Dinesh Chandra Sinha vs State

S.R. Bhargava, J.

Appellant Dinesh Chandra Sinha was Agreement Clerk in the office of Executive Engineer, Electricity distribution Civilion Jaunpur in November and December,.1979. Nand Kishore Singh, P.W. 1, is resident of village Nathan Chakra let, P.S. Karakat, District Jaunpur. He is nephew of one Kunj Behari Singh. It is alleged by him that he and his uncle were joint. One Amin of his village held electricity service connection No. 271/3634.

Prosecution story is that on November, 20, 1979 Kunj Bihari Singh moved an application for transfer of electric connection of aforesaid Amin. On 12.12.1979. Nand Kishore Singh and his uncle Kunj Behari Singh some to the aforesaid office of the executive Engineer. They were served with a notice for depositing additional security of Rs. 368.00 and providing: stamp paper of Rs. 5.00 revenue stamp of 20 p. and the witnesses for revised Agreement, with this notice. Nand Kishore Singh went to appellant who demanded Rs. 400.00 for expenses in addition to the money demanded in the notice. Nand Kishore Singh showed his unability to pay the amount of Rs. 400.00. Then the appellant agreed to accept Rs. 200/in two instalment Rs. 100.00 being payable on 13th and the remaining Rs. 100.00 being payable on 15th Nand Kishore Singh felt aggrieved with the illegal demand of the appellant and wanted to get him trapped Red handed he moved application to the District Magistrate who then directed that statement of Nand Kishore Singh be recorded by Magistrate. On the same day an executive Magistrate recorded statement of the appellant. Then the District Magistrate called Trap Inspector Shailendra Bahadur Singh, P.W. 3, and directed that a trap be laid on the appellant. Trap Inspector told Nand Kishore Singh to come the following day to the office with the two witnesses at 11 a.m. on the following day i.e., December 13, 1979 Nand Kishore Singh along with the witnesses Lal Bahadur, P.W. 2, and one Mathur Chandra reached the office of the aforesaid Trap Inspector Nand Kishore Singh delivered a sum of Rs. 100.00 in a currency note to Rs. 10.00 and one currency note of Rs. 20.00. Trap Inspector treated the currency notes With phenapthlene powder and asked Nand Kishore Singh to count them, Then hands of Nand Kishore Singh was got washed in solution of Sodium carbonate to which turned pink. Solution was then sealed in a phial. Memo of the currency notes recording numbers and treatment with phenapthlene powder was prepared. Then the currency notes were delivered back to Nand Kishore Singh who repped them in a paper and kept in a pocket. Then accompanied by Trap Inspector, 3 Constables in plain clothes and aforesaid public witnesses at about 2 or 2.30 p.m. Nand Kishore Singh went to the appellant in his room. Nand Kishore Singh asked the appellant to take out his file. Appellant took out the file and filled up the form. Meanwhile only constable Akbar Khan, P.W. 5, was in the room Trap Inspector and two other constables were waiting outside. The two public witnesses were also with Nand Kishore Singh appellant asked Nand Kishore Singh that his demand should be met then Nand Kishore Singh that his demand should currency notes to appellant who'' accepted them and held them in his hand. Soon after constable Akbar Khan, P.W. 5, signalled to his trap Inspector. The trap Inspector along with his constables came in to the room. Hand of appellant was held up and currency notes were recovered from his hand. Their numbers were compared with the numbers given in the memo prepared a day earlier and it was found that the numbers tallied. Currency noes were sealed in a packet. Hands of appellants were got washed by solution of Sodium carbonate which turned pink. Solution was sealed in a phial. Then the hand of Nand Kishore Singh was got washed in the solution of sodium carbonate which turned pink solution was sealed in separate phial personal search of appellant was taken. Memo of the whole incident was prepared at the spot and ultimately first Information report was recorded at the police station in terms of the memo. Usual investigation was carried out. by inspector Sheo Dhar Misra, P.W. 4. After completing investigation he obtained sanction for prosecution from the concerned superintending Engineer and submitted chargesheet against the appellant for offences under Section 161 I.P.C. and Section 5 (2) of the Prevention of Corruption Act.

Learned Special Judge charged the appellant with offences of accepting illegal gratification and indulging in corrupt practice under Section 161 Indian Penal Code and Section 5 (2) of the prevention of corruption Act.

Appellant pleaded not guilty and came out with case of denial. His case was that the money thrust upon him and he jerked the hands of Nand Kishore Singh. According to him memo of the incident was prepared at the police station and the currency notes were forcibly planted on him at the police station.

For bringing home the guilt against the appellant prosecution examined five witnesses and relied upon number of documents, phials of solution and the currency notes Mrs.100.00.

Nand Kishore Singh was examined as P.W. 1. Hereafter for the sake of brevity he may be described as the complainant. He deposed the part of the prosecution story relating to 12.12.79 without faultering. He further deposed prosecution story of 13.12.79 upto the actual acceptance of money by the appellant. In his examination in chief he said that as soon as he gave the powder treated currency notes to appellant he pushed the notes which fell on the ground. He categorically stated I that appellant did, not hold the currency notes in his hand. Then his statement was that at that very time the Trap Inspector came into the room and picked up the currency notes from the ground. He denied that hands of the appellant were got washed after the alleged trap. He then added that memo was prepared at police station. He was not prepared to identify the currency notes exhibited in the court. He was further not prepared to identify the phials of the solution. He identified his signature on the memo and said that it was prepared at the police station. This witness was declared hostile. He was cross examined by the prosecution. He was confronted with statement under Sec. 161 Criminal Procedure Code. He denied it and offered no explanation. He was crossexamined by the defence also. Then he denied that any constable accompanied him in the room of the appellant. He added that on earlier day when he went to the appellant a stranger was sitting with the appellant and talk about the expenses took place in presence of the stranger. Then in his cross examination by the dependent'' he told the Trap Inspector got his hands (complainant''s hands) and his own hands washed. Lastly he said that he did not give a correct description of events which took place on 12.12.79.

Lal Bahadur, P.W.2, turned wholly hostile and did not depose any part of prosecution story.

Mathur Chandra was not examined because the original prosecution story itself contained that soon after the trap Mathur Chandra slipped away and did not sign the memo.

Trap Inspector, P.W. 3 and constable Akbar Khan, P.W. 5 deposed the prosecution story and proved various papers of the case and material exhibits. They were cross examined but without any advantage to the defence.

Inspector Sheo Dhar Misra P.W. 5, .was examined as Investigating Officer of the case. He deposed investigation proceedings held by him and proved the papers prepared By him during investigation. He further proved sanction of the superintending engineer.

Appellant did not adduce oral or documentary evidence in his defence.

Learned special Judge accepted the prosecution evidence and upheld the prosecution story. He found the appellant guilty of accepting illegal gratification of Rs. 100.00 which he demanded from the complainant. He further found charges against the appellant proved, he sentenced the appellant to rigorous imprisonment for one

year under Section 161 Indian Penal Code and rigorous imprisonment for one year under Section 5 (2) of prevention of corruption Act and fine of Rs. 250.00 and in default to further undergo rigorous imprisonment for one month. He made the sentence under two count concurrent.

Being aggrieved appellant has come to this court. It is evident that two the basis principles of appreciation of evidence in such cases were not in the mind of the special Judge. First principle is that evidence of interested and partison witnesses who are concerned in success of the trap must be tested in the same way as that of any other interested witness. In a proper case the court may look for independent corroboration before convicting the accused persons. In this connection reference can be made to the case of Ram Prakash Arora v. State of Punjab (A.I.R.1973 (S.C.) page 495.).

The second principle of appreciation, of evidence in such cases is that there can be no doubt that evidence of complainant in such cases should be corroborated in material particulars. After introduction of Section 165A Indian Penal Code making the person who offers bribe guilty of statement of bribery. The complainant cannot be placed on any better footing than that of accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon (Punna Lal Damodar Nath v. State of Maharashtra ((1979) 4 Supreme Court cases, 526.).

In the instant case a bare reading of the entire statement of the complainant shows that he threw the prosecution story overboard. In his cross examination by the defence he did not leave any part of the prosecution story intact such a witness, can be easily called wholly hostile and no reliance can be placed on any part of his testimony. Independent witness Lal Bahadur P.W. 2 can equally be brushed aside. About Mathur Chand (not examined in the case) it would suffice to say that he was not prepared to subscribe to the prosecution story from the very beginning and so he, according to the prosecution story itself, slipped away and did not sign the memo on the basis of which the first information report was recorded.

The there is testimony of Trap Inspector and constable Akbar Khan. Both of them belong to the trap party and were the naturally interested in the success of the trap. A bare reading of the examinationinchief of Akbar Khan makes it clear that according to him entire prosecution story took place on a single day, he was zealous enough to have caught hold of the hand of the appellant before he could have thrown the currency notes. He was just a recruit receiving training and was up to be under the thumb of his superior officers. Thus the testimony of the trap inspector and constable Akbar Khan has to be treated as single testimony. It is evident from the cross examination of the trap Inspector that although the quarter of the superintending Engineer was in the same compound and although the executive Engineer came to the spot soon after the incident yet the Trap Inspector never took higher authorites of the appellant into confidence. He did not ascertain the procedure or final authority of transfer of connection. It is thus evident that he was in hot haste. It is fit case in which the testimony of the Trap witnesses must be corroborated by independent evidence which is absolutely wanting.

Hence in the result appellant is entitled to the benefit of doubt. His conviction and sentences must set aside.

Appeal is allowed. Conviction and sentences of the appellant are set aside. He is on bail. His bail bonds are cancelled and sureties are discharged. They need not surrender nor deposit fine.