Raj Bahadur Singh vs State of Uttaranchal

Hon''ble Servesh Kumar Gupta, J.—This Appeal preferred against the judgment and order dated 03.03.2006 delivered by learned Additional Sessions Judge/ Special Judge, (Anti Corruption), Nainital while adjudicating the Special Sessions Trial No. 46 of 1991 titled as State Vs. Raj Bahadur Singh. Accused appellant was found guilty for the offences under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (for brevity hereinafter called as ''Act''). u/s 7 of the Act, he was sentenced to rigorous imprisonment for one year along with fine of Rs. 1000/- and in default of payment of fine, he was directed to undergo 15 days simple imprisonment. Likewise, u/s 13(2) of the Act, he was sentenced to undergo two years rigorous imprisonment nay a fine of Rs. 2,000/- and in default of payment of fine, he was directed to undergo one month simple imprisonment and it was enjoined that both the terms of the sentence should run concurrently. Having heard learned counsel for the appellant as well as learned Brief Holder for the State, it transpires that accused appellant Raj Bahadur Singh was a Constable in Excise Department in District Udham Singh Nagar. He was a member of raiding party and number of times in order to apprehend the manufacturing of contraband liquor, he raided in village Tukari Farm wherefrom the complainant Kashmir Singh hails. Three times, Kashmir Singh was found to have been involved in the said manufacturing, so he was challaned by the Excise Party. He either faced trial or deposited the fine on confession in order to get the trial finished against him. Fourth time, when the village was raided complicity of Kashmir Singh in the said crime was noticed, it is alleged that he was asked to sign some papers and threatened by accused Raj Bahadur Singh that if Rs. 500/- were not given by Kashmir Singh to him then challan will be forwarded to the competent court.

Feeling constrained by persistent threats at the hands of Raj Bahadur Singh, on 16.06.1990 Kashmir Singh agreed to pay Rs. 500/- after three days. Kashmir Singh, instead of paying amount silently, made up his mind to settle the score by way of making a complaint against the appellant to appropriate authority. He reached to the Superintendent of Police (Vigilance) on 18.06.1990 and made a complaint Exhibit Ka-1 with the above facts. On the very day, the Superintendent of Police (Vigilance) marked an endorsement on the complaint and ordered the Inspector to organize a trap. The trap party was arranged and appellant Raj Bahadur Singh was raided in a restaurant located in Khatima town. Raj Bahadur Singh was caught red handed with five currency notes of Rs. 100/- denomination each having different numbers and these currency notes were tainted with phenolphthalein powder (a chemical which is used in order to detect the identity of the currency notes which are offered and received in gratification). The peculiarity of this powder is that when anything tainted in such powder is dissolved in water, the water would become colourful and so happened in this case. Accused appellant was caught red handed, so he was arrested on the spot. All the necessary and relevant memos were prepared and First Information Report was lodged against him on 19.06.1990 at 04.00 p.m. by Sub Inpsector Mahendra Pal Singh. Investigation was conducted and charge sheet was submitted against him in competent court whereupon cognizance was taken by the Magistrate on 20.12.1991. Charges were levelled on 15.03.1995 against accused, who abjured the guilty and claimed trial.

Prosecution examined PW1 Kashmir Singh, PW2 Jeet Singh, PW3 Nand Kishore Tyagi, Sub Inspector in Vigilance Department, PW4 Sub Inspector Daya Krishan Joshi, who was Head Constable on 19.06.1990 and posted at police station Khatima. He noted down First Information Report in the relevant diary, PW5 is Mohd. Vakil Khan, Inspector in Vigilance Department, conducted the investigation. Accused has also produced witness in defence viz. DW1 Shankar. Statement of the accused u/s 313 Cr.P.C. was recorded. He narrated the entire story of the prosecution wrong and stated that since Kashmir Singh was indulged in manufacturing of contraband liquor and was apprehended by him so in order to avenge, he has been falsely implicated by Kashmir Singh.

Learned counsel for the appellant has vociferously contended that complainant did not indicate date, time and place as to when and where the accused raised a demand of Rs. 500/- as gratification to exonerate him from crime of alleged manufacturing of contraband liquor. She has relied upon the judgment rendered by Single Judge of this Court in Criminal Appeal No. 31 of 2006 titled as Ganga Ram Petwal Vs. State of U.P. decided on 12.05.2009 wherein learned Judge has expressed his view that when the complaint, in question, made to concerned officer for laying a trap did not disclose date, time and place as to when and where transaction of giving bribe was to take place, then such trap rendered doubtful.

This precedent is not applicable in the instant case because mentioning of date, time and place has been expressed in so many words in the First Information Report, which is based upon the complaint Exhibit Ka-1 moved by Kashmir Singh to the competent officer. By the passage of time of more than 20 years, a little margin of the original complaint in the file has been torn so as to elope few numerical of complete date, which does not mean that date, time and place were not indicated. The same can well be gathered from the chick report Exhibit Ka-4, which is verbatim of the complaint. It has been contended by the learned defence counsel that scribe was not produced and there are so many contradictions in the statements of PW1 and PW2 regarding time of arrival of the accused at the relevant spot where gratification was offered. These are untenable arguments because the Court is mindful that occurrence was of June, 1990 and the charge sheet was submitted in December, 1991 whereupon cognizance was taken by Magistrate promptly but accused did not permit the court to level charge against him promptly and that could be done only after passing more than four years to wit 15.03.1995. Even so, he further created a number of obstacles in conclusion of the trial and permitted the court to conclude the prosecution evidence after more than 10 years of levelling of charge. This way, PW1 and PW2 were examined on 20.09.2004 i.e. after 14 years of the occurrence. PW3 was examined on 22.08.2005 i.e. after more than 15 years of the happening. In such a big span of time, it is hardly possible to keep remembrance of all the events of incident in a photographic manner and memory of all the witnesses becomes fade. So it unreasonable to expect from every witness to disclose the verbatim statement of each and every aspect of the case. Little variations on different features are rather indication of genuineness of the occurrence. So this way, arguments of the learned counsel for the appellant are wholly unacceptable.

Learned counsel for the appellant has further argued that sanction is defective, which is a necessary requisite for launching prosecution against the accused. However, in what manner it is defective, has not been disclosed by the learned counsel for the appellant. Having a look upon sanction Exhibit Ka-9, it is apparent that the same was accorded by the authority, who was competent to remove the accused appellant from service and the authority, who can appoint a Government servant into service, has power to remove him. This is the competency test of the authority enabling him to grant sanction in the matter. So this way, this sanction is also valid one.

Now, we have a glance upon prosecution evidence. PW1 Kashmir Singh has narrated the entire incident in his chief examination right from raiding of village including his house by accused appellant in suspicion of manufacturing of contraband liquor till acceptance of Rs. 500/- as gratification by accused. He has also proved the identity of currency notes, which were received by Raj Bahadur Singh in his hands. He was nabbed by team of Vigilance Department, which was in close proximity of the place of occurrence. After the incident, hands of Kashmir Singh and Raj Bahadur Singh were washed by simple water and the same became colourful. PW2 Jeet Singh, is an independent witness who has corroborated the entire chain of occurrence in pith and substance leaving minor discrepancies, which are ignorable. PW3 Nand Kishore Tyagi was Inspector in Vigilance Department at the relevant time. He was also a witness of giving and taking of gratification and has proved all factual and legal aspects, in similar manner, as stated by the previous two fact witnesses. It is worthless to reproduce the statements of all the witnesses, at the stage of appeal when it has already been elaborately discussed in the judgment of trial court. PW4 Daya Krishan Joshi, Head Constable was simply a formal witness, who noted down the First Information Report lodged by Kashmir Singh and has proved the same. PW5 Mohd. Vakil Khan was the Investigating Officer, who has also proved the entire sequence of the investigation and submission of charge sheet in the case.

Learned Brief Holder has argued that Section 20 of the Act envisages a presumption, which reads as under:

Presumption where public servant accepts gratification other than legal remuneration.-

(1) Where, in any trial of an offence punishable u/s 7 or section 11 or clause (a) or clause (b) or sub- section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate."

This presumption, all the more, shifts onus to the accused appellant to prove the case contrary to the prosecution, if he fails to do so then mere recovery of the tainted currency notes with phenolphthalein powder is sufficient to draw the presumption of his guilt under the Act.

It has also been argued on behalf of the appellant that restaurant owner was not produced by the prosecution in order to ratify the version of other witnesses while he has been produced as defence witness by the accused and he has altogether denied any occurrence of raid conducted by Anti Corruption in his restaurant on the relevant date. This witness is not trustworthy at all because he is a local resident of town Khatima. He runs his restaurant there and accused appellant also hails from the same town so naturally the Court can discern that a small restaurant owner cannot incur wrath of his native person and that too of a Government servant a Constable of excise Police, who has been linked with other Government servants, just to open door for all the troubles in running his small restaurant whereas complainant Kashmir Singh is resident of a village, far away from Khatima, so in all probabilities it is not possible for this small restaurant owner at Tehsil Khatima to depose the truth against accused before court in the above circumstances.

Learned Brief Holder has drawn attention of this Court towards Section 21 of Act, which reads as under:

Accused to be a competent witness.- Any person charged with an offence punishable under this Act, shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial.

Accused has not examined himself as defence witness, as per the above provision of the Act in order to rebut the prosecution version and assert his plea that he has been falsely implicated by Kashmir Singh because Kashmir Singh was challaned by him for manufacturing of contraband liquor. The Act provides an opportunity to the accused to get himself examined in the open court on oath in order to reveal the truth but he has not dared to avail this opportunity For the conspectus, what has been stated above, the appeal is bereft of any merit. Accordingly, the appeal is dismissed. Impugned judgment and order dated 03.03.2006 is sustained. Appellant is on bail. His bail is cancelled and sureties are discharged. He be taken into custody forthwith to serve out the sentence, as awarded by the court below. Lower court record be sent back. Inform the court below for compliance of the order.