Rajasthan High Court - Jodhpur
State Of Rajasthan vs Mansingh on 30 April, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Crml Leave To Appeal No. 80/2019
State Of Rajasthan
----Appellant
Versus
1. Mansingh S/o Shri Sohansingh, Aged About 43 Years, By
Caste Rajpurohit, Resident Of Village Basni, Post Bawarli,
P.s. Shergarh, District Jodhpur, The Then Constable
Number 659M O,s, Basni, Jodhpur City.
2. Kanaram S/o Shri Lalaram, By Caste Bhat, Resident Of
K.k. Colony, Sangariya Road, Street Number 01, Bhaton
Ka Bas, Jodhpur.
----Respondents
For Appellant(s) : Mr. Gaurav Singh, PP
For Respondent(s) :
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 30/04/2019
1. The facts of this case, as noticed by this Court, are that complainant Ganpat Choudhary submitted a written report to Shri Vinod Gandhi, Deputy Superintendent of Police, Anti Corruption Bureau, Jodhpur, in which, he submitted that while he was traveling on his Hero Honda Motorcycle from Salawas on 21.08.2009 towards Jodhpur, he was stopped by three constables, namely, Mansingh, Hiralal and Moolsingh of Police Station Basni Jodhpur City and the constables, as named above, threatened him that he shall be framed in the case of plying illicit liquor. The complainant alleged that Mansingh demanded Rs.40,000/- from him. It was also alleged that Kana Ram asked to give Rs. 1,500/- on monthly basis for allowing him to continue with the carrying on (Downloaded on 28/06/2019 at 01:01:47 AM) (2 of 9) [CRLLA-80/2019] trading illicit liquor. The complainant made the written report upon which, ACD arranged a trap proceeding while registering an FIR bearing No.215/2009 against Mansingh constable number 569 and constable Hiralal number 217 of P.S. Basni for the offenses under Sections 7, 13(1)(d), 13(2) of the Prevention of Corruption Act, 1988 read with Section 120-B of IPC.
2. The trap was organized and the accused was caught red handed. The investigation was conducted thereafter and after receiving the prosecution sanction, a charge-sheet was filed against the accused Mansingh constable and Kanaram (private person).
3. Learned trial court after hearing the arguments on charges, framed the charges and proceeded with the trial, the prosecution examined as many as 18 witnesses and exhibited documentary evidence Ex. P/1 to Ex. P/44. The accused respondents did not produce any witness but produced documentary evidence Exhibit D/1 to D/9.
4. Learned trial court has passed the impugned judgment acquitting the accused respondent Mansingh for the offences under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 201 read with Section 511 IPC and accused respondent Kanaram for the offence under Section 12 of the Prevention of Corruption Act, 1988.
5. Learned Public Prosecutor submits that once there was a red handed trap then there is no reason why the absolute acquittal could have been done by the learned court below. Learned Public Prosecutor further submits that Signatures of PW- 10 Ganpatram, PW-13 Babu Singh and PW-14 Prakash have been (Downloaded on 28/06/2019 at 01:01:47 AM) (3 of 9) [CRLLA-80/2019] accepted by them on the exhibits, such as FIR and exhibit P-12, P- 13, P-20, though they have become hostile subsequently.
6. Learned Public Prosecutor has also submitted that the learned court below has erred in law by not considering the fact that the accused was reflected to be involved as per the conversation between Heeralal and the complainant. However, in what circumstances, the crucial evidence of Heeralal has not been examined to support the transcript given by the prosecution is a question which looms large on the credibility of the prosecution case. Learned Public Prosecutor has not been able to answer as to in what circumstances, the chewed notes and the version of the accused misbehaving with the ACD team has not been highlighted by the prosecution before the learned court below.
7. After hearing learned Public Prosecutor at length and examining the record of the case, this Court finds that crucial transcript between Heeralal and the complainant has been rendered useless, as Heeralal has not been examined and complainant Ganpatram has already become hostile. The complainant becoming hostile would not have alone lead to collapse of the prosecution case, if the prosecution was in a position to support the allegations with the scientific evidence of voice recording, tape recording and other modes. The evidence of PW-6 Arun Kumar Bora, PW-7 Pratap Singh, PW-9 Virendra Singh, PW-11 Bhursingh, PW-12 Jagdish Ram, PW-13 Babusingh, PW-14 Prakash, PW-15 Vinod Gandhi and PW-16 Vijay Singh has merely proved that the notes in question were in fact recovered by the ACD team, which is not disputed by the accused in their defense.
8. The complete arena of proof gathered by the prosecution is of no consequence, as the accused has nowhere (Downloaded on 28/06/2019 at 01:01:47 AM) (4 of 9) [CRLLA-80/2019] denied that the notes in question was not recovered from him. The fact of recovery of the notes from the possession of the accused is already admitted by the accused but such possession alone would not render the accused liable to be punished under Section 7 and for the offence under Section 13(1)(d) 13(2) of the Prevention of Corruption Act, 1988 in the absence of any proof of demand for illegal gratification. The most essential witness Ganpat Choudhary has become hostile and has not rendered any evidence regarding the demand being made by the accused Mansingh as illegal gratification. One of the important witnesses Heeralal, in one of the transcript, has not been examined which is a miserable failure of the prosecution. The video recorded version of the trap proceeding, which was tried to be heard by the learned court below could not be heard, as the same was not clear. The other witnesses like PW-13 Babusingh categorically made a statement that they were not party to the tape recorded transcription. There was no voice test sample taken and the prosecution has miserably failed to connect the accused with the voice test and also there is no independent witness connecting the accused with the voice test in question. The petitioner had taken a categorical defense and also furnished affidavits regarding the same that the amount of Rs.4,000/- was a loan which Kanaram had taken from Ganpat and was being repaid through Mansingh. The theory of defense is also supported by the prosecution witnesses including the complainant. The prosecution also failed to establish that as to why the complainant was seeking from the accused the alleged illegal gratification.
9. The notice given to the accused on 17.11.2009 was merely a formality done by the prosecution, as it did not carry any (Downloaded on 28/06/2019 at 01:01:47 AM) (5 of 9) [CRLLA-80/2019] place or demarcation where the accused could have given voice sample. However, the call details have indicated the incident but again focus of the prosecution ought to have been the reason for making such payment, as the acceptance of the money has not been denied by the accused. It is also failure on the part of the prosecution that the transcript was not accompanied by a proper certificate under Section 65-B of the Evidence Act and the only certificate which was available was brought after 8 years of the prosecution in question. The video cassette which covered the trap proceeding were also tried to be examined by the learned court below but the establishment of the reason for the acceptance of the money was evading the adjudication at all times as is apparent from the trial court record. The witnesses Babusing and Prakash Thakurani also do not support the prosecution and they have also failed to establish the creditability of the Exhibit 12 and 13 which were essential to the connection being alleged between the accused and the illegal amount. So much so that the prosecution officers have not submitted any evidence of misbehavour by the accused, and thus, the complete element of voluntary demand of illegal gratification is missing from the whole chain of events.
10. The learned court below has relied upon the judgment which read as follows :-
"56- ekuuh; mPpre U;k;ky; }kjk 2014 fØehuy ykW tujy ist 2433 ch t;jke cuke vkU/kzizns"k jkT; ds ekeys esa o bl fu.kZ; ds ckjs esa iSjk 8 esa fuEu fl)kur izfrikfnr fd;k gS & "In the present case, the complainant did not support the prosecution case inso far as demand by the accused is (Downloaded on 28/06/2019 at 01:01:47 AM) (6 of 9) [CRLLA-80/2019] 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 to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint Exbt. 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 Exp.11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by 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 recover 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 Sec. 13(1)(d)(i)(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."
57- blh fu.kZ; ds iSjk 9 esa fuEufyf[kr fl)kUr izfrikfnr fd;k x;k & "Insofar as the presumption permissible to be drawn U/s 20 of the Act is concerned, such presumption can only be in respect of the offence U/s 7 and not the offence U/s 13(1)(d)(i)(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. 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."
58- ekuuh; mPpre U;k;ky; }kjk ¼2015½ 16 lqizhe dksVZ dSlst 350 [kyhy vgen cuke dukZVd jkT; ds ekeys esa ;g fl)kUr izfrikfnr fd;k gSa fd ekax vkS jkf"k dh izkfIr lkfcr djus dk Hkkj vfHk;kstu ij gS vkSj vfHk;kstu dks bl Hkkj dks fcuk fdl ;qfDr;qDr lUnsg ds fMLpktZ fd;k (Downloaded on 28/06/2019 at 01:01:47 AM) (7 of 9) [CRLLA-80/2019] tkuk pkfg,A vfHk;qDr dks mi/kkj.kk ds vk/kkj ij nks'kfl) ugha fd;k tk ldrkA 59- ekuuh; mPpre U;k;ky; }kjk 2016 ¼1½ MCyq ,y lh fØehuy lqizhe dksVZ 49 ,u lqudUuk cuke vkU/kzizns"k jkT; ds ekeysa esa ihlh ,DV dh /kkjk 20 dk foospu djrs gq, ;g fl)kUr izfrikfnr fd;k gS fd nwf'kr nzO; vfHk;qDr ds tsc ls cjken gqvk gS vkSj fQuksQFkyhu ijh{k.k ldkjkRed fl) gqvk gS fdUrq ifjoknh vfHk;kstu lk{kh 1 us vfHk;kstu dk leFkZu ugha fd;k gS vkSj ;g dFku fd;k fd foHkkx }kjk pykbZ xbZ Ldhe ds vUrxZr mlus vfHk;qDr dks /ku jk'Vªh; cpr izek.k i= Ø; djus ds fy, fn;k FkkA vU; vfHk;kstu lk{kh 3] 4 o 6 i{knzksgh gq,A voS/k ifjrks'k dh ekax fl) ugha gqbZ rks ,slh fLFkfr esa /kkjk 20 ds vUrxZr vfHk;qDr ds fo:) mi/kkj.kk ugha yh tk ldrh vr% nks'kfl)h dks ekuuh; mPpre U;k;ky; }kjk vikLr fd;k x;kA 60- ekuuh; jktLFkku mPp U;k;ky; }kjk ,l-ch- fØehuy vihy ua- 625@2015 fot;flag o vU; cuke jkt- jkT; fu.kZ; fnukad 15-05-2018 ds ekeysa esa vius fu.kZ; ds iSjk ua0 13] 20 o 2 esa fuEu fl)kUr izfrikfnr fd;k & "Para 13- Suspicion howsoever high it may be cannot take the shape of a proof because under criminal jurisprudence proof beyond reasonable doubt is required and not based on mere preponderance of probabilities.
Para 20- Therefore, in totality of circumstance, in absence of demand and proof about acceptance of gratification, offence under Section 7, 13(1)(d) r/w 13(2) of PC Act are not proved against first appellant bey ond reasonable doubts. The learned trial court, while convicting the first appellant for the aforesaid offences, has not cared to appreciate the evidence in right perspective and also seriously erred in invoking Sec. 20 of the PC Act for drawing presumption against first appellant without any cogent evidence about demand and acceptance of illegal gratification, proof of demand is sine qua non for drawing presumption u/s 20 viv-a-vis offence u/s 7 or 11 or clause
(a) o (b) of sub section 1 of Sec. 12 of the PC Act. Legislature has nowhere envisaged presumption under Sec. 20 qua offence under Sec. 13(1)(d) of the PC Act Para 21- Now adverting to offence under Sec. 120-B IPC, suffice it ot observe that when the prosecution case to bring home guilt against first appellant for offence under Sec. 1, 13 (1)(d) r/w 13(2) of PC Act has backfired, (Downloaded on 28/06/2019 at 01:01:47 AM) (8 of 9) [CRLLA-80/2019] obviously, conviction of both the appellant for offence under sec. 120-B IPC cannot be sustained. In order to constitute offence of criminal conspiracy, the prerequisite ingredients are existence of agreement between persons who are alleged to have conspired and factum of agreement for doing of an illegal act, or for doing by illegal means an act which may itself be not illegal. I am afraid, the evidence available on record is grossly inadequate to establish conspiracy between the appellants. No work of the complainant was ending with the first appellant and his nexus with the second appellant as guarantor of a defaulter borrower of the bank are also some significant facts which are completely overlooked by the learned trial court while indicating both of them or offence under Section 120-B IPC."
11. It is a forgone conclusion that the prosecution has miserably failed to establish any voluntary demand of illegal gratification against the accused. This Court also finds that the precedent law is consistent that proof of acceptance of illegal gratification has to be followed by the proof of demand. In the present case, the proof of demand is completely lacking, as the prosecution has miserably failed to strengthen one of the two main aspects which could have lead to the conviction of the accused. The acceptance of the money and the possession of the same itself is not in dispute but the chain of facts requiring conviction remains miserably incomplete, as in the absence of any proof of demand for illegal gratification and 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.
12. The suspicion is very high but criminal jurisprudence requires much more than reasonable doubt and since there is total absence of the proof about the reason for acceptance of the (Downloaded on 28/06/2019 at 01:01:47 AM) (9 of 9) [CRLLA-80/2019] gratification, drawing any conclusion against the accused would be detrimental to the basic concept of criminal justice. The learned court below has dealt at length to the failure of the prosecution and the learned Public Prosecutor himself has not been able to point out any such glaring illegality in the impugned judgment passed by learned court below.
13. The judgment is based on sound principles of law and at no juncture in the judgment, this Court finds any reason why the same needs to be interfered with. Hence, the criminal leave to appeal is dismissed. However, this Court directs that the proceeding under Section 344 of Cr.P.C. and Section 211 and 193 of IPC, as directed by the learned court below shall be held expeditiously.
(DR. PUSHPENDRA SINGH BHATI),J 2-Sudheer/-
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