Ram Avtar Gupta vs State of Haryana

G.S. Chahal, J.

Dr. Ram Avtar Gupta was tried under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and Section 161 of the Indian Penal Code by Sh. N.K. Jain, Special Judge, Narnaul who convicted and sentenced him as under :

Rigorous inprisonment for one year and a fine of Rs. 5000/ or in default thereof, further RI for six months under the first count, and

RI for one year under the second count.

Both the sentences were ordered to concurrently. In the present appeal, he challenges these orders of conviction and sentences.

The case was initiated against the appellant on the basis of a complaint made by Ishwar Dutt (PW4) that the appellant had made a demand of Rs. 100/ as illegal gratification for issuing him a medicolegal certificate. Ishwar Dutt claims that this demand was made from him on 10.6.85. The necessity for the medicolegal report arose, because on 3.6.85, he had a minor quarrel with Rattan Singh who had obtained medicolegal report from the appellant on 6.6.85. He himself had also received a minor injury in that scuffle and he wanted the medicolegal report for that purpose. After the appellant made a demand from him, Ishwar Dutt returned home and talked about it to his younger brother. After gathering information about the vigilance office at Gurgaon, he approached that office and contacted Deputy Superintendent of Police Mukhtiar Singh (hereinafter the DSP). He made his statement Ex.PE to the DSP who deputed Lala Ram to call some gazetted officer. Accordingly Lala Ram brought Sh. Roshan Lal, Block Development Officer. In the presence of Sh. Roshan Lal, the DSP asked Ishwar Dutt to produce a currency note of the denomination of Rs. 100/. The DSP, after noting down the number, thereof, applied some powder and also affixed his initials, M.S. thereon on its corner. The note was then entrusted to Ishwar Dutt and a direction was given that he would hand over the same to the appellant. Maharaj Singh (PW6), a Police official was deputed to accompany him. The DSP directed Maharaj Singh to rub his nose with his right hand by way of signal to the party. Memo Ex. PD/1 was prepared about the entrustment of the currency note. The DSP then brought the party to a place about 200 yards away from the hospital and Ishwar Dutt and Maharaj Singh were dropped there. Ishwar Dutt went to the Casualty Ward while Maharaj Singh stood by the side of the door and the window so as to see from outside and from where the appellant might not see him. A nurse made an entry in the register and gave him a slip. She asked for 50 paise, but he did not have that amount and the appellant told her that the same might be charged latter. The appellant then inquired from him if he had brought Rs. 100/, the settled amount. He affirmed having brought the amount. On the asking of the appellant, he handed over the currency note Ex. PI to him who took it and slipped it in left pocket of his pants. The appellant started preparing the medico legal report, signed it and he also obtained the signatures of Ishwar Dutt. While the appellant was in the process of tearing of the sheet from the register, the raid was carried out by the DSP. The DSP disclosed his identity and desire to carry out the search. There after, the search was conducted. From the left side pocket of the pants being worn by the appellant, the currency note Ex P1 was recovered and it was put in an enveloped and scaled. The DSP then sent a peon to bring a pants for the appellant from his house. Thereafter appellant''s pants was got removed and taken into possession. He was then made to wash his hands in a water prepared and the colour thereof changed into pinkish. This liquid was then poured into a bottle and sealed. In another water, the pocket of the pants of the appellant was got washed and its colour also changed into pinkish. That liquid was also taken into possession. His own hands were also got washed and the same also changed into pinkish colour. It was also transferred into a bottle. Chit Ex PA/1 and medicolegal report Ex. PA/2 were also taken into possession by the Police Party. On further search, some, other articles consisting of Rs. 64/ in case, a pen and a wrist watch were recovered and taken into possession.

The prosecution has relied on the testimony of Ishwar Dutt (PW4), shadow witness Sh. Maharaj Singh (PW6) and recovery witness Sh. Roshan Lal Yadav, BDO (PW3), the investigating officer DSP. They have corroborated the prosecution version on all its material aspects,

Smt. Sushma, Staff Nurse (PW1) stated that on 13.6.85 she was on duty, as also the appellant, from 7.00 am. to 2.00 p.m. Ishwar Dutt came to her and she made an entry in the register, copy of which is Ex. PA. She then referred him to the appellant whereon entry No. 1289 was written by her, while other particulars therein were in the hand of the appellant. Medicolegal report Ex. PA/2 was prepared by the appellant who prescribed an injection of analgin which she administered. After giving him ''First Aid'', the appellant started preparing the medicolegal report which took about 20 minutes. In her presence, the appellant did not ask for any money from Ishwar Dutt. Dr. P.P. Lekha (PW2) deposed about the appellant and Smt. Sushma Singh alias Sushma (PW1) being on duty on 13.6.85 from 7.00 a.m. to 2.00 p.m. Dr. B.K. Sharma (PW3) identified the writings of the appellant on medicolegal report Ex. PA/2. Sh. Dharambir Singh, Judicial Magistrate I Class, Rewari (PW5) proved the statement of Ishwar Dutt under Section 164 of the Code of Criminal Procedure. Constable Dharam Singh swore an affidavit Ex.PG with respect to taking the special report. Ram Avtar, Draftsman (PW9) deposed about his preparing the site plan Ex. PF. Sh. Charanjit Lal Manchanda (PW11) proved the sanction order Ex PK issued by Smt. Komal Anand, Commissioner & Secretary Health Department.

The appellant denied the prosecution allegations and claimed the case to be false. He admitted having examined medically Ishwar Dutt and issuing the medico legal report. He claimed that the injuries found on the person of Ishwar Dutt were of within 24 hours duration. He gave the following version of the occurrence on 10.6.85 as well as of 13.6.85.

"....On 10.6.85, Ishwar Dutt had come to me in the hospital and contacted me for issuance of medical certificate with respect to injuries alleged to have been received by him on 3.6.85. He also told me that he wanted a medical certificate of the same type as had been issued by me to Rattan Lal on 6.6.85. He also requested me to admit him in the hospital. I told him to get his name entered in the register and that to get his injuries recorded. The complainant, however, told me that he had no injuries on his person and still he wanted a medical certificate. I told him that he could not get a medical certificate if he had no injuries on his person. I also told him that I could not admit him in the hospital. The complainant thereupon threatened me, that be had connections in the police deptt., and that he would get me involved. Thereafter, he left without telling his name. Thereafter, the complainant came to me on 13.6.85, the Staff Nurse Sushma and myself both were on duty, he got his name entered with the staff nurse and paid her 50 paise. The nurse recorded the number of the complainant on a slip and sent him to me. I, thereupon made the complainant to lie on the examination table, the complainant reported pain in his abdomen and also in the back. I, however, found that there was no pain in the abdomen though there was a pain in the reddish contusion on the back of the complainant. In my enquiry, he told me that it had been about 8 to 10 day''s old. After thorough examination of the complainant, I applied medicine to the injury after washing my hands. I, thereafter made an entry in the slip of the complainant and sent it to the staff nurse for making an entry in the register, which she did. Meanwhile. I prepared the medicolegal report of the injury of the complainant and found that the injury was only 24 hrs. old, I thereupon advised the complainant that he did not need admission, that the medicine had been given to him and that he should sign MLR. He put his signatures on the medicolegal report. I asked the complainant to deposit Rs. 4/ with me for the medicolegal report, he told me that he had a note of the denomination of Rs. 100/ and that he had no change, I then told him to obtain the change from the Cooperative Store in the waiting hall. The note was neither handed over to me, I was busy with the preparation of the document to complete the formalities, the complainant went outside and came back soon thereafter and told me that he had not been able to secure the change for Rs. 100/. I was in the process of tearing off the copy of the MLR of the complainant, I had not yet torn it off from the register, I dosed my register. I told the complainant that I had to go, to Casualty Ward and that I would help him in procuring change from Coop. Store. As soon as I came out, I was apprehended by the police and involved in this case. I did not even see the note in the hand of the complainant I had also not signed in ink on the copy of the MLR which is usually done by me on all MLRs. Sushma Singh and Lalit Mohan had been present in the room throughout where I was present. From there I was taken to PWD Rest House. I was made to sit and the police took into possession my wrist watch and money etc, Maharaj Singh, Lala Ram and Roshan Lal BDPO were not present the hospital or in the rest house. Roshan Lal BDO had been a witness in other police case and is a close associate of Lala Ram Inspector. I have been falsely involved with the connivance of the complaint I did not accept any illegal gratification."

In his defence, the appellant examined Suresh Chand (DWI) who produced the site plan Ex. DWI/A, according to scale.

Admittedly, Ex. PA/2 was issued by the appellant to Ishwar Dutt on 13.6.85 at 1.15 P.M. The doctor had noted "3"x 3/4" reddish contusion mark on the left side of the back just below the inferior angle of the scapula." The second injury reads Complaints of pain in the abdomen. No mark of any external injury noticed." He had described injury1 to be simple in nature and of 24 hours duration, caused with blunt weapon. A fee of Rs. 4/ was recorded to have been charged. This medicolegal certificate is definitely not shown to be false, since according to Dr. P.P. Lekha (PW2), he had examined Ishwar Dutt and found a reddish contusion on the back of the patient. There was no other injury on the person of Ishwar Dutt and this injury being of within 24 hours duration, could not have been suffered by him on 3.5.85, when he had a quarrel with Rattan Singh. Ishwar Dutt has not explained as to under what circumstances, he, in fact, received this injury. On 10.6.85, Ishwar Dutt claims to have approached the appellant for getting medicolegal report with respect to the injuries on his person. According to his version, the appellant had made a demand of Rs. 100/ by way of illegal gratification for issuing such a certificate. Obviously, Ishwar Dutt wanted the certificate to establish that he had suffered an injury on 3.6.85. Since Dr. P.P. Lekha had found no other injury on his person, a conclusion is to be drawn that when Ishwar Dutt contacted the appellant on 10.6.85, he had no injury on his person and the statement of the appellant to that effect appears to be correct. I am inclined to accept the statement of the appellant that he had refused to oblige Ishwar Dutt on 10.6.85 to admit him as a patient without any injury on his person. Ishwar Dutt had then left the hospital and thereafter returned there on 13.6.85 in the company of the raiding party. The evidence of Ishwar Dutt that a demand of illegal gratification was made from him by the appellant, is not only uncorroborated but also, in the circumstances of the case, it is shown to be incorrect. On 10.6.85 he did not have any injury on his person, and the appellant could not have issued him a certificate though he wanted a false certificate in order to create a defence for himself with respect to the injuries caused by him to Rattan Singh. It was after 10.6.85 that Ishwar Dutt suffered an injury on his back and created a false version.

It is in the statement of Smt. Sushma (PW1) that she had her table in the same room in which the appellant sits. She is the person who prepared the slip Ex PA/1, serial No. 1289, and recorded its number on the chit. It is her definite statement that all the time she remained in the room, the appellant did not make any demand of Rs. 100/ nor was any amount passed onto him The appellant, after examining the injury on the person of Ishwar Dutt, had prescribed an injection of analgin which was administered to him by Smt. Sushma (PW1). This part of her statement was not challenged. Her testimony sufficiently rebuts the statement of Ishwar Dutt that when he contacted the appellant, he had made a demand of illegal gratification. The statement of Ishwar Dutt that he did not have 50 paise with him and he did not pay the amount to Smt. Sushma is also rebutted by her statement.

The prosecution has relied on the testimony of S.I. Maharaj Singh (PW6), the relevant portion whereof is as under :

"In the hospital, the complainant entered the casualty room and I kept standing by the side of the window; in the room, the accused present today in the court was sitting. The complainant told the doctor that he had earlier talks with him and that in compliance, thereof he had come to the hospital. The doctor enquired of him whether he had brought the agreed amount, the complainant answered in the affirmative. The doctor then asked him to hand over the money to him. The complainant handed over the money to the doctor whereupon the doctor started preparing the medicolegal report"

When this statement is examined in the light : of the statement of Smt. Sushma, Staff Nurse, it becomes difficult to accept his testimony. Admittedly, Ishwar Dutt had contacted Smt. Sushma, in the first instance, and got an entry made and thereafter he contacted the appellant. If the statement of SI Maharaj Singh is to be accepted, Ishwar Dutt straightaway went to the doctor appellant and talked to him about the earlier talk he had with him and the fact that he had with him ready money and then, on demand, passed on the same to him. Even Ishwar Dutt does not say that there was any talk between him and the appellant about his earlier visit.

There is force in the contention of the learned counsel for the appellant that raiding party consisted of Sh. Roshan Lal, BDO and the DSP selected a Police Official to act as a shadow witness. There is a natural anxiety of an investigating officer to ensure a raid to be successful. It is difficult to appreciate the conduct of the DSP in deputing a Police Official in preference to an independent witness to act as a shadow witness. SI Maharaj Singh (PW6) claims to have stayed outside the last window and from there to have overheard the conversation and also seen Ishwar Dutt passing over the tainted currency note to the appellant and his accepting the same.

The appellant has examined Suresh Chand, Draftsman (DWI) who proved the scaled site plan. Admittedly, in the casualty room of the hospital, besides the appellant, Smt. Sushma, Staff Nurse, was also present. If the appellant had to make a demand, he must have whispered to Ishwar Dutt so as to keep it a secret from her. In that situation, there was hardly a chance for SI Maharaj Singh to have overheard. their conversation.

On a resume of the evidence of the three witnesses, Ishwar Dutt, Smt. Sushma and SI Maharaj Singh, it is difficult to accept the prosecution case that the appellant had made a demand of Rs. 100/ from Ishwar Dutt.

The presence of phenolphthalein powder on the hands of the appellant in the present case will not prove criminality of the appellant. He had examined Ishwar Dutt as a private case and he was to charge Rs. 4/ as fee. Ishwar Dutt, who had gone to the extent of fabricating injury on his person within 24 hours of his examination, could conveniently pass on the hundred rupee note on the pretext that he did not have any change with him. The entire evidence of washing of the hands and the pocket of the pants of the appellant is, thus, only of academic interest. It will not help the Court in arriving at a conclusion about the commission of the offence. Ishwar Dutt is not a man of sterling character. He had been tried in a Court at Jaipur for offences under sections 366 and 376, IPC. He had also his contacts with the Police. HC Om. Parkash is his cousin. He has tried to deny the information as to the previous place of posting of Om Parkash in Vigilance Department at Gurgaon. He wanted a false certificate on 10.6.85 and the appellant having refused to oblige him, he manipulated a false case. The prosecution evidence is not sufficient to prove its case against the appellant beyond reasonable doubt.

I hereby accept the appeal and after setting aside the order of conviction and sentence, acquit the appellant. The fine if paid shall be refunded to him.