State of H.P. vs Gurcharan Singh

Bhawani Singh, J.—This appeal is directed against the acquittal of accused by the trial Court for offence u/s 161 I.P.C. and Section 5(1)(d)/5(2) of Prevention of Corruption Act,1947 (hereinafter Corruption Act) by decision of 28.7.89 in C.C. No. 3 of 1988.

Briefly, the prosecution case is as under:

Accused was posted as Gram Sewak at Tang Narwana, Development Block, Nagrota Bagwan of District Kangra in the year 1986. Ram Nath (PW.6) is the resident of village Ramehar in Tehsil and District Kangra. His village falls within the Development Block of Nagrota Bagwan. He was identified and covered under the Integrated, Rural Development Programme (hereinafter IRDP) of the State government. His name appears in the directory of IRDP beneficiaries of this Block. Allegation against the accused is that the duty of the accused was to verify and forward the application of such persons for grant of subsidy. Ram Nath wanted loan and subsidy under the IRDP programme for the purchase of two mules. He got his application verified from the Patwari Halqa and handed over the same to the accused on 29.9.1986 for further action. Accused demanded Rs. 100/- as illegal gratification for doing this work. He told Ram Nath that he would not forward his application unless he was paid Rs. 100/-. Accused persisted the demand although, Ram Nath had gone to him three to four times. On 3.10.1985 when the demand was repeated by the accused, Ram Nath agreed to pay this amount on the next morning. On 4.10.1986 Ram Nath went to the office of Anti Corruption Unit of the State Police at Dharamshala. He disclosed to Inspector Surinder Singh about this demand of the accused for forwarding the application. He also told the Inspector that on the previous day, he had promised the accused regarding payment of the amount. Statement of Ram Nath was recorded, on which First Information Report No. 6 of 1986 was registered by the Police Station Anti Corruption Unit, Dharamshala. Inspector Surinder Singh, Head Constable Sansar Singh, constable Jagdish Singh and Ram Nath came to village Tang Narwana in a bus. Inspector Surinder Singh asked Ram Nath to bring two witnesses. Accordingly, Jai Karan (PW.7) and Pritam Singh (PW.8) were brought. Inspector Surinder Singh associated these witnesses with the trap. Ram Nath produced Rs. 100/- nine currency notes in the denomination of Rs. 10/- and two of Rs. 5/-. These notes were taken into possession vide recovery memo Ext.PL. Their numbers were noted in the memo. They were treated with phenolphthelin powder. Pockets of Ram Nath were searched and nothing was found in them. These currency notes were handed over to Ram Nath in the presence of Pritam Singh and Jai Karan. Memorandum of proceedings (Ext.PM) was prepared. Ram Nath was instructed to hand over these currency notes to the accused on demand by him. He was also instructed to give signal after the acceptance of the currency notes by the accused. Ram Nath went to the office of accused while the remaining members of the raiding party concealed themselves in the nearby rain-shelter. After sometime Ram Nath came out in the verandah and raised his arm. Inspector Surinder Singh and other member of his party rushed to the office of accused. Inspector Surinder Singh introduced himself and asked the accused to hand over the currency notes he had accepted as illegal gratification from Ram Nath. Accused took out these currency notes from the ticket pocket of his pant and handed them over to the Inspector Surinder Singh. Accused was made to wash his hands in sodium corbonate water. The water turned pink. The water was put in a bottle and sealed. A memorandum (Ext.PM) was prepared. The numbers of the currency notes produced by the accused, were compared with the numbers already recorded in the seizure memo (Ext.PL). The tallied. A memo was prepared and currency notes in terms of Exts.P.5 to P.15 were taken into possession. They were also sealed. Accused was arrested. Ticket pocket of his pant was also washed in sodium corborate solution which turned pink. This solution was also put in a bottle (Ext.P.16). Memo (Ext.P.17) was prepared. Site plan (Ext.P.R.) was also drawn. Ultimately, the matter came to the Court. There the accused pleaded not guilty and claimed trial. He has not denied the receipt of the amount from Ram Nath and recovered by Inspector Surinder Singh. He also admitted that his hands were washed in the water. But according to him, the powder was added to the water and not that water turned pinkish when he washed his hands. He also admits that he was asked to remove his pant and the ticket pocket of his pant was washed in water solution of sodium corbonate which turned pink and that the pant was taken into possession by the police. His explanation about receiving of amount is that in 1986 people suffered damage to their houses and other properties in the earthquake, the government directed that relief benefit to the IRDP families would be double as compared to other persons. In village Ramehar only two persons were issued the copies of benefit extension. Ram Nath could not be issued the copy, therefore, was deprived of the double benefit of the earthquake relief. Though, he made those copies (Vikas Patrika), he sent the same to the Block Development Officer. Since the Block Development Officer was on leave, copies could not be issued to persons including Ram Nath. Accused further explains that Ram Nath became inimical to him. He had complained to Project Officer and Deputy Commissioner, also, that he (accused) charges Rs. 25/- for the issuance of the copy. Ram Nath was friendly with S.E.B.P.O. in the office of Block Development Officer. They both hatched the plan for implicating him in a corruption case.

Ram Nath had taken plants and "Dandarti" from him on loan in the month of July, 1986. Ram Nath approached him for "Dandarti" saying that he would get some scheduled caste to fill and get the form attested from Pradhan of the Panchayat, since subsity to the scheduled caste persons for purchase of "Dandarti" was considerably high. At that time, Prem Chand was also sitting with him. He gave "Dandarti" to Ram Nath, who promised to pay money within two days or so. In the meanwhile, plants demanded by Ram Nath also arrived. He was informed and he took these plants also. On several occasions, he was asked to pay the money for "Dandarti" and plants taken by him. Ultimately, he paid the amount of Rs. 100/- on 4.10.86, which were recovered by the police from him on the date of occurrence. Parties produced evidence before the trial Court. The accused was acquitted by the impugned judgment for reasons recorded in para-17 thereof, hence this appeal by the State assailing the acquittal of the accused.

Counsel for the parties were heard, record perused minutely and carefully.

It is an admitted fact that accused received Rs. 100/- from Ram Nath (PW.5). The question is whether it was for reasons Explained by the accused or by way of illegal gratification. Initial burden to prove the acceptance of money by the accused is on the prosecution. As soon as it succeeds in doing so, the burden to discharge it, shifts over to the accused. But the burden of the accused is not so high as it is on the prosecution. It has been held in Chaturdas Bhagwan Dass Patel v. State of Gujarat (AIR 1976 S.C. 1497) that:

It is true that the burden which casts on the accused to displace this presumption is not as onerous as that cast on the prosecution to prove its case. Nevertheless, this burden on the accused is to be discharged by bringing on record evidence, circumstantial or direct, which establishes with reasonable probability, that money was accepted by the accused, other than as motive or reward such as is referred to in Section 161 IPC.

It is sought to be proved through Ram Nath (PW.6), Jai Karan (PW.7), Pritam Singh (PW.8) and Inspector Surinder Singh that the currency notes of the value of Rs. 100/- which had been treated with phenophthelin powder were recovered from the accused. As already recorded above, there is no dispute about receiving of currency notes and their recovery from the accused sequel to the raid conducted by Inspector Surinder Singh (PW.10) in the presence of other witnesses. But the question is whether the amount was passed on by Ram Nath (PW.6) on demand by the accused by way of illegal gratification for taking action on his application. Demand of illegal gratification has only been stated by Ram Nath. He is the complainant and an aggreived person. Since he was not in a position to secure double benefit under the IRDP programme. He states that the accused was demanding Rs. 100/- as illegal gratification for sending his application. He visited the accused three-four times and on all these occasions, the accused repeated the said demand. He admits that he did not disclose this fact to any person. He did not tell it to even Jai Karan, though, he met on October 4, 1986 while bringing him as a witness to the trap. In his complaint to Project Officer and Deputy Commissioner, Ram Nath had stated that the accused was charging Rs. 25/- for the issuance of the copy. Why Rs. 100/- were demanded from him has not been explained. Jai Karan (PW. 7) states that Ram Nath came to him on 4.10.1986 and stated that he wanted to purchase mules under the IRDP programme and that the accused was not preparing his case, therefore, he (Jai Karan) should intervene in his capacity as a Panchayat member. He advised him to go to the office of the accused and he would follow him by 11 A.M. Ram Nath told him to wait another people were also coming so that they would go to the office of the accused together, therefore, during this discussion Ram Nath never told Jai Karan that the accused was lot preparing his case and he was demanding money by way of illegal gratification. Pritam Singh (PW.8) was joined in the raiding-party at the fag-end, therefore, his evidence is not useful on the crucial aspect of the case. It is in evidence that Ram Nath had been a Sub-Post Master at Ramehar. He was convicted for embezzlement of money of various persons as a Sub-Post Master. In this background, it is highly dangerous to accept his version, rather, it is not difficult to conclude that he got annoyed from the accused who was demanding the payment of money for plants and "Dandarti" and engineered the trap against the accused laying allegation of illegal gratification.

The accused has denied that Ram Nath had given him any application nor any such application was received from him for loan or subsidy. No such application was found in his office on 4.10.86 when the accused was arrested and his office searched in the presence of witnesses. Even, Inspector Surinder Singh has stated that he searched for the application of Ram Nath in the office of accused but could not find it there. In the stock register, there is no mention about sending of such application to the office of Block Development Officer. When this application was neither given to the accused nor sent to his office nor pending with him, the demand of illegal gratification by the accused for forwarding the same did not arise. The application of Ram Nath was not available even in the office of Block Development Officer as per statement of Om Parkash (PW.2). According to this witness, this action could fbe initiated at the level of S.E.B.P.O. and sanctioned by Block Development Officer. Therefore, there is complete lack of evidence supporting the allegation of Ram Nath about giving of application to the accused and non-processing thereof, till the payment of Rs. 100/-.

Though, Ram Nath has denied having purchased plants and "Dandarti" from accused on loan, but his version appears to be wrong not only in the aforementioned background but also from the facts supported by Pritam Singh (Pw.8) that during the time of raid, accused had informed that Ram Nath owed him money and he had taken that money. This suggestion has not been denied even by Jai Karan (PW.7). The defence of the accused has also been proved by Waryam Singh (DW.1) Gram Sewak, Tang Narwana, successor of the accused. According to him, stock-register (Ext.D.1) records sale of "Dandarti" and plants to Ram Nath. The accused is also supported by Joginder Parshad (DW.2), Bhagwan Dass (DW.3) and Prem Chand (DW.4) about the sale of plants and "Dandarti" to Ram Nath. In Trilok Chand Jain Vs. State of Delhi, it has been held that:

The quantum and the nature of proof required to displace this presumption may vary according to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross-examination or otherwise. But the degree and the character of the burden of proof which Section 4(1) casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof which u/s 101. Evidence Act rests on the prosecution. While the mere plausibility of an explanation given by the accused in his examination u/s 342, Code of Criminal Procedure may not be enough, the burden on him to negate the presumption may stand discharged, if the effect of the material brought on the record, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption by showing a mere preponderance of probability in his favour; it is not necessary for him to establish his case beyond a reasonable doubt.(emphasis supplied).

Therefore, it can be held that the prosecution has miserably failed to prove the charge against the accused beyond all reasonable doubts. The accused has discharged the burden of disproving the prosecution case against him successfully by placing cogent and convincing evidence in support of his explanation.

In the total background of the case, his acquittal by the trial-Court is quite justified. Trial Court has dealt with the matter quite appropriately before recording the acquittal of the accused. It is not possible to take different view of the matter. Accordingly, acquittal of the accused is confirmed.

After all, this is an appeal against acquittal. It is well settled that appellate Court should not interfere with the order of acquittal unless the same is grossly un-reasonable and patently wrong. This is not so in the present case. Moreover, the incident is more than eight years old. On this ground also, it would not be appropriate to interfere in this matter. The appeal fails and is accordingly dismissed.