Madhya Pradesh High Court
Sushil Kumar Jain vs State Of Madhya Pradesh on 20 July, 2006
Author: Rakesh Saksena
Bench: Rakesh Saksena
ORDER Rakesh Saksena, J.
1. Appellant has filed this appeal challenging the judgment dated 31-10-1996, passed by Special Judge, Khandwa, in Special Criminal Case No. 2 of 1995 convicting the appellant for the offence under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and sentencing him to rigorous imprisonment for six months with fine of Rs. 500/- and rigorous imprisonment for one year with fine of Rs. 1,000/- on each count respectively. Sentences directed to run concurrently.
2. Succinctly put the prosecution story is that at the relevant time (year 1988), appellant was posted as Divisional Accountant in Public Works Department, Sub Division, Khandwa. Complainant Karamat Khan, Contractor, had submitted his quotation in the Sub Division Office for collection of metal and murum around one and half month before 17-10-1988. Since the quotation of Karamat Khan was lowest, it was recommended from Sub Division Office. In Divisions Office, Khandwa, his quotation was remained lying with the appellant for about a month. When Karamat Khan contacted accused, he demanded Rs. 600/- as illegal gratification for forwarding the aforesaid quotation. Karamat Khan did not like to pay so much amount to accused, therefore, he negotiated with him and struck a deal for Rs. 300/-. He settled that the amount shall be paid to accused on 17-10-1988. As he did not wish to give the aforesaid bribe, he talked to Dy. Superintendent of Police, Mr. Chauhan, posted in Lokayukt Office, Indore. Karamat Khan submitted a written report (Ex. P-l) to Dy. Superintendent of Police complaining about the demand of illegal gratification by him. Police officials of Lokayukt Department came to Khandwa and requisitioned the services of Executive Magistrate Mr. Shishupal Singh for assisting them in the trap. A demonstration was carried out, currency notes of Rs. 300/- were obtained from the complainant and were treated with phenolphthalein powder and handed over back to him. He was instructed to hand over the currency notes to accused by way of bribe. Numbers of the currency notes were noted. A preliminary Panchnama (Ex. P-2) was prepared. Complainant went to PWD Office, where the accused was posted and handed over money to him, which he kept in the back pocket of his pants. On the signal given by complainant, trap party went at the office. Two Constables caught hold of the hands of accused. His hands were then washed in sodium carbonate solution whereby the colour of the solution turned pink. Sub Divisional Magistrate Shishupal Singh (P.W. 5) recovered currency notes from the pocket of his pants. Pocket of the pants was washed with the solution of sodium carbonate. Number of notes tallied with the numbers noted in the preliminary panchnama. Currency notes were seized and a trap memo (Ex. P-8) was prepared. Documents about concerned quotation were seized from the office. Dehati Nalishi (Ex. P-7) of the occurrence was sent to S.P.E. Office, Bhopal, whereupon First Information Report (Ex. P-28) was registered. After obtaining the sanction for prosecution from the Accountant General of Madhya Pradesh, charge-sheet against accused was put up before the Court.
3. During trial accused pleaded that he was falsely implicated under the pressure of higher officers and that the tainted money was thrusted in his pocket forcibly as a result of which his pocket had got torn.
4. Prosecution examined Karamat Khan (P.W. 1), complainant Riyaz Hussain (P.W. 2), Hari Prasad (P.W. 3), Head Constable, Vitthalrao [P.W. 4 (a)], Constable, Shishupal (P.W. 5), Sub Divisional Magistrate, P.S. Raghuwanshi (P.W. 6), Dy. Superintendent of Police to substantiate the prosecution story. Pradeep Kumar (P.W. 4) was examined to prove the sanction (Ex. P-13) accorded by the then Accountant General of M.P. Complainant Karamat Khan and Riyaz Hussain (P.W. 2) did not support the prosecution, as such they were declared hostile, however, learned Trial Court relying upon the evidence of other prosecution witnesses held the appellant guilty and convicted him as mentioned earlier.
5. Learned Counsel for the appellant Shri S.C. Datt, Senior Advocate, submitted that the prosecution has utterly failed to prove that the appellant had demanded and obtained the illegal gratification. As the complainant Karamat Khan had disowned the complaint (Ex. P-l), there being no evidence on record to prove the demand made by the accused, the essential ingredient of the offence was not proved, as such the conviction of the appellant for the offence under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act is illegal. According to him, there was enough material on record to show that the money was thrusted into the pocket of accused, as a result of which his pocket had also got torn. He submitted that all the witnesses adduced by the prosecution were interested witnesses and no independent witness was examined before the Court. As against this, learned Govt. Advocate Shri S.S. Bisen contended that merely by complainant's not supporting the prosecution at the trial, it cannot be held that the prosecution case was not proved. He submitted that it has been amply established by the evidence of Sub Divisional Magistrate and other police witnesses that accused had obtained the bribe from the complainant for forwarding his quotation. According to him, the finding of conviction arrived at by the Trial Court was justified.
6. On perusal of the evidence of Karamat Khan (P.W. 1) (complainant), it is apparent that he has not supported the prosecution version. He deposed that when he did not receive any intimation about his quotation from the Department, he met Executive Engineer, who asked him to contact Divisional Accountant. Accused Sushil Kumar was posted as Divisional Accountant. He could not meet the Divisional Accountant, but he met some other officers of the department. When he did not get any satisfactory answer from the Executive Engineer, he talked to Dy. Superintendent of Police, Mr. Chauhan, who was posted in the Lokayukt Office, Indore. He said that Executive Engineer demanded the money from him and asked him to meet Divisional Accountant but he did not want to give money. According to him, Dy. Superintendent of Police, Mr. Raghuwanshi came to Bus stand, Khandwa, then he narrated all episode to him. Mr. Raghuwanshi asked him to submit an application, which he wrote down on the dictation of Mr. Raghuwanshi. He deposed that Mr. Raghuwanshi, instructed him to give money to any high officer who may demand the same. When he went to the office of Executive Engineer, he asked whether he had brought money. On his saying yes, he asked him to hand over the money to SSC (Bade Babu) or D.A. When he came out of the office, he did not find Bade Babu then he went into the room of D.A. and thrusted the money into his pocket, as a result of which his pocket got torn. In cross-examination also he admitted that accused did not make any demand of money and if it was mentioned in the report (Ex. P-l), it was wrong. In view of the aforesaid statement made by the complainant, Mr. Datt submitted that there was no evidence before the Court to draw inference that accused had made any demand of illegal gratification. He submitted that the report (Ex. P-l), cannot be used as a piece of substantive evidence. He placed reliance on the law laid down by the Supreme Court in Hasib v. The State of Bihar , wherein it was held:
The object of First Information Report from the point of view of the informant is to set the criminal law in motion. From the point of view of the investigating authorities it is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The report does not constitute substantive evidence though it is important as conveying the earliest information about the occurrence. It can be used only as a previous statement for the purpose contemplated under Section 157 or Section 155 of the Evidence Act, that is for corroborating or contradicting its maker and not of other witnesses.
Learned Counsel also referred to Sankaralinga Tevan v. Emperor AIR 1930 Madras 632 (2), wherein it was held:
But the question is, are we entitled to make use of that evidence at all as substantive evidence ? In our view, statements in the First Information Report can only be used for the purpose of contradicting on corroborating of witness and for no other purpose. If a witness in the sessions trial makes a statement different to that attributed to the witness in the First Information Report, that discredits the evidence of the witness to that extent in the Sessions Court but does not make the statement in the First Information Report the evidence upon that matter in the case.
Thus, it is settled position of law that the First Information Report cannot be used as substantive evidence. Learned Counsel for State, however, placing reliance on Dharmraj v. State of M.P. 1989 (1) Crimes 265, submitted that even if the complainant does not support the prosecution case and turns hostile, it cannot be held that the prosecution case is groundless. The Court can hold the appellant guilty, if the evidence of other witnesses participating in the trap is found reliable. I am in full agreement with the ratio of Dharmraj case (supra), but the question before this Court is that whether there is any other evidence on record to prove that the accused had made a demand of illegal gratification from the complainant. On due consideration of the evidence of complainant Karamat Khan and Riyaz Hussain (P.W. 2), this Court finds no material to show that the accused had made any demand. So far as the submission made by the learned Govt. Advocate that as the report (Ex. P-l) was admitted by the complainant before Hari Prasad (P.W. 3), Head Constable, Vitthalrao [P.W. 4 (a)], Constable, Shishupal Singh (P.W. 5), SDM and Investigating Officer, P.S. Raghuwanshi, it cannot be held that there was no evidence that accused had made the demand, I am of the opinion that in view of the evidence of complainant that the accused had not made any demand and that he had written Ex. P-l on the dictation of Dy. S.P. Raghuwanshi, it cannot be held proved that accused had made the demand. Besides that the contents of the report Ex. P-l could be used only for corroborating the evidence of Karamat Khan given by him before the Court or to contradict him. Evidence of Hari Prasad, Vitthalrao and Shishupal Singh on the point that Karamat Khan had told them that accused was demanding bribe cannot be accepted, being hearsay, as Karamat Khan himself did not say the same before the Court. In view of the above situation, it cannot be held that prosecution succeeded in proving that the accused had made demand of illegal gratification from the complainant.
7. So far as recovery of tainted current notes from the possession of accused is concerned, it is seen that there remains only the evidence of police officers and SDM Shishupal. Hari Prasad (P.W. 3), Head Constable and Vitthalrao [P.W. 4 (a)], Constable, in their statements clearly admitted that in past they had participated in about 50-60 trap parties. Similarly, Shishupal (P.W. 5), SDM also admitted that he had also participated in three trap cases. In view of this, these witnesses cannot be described as independent witnesses. It has come in the evidence of Vitthalrao and Shishupal that number of other persons (clerical staff) were present near the spot, but they were not made witnesses. The conduct of Investigating Officer in not joining the independent witnesses in the trap proceeding creates doubt about veracity of the witnesses who can be said to be interested in the success of the trap. The Apex Court in Raghubir Singh v. State of Punjab , held that:
The officers functioning in the anti-corruption department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the Court and the Court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. They should insist on observing (his safeguard for the protection of public servants against whom a trap may have been laid. In the present case, the search witnesses were interested witnesses and, therefore, their evidence with regard to the giving of bribe and the recovery of the amount from the person of the accused was not relied upon.
8. Keeping in view the circumstances emerging in this case, on examining the explanation offered by accused that the tainted money was forcibly thrusted in his pocket, as a result of which pocket of his pants was torn, appears convincing. Vitthalrao [P. W. 4 (a)] has said that pocket of the pants of accused was torn. Similarly, Shishupal (P. W. 5) admitted that he had seen that the pocket of accused was torn, however, he said that it did not tear at the time of occurrence. He also admitted that he himself did not see as to how money reached in the pocket of accused because when he reached at the spot, he saw Police Constables already catching hold of the hands of accused. In view of the above circumstances the statement of complainant Karamat Khan that he thrusted the notes into the pocket of accused appears acceptable. In my opinion, the explanation of accused in the circumstances of the case appears reasonable, hence, may be accepted.
9. Another striking infirmity in the prosecution case is that there is total lack of evidence to show that the accused was occupying such an official position so as to enable him to hold up or forward the quotation submitted by the complainant. No witness has been examined to throw light about the official procedure or official duty of the accused and to prove relevant official documents pertaining to the quotation allegedly submitted by the complainant. The only evidence available on record is that of Dy. Superintendent of Police, P.S. Raghuwanshi, who in Para 12 of his deposition, during the cross-examination said that according to P.W.D. Manual only SDO, Executive Engineer and Superintending Engineer were empowered to call for quotations and only these officers could examine and accept the tenders. In the absence of any evidence throwing light on the official functions assigned to accused and about the fact that accused held up the quotation of the complainant, it cannot be held that he had any motive or opportunity to obtain any valuable thing or pecuniary advantage from the complainant.
10. In view of the foregoing discussion, I am of the view that the prosecution has not been able to prove its case beyond a reasonable doubt. The finding of conviction arrived at by the Trial Court cannot be said to be just and proper, as such deserves to be set aside. Accordingly, the appeal is allowed. Judgment of conviction passed by the Trial Court is set aside. The appellant is acquitted.