Abdul Rashid Ansari vs State of U.P.

Surya Prasad, J.—This is criminal appeal against the judgment and order dated 23rd November, 1983 passed by the then Special Judge, Moradabad ia Special Trial No. 608 of 1981 (State v. Abdul Rashid Ansari) convicting the accused-Appellant u/s 161 IPC and sentencing him to one year''s Rigorous Imprisonment thereunder and ''further convicting him u/s 5(2) of the Prevention of Corruption Act and sentencing him to one year''s Rigorous Imprisonment and a fine of Rs. 200/- (in default of payment of fine, further to months Rigorous Imprisonment).

The prosecution case briefly stated is that in July, 1981 the complainant Mohammad Sharik Hussain (PW 2) was a Science Teacher in Junior High School Shar Khan Sarai, district Moradabad. These days accused Abdul Rashid Ansari was working as Education Superintendent in Sambhal Municipal area. Mohd. Sharik Husam (PW 2) wanted his transfer from Junior High School, Sher Khan Sarai to Sambhal City area. With that end in view, Mohd. Sharik Hussain (PW 2) prepared an application in triplicate. He obtained the recommendation of Sub-Deputy Inspector of School, Shri Har Dayal Singh (PW 5) and Shri Laxman Singh Negi, made endorsement on his application. His transfer could not be possible in the absence of the recommendation of the Education Superintendent. Consequently Mohd. Sharik Hussain PW 2 presented the aforesaid application on 24th July, 1981 before the Education Superintendent, Abdul Rashid Ansari for his recommendation. Abdul Rashid Ansari demanded Rs. 100/- for that purpose. Mohd. Sharik Hussain did not want to give the money. Consequently Abdul Rashid Ansari expressed that he would not make recommendation unless he received Rs. 100/-. Therefore, Mohd. Sharik Hussain took time to make arrangement for money. Mohd. Sharik Hussain did not, however, like to give bribe. On the other hand he desired to get Abdul Rashid Ansari caught red handed. He did not know the office of the Vigilence Officer. Consequently he approached Ex. M. L. A. Shri Shafiqul Rehman Verk for that purpose. On 29th July, 1981 Mohd. Sharik Husain accompanying Shafiqul Rehman reached the office of Deputy Superintendent of Police, Anti Corruption at Moradabad. Mohd Sharik Husain gave his written application to Shri Shiv Raj Singh, Deputy Superintendent, Anti Corruption. Shiv Raj Singh recorded his statement, Mohd Sharik Husain handed hundred rupee currency note over to Shiv Raj Singh. That note was to be given to Abdul Rashid Ansari as bribe. Shri Shiv Raj Singh got that note treated with phenolphthalein powder by his office employee (constable) Karan Singh and handed over the same to Mohd. Sharik Hussain for being delivered to Abdul Rashid Ansari as bribe. Shiv Raj Singh get the hands of Mohd. Sharik Husain and constable Karan Singh washed in a solution of sodium carbonate and the wash became pink colour. He observed other necessary formalities and prepared Fard etc. in connection therewith. Thereafter Shiv Raj Singh presented an application before the District Magistrate, Moradabad, for permission to lay trap. The District Magistrate, Shri B. B. Sinha accorded his permission to that effect. Shiv Raj Singh taking constable Karam Singh, constable driver Khem Singh, the office peon Shafhat. Mohd Sharik Husain an Ex. M. L. A. Shafiqul Rehman Verk, in his jeep left Moradabad at 3 P.M. for Sambhal. On reaching Sambhal. Shiv Raj Singh left the jeep at a petrol pump. Ex. M. L. A. Shafiqul Rehman went away. Shiv Raj Singh at Shambhal Hospital crossing, collected witnesses Nashim Husain and Zahirul Islam and told him his purpose. He deputed Mohd. Sharik Husain and one more person to go to the office of the Education Superintendent to find out whether he was at his office. He received information that Abdul Rashid Ansari was in his office. According to the plan prepared by Mm, Shiv Raj Singh deputed Nashim Husain and Zahirul Islam to go to the office of Abdul Rashid Ansari in order to watch the trap and consequently they went there. Mohd. Sharik Husain also reached the office of Abdul Rashid Ansari. Saiv Raj Singh accompanied by other police officials also reached his office and took his position under the cover of a wall near a window in an attempt to see the transaction. At about 4 P.M. Mohd. Sharik Husain entered the office of Abdul Rashid Ansari. At that time Abdul Rashid Ansari was lying on his easy chair. Abdul Rashid Ansari asked Mohd. Sharik Husain to sit on a chair, which was kept quite close to his easy chair. Mohd. Sharik Husain sat down on that chair and requested Abdul Rashid Ansari to make his recommendation on his triplicate applications. Thereunder Abdul Rashid Ansari questioned Mohd. Sharik Husain whether he had arranged for money. Mohd. Sharik Husain replied to him in the affirmative. Mohd. Sharik Husain handed the currency note, Ext. IF, over to Abdul Rashid Ansari. Abdul Rashid Ansari received the currency note in his right hand, placed it in his bag and made his recommendation on the triplicate applications and also put his seal beneath bis recommendation. Nashim Husain and Zahirul Islam saw all this, Shiv Raj Singh also saw this transaction and on being satisfied that Abdul Rashid Ansari had accepted the bribe from Mohd. Sharik Husain, he reached near Abdul Rashid Ansari, introduced himself and questioned regarding the currency note taken by him as bribe. Abdul Rashid Ansari took out hundred rupee currency note from his bag and handed it over to Shiv Raj Singh, Shiv Raj Singh got the hand of Abdul Rashid Ansari washed in the solution of sodium carbonate and the wash became Pink colour. He observed certain other formalities and prepared Fard etc., in respect thereof. Thereafter Shiv Raj Singh took the recovered articles and Abdul Rashid Ansari in custody to police station and reached there at about 5.45 P.M. and lodged the report Ext. Ka 7. Head Constable Tej Pal Singh prepared the cheek report and also made entry in the general diary. A case was registered against the accused. Inspector Prithvi Pal Singh conducted the investigation into the case. He sent the contents of the hand wash to the chemical examiner, who gave his report Ext. Ka 19. After the completion of the investigation into the case, he submitted charge sheet agaiast the accused.

The prosecution examined Shiv Raj Singh (PW 1), Mohd. Sarik Hussain (PW 2). Mohd. Zahirul Islam (PW 3), Head constable Tej Pal Singh PW 4. Har Dayal (PW 6) Shakeer Ahmad (PW 6), S. K. Khaana (PW 7) and Prithvi Pal Singh (PW 8) and relied upon certain documents in support of its case.

4 The accused pleaded not guilty. He stated that all the allegations levelled against him are wholly wrong and incorrect. He has also stated that he has been falsely implicated and that the witnesses have deposed against him on account of enmity.

Having heard the learned Counsel for the parties and having considered the evidence on record, the learned Special Judge convicted and sentenced Abdul Rashid Ansari vide his impugned judgment and order. Aggrieved, he preferred this appeal against the same.

Heard the learned Counsel for the parties and perused the evidence as record.

The complainant Mohd. Sharik Husain had not the accused Abdul Rashid Ansari on 24th July 1981 in his office. He gave an application on 29tb July, 1981 to Shiv Raj Singh. Deputy Superintendent of Police, Anti Corruption, Moradabad. That application is Ext, Ka II. The Deputy Superintendent of Police, Anti Corruption, Shri Shiv Raj Singh took down the statement of the complainant Mohd. Sarik Husain on 29tb July, 1981 itself. Shiv Raj Singh lodged an oral report Ex. Ka 7 at the police station Sambhal, district Moradabad. There is nothing in any of these documents to show the date, time or place for the giving and taking of the bribe nor is there anything in any of these documents or in any other evidence on record to indicate that Shiv Raj Singh had ascertained even orally from Mohd. Sharik Husain about the date, time and place for the giving and taking of the bribe. Further more there is nothing on the record to indicate that Abdul Rashid Ansari had told Mohd. Sarik Husain on 14th July, 1981 or even subsequently before 29th July. 1981 that he would be available in his office on 29th July, 1981 at 3 P. M. for the aforesaid purpose in particular. Therefore, there was no certainty for the availablility of the accused Abdul Rashid Ansari, in his office, on the aforesaid date particularly at 3 P. M. And yet, Shiv Raj Singh organised the trap even in such a state of uncertainty about the presence or otherwise of Abdul Rashid Ansari in his office. This is some thing strange and casts suspicion as to the act and conduct of both Shiv Raj Singh and Mohd. Sharik Husain.

Mohd. Sharik Husain had not Shiv Raj Singh, Deputy Superintendent of Police, Anti Corruption on 29th July, 1981 in his office at 12 noon. Shiv Raj Singh took down his detailed statement Ext. Ka 1. He prepared the memo Ext. Ka 3 regarding the taking of a hundred rupee currency note in his custody and subsequently handing it over to Mohd. Sarik Hasain with certain directions, after observing certain formalities in respect of the said note. He obtained the permission Ext, Ka 4-A from the District Magistrate Moradabad, on his application Ext. Ka 4 for laying a trap against Abdul Rashid Ansari. Thereafter he along with Mohd. Sarik Husain and certain others left Moradabad by a jeep for Sambhal where he and others reached at about 3 P. M. All this can be said to have been completed not within but must beyond three hours. Therefore the prosecution case and the evidence of the witnesses to the contrary do not inspire confidence.

Neither the complainant Mohd. Sarik Husain nor Shiv Raj Singh has stated even a word indicating how the presence of Nashim Husain and Zahirul Islam was procured. It is only Zahirul Islam PW 3, who has stated that he and Nashim Husain were sent for by Shiv Raj Singh. His statement, if read, in the light of other evidence to this effect does not deserve to be believed.

Shiv Raj Singh (PW 1) had not visted/inspected the office of the accused before hand. Therefore, he can be said to have had no idea of the seat of the Head Clerk of the office of the accused Abdul Rashid Ansari. And yet, he had sent Nashim Husain and Zahirul Islam (PW 2) to the seal of the Head Clerk. This is something strange.

Shiv Raj Singh (PW 1) has stated that Abdul Rashid Ansari was lying on an easy chair. Abdul Rashid Ansari asked Mohd. Sarik Husain to sit on a chair, which was kept quite close to his easy chair. According to Mohd. Sarik Husain (PW 2), the accused stood up from his easy chair, sat on his chair, which was kept quite close to his table and made him (Mohd Sarik Husain) sit on a chair on the other side. This indicates that Mohd. Sarik Husain (PW 2) had also to sit on a chair other than the one on which he had initially sat there. Zahirul Islam (PW 3) has stated that he had not seen the accused sitting on his easy chair. This is contradictory to his statement recorded u/s 161 CrPC. There are thus discrepancies in between the statements of the above named witnesses on the point of the sitting position of the accused Abdul Rashid Ansari and the complainant Mohd. Sarik Husain.

Shiv Raj Singh (PW 1) has not specified as to which of the hands of the accused was get washed. The complainant Mohd. Sarik Husain (PW 2) has stated that left hand of the accused was got washed in the solution of the the sodium carbonate. According to Zahirul Islam (PW 3) his right hand was got washed. Therefore, their statements on this point can not be believed.

The bands of the accused Abdul Rashid Ansari were got washed in the solution of the sodium carbonate immediately after the recovery of the currency note in question from his possession. The hands of the complainant Mohd. Sarik Hussain were not got washed in the solution of the sodium carbonate after the recovery of the said note from the possession of the accused. The fact has been admitted by Zahirul Islam (PW 3). It is not understood why Shiv Raj Singh (PW 1) failed to do so. His failure in view of the facts and circumstances of the case in particular indicates doubt as to his act and conduct. Had he got the hands of the complainent washed in the solution of the sodium carbonate, had he sent the contents of the hand wash to the chemical examiner for scientific test and had the report of the chemical examiner been favourable to the prosecution case, it would have been certainly proved that the complainant Mohd. Sarik Husain had actually given the said note to the accused on the spot immediately before the recovery of the same from the possession of the accused. In this view of the matter, there is no reliable evidence on record to show that the complainant Mohd. Sarik Husain had actually given the said currency note to the accused on the spot. For this, reliance is placed upon Panch Lal v. State 1989 ACR 126.

The house of Zahirul Islam (PW 3) is at a distance of one furlong from the house of the complainant Mohd. Sarik Husain in the same Mohalla Deep Sarai. They are teachers in different schools of the District Board. Shrl Shafiqul Rahman Verk, Ex. MLA belongs to the political party Lok Dal and is a resident of the said Mohalla. Nashim Husain and Zahirul Islam are also alleged to belong to the said party. The complainant Mohd. Sharik Husain, Shri Shafiqul Rahman, Ex. MLA, Nashim Husain and Zahirul Islam appear to belong to one and the same group/party. Nashim Husain and Zahirul Islam cannot be treated as independent witnesses in any manner whatsoever. In view of all this and in view of the evassive replies given by the complainant on the point of transfers of certain other teachers at the instance of the accused, the possibility of the accused having been falsely implicated by him (the complainant Mohd. Sharik Husain) due to enmity at the instance of Ex. MLA Shafiqul Rahman and collusion with his (Mohd. Sharik Husain''s) associates cannot be ruled out.

In the result, the appeal is allowed. The impugned judgment and order are, set aside. The accused Appellant Abdul Rashid Ansari is acquitted of the offences with which he has been charged. He is on bail. His bail bonds are cancelled and sureties stand discharged.