Sakhi Mohd. vs State of J & K

Arun Kumar Goel.

This appeal is directed against the judgment of learned Special Judge, Anti Corruption, Jammu. By means of impugned judgment passed in File

No. 10/ChaIlan, on 22091993 after holding both the appellants guilty under Sections 5 (2) of the J&K Prevention of Corruption Act 2006 (SVI)

and Section 161 Ranbir Penal Code, both of them have been sentenced to undergo two years rigorous imprisonment and to pay fine of Rs. 2000/

each under Section 5 (2) and in default of payment of this fine they have been further directed to undergo further rigorous imprisonment of six

months; and two years rigorous imprisonment under Section 161 Ranbir Penal Code as also to pay a fine of Rs 2000/ and in default of payment of

this fine they have been further directed to undergo rigorous imprisonment six months. Both the sentences have been ordered to run concurrently.

By means of this appeal both the appellants have questioned this judgment.

Shri Bakshi, learned counsel appearing for the appellants, submitted that in order to sustain its plea prosecution was required to first show that

there was demand of bribe by the appellants, then its acceptance as well as the recovery of the tainted money of bribe from the appellants. In the

absence of all these three ingredients or any one of those prosecution must fail. In addition to this it was also urged that when a reference is made

to the statements of the complainant, two independent witnesses of trap and the police officials who were members of the raiding party they do not

corroborate each other on material aspects of the case besides giving separate versions, benefit whereof according to Shri Bakshi has to be

extended to his clients. Another argument addressed was that evidence of the complainant needs to be corroborated on material facts by other

trust worthy and reliable evidence and at the same time by not examining the Investigating Officer material prejudice has been caused to the

appellants because they were deprived of an opportunity to crossexamine him on material aspects of the case. Not only this, but even Prem Pal

Gupta Inspector of police had not been examined. Lastly it was urged that this is a case of no legal evidence which can translate against the

appellants. Thus the appeal was liable to be allowed and conviction and sentence imposed upon the appellants set aside.

With the assistance of learned counsel for the parties the case has been examined by the court in the light of the facts as they exist on the file as

well as on the basis of evidence both oral and documentary.

Facts giving rise to this case are that FIR No. 128/88 under Section 447 & 379 Ranbir penal Code was registered at the instance of one

Vishwa Mittar son of Shri Preetam Dass against Ayodya Nath son of Badri Dass (hereinafter referred to as the complainant) at police station

Nowshera. In this case grievance against the complainant made by Vishwa Mittar was that he is in cultivating possession of Khasra No. 387

measuring 20 Kanals. On 29. 10. 1988 complainant with his two sons cut grass from an area of about 5 Kanals out of this khasra No. 387. When

Vishwa Mittar questioned them, all the three threatened the former that they would cause loss of his person and property and in case if the former

ever talked about this in future he would be done to death.

For investigating this complaint both the appellants as well as another constable were deputed by police station Nowshera. It was here that the

trouble started which resulted in registration of the case against the appellants and the subsequent conviction as noted hereinabove by the court

below.

According to the complainant during the course of investigation of the above FIR of Vishwa Mittar, the complainant and his two sons were

apprehended. All three of them were threatened by the appellants and a sum of Rs 2000/ by way of bribe was demanded by them (appellants). It

is only then that the complainant and his sons can be let loose. After entities (Sic) had been made by him to the appellants, he agreed to pay Rs

1000/ and sought three days time enabling him to arrange for the money. On this basis all three of them were let loose by the appellants. At this

juncture it is further the case of the prosecution that complainant was warned that in case if this amount of bribee of Rs 1000/ was not paid within

two three days, all three of them would be apprehended.

In the aforesaid background it is also the case of the prosecution that Preetam Dass straightway came to Satwari where his brother Bhola alias

Bholi was residing. Complainant states that he arranged Rs 1000/from his brother and then after having gone to a petition writer at Bakshi Nagar

and after discussing the matter, he submitted the complaint EXPWAN before S. S. P. Vigilance Organisation, Jammu. All these facts were

narrated in this complaint including number of ten currency notes of Rs 100/ each.

Thereafter PWGirdhari Lal Senior Assistant from the office of the Rural Development Department Jammu as well as PWR. K Gandetra Labour

Officer (Transport) in the office of Deputy Labour Commissioner, Jammu, were summoned and associated as independent witnesses besides

police officials, Viz. Manzoor Ahmed, SGCSat Pal, Constable shiv Kumar and SGCSakhi Mohammad. This raiding party was headed by Dy. S.

P. and Inspector of the police.

After the money had been produced by the complainant before Superintendent of the Police it was handed over to the Deputy Superintendent

of the Police. At such point of time PWSGC Sat Pal was summoned by Dy. S. P. and asked to put powder on these currency notes. Powder was

added to these currency notes. Hands of the complainant when washed, the handwash turned to be pink which was put in a sealed bottle. This

was taken into possession vide memo EXPWAN/1. After completing the formalities at Jammu, raiding party left for Nowshera.

As it is further revealed from the prosecution witnesses examined during the course of trial that one of the persons was made to disembark at

Bus Stand Nowshera alongwith the complainant. There both of them were asked that the tainted money should be paid to Sakhi Mohammad and

Kuldeep Raj whereever they meet them. Vehicles of the raiding party were parked in the army area. Manzoor HussainPW was the other person

accompanying the complainant.

Complainant and this PWManzoor Hussain came across Kuldeep Raj appellant in the Bazzar where he was informed that money has been

arranged and latter should take them to the residence of Sakhi Mohammad appellant. Here the money was paid to Sakhi Mohammad, who

accepted the same when Manzoor AhamdPW informed the members of the raiding party who were standing outside that the money has been

passed on. At such point of time all of them came inside the room and caught hold of Sakhi Mohammad who had passed the money to Kuldeep

Raj. Later made an attempt to get out of the room but was also caught hold of by the raiding party. From the personal search of Kuldeep Raj Rs.

31/ were recovered and Rs. WOO/ were found in one his hands. Recovery memo in this behalf was prepared at the spot vide EXPWAN/3.

Hands of Sakhi Mohammad and Kuldeep Raj were got washed. The colour of handwash of both the appellants turned pink. Handwash of

Sakhi Mohammad appellant was taken into possession vide EXPWAN/4 and of Kuldeep Raj vide EXPWAN/ 5. Numbers of the currency notes

recovered at the spot were tallied with the list which were found to be the same. These were taken into possession vide EXPWAN/6.

After the raid was conducted both the appellants were taken into custody and according to prosecution they were brought to Jammu. While

leaving Nowshera, Police Station was informed that both the appellants had been taken into custody by the raiding party. On completion of the

investigation challan was filed and on conclusion, as already observed, both the appellants had been convicted.

Star witnesses of the prosecution in this case are the complainant, Girdhari Lal, R. K. Gandotra and Sakhi Mohammad. Besides other oral and

documentary evidence.

On the other hand case of the appellants in their statements under Section 342 Criminal Procedure Code is of denial simplicitor and some

having been foisted upon them unnecessarily. Sakhi Mohammad further states in his examination that Kuldeep Raj knocked his door from outside

around 11. 00 PM at night and informed that some people have come to see him. When the door was opened by landlord Shri Dev Raj Bhasin

from outside it was found that appellant Kuldeep Raj accompanied by 7/8 persons, who later on it was revealed were from Vigilance Party, caught

hold of and dragged him. In these circumstances this was a cooked up case against him and his other coaccused. Two witnesses DWsDev Raj

Bhasin and Tara Chand have been examined in defence. Former is the landlord of Sakhi Mohammad whereas later DW is the wife's brother of

Kuldeep Raj. Now on the basis of the prosecution evidence which will be referred in brief hereinafter, it has to be see whether all three ingredients

i. e. demand, acceptance and the recovery to constitute the offences in Question have been made out or not.

Admittedly there was a case registered against the complainant at the instance of Vishwa Mitter. For investigating the same both the appellants

and another constable had been deputed by the Nowshera Police when the bribe is alleged to have been demanded by both the appellants and

bargain was finally struck at Rs. 1000/ payable within three days failing which complainant and his son would be taken into custody.

While appearing as a prosecution witness Ayoda Nath has pledged his oath. His version of the prosecution case is, as noted hereinabove. He

amongst other things specifically states that the hands of both the appellants were got washed at the spot and the handwash turned pink which was

taken into possession by two seperate memos EXPWAN/4 regarding Sakhi Mohammad and EXPWAN/5 regarding Kuldeep Raj. Both these

bottles were sealed at the spot. Similarly he speaks about recovery of currency notes having been taken into possession vide seizure memo

EXPWAN/6. His statement clearly indicates that this exercise was completed at the spot so far trap having been laid and thereafter hands of both

the appellants having been washed at the spot, besides preparing memos there.

On the other hand PWGirdhari Lal while narrating the incident has amongst other things stated that the currency notes were recovered from the

land of Kuldeep Raj, members whereof were tallied. Memo, after the handwash of appellant Sakhi Mohammad, was prepared after it had been

taken into possession vide EXPWAN/4. He categorically states that Kuldeep Raj has declined to get his hands washed when Rs. 30/ 31 were

recovered on his personal search. Both of them were brought to Jammu. He is specific that hands of Kuldeep Raj were washed at Jammu where

the colour of handwash turned light pink. It was from here that the accused were brought to Pacca Danga Police Station where all the seizure

memos EXPWAN/1 to EXPWAN/9 were prepared which are correct. This position he has reiterated in his cross examination where he further

states that all of them reached Jammu at 3. 00 a. m. in the morning. Regarding preparation of Memos complainant states that all papers were

prepared at the spot and only one person had scribed those. This entire exercise took about two hours. Again when a reference is made to the

statement of the other independent witness namely R. K. Gandotra, he states that the exercise of handwash of Kuldeep constable was undertaken

at Jammu.

Shiv Kumar constable who was a member of the raiding party, states that on recovery nothing was recovered from Sakhi Mohammad

whereas currency notes of the value of Rs. 1000/ were recovered from the right hand of Kuldeep constable. He only states that hands of Sakhi

Mohammad having been washed at the spot, however in his cross examination he states that the hands of Kuldeep Raj were also washed at the

spot. This entire exercise took about fifteen minutes.

Similarly Manzoor Ahmad, who is stated to be the person accompanying the complainant at the time of passing of the money to the appellants,

speaks that hands of both of them were got washed at the spot as also money was recovered from him when the colour of the water turned pink.

He speaks of an attempt having been made by Kuldeep Raj to throw away currency notes. Similarly Sakhi MohammadPW also states that hands

of both the appellants were got washed at the spot when the water turned pink. He has further stated in his cross examination that Mr. Gandotra

and Girdhari Lal PWs were present at the spot in the room and both of them had witnessed the proceedings. Their statements were also recorded

inside the room by the Investigating Officer. This is altogether a new version.

It has come in the statements of all the prosecution witnesses that the currency notes were found in the land of the appellantKuldeep Raj which

were badly trampled because he was holding these in his grip. It has been observed by the trial court that the currency notes are not trampled at

all.

Above discussion makes the search and consequential seizure suspicious being not free from doubt. Another reason to take this view is that in

case all the prosecution witnesses, as was the case set up during the course of trial, were present at the spot, at least their statements should have

been one on the following aspects:

(a) Regarding the place where handwash of Kuldeep Raj was taken;

(b) Whether he made any attempt to run away from the spot;

(c) Whether the Memos EXPWAN/1 to EXPWAN/9 were prepared at the spot or not;

(d) Regarding the state of currency notes which were recovered at the spot and the observations made by the learned trial Judge during the course

of the trial; and

(e) The statements of witnesses having been recorded at the spot under Section 161 Criminal Procedure Code is claimed by some of the witnesses

whereas most of them have' stated that further proceedings including the recording of statements was done at Jammu.

This is not the position on the basis of the evidence produced by the prosecution during the course of trial. Therefore, the acceptance and

recovery made of the tainted money cannot be said to have been established by any congent, trustworthy and reliable evidence by the prosecution

as such this part of the prosecution case cannot be accepted.

In the background of the case that the complainant was shown to have committed an offence regarding which First Information Report had

been lodged with the police of Police station Nowshera. This was being investigated by both the appellants alongwith another constable. As per

complainant, he and his sons were manhandled and beaten up by the appellants. It was only1 when bargain to pay Rs. 1000/ was struck with them

that all three of them were let loose. In the face of this position can it be said that the statement of the complainant is to be accepted on its face

value. For the view that has been taken, a legitimate inference can be that the complainant had reason to depose against the appellants because he

alongwith his sons had admittedly been beaten up as well as manhandled by the appellants and the other constable, who had come to investigate

the complaint registered at the instance of Vishwa Mitter. As such demand part of the case also goes. As a consequence of this on examination of

the evidence neither demand of bribe nor its acceptance muchless recovery of the tainted money stands established, therefore, prosecution case

must fail on this ground.

For the view that has been taken on examination of the evidence of the complainant, independent and official witnesses of the trap, plea raised

on behalf of the appellants that they have been prejudiced due to nonexamination of the Investigating Officer and Prem Prakash Gupta, Inspector,

need not be gone into. What is to be proved for bringing home the guilt against an accused for having obtained bribe are the three ingredients noted

hereinabove. This view is supported by a decision of this Court in 1983 K. L. J. 1, Khurshid Ahmad Khan Vs. State.

It may be noted that in the given situation the statement of the complainant who was the bribe giver could be accepted lf it inspired confidence

and was supported by other attending circumstances. Only care that has to be taken in his case while examining his statement is that being

aggrieved person it has to be scanned with greater care but on this ground alone it can't be rejected outright. For the same reason even the

statement of an Investigating Officer Dy. S. P. cannot be discarded, unless of course it is shown that he has some hostile animus against the person

of having been charged with accepting the bribe. For taking this view reference can usefully be made to the observations made in recent decision of

the Apex Court reported in 198 (1) Supreme Court Cases 557: State of U. P. Vs. Zaka Ullah.

in view of the aforesaid discussion this appeal deserves to be allowed and impugned judgment set aside and it is ordered accordingly. Appellants

are on bail, their bonds are discharged and fine if deposited will be refunded to them.