Orissa High Court
Narendranath Das vs State Of Orissa on 20 March, 2002
Equivalent citations: 2002(II)OLR47
Author: B.P. Das
Bench: B.P. Das
JUDGMENT B.P. Das, J.
1. This appeal is directed against an order passed by the learned Special Judge, Bhubaneswar in T. R. Case No. 16 of 1985 convicting the appellant for the offences punishable under Section 161 of the I.P.C. and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (here-in-after referred to as the 'Act') and sentencing him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/- in default, to undergo further rigorous imprisonment for six months under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act. However, considering the ingredient of Section 161, I.P.C. and parallel provisions of the Prevention of Corruption Act, no separate sentence has been awarded.
2. The case of the prosecution in short is as follows :
The appellant was a public servant and while posted as the Officer-in-charge of Gangapur Police Station, in the district of Ganjam, on 18.10.1983, at about 10. P.M., he found that one Simachal Biswal, who subsequently became the informant and decoy in the present case and his friends were gambling in the village. The said Simachal Biswal was apprehended by the present appellant on the allegation of gambling and a case was registered under Section 3 of the Orissa Prevention of Gambling Act. It is further alleged that the present appellant threatened the accused Simachal Biswal to put him in the lock up at the police station but after a lot of persuasion, the appellant allowed him to go with direction to come to the police station along with his friends on the following day. Accordingly, Simachal Biswal along with his friends went to the police station on 19.10.1983 in the morning and there the present appellant demanded Rs. 300/- from him as illegal gratification by giving him to understand that he would be released and shall not be taken into custody. Finding no other way out, Simachal Biswal (P.W.1) negotiated with the appellant who reduced his demand to Rs. 250/- which was agreed to be paid on the date fixed with the promise from the appellant that he would help him in the case instituted under Section 3 of the O.P.G. Act. Accordingly, one Jayaram Khatei (P.W.2) stood as surety in the police station for P.W. 1, Bipra Ch. Dakua and Gopinath Swain who were released on bail. After being released, P.W.1 and other villagers while returning to their village. decided to bring the fact of demand of illegal gratification by the appellant to the notice of the Vigilance Department. Accordingly, on 22.10.1983 at 2.30 P.M. a written report was presented by P.W. 1 before the Superintendent of Police, Vigilance, Berhampur, who directed the O.I.C., Vigilance P.S. Berhampur to register a case against the appellant. Inspector P.K. Sahu of Special Squad was directed to lay a trap and to investigate the case. On the same day at 4.30 P.M. a demonstration showing the formalities of the trap was made by the I.O. in presence of two Gazetted Officers, P.W. 1 and the over-hearing witness P.W.2. In presence of all the trap party members, the informant narrated his grievances. Use of phenolphthalein powder and its chemical reaction with sodium carbonate solution was shown to the trap party members. The sodium carbonate solution, which is absolutely transparent in its appearance, turned pink when it came in contact with phenolphthalein powder. Thereafter, P.W. 1 gave two hundred and one fifty rupee currency notes, the numbers of which were noted by the Gazetted Officers in two separate sheets of papers independently kept and both of them put their secret initials over the notes in question. The said currency notes were treated with phenolphthalein powder and were handed over to Sri Suresh Chandra Panda, Asst. Settlement Officer (P.W.11) who after handling the notes washed his hand with sodium carbonate solution, the colour of which became pink rose. The notes were then handed over to P.W. 1 with the instruction that he will hand over the same to the accused on demand by the latter. The bailor, Jayaram Khatei, who was also present in the trap team was instructed to accompany P.W.1 so that he, after hearing the conversation and witnessing the transaction of actual payment was to give signal to the vigilance party. Thereafter, the trap party proceeded to Gangapur. After reaching near the police station at 7 P.M. on 22.10.1983, it was found that the Addl. S.P., Berhampur was conducting his official inspection and the accused was busy in attending to the said work. The trap party did not feel it proper and conducive to lay the trap, which was rather practically impossible to be materialised. For the aforesaid reason, it was deferred till 23.10.1983. On the next day after observing a little pre-trap formalities, the trap party proceeded to Gangapur and reached at Gangapur at 10.30 A.M. and learnt that the accused had gone to Bhanjanagar. The trap party apprehended exposure for which they came back to Bhanjanagar and remained in the vigilance office. At about 4 P.M. they left Bhanjanagar for Gangapur after getting information that the accused had proceeded to Gangapur. P.W. 1 and the accompanying witnesses were asked to go to the police station and the other members of the trap party remained at a distance waiting for the signal of P.W.2. At 4.45 P.M., P.W.2 signalled whereafter the trap party rushed to the police station and found the accused sitting in the official chair. P.W.1 and the accompanying witnesses were standing in front of his office table. The I.O. disclosed his identity and confronted the accused that he had received Rs. 250/- as illegal gratification from the decoy-P.W. 1. The accused flatly denied to have received the money which was contradicted by P.W.1 and P.W.2. The I.O. washed the hand of the accused with the help of sodium carbonate solution, but there was no noticeable change in colour. Sample of the said hand wash was preserved in a bottle duly sealed and signed by the members of the trap party. P.W. 1 pointed out the place where the accused had kept the tainted notes. The money was recovered from underneath the table cloth put on the table of the accused from its left side. The portion of the table cloth which came in contact with the tainted notes was also washed with sodium carbonate solution which became dirty in colour. The sample of the said wash was kept in another bottle duly sealed and signed. After the investigation was completed, sanction for prosecution was obtained whereafter charge sheet was submitted against the appellant, who faced the trial for the aforesaid offences.
3. During the course of trial, the prosecution got 13 witnesses examined in order to bring home to charges. The plea of the appellant was one of denial and he specifically stated that P.W. 1 was a school teacher and was involved in a gambling case. As he was a Government servant and was implicated in a case instituted under Section 3 of the O.P.G. Act, apprehending that he may lose his job, he tried to persuade the appellant to exclude his name from the aforesaid case. On his refusal, the appellant has been roped in this case. No defence witness has been examined.
4. Learned counsel for the appellant attacks the order of conviction on several grounds. One of such ground is that the story of the prosecution is totally unbelievable and no credence can be given to the evidence of the decoy who himself is an accused, moreover arrested and released on bail by the appellant. That apart the appellant could not have helped the decoy as he was already arrayed as an accused. Moreover, the hand wash of the appellant taken with the help of the sodium carbonate solution did not result in change of colour.
It is a fact that P.W.1 was arrested on 18.10.1983 along with his associates under the provisions of Section 3 of the Orissa Prevention of Gambling Act and a case was registered under the aforesaid section and a cash of Rs. 237/- was seized from the possession of P.W. 1.
5. The case of the prosecution is that the appellant directed P.W. 1 to come with other accused persons to the police station on 19.10.1983 and thereafter P.W.1 and his other co-accused persons were released on bail after executing a bond on 19.10.1983. But the case of the defence is that the question of calling the accused persons to police station on 19.10.1983 absolutely did not arise because P.W. 1 was released on bail on the spot on 18.10.1983. Though the case of the prosecution is that P.Ws.9 and 10 along with P.W.1 were arrested and taken to Gangapur Police Station on 18.10.1983 and were detained in the hazat on that day, the evidence of P.W. 13 to the effect that during investigation he had perused the Station Diary entry of Gangapur P.S. from 18.10.1983 till 23.10.1983 and the Station Diary Entry dated 18.10.1983 and 19.10.1983, which indicate the absence of detenu at Gangapur Police Station and this is contrary to the statement of P.Ws.9 and 10. This aspect has also remained unchallenged. It is found by the trial Court that there was interpolation in the actual date of execution of bail bond and that 19.10.1983 has been over written as 18.10.1983. But P.W. 13 i.e. the I.O. himself has stated that the bail bond executed by the informant reveals that he had been released on bail on 18.10.1983. Since the apprehension of the accused persons in the gambling case was made in the late night of 18.10.1983, the confusion regarding mentioning of the date i.e. 18.10.1983 or 19.10.1983 in the bail bond cannot be ruled out. The statement of P.W.3 reveals that on the morning of 19.10.1983, P.W. 1 told him that the S.I. of Police, Gangapur Police Station had told him to go to police station by 8 A.M., failing which, he would be taken to custody by putting handcuff for which he along with P.Ws. 1 and 2 went to police station where the appellant told them that he would start a case unless P.W.1 pays a sum of Rs. 300/-. As it appears, by that time the case had already been registered and the accused persons had already been booked. So the allegation that the appellant threatened the accused persons and demanded Rs. 300/- cannot be believed. According to the evidence of P.W.1, when all of them had gone to the police station on 19.10.1983, the appellant asked the constable to put them in the hazat. On being protested, he demanded Rs. 300/- saying that if the money was not paid, he would put them in the hazat. On the other hand, P.W.2 has stated that when they reached the Police Station, the appellant demanded Rs. 300/- and said that unless the demand is fulfilled, he would book them and send to Bhanjanagar Court with hand-cuff. P.W.3 at the same time stated that when they reached the Gangapur Police Station, the appellant said that as they were involved in gambling, he would start a case against them unless they fulfilled his demand of Rs. 300/-. The evidence of P.Ws. 1, 2 and 3 regarding the actual occurrence that took place in the police station on 19.10.1983 is totally contradictory to each other. That apart, non-changing of colour after the hand wash of the accused taken at the police station is again a doubtful circumstance which does not inspire confidence on the face of the evidence of P.Ws. 1 and 2 that the accused himself took the bribe money and kept underneath the table cloth. P.W.13, who is the Investigating Officer, in his evidence has stated that no tangible change in colour was noticed in the sodium carbonate solution to the naked eye. P.W. 11 has also stated that the hand wash of the appellant did not give any colour. Similar is the evidence of P.Ws. 5 and 6.
6. In view of the aforesaid evidence on record and in view of the fact that the decoy (P.W. 1) and the over-hearing witness (P.W.2) are accused in a criminal case initiated under Section 3 of the Orissa Prevention of Gambling Act, their evidence cannot said to be free from doubt to believe that the tainted notes were actually handed over to the accused-appellant. In the light of this conflicting versions and suspicious feature on the crucial aspect, the plea of the appellant that the notes were put below the table cloth without his knowledge does not appear to be improbable. That apart except the decoy and the over hearing witnesses and the other official witnesses, there is no other independent witness to support the case of the prosecution. In view of the fact that the versions of P.Ws. 1 and 2 are shrouded with doubt, I am inclined to give the benefit of doubt to the appellant.
7. Accordingly, the appeal is allowed and the order of conviction and sentence passed by the learned Special Judge. Bhubaneswar is set aside.