State of Jammu & Kashmir vs Prem Parkash and Another

S.K. Gupta, J.—This is an appeal against the judgment dated 17.7.1995 propounded by Special Judge Anti-Corruption, Jammu, whereby

Prem Parkash, Tehsildar and Charan Dass, Patwari, have been acquitted for offences u/s 5(2) of the Prevention of Corruption Act, 2006 read

with Section 161, RPC.

Vigilance Organization Jammu sent up for trial accused Prem Parkash, Tehsildar and Charan Dass, Patwari in the Court of Special Judge, Anti-

Corruption, Jammu for the Commission of offence u/s 5(2) of the Prevention of Corruption Act, 2006 and Section 161, RPC in alleging that the

accused have demanded and obtained illegal gratification of Rs. 3.000 from Prabh Dayal, complainant, on 31.1.1990 for mutating ancestral land in

his favour. The case of the prosecution in nutshell is that Prabh Dayal, complainant approached the accused, who happened to be employees of

the Revenue Department for according mutation of his land. The accused demanded a bribe of Rs. 3,000, which was stated to have been paid in

presence of Krishan Chand and Romesh Chander, witnesses, who accompanied the complainant at the relevant time, to Charan Dass, Patwari in

the Niabat ground, where accused No. 1, Prem Parkash, Tehsildar, was also present. After receiving the amount of Rs. 3,000 as illegal

gratification from the complainant accused Charan Dass passed over the said amount to the then Naib-Tehsildar, Prem Parkash. On a complaint

filed by Prabh Dayal and after preliminary enquiry, FIR No. 44/90 came to be registered at Police Station Vigilance Organization, Jammu. The

Trial Court after framing the charges, recording the evidence let in by the parties and hearing the arguments put-forth by the parties, held that

prosecution has not succeeded in establishing the charge against the accused by trustworthy, reliable and convincing evidence beyond all shadow

of reasonable doubt and acquitted the accused by the impugned order, the correctness of which is assailed in this appeal.

I have heard Mr. J.P. Singh, learned counsel appearing for the State, as well as Mr. S.C. Bali, learned counsel for the accused-respondents, in

extenso and also perused the record of the file, meticulously.

Mr. J.P. Singh learned counsel appearing for the appellant, has vehemently urged that the Trial Court has not appreciated the evidence in its

proper perspective. The acquittal of the accused have been recorded in relying upon minor discrepancies in the evidence of the material witnesses,

which are inconsequential in nature particularly when the charges against the accused have been proved by overwhelming, cogent, positive and

trustworthy evidence of the witnesses.

Indubitably, in order to convict a person for obtaining illegal gratification, it is incumbent upon the prosecution to establish three ingredients,

namely, demand, acceptance and recovery of the bribe, by convincing and trustworthy evidence. PW Prabh Dayal is the complainant and stated to

have come in contact with Charan Dass, Patwari Halqa for attestation of mutation of the land in his favour. The Patwari told him that he will have

to shell out some money to get the mutation attested. The witness further stated to have been told by the Patwari that money is also required for the

Naib-Tehsildar. The complainant is further stated to have proceeded to the Court of Naib Tehsildar, Pouni on 31.1.1990. The amount of

gratification was settled at Rs. 3,000. According to the complainant, he had Rs. 2,000 with him and borrowed another Rs. 1,000 from PW

Romesh Chander. When he obtained Rs. 1,000 from Romesh Chander, PW Krishan Chand was also there in his shop. Both Romesh Chander

and Krishan Chand accompanied the complainant to Niabat, Pouni. Accused Charan Dass when asked the complainant about the money, the

latter paid Rs. 3,000 in hundred rupees denomination notes to accused Charan Dass, which the latter passed on to Naib-Tehsildar, Prem Parkash

accused in their presence. Thereafter, the accused told the complainant to bring the witnesses and the mutation will be attested next day. The

complainant further stated to have gone to the Niabat alongwith Om Parkash, Dawarka Nath and Kali Dass besides others and mutation was

attested on the evidence of the witnesses. It is also in the evidence of the complainant that on an application made by him for getting a copy of the

mutation, the same was provided to on 16.2.1990. A complaint was made by the complainant to the Deputy Commissioner, Udhampur about the

illegal gratification obtained by the accused from him for attesting the mutation with a copy to the Governor. The complainant further stated that Rs.

3,000 were paid to the accused Charan Dass, who further passed it on to accused Prem Parkash and PWs Romesh Chander and Krishan Chand

accompanied him at that time. The complainant in his cross-examination however, stated to have contacted Charan Dass accused on 30th January

and 31st January at his residence. This statement was further changed by the complainant when deposed that bribe was demanded on 31st

January in Niabat. Though on 30th January, accused Charan Dass told him that the attestation of mutation would be done on payment of money,

which, however, latter on was settled at Rs. 3,000 on 31st January. The complainant when, however, was confronted with statement u/s 161,

Cr.PC, wherein he had stated that amount of bribe as settled at Rs. 3,000 on 30th January, He, however, admitted that statement u/s 161, Cr.PC

to this extent is correct and whatsoever is mentioned in his statement in the Court that the settlement of the bribe money was made on 31st January

is incorrect. It is also in his evidence that PWs Romesh Chander and Krishan chand were taken alongwith him to witness tile payment of bribe.

Though in the complaint, it was specified that the numbers of all the currency notes were noted, but in his evidence in the Court the complainant

denied this fact. It is, therefore, clearly gatherable from the evidence of the complainant that he is not consistent in his Statements as to when and

where the bribe amount was demanded and settled. Initially, the stand taken by the complainant was that the bribe money was demanded on 30th

January and settled on 31st January, but in his statement u/s 161, Cr.P.C, he again changed his stand and stated that the amount was demanded

and settled on 30th January. It is clearly elicited from the statement of the complainant that bribe was demanded by the accused Charan Dass,

Patwari to whom the bribe money was paid. It is nowhere found in his evidence that the demand was ever made for money for attesting mutation

by Prem Parkash, Naib-Tehsildar. His statement is only to the effect that accused Patwari Charan Dass passed over the money to Prem Parkash,

which he had received from him.

It is also not understandable that when the complainant was reluctant to pay money to the accused for getting the mutation attested, yet he paid

Rs. 3000 and did not inform the Police of the Vigilance Organization, which speaks volumes about it and reflects on the credibility of the

complainant. PW Romesh Chander and other witnessess relied upon by the prosecution to corroborate the testimony of the complainant in respect

of payment of bribe money to the accused. According to this witness, the complainant Prabh Dayal when came to his shop to borrow Rs. 1,000,

PW Krishan Chand had also arrived there for stitching of his cloths. Both these witnesses accompanied the complainant at the latter's instance to

the Tehsil Office. It is in the evidence of this witness that on reaching the Niabat, Pouni, he found Tehsildar on the chair in the court-yard outside

the office and also Patwari Charan Dass standing there. He further stated that Charan Dass accused asked the complainant if he has brought some

thing and complainant replied that the has brought and gave Rs. 3,000 to Charan Dass accused, which the latter counted and passed on to

accused Prem Parkash. In cross-examination, the witness stated that when complainant came to him in the shop, PW Krishan Chand was already

there. After receiving Rs. 20 as stitching charges, he returned the cloths to Krishan Chand and the latter left the shop. The witness also stated that

complainant had taken him to Jammu after 20/25 days, where the made statement and thereafter another statement made by him to Police Station,

Sunderbani. It is also stated by him that the bribe was paid on 2nd or 29th day of January, however, he does not remember the date. This witness,

however during enquiry made a statement that Prabh Dayal complainant gave bribe money of Rs. 3000 in the hands of Naib-Tehsildar, Prem

Parkash, but admitted that the said statement to be incorrect. The evidence provided by this witness also suffers from serious discrepancies and

contradictions. He was not definite about the date on which the bribe money was paid. He was also not certain in his evidence as to whom the

bribe money was paid, as to whether it was paid to accused Charan Dass, Patwari or to Prem Parkash, Naib-Tehsildar. The evidence provided

by this witness is self-contradictory in material particular and does not inspire confidence in the Court.

Another witness relied upon by the prosecution is PW Krishan Chand. The evidence provided by this witness has contradicted what he has

earlier stated before the Inquiry Officer and Investigating Agency that the bribe amount was paid to accused Naib-Tehsildar by the complainant

Prabh Dayal. This is a material contradiction in the evidence of this witness and improbabilises his presence at a place when the bribe money was

allegedly paid by the complainant. This witness further stated to have been taken by the complainant to the office of the Anti-Corruption. In such

circumstances, he cannot be said to be a natural witness, but may be he is not speaking untruth. But it appears that both Romesh Chander and

Krishan Chand have become convenient witnesses and, as such, their statements were required to be scrutinized with care, caution and

circumspection. The possibility of these witnesses in making statements in a manner the complainant desired cannot be ruled out. It is clearly

exacted from the statement of PW Romesh Chander that after taking the stitched clothes from the shop, Krishan Chand left the shop, but again

changed his version that he had accompanied the complainant to Tehsil Office. When PW Krishan Chand left the shop, neither it seems out from

the evidence of this witness nor otherwise explained by the prosecution as to when and where Krishan Chand met and accompanied the

complainant and Romesh Chander to the office of the Naib-Tehsildar, Pouni. It casts a serious speck of doubt on the veracity of these witnesses

and renders their evidence incredible and untrustworthy.

It is significant to point out that there is no evidence adduced by the prosecution except that of the complainant pertaining to the demand of bribe

money by the accused. It is, therefore, to be seen as to whether the alone evidence of the complainant is sufficient to prove the essential ingredients

of demand of bribe money by the accused when the evidence provided by Romesh Chander and Krishan Chand is full of glaring discrepancies,

contradictions and is at variance on vital points, sufficient to establish a case against the accused beyond any shadow of doubt and record their

conviction. It is well settled proposition of law that when the witness held the position of sponsored, interested and convenient witness favouring a

party producing him, it is incumbent upon the Court to exercise appropriate caution when appraising of the evidence and to examine its probative

value with reference to the entire mosaic of facts appearing from the record.

The occurrence, according to the prosecution, took place on 31st January, 1990 and the complaint was sent by post on 2.3.1990. The delay in

filing the complaint has been explained by the complainant to be on account of waiting for the action to be taken by the Revenue Authority on a

complaint filed earlier against the accused to the Deputy Commissioner, Udhampur. To support this explanation, neither the copy of the complaint

addressed to the Deputy Commissioner, Udhampur placed on record nor any witness in proof of this fact has been examined. The explanation is

neither plausible nor on any sound basis but a subterfuge to make up the delay caused in filing the complaint to the Vigilance Organization.

Importance of First Information Report and delay in giving Information came up for consideration before the Apex Court in Thulia Kali Vs.

The State of Tamil Nadu, and was held as under:

First information report in a criminal case is all extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence

adduced at the trial. The importance of the report call hardly be overestimated from the stand point of the accused. The object of insisting upon

prompt lodging of the report to the police in respect of commission of all offence is to obtain early information regarding the circumstances in which

the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene

of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of

delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated

account or concocted story as a result of deliberation and consultation. It is therefore, essential that the delay in the lodging of the first information

report should be satisfactorily explained.

When an occurrence is not reported for more than 20 hours after the occurrence even though the police station is only two miles from the place of

occurrence it is unsafe to base conviction upon the evidence.

In this case, there has been a delay of about one month in filing the complaint before the Vigilance Organization by the complainant. The delay

has neither been sufficiently nor satisfactorily explained. The explanation given by the complainant for delay in lodging the First Information Report

is without any basis for, there being no evidence brought on record to support such explanation. This leaves a serious dent in the prosecution case

as to its credibility, reliability and truthfulness. Further doubt is created to the genuineness of the First Information Report, as the FIR is stated to

have been forwarded by the complainant to the Vigilance Organization by post on 2nd March, 1990, but the complaint bears an endorsement of

some Officer dated 1.3.1990 to the effect that ""SP(PC) may please study and favour with his comments."" If the complainant is to be believed, then

how can there be an endorsement on the complaint of some Officers dated 1.3.1990, when it is stated to have been forwarded on 2.3.1990. This

was, however, for the prosecution to explain and not for us to speculate. In cases of corruption, there is to be some evidence for demand, as

otherwise money could be secretly put in the hand or pocket of anybody and recovered as bribe money. It, therefore, necessitates to be

established positively by consistent and cogent evidence that the demand was made. It, therefore, follows that the demand of bribe has to be

proved by the prosecution as an independent fact. There is no evidence on record with regard to demand of bribe money by the accused except

that of the complainant in view of the fact that there had been a considerable delay of one month in filing the FIR and the other evidence relied

upon by the prosecution materially contradicts each other on vital points, unless it is proved by independent evidence, the fact of demand of bribe

money by the accused cannot be said to have been established. An argument was put-forth by appellant's counsel that the demand of illegal

gratification by a public servant was not necessarily to be proved as Section 5(1)(d) contemplates the word ""obtains for himself or any other

person."" I do not find any substance in the contention raised by the appellant's counsel, as this controversy has been set at rest in catena of cases

by various High Courts. The word ""obtains"" has been used by the Legislature in Section 5(1)(d) of the Prevention of Corruption Act has a definite

meaning. It clearly contemplates that before a person can be proceeded against under these provisions, it is necessary to prove that it was as a

result of demand that money was passed on, and passing of the money is a consequence of the demand.

It is in the prosecution evidence that when complainant accompanied by Romesh Chander and Krishan Chand, PWs, reached Niabat, Pouni,

the Naib-Tehsildar was sitting on a chair in the court-yard outside the office and the accused Patwari standing. The bribe money was paid by the

complainant to Charan Dass accused, which was counted by him and later on passed on to Prem Parkash,, Naib-Tehsildar. It is difficult to believe

that the accused received the money in the open space, that too in presence of strangers, when the bribe money could be obtained at different time

and at different places. Therefore, the view taken by the Trial Court that there is sizeable element of doubt hovering over the case of the

prosecution, cannot be reversed in appeal.

That apart, the case of the prosecution is that the mutation of land in favour of the complainant came to be recorded on 1.2.1990 at Niabat

Pouni, which is contrary to the record, which shows the same to have been recorded at Camp Gajora by accused Charan Dass and the same

stood attested by Naib-Tehsildar. This further makes the prosecution case redolent with doubt and suspicion. The probabilities of a case are a

material test in Judging of a credibility of the witnesses. In other words, it has to be tested by the yardstick of probability alongwith the other

materials in record. The trial Court, therefore, has given a firm finding having carefully considered the evidence placed on record that the

prosecution has miserably failed to establish a charge against the accused by convincing reliable, positive, cogent and straight-forward evidence,,

beyond hilt and, therefore, accused are entitled to acquittal. No exception, in my considered opinion, can be taken to the view expressed by the

Trial Court. I do not find any infirmity, legal or factual, in the impugned order passed by the Trial Court necessitating interference in appeal by this

Court.

In the facts and circumstances of the case, as stated above, I do not find any merit in this appeal, It is accordingly dismissed.