found the appellant guilty as aforesaid.
5. It is submitted by the learned counsel for the appellant that the prosecution has failed to prove as to who gave the bribe money to the accused-appellant, Balram ( B. Ram), since as per the evidence of P.W.1, Sanika Oraon he gave the money to the accused-appellant, Balram ( B.Ram) and as per the evidence of P.W.2-complainant, Sheodayal Oraon he gave the money to the accused-appellant and as such giving of bribe itself is doubtful, hence the conviction is bad and fit to be set aside. He has further submitted that no independent witnesses were examined by the Investigating Officer. He has further submitted that the two witnesses who have been shown as independent witnesses were called from their house, hence were reliable and as such the recovery from the possession of the appellant is also doubtful and the same is only fit to be set aside. He has further taken third point that the learned court below has found the accused-appellant guilty under the old Act under Prevention of Corruption Act, but sentenced him under the new Act of 1988, which is also bad in law and hence the conviction of the appellant is fit to be set aside.
6. On the other hand, learned counsel for the Vigilance submits that it will clear from the evidences of P.W.1 & P.W.2 that there is no ambiguity that both brothers went together in the office of the accused- appellant, but both have said that money was given to the accused by P.W.1 Sanika Oraon and as such the argument is fallacious. It will also 3 appear from the evidence of the two independent witnesses that they were called from the market itself and not from the house and as such the argument advanced by the appellant has got no substance. He has further submitted that the provisions of the old Act and the provisions of the new Act are similar and same, and as such there is no ambiguity that the appellant was found guilty by the trial court under Section 5(i) (d) of the Prevention of Corruption Act, 1947, which was punishable under Section 5(2) of the Prevention of Corruption Act, 1947, and the corresponding Section 13(i)(d)(ii) of the Prevention of Corruption Act, 1988 and Section 7/13(ii) of the Prevention of Corruption Act, 1988 are similar and as such there is no illegality on that count.
7. After hearing both the parties and going through the record, I find that in course of trial the prosecution has examined 25 witnesses. P.W.1 is Sanika Oraon and P.W.2, Sheodayal Oraon are complainant and his brother. P.W.3, Garbet Hembrom is the S.I., Vigilance Department. P. W. 4, Bhola Sharma, S.I. (Vigilance). P.W.5, Laxmi Narain Singh, S.I. (Vigilance). P.W.6, Bhagwan Singh, S.I. (Vigilance). P.W.7, Blacious Toppo is a witness , A.S.I. (Vigilance). P.W.8, Shri Brajnandan Pd. Singh, Commandant, P.W.9, B. R. Das, Dy. S. P.(Vigilance). P.W.10, Sarju Ram, Dy. S. P. (Vigilance). P.W.11, Siyasaran Yadav is a watcher. P.W.12, Ledra Oraon is the cultivator. P.W.13, Ram Suresh Nandan Prasad. P.W.14, Bishwanath Singh, Dy.S.P. (Vigilance), who proved the F.I.R. P.W.15, Birsa Oraon, P.W.16, Etwa Oraon & P.W.17,Dasha Oraon who are the brother of Sanika Oraon have been tendered for cross- examination. P.W.18, Maheshwar Pd. Mishra is the Special Magistrate in whose presence a raid was conducted. P.W.19, Md. Ayub is the Expert of Forensic Science Laboratory. P.W. 20, Ravindra Das and P.W.21,Sheonarayan Gope are so-called independent witnesses. P.W.22, Biglal Uraon, Dy.S.P.(Vigilance) and Investigating Officer of the case. P.W.23, Zahir Ahamad, S.I. (Vigilance), P.W.24, Ramnath Prasad, who was Typist, has proved the sanction order for prosecution of the accused and P.W.25, Satish Hembrom, who had made part investigation, has submitted charge-sheet. Apart from these 25 witnesses the defence has also examined two witnesses. D.W.1, Awadhesh Kumar Singh and D.W.2, Syed Khurshid Ahamad.
48. The important witnesses to be discussed for coming to a finding that the prosecution has proved the charges beyond reasonable doubt or not, are P.W. 1 and P.W.2 the complainant and his brother P.W.22, Biglal Uraon, who was main Investigating Officer and was posted as Dy.S.P. (Vigilance), Ranchi and P.W.25, Satish Hembrom is part Investigating Officer of the case, submitted charge-sheet in the case. P.W.3, Garbet Hembrom, who received the complaint and submitted inquiry report to the Dy. Superintendent of Police ( Vigilance). P.W.8, Shri Brajnandan Pd. Singh, Additional S.P. (Vigilance) and P.W.9, B. R. Das, Dy. S. P.(Vigilance) and P.W. 20 and P.W.21, the independent witnesses, in whose presence the raid was conducted and P.W.18, Maheshwar Pd. Mishra is the Special Magistrate in whose presence the recovery was made.
9. First, I will discuss the evidences of complainant- P.W.2 and his brother-P.W.1. P.W.2-complainant stated, in his evidence, in Court that Chari Uraon was his elder father, who died issueless one year ago leaving behind his wife, Deori Uraon, who wanted to sell the ancestral land and applied for permission to sell. As such, the informant and his brothers filed objection and the same was sent for inquiry to the office of the Circle Officer, Lapung. They received notice from the office of Circle Officer, Lapung. As per the notice they went to the office of the Circle Officer and met with him. The Circle Officer told that if they want to keep the ancestral land then they will have to pay Rs. 2,000/- then the inquiry report will be sent in their favour, otherwise the report will go against them. Then, they said that they will arrange the money in order to give. Thereafter, he stated that the informant came to the office of the Vigilance, Ranchi, gave a complaint on 17.8.88, which was written in hand and under signature. He proved the same as Ext.-1. Then, on 18.8.88 a staff of Vigilance Department, namely, Gorbett Hembrom came to Lapung and went to the office of the Circle Officer, Lapung along with them. They again went to the office of the Circle Officer then, the Circle Officer Saheb asked them as to when they would pay the money. On 20.8.88 the informant along with his brothers and Vigilance staff, Gorbett Hembrom went to the office of the Circle Officer and gave Rs. 1,000/-. The Circle Officer took Rs. 1,000/- . Thereafter, the Circle Officer asked them as to when they would pay the rest Rs. 1000/- They said that they have no money at the present. They would sell grains, hen and she-goats, then they 5 would come. Then, the Circle Officer asked them to bring the rest amount on 26.8.88. Thereafter, on 26th August, 1988 they came to the office of Circle Officer along with currency notes of Rs. 1000/-. They produced ten currency notes of Rs. 100/- denomination. The Superintendent of Police (Vigilance) asked them for money then, they gave Rs. 1,000/- of 100 rupees each. Then the Superintendent of Police signed over the notes and gave back and said that when the Circle Officer will demand then they will give this money. A paper was also prepared in which the number of notes were recorded, which he signed. He proved the signature on the said paper which is Ext.- 2/1. Thereafter about 17-18 staffs of the Vigilance Department, went in a car and van to Circle Officer, Lapung. The vehicles were stopped about ½ kilometer before Lapung at village Kusum Vally and on foot 2-3 persons started to go towards the office of the Circle Officer then the staffs of Vigilance were near about the office. The informant and his brothers entered into the house then the Circle Officer asked as to whether they brought the money then, his brother, Sanika Uraon brought out Rs. 1000/- and gave it to the Circle Officer, which the informant had given Rs. 1,000/- of notes of 100/- each to the Superintendent of Police (Vigilance). After giving the money the informant and his brother, Sanika Uraon left the office. Thereafter he was informed that Vigilance staffs entered into the office of Circle Officer and recovered Rs. 1000/- from the possession of the Circle Officer Saheb. In his cross-examination, he stated that from Sumara Uraon he was informed that his elder uncle's wife, Deori Uraon has given application for selling their ancestral land. Then, they gave their objection at Ranchi. They also gave objection petition in the office of Circle Officer, Lapung. At para 45, in his cross-examination, he stated that when they gave Rs. 1000/- for the first time then, he had shown the notes to Gorbett Hembro. The staffs from Vigilance Office they had given the money by jointly collecting the same from his brother. He stated that the Vigilance people had arrested the Circle Officer and taken him into custody. He also stated in para 59 that both times money was given in his presence by his brother, Sanika Uraon This witness P.W.2-complainant has fully been supported by the evidence of P.W.1 his brother, Sanika Uraon. He also stated that his elder mother wanted to sell their property, but Deori Uraon, as per their custom had no right over the property, hence they made objection. They were called by the Circle Officer, Lapung. They 6 gave Rs. 1,000/- twice to the Circle Officer. He also stated in para 9 that the first time the peon of the Circle Officer went inside the office and gave Rs. 1,000/- to the Circle Officer on his table. He also stated that the second time after 15-20 days they again went for giving Rs. 1,000/- and gave the money at his hand. Then, the Circle Officer was arrested by the Vigilance personnel. He also stated that subsequently his statement was recorded by the police.
10. As far as recovery of the money from the possession of the appellant-Circle Officer is concerned, that the main evidence on this point has been given by S.I. Gorbett Hembrom while stated that on 16.8.86 who was posted at Ranchi on 17.8.88 the complainant came and filed a complaint. He proved the complaint as Ext.-1. The office entrusted him for the verification of the said complaint then he went with complainant to Lapung Office on 18.8.88 and by side of the office of Circle Officer the complainant went inside then, Circle Officer had asked him as to why he has not come with his brother. Then, he said that he was in busy in cultivation and asked him to talk to him. At this, the Circle Officer asked him to come with your brothers. Then again on 20.8.88 he came to the office at 11.30 a.m. he saw Sanika Uraon coming with his brother. The, Sanika Uraon went to the office of Circle Officer. Then, Circle Officer asked him to call his brother. He also stated that all the seven brothers have come. Then, Circle Officer called all the seven brothers. They went inside his room. Then, the Circle Officer demanded Rs. 2,000/- from them. The brother of the complainant Sanika Uraon said that he has arranged for Rs. 1,000/- with difficulty and asked him to keep the same. The rest Rs. 1,000/- he will pay after arranging by selling his cattle and rice. Then, the Circle Officer asked him to come with Rs. 1000/- on 26.8.88. Then, he gave his verification report in his office. He proved his verification report and his signature which is Ext. 3. Then, he came back to the Ranchi. He had asked to make arrangements for raid. On 26.8.88 then he made a raid team of which he was also a member. He proved the said team report, which is annexed as Annexure-4. On 26.8.88 they went to Lapung along with complainant and his brother, Sanika Uraon. They had produced the money at Ranchi in the office then memorandum of the money was prepared and phenolphthalein power was also put on the notes and the complainant was asked that on the demand he will give that very money to 7 the Circle Officer. They went to the office of the Circle Officer the complainant entered into the office and gave money to the Circle Officer. The Circle Officer counted the money and kept in his right side pocket and his left side pocket. Thereafter they made necessary signal. Then, all the raiding party entered into the office of the Circle Officer. The Special Magistrate along with Dy.S.P. entered into the office and they gave their identity. The crowed gathered around the Circle Office. Then from the group two independent witnesses were called. The independent witnesses were shown the memorandum of money with number of notes. They also read the memorandum and found it correct. Thereafter, the raiding party including Dy. S.P. searched to the independent witnesses and nothing was found. Then search of Circle Officer was made and from his pocket Rs. 1,000/- as per the memorandum was recovered which was collected by the Magistrate and he signed the memorandum. Then, the hand of Circle Officer and left full pant pocket were washed. Then, the water became pink. Then, seizure of the water was also made. The Circle Officer also signed the seizure-list. He proved the same as Ext.-5. Then, the Circle Officer was arrested. He identified the Circle Officer in Court. The Dy. S.P. made certain inquires from Circle Officer. In his cross-examination, he stated that he was also examined. Subsequently, in para 31 of his cross- examination, he stated that he had seen the complainant and his brother giving money when they saw the Circle Officer keeping the money in his pocket. Then, he gave signal and then they entered into the office of the Circle Officer. He also stated that before recovery of money from the pocket of Circle Officer, the S.P. was also present there. The recovery was made in his presence. P.W.4 also corroborated the evidence of Gorbett Hembro-P.W.3 he stated that in his presence memorandum of notes was prepared, which was in the denomination of 100 rupees each there were 10 notes. Earlier in presence of his staff of Vigilance, Gorbett Hembrom the Circle Officer had taken Rs. 1000/- and demanded Rs. 1000/- more. He stated that the recovery was made in his presence and in presence of the Spl. Magistrate. He was also cross-examined and nothing special has been taken. P.W.5 was tendered. P.W.6, P.W.7, P.W.8, P.W.9, P.W.10 and P.W.11, who were members of the raiding party and they narrated the entire story as disclosed by P.W.2 and they have fully been corroborated the fact while taking Rs. 1,000/- from the complainant The appellant-Circle 8 Officer was caught red -handed and the fact was also proved that the money was received by him and kept in his pocket, which was verified by washing his hand.
11. The other important witness i.e. P.W.18, Special Magistrate (Vigilance), who stated that he was posted as Special Magistrate (Vigilance) at Patna. On 26.8.88 he came in the office of S.P.(Vigilance) at Ranchi and in his presence the complainant came with a G.C.notes of 1,000/- of Rupees 100 each a memorandum was prepared. He proved the signature on memorandum as Ext. 4/5. Then, he left for Lapung along with raiding party then the complainant gave the said money in the office. Then, he along with Dy.P.S. and S.P. entered into the room of the Circle Officer and recovered the said amount in presence of independent witnesses. Thereafter in presence of independent witness the notes were verified from the memorandum of notes prepared earlier in his presence and sodium carbonate water was prepared and when hand of the Circle officer was washed the water became pink. The said water was sent for chemical examination. The left pocket of accused was also washed from the said water that also became pink and the same was also sent for chemical examination. He has also stated that all the G. C.Notes were recovered from the possession of the accused. At para 18, in his cross-examination, he stated that the entire occurrence took place in the office of the accused- Circle Officer. He also stated that he and Mr. Kend together entered the office when Samikcha came out of the office after giving the money.
12. Thus, from the evidence of all these witnesses it has fully been proved that the petitioner was caught red- handed by the raiding party of Vigilance Cell while taking bribe of the complainant-P.W.2.
13. P.W.19, Md. Ayub, who is the Chemist in Forensic Science Laboratory proved the fact that he accompanied with raiding party and he prepared the water to conduct prove that the money was taken by the Circle Officer and kept in his pocket.
P.W. 20, Ravindra Das and P.W.21, Sheonarayan Gope are being independent witnesses, who stated that on hearing Hulla they came near the Circle Office, Lapung they were caught by the vigilance personnel. They entered into room of the Circle Officer then the Vigilance personnel introduced themselves and asked them to read the memorandum of notes which was prepared by them. He signed the memorandum. He 9 proved his signature as Ext. C. All the Vigilance Officers asked them to search their pocket. Thereafter the search was made to the person of the Circle Officer and the money was recovered. He verified the money and also signed on seizure-list. Rest from the office of the complainant his brothers the vigilance staff and the independent witnesses, it is clear that the prosecution has proved the charges against the appellant beyond reasonable doubt.
14. Learned counsel for the appellant has raised three points while arguing the case that independent witnesses were not examined in the case, but as discussed above P.Ws. 20 and 21 who were the independent witnesses were present outside the office of the Circle Office, who were called and in their presence the recovery was made and they were examined in Court also and they have fully supporting the prosecution case. Learned counsel further stated that the two independent witnesses were called from their house, but that is not true, since the witnesses have stated that they were called from the crowed when they had entered there on Hulla that some outsiders have entered the office of the Circle Officer. Learned counsel for the appellant further argued that the appellant exonerated from his departmental inquiry and hence his conviction is bad, but I find no force in the argument. Since, now it has been settled after the judgment of the Hon'ble Supreme Court reported in 2007(14) SCC page 667 in the case of State Vrs. M. Krishna Mohan & others that it is not of any consequence. Learned counsel for the appellant has further argued that the money was not taken by the appellant and it was thrown on the table, but from the evidences of the complainant P.W. 1 & 2 that all the P.Ws. 3, 4, 5, 18 of the Vigilance Department and that of the Special Magistrate and evidence of two independent witnesses P.W. 20 and 21 also the evidence of chemist of the forensic science laboratory P. W. 19, which is clear that the money was taken by the appellant in his hand and then he kept it in his left side pocket. Thereafter the recovery was made by the independent witnesses
15. Thus, I find no merit in the appeal as discussed above since, the prosecution has proved the charges beyond all reasonable doubt. Learned counsel has attempted to create some confusion that the trial of the appellant should have been conducted as per the provisions of Prevention of Corruption Act, 1947 and not as per the provisions of Prevention of 10 Corruption Act, 1988, since; he was sentenced under the new act. I find no ambiguity on this count since the sentence under the old act of section 5(ii) of the P.C.Act and the sentence under Section 13(i) (d) (ii) of the P. C. Act, 1988 of the new Act are same and the learned Magistrate has mentioned the old section and the new section only out of abundance precaution.
16. I find no merit in this appeal and the same is dismissed. The conviction and sentence passed by the trial court is hereby confirmed.
17. The appellant is on bail. His bail bond is cancelled and learned trial court is directed to issue warrant of arrest for his arrest, so that he may serve of the sentence.
[ Pradeep Kumar,J]
Jharkhand High Court, Ranchi
The 18th July, 2009
Jk/NAFr