Ale Hasan and Another vs State of U.P.

S.I. Jafri, J.—Ale Hasan and Suraj Prasad have filed this appeal against their conviction and sentences recorded by Sri U.S. Tripathi, Special Judge Mirzapur vide his judgment and order dated 19-3-1985 in Special Sessions trial No. 2 of 1981 connected with S.T. No. 3 of 1981. By means of the aforesaid judgment and order, the Appellant Ale Hassan was convicted u/s 161 IPC and he was sentenced to undergo R.I. for one year and a fine of Rs. 500/-. He was further convicted u/s 5(2) of the Prevention of Corruption Act and was sentenced to undergo R.I. for two years and a fine of Rs. 1000/-. Appellant Suraj Prasad was convicted u/s 161 IPC and sentenced to undergo R.I. of for one year and a fine of Rs. 200/-. He was further convicted u/s 165A and sentenced to undergo R.I. for one year and a fine of Rs. 200/-. The Appellant was further convicted u/s 5(2) of the Prevention of Corruption Act and sentenced to undergo R.I. for 1, 1/2 years and a fine of Rs. 300/-.

The brief facts gleaned from the FIR and the evidence adduced by the prosecution in the case are that Ale Hassan Appellant, who was posted as Naib Tahsildar at Tahsil Sadar District Mirzapur in the month of April 1978, made a demand of Rs. 200/- as illegal gratification through the agency of his Peon Suraj Prasad from complainant Hub Lal PW 2, who is resident of village Kolhar P.S. Kotwali Dehat District Mirzapur for favour of deciding the mutation case in his favour over a portion of land measuring 8 biswas purchased by the complainant from one Harihar Dubey of the same village. The aforesaid case of mutation bad come to the court of Ale Hass3n Appellant by transfer which Ale Hassan Appellant had been keeping pending. Aggrieved by the delay in the decision of the case the complainant approached the Peon Suraj Prasad who seduced him in to giving illegal gratification of Rs. 200/-if he wanted to expedite decision of the mutation case. Next day i.e. on 29-3-1978 complainant Hub Lal met Ale Hassan in the company of one Ragbuvir (not examined) at the house of Ale Hasan situate in Mohalla Ramai Patti Mirzapur who desired the money to be paid to him (Appellant) within 3-4 days Next day Hub Lal complainant conveyed to Suraj Prasad, Peon at Tahsil and he would arrange the money within 1-2 days. However, the complainant Hub Lal being unable to raise money, met Ram Kishan, PW 3, Ex. M.L.A. and narrated to him the demand of illegal gratification. The aforesaid Ram Kishun asked Hub Lal complainant to come to him next day alongwith Rs. 200/-. Next day Ram Kishun PW 3 took Hub Lal to the residence of Supdt. of Police where facts relating to demand of illegal gratification were disclosed to the Supdt. Police. The complainant was asked by the aforesaid Supdt. of Police to reduce the facts into writing whereupon Hub Lal filed application Ex. Ka 1 before the Supdt. of Police. The aforesaid application was endorsed to Sri Ram Naresh Tripathi, PW 1, the then Circle Officer to decoy the Appellants. The statement of the complainant Hub Lal was recorded by J.K. Tandon, S.D.M. Sadar at the direction of the District Magistrate who also initialled the currency notes produced by the complainant before him. According to the directions of Shree Ram Tripathi, the complainant alongwith Ram Kishun PW 1 and Raghubir and Khannu Harijan again came to the residence of Shree Ram Tripathi PW 1. Aforesaid Shree Ram Tripathi, PW 1 summoned S.I. Ram Naresh and two constables Sheoji Goswami and Chauthi Ram in plain clothes to his residence and drafted them about the manner of trap to decoy the Appellants. Thereafter, Shree Ram Tripathi started on his jeep alongwith witnesses and having parked jeep on the road in front of Police Station Kotwali Dehat, the trap party marched on foot. Shree Ram Tripathi positioned himself near the eastern window of the residence of Ale Hasan accused on the road and deputed the trap party and the witnesses near the western window facing the Road. Complainant Hub Lal PW 2 entered the room of Ale Hasan alongwith Raghubir. At that time, Ale Hasan was seated on a cot flanked by Suraj Prasad his peon near by. Hub Lal cnmplainant touched the feet of Ale Hassan and on being told that he had brought the money, Ale Hassan asked the complainant to place the money on the table nearby and suggested to him to see him (Ale Hasan) at Tahsil itself. Suraj Prasad Peon on being signalled, picked up the currency notes and began to count the same. Meanwhile, Shree Ram Tripati aloogwith trap party and the witnesses gained entry into the room after noticing the exchange of money from their places aforesaid. Suraj Prasad, Peon made an unsuccessful bid to run away. Both the Appellants were arrested and currency notes were taken into possession. Recovery memo Ex. Ka 4 was prepared on the spot by Sri Ram Tripathi PW 1. The Appellants were taken to Police Station Kotwali where FIR was lodged and a case was registered against the Appellants. Investigation of the case was taken up by Daya Sbanker Singh, Dy. S.P. PW 8 who interrogated Sri Ram Tripathi PW 1. Lateron, the Investigation was conducted by Vibhutl Narain Singh, Dy. S.P. PW 4 who interrogated complainant Hub Lal and Ram Kishun PW 3 and other witnesses. After concluding the investigation, he submitted charge-sheet in the court, in the wake of proper sanction having been accorded for prosecution of the Appellants by the respective authorities.

Ale Hasan Appellant denied the allegations and took up a specific defence to the effect that mutation case in which he has been ascribed to have accepted the illegal gratification, had been decided by him as far back as on 24-11-1977 and further the application for restoration had also been decided by him way back on 25-2-1978. The allegations of accused Ale Hassan in his defence are that witnesses wanted him to do favour to them which he had declined as a result of which the conspiracy aforesaid was hatched against him resulting in his false implication in the instant case. However, no evidence has been adduced by the Appellants Ale Hassan in support of his defence excepting filing documents Exts Kha 1 to Kha 9.

Prosecution examined in all nine witnesses in support of its case and out of the above set of witnesses, Sri Ram Tripathi PW 1, Hub Lal PW 2, Ram Kishun alias Ram Kishan PW 3 were examined as ocular witnesses of the occurrence. The court examined Khwaja Ashraf Hasan as CW 1.

Now I take up the evidence of PW 2 Hub Lal complainant in the instant case, for scrutiny. He deposed that he had purchased land measuring eight biswas for a consideration of Rs. 7000/- from one Harihar Dubey, resident of his village Kulhar. He moved application for mutation of his name over the said land at Sadar Tahsil Mirzapur. On the decision in the aforesaid mutation case being prevaricated by Ale Hassan Appellant who was Naib Tahsildar vis-a-vis the long-drawn pendency of the case, he contacted Suraj Prasad, Peon of the Appellant who made a demand of Rs. 200/- for expediting the decision in his favour in the aforesaid case. The latter events have been delineated in the preceding part of this judgment and for the sake of brevity, the same are not being repeated all over again in this judgment.

The evidence of Hub Lal complainant has been assailed by the defence on the various grounds. At the very outset, the learned Counsel for the Appellants contended that the motive attributed to the Appellant Ale Hassan for demand of illegal gratification stands on too weak a crutch which cannot bear judicial scrutiny inasmuch as that the very motive cannot be adjudged to be existent vis-a-vis the fact that the mutation case filed by the complainant Hub Lal had ended in dismissal on 24-11-1977 itself and also the application filed by the complainant for restoration had been rejected by the Appellant Ale Hassan way back on 25-2-1978. This contention of the learned Counsel for the Appellants is borne out from Exts Kha 4 and Kha 5 brought on record by the defence. On being confronted the complainant denied any knowledge of the dismissal of the mutation case in his defence. In he above conspectus, the ineluctable inference which can be drawn is that prosecution has not been able to prove motive for Appellant Ale Hassan to demand illegal gratification from the complainant and the allegations of the defence that Hub Lal was annoyed owing to the dismissal of mutation case and cooked up a false case to entrap and implicate the Appellant, cannot be (sic) above board.

Now I turn the focus on the evidence of Ram Kishun PW 3. Ram Kishun PW 3 is an Ex. M.L.A. He has supported the prosecution case in all material particulars. My attention has been drawn to the facts underlying his overwhelming interest displayed by him in coming forward to stand witness against Appellant Ale Hassan. The allegations set out by the defence are that in a mutation case No. 195 the Appellant Ale Hassan detected the ruse played by Ram Kishun inasmuch as that Ram Kishun had blurred the thumb impression of Hira Lal. This illegal act was attributed to Ram Kishun by the Appellant Ale Hassan which is borne out from Ex. Kha 7 brought on record in the instant case by the defence. The witness pleaded his ignorance about the said case. It is useful to observe that the prosecution has not brought on record any evidence wither documentary or oral and mere denial cannot be adjudged as an anti-dote to the documentary proof brought on record by the defence. To reject this documentary proof on the mere ground that the Appellant did not take any follow-up action in the wake of his observation in the aforesaid mutation case, shall be tantamount to dispense justice with blinkers on. It is also useful to observe that a specific admission has come in his evidence that he is the only person of the name of Ram Kishun in the village he resides in. With a view to the above discussion, I feel that Hub Lal and Ram Kishun were hand-in-gloves and in league with Sree Ram Tripathi, PW 1, the Appellant Ale Hassan has been falsely implicated in the instant case. It is borne out from the above discussion that Ram Kishun is a highly partisan and interested witness and out of his solicitude for retribution on Appellant Ale Hassan, he enacted the entire drama in cahoots with Hub Lal and Sri Ram Tripathi.

Non-examination of Raghubir Tewari, who had accompanied the complainant to the room of Ale Hassan Appellant and who is said to have witnessed the money being delivered also inflicts a deadly blow to the veracity of the prosecution case. The prosecution has not come forward with any plausible reason which disabled it to examine the aforesaid material witness in the instant case.

My attention has been adverted to another improbability consistent with the innocence of the Appellant Ale Hassan and it is to the effect that Ram Kishun was not admittedly present in the room where the illegal gratification was delivered on to the table and was standing near the western window of the house of the Appellant which enabled him to see the activities in the room aforesaid. A scrutiny of the site plan prepared by the Investigating Officer bears it out that he was standing at a place from where it was very difficult for him to notice the table in the aforesaid room or to over-heard the conversation being held in the aforesaid room and it is this implausibility of the claim of the witness which renders his evidence unacceptable for being acted upon for the conviction of the Appellant in the instant case. Likewise, the claim of Sri Ram Tripathi, PW 1, of being able to over heard the conversation or notice the activities taking place in the aforesaid room cannot be accepted inasmuch as that according to the site plan and also his admission, he was stationed on the other side of the road. The road admittedly is 10 feet wide and in this view of the matter, it cannot be accepted as plausible that the witness was either able to overhear the conversation being held in the aforesaid room or notice the activities taking place in the aforesaid room. In the conspectus of the above discussion, I feel that the evidence of this witness in over-laid with the lawyers of improbabilities of grave nature coupled with the fact that he was interested in the success of the trap to decoy the Appellant and hence, his evidence being unworthy of any credence, cannot be acted upon for the conviction of the Appellant in the instant case.

Another infirmity which taints the veracity of the prosecution case is the non-examination of independent and disinterested witnesses vis-a-vis the availability of such witnesses in the instant case. To bolster his contention, the learned Counsel has placed reliance on a case-law Raghbir Singh Vs. State of Punjab, wherein it was held that it is the duty of the officer of Anti-corruption department to secure independent and respectable witnesses for the raid. Further, inexplicability on the part of the prosecution for not making use of phenopthaline powder on the currency notes before delivering the same to the Appellants, also brings the veracity of the prosecution case under cloud and is a pointer to the suspicious conduct of the raiding party. Reliance was placed on case-law Khilli Ram v. State of Rajasthan 1985 SCC 24 wherein it was held that in such cases handing of currency notes by servants can be detected by chemical process and the court does not have to be dependent on oral evidence which sometimes are of dubious character for purposes of deciding the fate of the public servant. In his long drawn arguments before this Court, the learned Counsel for the Appellants strenuously submitted that instances are not wanting where honest public servants were preyed upon and guilt was brought home to them on the basis of oral evidence of dubious character for purposes of deciding the fate of public servant.

The last attack mounted by Sri M. Islam, learned Counsel for the Appellants is on the sanction accorded against Appellant Ale Hassan for his prosecution. It is submitted by the learned Counsel that the authority according sanction did not apply his mind before granting sanction for prosecution of the Appellant and to shore up his contention, the learned Counsel adverted to the paper Ex. Ka 8 which he contended, cannot be an order granting sanction. The learned Counsel submitted that Ex. Ka 8 is a mere communication of the sanction order. Reliance has been placed on case-law Iqbal Ahmad v. State of Andhra Pradesh 1979 SCC 926 wherein it was held that it is incumbent on the prosecution to prove that valid sanction has been granted by the sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. The learned Counsel pointed out that Ex. Ka 8 did not contain signature of the sanctioning authority. To clinche this issue, I have gone through the original order according sanction produced by Khwaja Ashiq Hassan CW 1. an Asstt. in the Board of Revenue U.P. Lucknow. A perusal of the aforesaid order shows that office notes were prepared and the same were, submitted before Sri S.K. Sarkar, Chairman, Board of Revenue, U.P. Lucknow by one Hari Mohan Mehrotra, Asstt. Land Reform Commissioner Board of Revenue U.P. Sri S.K. Sarkar, Chairman Board of Revenue is admittedly appointing Authority and the entire file which has been gone into by me, does not bear it out that Sri S.K. Sarkar had applied his mind in according sanction for the prosecution of the Appellant in the instant case Mere signature at the end of office note cannot be stretched so far as to infer that he had applied his mind to the facts and circumstances in according sanction for prosecution of the Appellant in the instant case. Hence, it would not be unreasonable to infer that Ale Hasssan Appellant was prosecuted on the basis of sanction order which cannot be said to be valid and hence the conviction recorded by the court below against the Appellants cannot be sustained.

Having regard to the facts and circumstances discussed above, I feel that the evidence adduced by the prosecution in the instant case is highly partisan, interested and cannot be acted upon for the conviction of the Appellants in the instant case and hence the conviction and sentences recorded against the Appellants by the court below cannot be sustained.

In the result, the appeal is allowed. The conviction and sentences recorded against the Appellants by the court below are set aside. The Appellants are on bail. They need not surrender and their bail bonds are discharged.