Ali Hassan and Anr. vs State of U.P.

S. I. Jafri, J.—Ale Husan and Suraj Prasad have filed this appeal against their conviction and sentences recorded by U. S. Tripathi, Special Judge Mirzapur vide his judgment and order dated 1931985 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 under Section 161, I. P. C. and he was sentenced to undergo R. I. for one year and a fine of Rs. 500. He was further convicted under Section 5(2) of the Prevention of Corruption Act and was sentenced to undergo R. I. for two years and a fine of Rs. 1, 000. Appellant Suraj Prasad was convicted under Section 161, I. P. C. and sentenced to undergo R. I. for one year and a fine of Rs. 200. He was further convicted under Section 165 (a) and sentenced to undergo R. I. for one year and a fine of Rs. 200. The appellant was further convicted under Section 5(2) of the Prevention of Corruption Act and sentenced to under go R. I. for 1, 1/2 years and a fine of Rs. 300.

The brief facts gleaned from the F. I. R. and the evidence adduced by the prosecution in the case are that Ale Hassan appellant, who was posted NaibTahsildar at Jahsil Sadar District Mirzapur in the month of April 1978, made a demand of Rs. 200 as illegal gratification through the agency of his PS Suraj Prasad from complainant Hub LalP. W. 2, who is resident of vill Kolhar P. S. Kotwali Dehat District Mirzapur for favour of decided mutation case in his favour over a portion of land measuring his was purchased by the complainant from one Harihar Dubey of the same village aforesaid case of mutation had come to the court of Ale Hassan appella transfer which Ale Hassan appellant had been keeping pending. Aggrived 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 it no wanted to expedite decision of the mutation case. Next day i. e. on 2031979 complainant Hub Lalmet Ale Hassan in the company of one Raghuvir examined) at the house of Ale Hassan situate in Mohalla Ramai Patti, Mirzapur who desired the money to be paid to him (Appellant) with in Next day Hub Lalcomplainant conveyed to Suraj Prasad, Peon at lah he would arrange the money with in 12 days. However, the complainant in Lalbeing unable to raise money met Ram Kishan, P. W. 3 and narrated to him the demand of illegal gratification. Ram Kishun asked Hub Lalcomplainant to come to him has along with Rs. 200. Next day Ram Kishun P. W. 3 took Hublal to residence of Supdt. of Police where facts relating to demand of gratification were disclosed to the Supdt. of Police. The complainant was asked by the aforesaid Supdt. of Police to reduce the facts into writing whereupon Hub Lalfiled application Ex. Ka 1 before the Supdt. of Police, aforesaid application was endorsed to Sri Ram Naresh Tnpathi, P.W.I, I 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 direct District Magistrate who also initialled the currency notes produced by me complainant before him. According to the directions of Shree Ram Inpatni, the complainant alongwith Ram Kishun P. W. 1 and Raghubir and Khannu Harijan again came to the residence of Shree Ram Tripathi P. W. 1. Ato Shree Ram Tripathi, P. W 1 summoned S. I. Ram Naresh and two constables Sheoji Goswami and Chauthi Ram in plain clothes to this residence an ed them about the manner of trap to decoy the appellants. Thereat there Ram Tripathi started on his jeep along with witnesses and having pai jeep on the road in front of Police Station Kotwali Dehat, the marched on foot. Shree Ram Tripathi positioned himself near i window of the residence of Ale Hassan accused on the road and deputed ti trap party and the witnesses near the western window facing the plainant Hub LalP.W. 2 entered the room of Ale Hassan along with At that time, Ale Hassan was seated on a cot flanked by Suraj peon nearby. Hub Lalcomplainant touched the feet of Ale Hassan being told that he had brought the money Ale Hassan asked to place the money on the table nearby and suggested to him to a Hassan) at Tahsil itself. Suraj Prasad Peon on being signalled picked up currency notes and began to count the same. Meanwhile, Shree Kan: ripatft alongwith trap party and the witnesses gained entry into then noticing the exchange of money from their places aforesaid. Peon made an unsuccessful bid to run away. Both the appellants were arrest and currency notes were taken into possession. Recovery menu bx. K.a prepared on the spot by Sri Ram Tripathi P. W. 1. Tie appellants were taken to Police Station Kotwali where F. I. R. was lodged and a case was registered against the appellants. Investigation of the case was taken u Daya Shanker Singh, Dy. S. P. P. W. 8 who interrogated Sri Ram Tripath P. W. 1. Later on, the investigation was conducted by Vibhuti Nara sigh, Dy. S. P. P. W. 4 who interrogated complainant Hub Lal and Ram Kasnun P. W. 3 and other witnesses. After concluding the investigation, he submitted chargesheet in the court, in the wake of proper sanction having been accorded for prosecutfon of the appellants by the respective authorities.

Ale Hassan 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 24111977 and further the application for restoration had also been decided by him way back on 2521978. 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 appellant 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 P. W. 1, Hub Lal P. W. 2, Ram Kishun alias Ram Kishan P. W. 3 were examined as ocular witnesses of the occurrence. The Court examined Khwaja Ashraf Hasan as C. W. 1.

Now I take up the evidence of P. W. 2 Hub Lalcomplainant in the instant case, for scrutiny. He deposed that the had purchased land measuring eight his was 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 applicant who was Naib Tahsildar visavis the longdrawn 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 any for the sake of brevity, the same are not being repeated all over again in this judgment.

The evidence of Hub Lalcomplainant has been assailed by the defence on 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 stand on too weak a crutch which cannot bear judicial scrutiny inasmuch as that the very motive cannot be adjudged to be existent visavis the fact that the mutation case filed by the complainant Hub Lalhad ended in dismissal on 24111977 itself and also the application filed by the complainant for restoration had been rejected by the appellant Ale Hassan way back on 2521978, 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 the 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 Lalwas annoyed owing to the dismissal of mutation case and cooked up a false case to entra and implicate the appellant, cannot be justitioned above board.

Now I turn the focus on the evidence of Ram Kishun P. W.3. Ram Kishun P. W. 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 imppression 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 has 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 antidote 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 followup 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 Laland Ram Kishun were handingloves and in league with Sree Ram Tripathi, P. W. 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 oui of his solicitude for retribution on appellant Ale Hassan he enacted the entire drama in cahoots with Hub Laland Sri Ram Tripathi.

Nonexamination 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 overheard tke 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, P. W. 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 oi 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, 1 feel that the evidence of this witness in overlaid 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 nonexamination of independent and disinterested witnesses visavis the availability of such witnesses in the instant case. To bolster his contention, the learned counsel has placed reliance on a caselaw reported in Raghubir Singh v. State of Punjab, AIR 1976 SC 91 wherein it was held that it is the duty of the officer of Anticorruption 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 caselaw reported in KhilH Ram v. State of Rajasthan, 1985 SCC (Crl) 24, where in 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 prayed upon and guilt was brought home 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 caselaw reported in fqbal Ahmad v. State of Andhra Pradesh, 1979 SCC (Crl) 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 C. W. 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 Shri 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 unreasonables to infer that Ale Hassan 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.