Subhash Chand vs State of U.P.

S.K. Agarwal, J.—This appeal arises out of an order of conviction and sentence passed by I Vth Additional Sessions Judge, Bijnor in S. T. No. 10 of 1981. He had convicted the Appellant under Sections 5(2) of the Prevention of Corruption Act and u/s 161, I.P.C. He has also sentenced the Appellant to one year''s R. I. and a fine of Rs. 1,000. In default of payment of fine, he has further sentenced the Appellant to three month''s R. I. No separate sentence was awarded to the Appellant u/s 161, I.P.C.

The brief fact of the case is that that Ram Kumar P.W. 3 had given an application for a power connection in the Hydel Department. This application was allowed and after an agreement was signed, the necessary order for laying the line was sent from the office of Hydel Department to the office of S.D.O. at Kiratpur. Ram Kumar approached the Appellant on March 23, 1980, for the first time in connection with laying of the line. Under the procedure, a direction for laying the line for new connection was to be signed or issued by the S.D.O., i.e., Appellant. The evidence suggests that this order was issued by the S.D.O. under his signature on March 26, 1980, but it had reached Ram Murti Lal Gupta P.W. 5 Junior Engineer in the department on 19.4.1980 after the arrest of the Appellant from his house. In between March 23, 1980 and April 19, 1980, Ram Kumar claimed to have met the Appellant on 1-2 occasions. No specific dates were given by Ram Kumar. In his statement about his meeting on one occasion, i.e., March and April, admittedly the Appellant was not present in the office and so Ram Kumar could not meet him. After 3-4 days, it is alleged that he met him again and made an inquiry with regard to laying the line for his tubewell. He was asked to meet the inspector. Just 11-12 days before the incident, Ram Kumar again met S.D.O. who inquired from him whether he had met the inspector or not and whether he was informed of the action to be taken by the inspector. The reply from Ram Kumar was in the negative. The Appellant then promised to pass the order within a week. Ram Kumar after expiry of a week''s time again claimed to have contacted the Appellant. On 17.4.1980 he was informed that the order had not been passed. He further told him that he is suffering serious loss because of non-availability of the connection, therefore, he must pass the order immediately. Then he was told by the Appellant that unless his palm is greased and an amount of Rs. 50 is paid by Ram Kumar, no order can be passed. Ram Kumar went away by promising to return with the money within a day or two. Ram Kumar was not ready to part with any illegal gratification to the Appellant for taking something which was his right. He had approached Som Datt Tyagi, Vigilance Inspector on 18.4.1980. In this connection, he had prepared an application Ext Ka-10, and gave it to Som Datt Tyagi P.W. 1. This Som Datt Tyagi is Vigilance Inspector and was posted in district Bijnor at the relevant time. Som Datt Tyagi P.W. 1 accompanied P.W. 3 Ram Kumar to the District Magistrate''s office and got an order for him from the District Magistrate. The District Magistrate, had directed him to get the statement of Ram Kumar recorded by S.D.M. Ram Bahadur who according to him recorded his statement and noted down the number of his notes in the statement and thereafter P.W. 3 again was brought back to the office of the District Magistrate and Som Datt Tyagi obtained an order from the District Magistrate for laying the trap to nab the Appellant red-handed. Afterward Som Datt Tyagi P.W. 1 directed P.W. 3 Ram Kumar to meet him at the police station at about 11, 11.30 a.m. on 19.4.1980. The notes were also returned to Ram Kumar. Som Datt Tyagi retained the application. As per the plan, Ram Kumar reached police station, Kiratpur on the above said date and time. Som Datt Tyagi arrived at the police station around 12 a.m. He sent Ram Kumar to find out whether the accused is present in his office. Ram Kumar after gathering the information came back and informed the Vigilance Inspector that accused is on leave due to ailment and is present at his residence. Som Datt Tyagi after taking three constables in plain clothes from the police station and also taking Jam Raj P.W. 2 and Pratap Singh P.W. 4, the public witnesses, proceeded towards the house of the Appellant. The Appellant was living on the first floor. They all went upstairs. After reaching there, the Vigilance Inspector along with Pratap Singh stationed himself by north side window of the room in which the Appellant was lying. Ram Kumar and other companions including police personnel took position on the western side. Ram Kumar entered the room by opening the door of the room after calling the Appellant from outside. According to the statement of Ram Kumar and P.W. 2 Jamraj, Ram Kumar had closed the door after entry. Inside the room the Appellant was asleep. He woke up and sat on the cot. He made an enquiry from Ram Kumar whether money is brought. Ram Kumar responded in the affirmative and passed the notes totalling Rs. 50. It is claimed that the Appellant had taken those notes from Ram Kumar and after placing them in an envelope lying there had placed that underneath the pillow on his bed. He wrote something on a piece of the paper and passed that paper to Ram Kumar to give it to Ram Nath in his office to contact him immediately. In the meantime, the Vigilance Inspector and other members of his party entered the room. As soon as these people entered into the room, it is alleged that the Appellant had taken out the envelope kept underneath the pillow and the inspector had snatched it from his hand. Thereafter all the formalities were completed at the spot and the Appellant was taken to police station, Kiratpur, which is about one furlong from the house of the Appellant.

The F.I.R. was got registered there at about 6.15 p.m. on the same day. A copy of the report is Ext. Ka-4. Its Check report is Ext. Ka-3 and the case was registered at the police station. The case was investigated by Pratap Singh another Vigilance Inspector, under the order of Superintendent of Police, Vigilance Ext. Ka-16. He had submitted a charge-sheet after completing the investigation. The one line order issued by the Divisional Officer Ext. 11 was also taken into possession. He had also taken the application on which the order for laying the line was passed. It is Ext. 12. He had also taken an extract of the dispatch register Ext. Ka-20 dated 17.4.1980 ultimately the charge-sheet Ext. Ka-5 was submitted by him after procuring the sanction for the prosecution which is Ext. Ka-18 from P.W. 7 V. C. Mittal, Chairman, State Electricity Board on 9.3.1981.

The prosecution in support of its case has examined S. D. Tyagi, Vigilance Inspector who led the raid as P.W. 1, Jam Raj Singh P.W. 2, Ram Kumar P.W. 3 and Pratap Singh P.W. 4 and Ram Murti, Junior Engineer in the Hydel Department as P.W. 5, P.W. 6 Prahlad Singh Sub-Inspector and V. C. Mittal, Chairman, State Electricity Board as P.W. 7.

The learned Sessions Judge in his judgment at Pages 101 and 102 has returned the finding in the following manner with regard to these so-called independent witnesses. According to him, Jam Raj and Pratap Singh are related to Ram Kumar. Jam Raj and Pratap Singh are also related to each other. Pratap Singh is son-in-law of Jam Raj''s brother. Ram Kumar''s brother Pirthi is married to the daughter of the sister of the wife of Lahri. Lahri is elder brother of Jam Raj. All the three witnesses were not strangers to each other. Jam Raj admitted that he had appeared as a witness for the police in numerous cases. Pratap Singh also admitted that he was known to the police. Under these circumstances, the witnesses cannot be said to be independent. No implicit reliance can be placed on any statement of theirs. Their evidence has to be tested bit by bit. Only those parts of their statements which are supported by independent evidence are to be accepted in this case. With regard to S. D. Tyagi P.W. 1 and Ram Kumar P.W. 3, the finding returned by the learned Sessions Judge at page 101 is "At the very out set, it may be mentioned that Sri S. D. Tyagi P.W. 1 had taken keen interest in arranging a trap and making it successful. Ram Kumar has also stated that he was deeply interested in the apprehension of the accused." So the finding returned above with regard to other two witnesses also pertain to these witnesses. Once the Court comes to the conclusion that none of these witnesses is worthy of any implicit reliance, it is to be examined as to what are those circumstances which from their evidence are corroborated and can be relied upon. This was the peculiar method adhered to by the learned Sessions Judge for holding the Appellant guilty. Either the evidence may be wholly unworthy of any reliance or it is partly reliable and partly not reliable or is wholly reliable.

So far as the finding of learned Sessions Judge is concerned, he has held in so many words that no im�plicit reliance can be placed upon the evidence of any one of these four wit�nesses. Therefore, he had discarded their evidence as wholly unreliable. Once the evidence of these witnesses is rejected as wholly unreliable, there remains hardly anything for the learned Sessions Judge to rely upon for any circumstances occurring in their testimonies. Can a conviction still could be procured if the circumstances available on record furnish any clinching evidence?

The circumstances relied upon by the learned Sessions Judge as could be gathered from the discussion are one that the order had reached the office of the S.D.O. on 23.3.1980. The second aspect which had found favour with the learned Sessions Judge was that Ram Kumar P.W. 3 had met the Appellant admittedly on 2-3 occasion before his apprehension by the police on 19.4.1980. The third circumstance relied against the Appellant by the trial court is that the evidence of Ram Murti Lal Gupta P.W. 5 clinchingly established that the order passed by the S.D.O. was received by him on 19.4.1980 at about 4.30 p.m. 19.4.1980 is the date on which in between 2.30 and 3 p.m. the arrest of the Appellant while accepting the bribe money was effected by P.W. 1 S. D. Tyagi in the trap organised by him. So if these circumstances are clinchingly proved, the conviction of the Appellant still can be sustained. The learned Sessions Judge placed reliance on his statement before the charge made by the accused in the Court that P.W. 3 Ram Kumar had complained to him on a number of occasion against the Junior Engineer for not laying the connection. The response of the Appellant was that on one or two occasion, he had made a general complaint and he never met him in his office. This portion of the statement that he had met him on one or two occasion was relied upon by the learned Sessions Judge as his admission of the case. Statement of an accused to a particular question cannot be shorn out of context. It has to be read in its totality. The examination of his statement in its entirety shows that it was no admission at all. The question did not pertain to him but to Junior Engineer who was to lay the line. It was not regarding signing the order by him. As a matter of fact, the nature of this question is indicative of the fact that the order was already in existence and the complaint made by the informant P.W. 3 Ram Kumar was against the Junior Engineer and not against the Appellant.

In the light of this discussion, this piece of the evidence as relied upon by the learned Sessions Judge is of no avail to the prosecution against the Appellant. It is wholly in a different context and as earlier observed that it is indicative of the circumstance of existence of the order and not of any complaint regarding not passing that order by the Appellant.

Coming to the circumstance whether the order was passed by the Appellant on 26.3.1980 or later on. The evidence of the witnesses P.W. 1 and P.W. 3 both and that of P.W. 5 Ram Murti Lal Gupta indicate unerringly that the order passed by the S.D.O. on the side of the order received from the Executive Engineer''s office was passed on 26.3.1980. It is a writing in the hands of the P.W. 5 on this very order and it is marked as Ext. Ka-12. Ext. Ka-13 is a writing given by this witness to Som Datt Tyagi on 19.4.1980 during night after registration of the case, when he was approached by the Vigilance Inspector P.W. 1 Som Datt Tyagi at his house. He has admitted that he had received a copy of the order for laying line. It was sent to him duly entered in the dispatch book. He had signed the dispatch book. He had deliberately denied knowledge of the procedure as to how the information from the office of the S.D.O. regarding any order for laying line is received in his office. He has admitted that the line is given by Junior Engineer. He has further admitted that the orders of the S.D.O. are received by him in the manner as earlier stated. He further stated that such orders are being sent to him after making their entries in the dispatch book. He had also stated that a separate book is maintained in the office of the S.D.O. wherein dispatch of such orders is also entered. His signature about receipt are obtained in another book and that book is taken back to the office of the S.D.O. by the person who brings the order to him. He admitted that that book had also come when he received this order and he had put his initial on that also. That book was brought by Ram Nath. Generally according to him, the correspondences are brought by a peon. But when peon is on leave, they are brought by petrol man. He further admitted that he had put the date on that book but no time was put therein. He has further stated that while receiving the order for laying the line, he used to note the time on it. No time was put on the present order. He had admitted that he had shown the order to the S.D.O. and also had issued its copy (Ext. Ka-13) on his instruction. He has further admitted that it is correct that if S.D.O. after he had signed the order for laying the line and passed it on to the office, he had no further concern with it. Earlier he had stated that it is the duty of Junior Engineer to lay the line. He had very clearly admitted that the order for laying the line Ext. Ka-12 was entered in the dispatch register on 26.3.1980, although he had denied that he had received the order 2-3 days after 26.3.1980. He had denied the suggestion that the dispatch book was removed by him. He had further stated that he did not know whether this dispatch book is available in the office of the S.D.O. or not. He had further stated that he could not identify the writing on the line order. He could not identify whose writing it is on the order. He further stated that he did not know whether it was brought by Ram Nath. Although in his Section 161, Cr. P.C. statement to the Investigating Officer he had categorically stated that the entry in dispatch order for laying the line was transcribed in the hands of Ram Nath. He had tried to explain the situation by making the statement that the Investigating Officer had enquired from him about the dispatch and he had told him in that connection. He further pleaded that he did not know as to how this statement was transcribed. He had further stated that the book that came along with the order for line, he calls it dispatch book. According to him, the dispatch book is book which is kept in the office wherein the entry about dispatching orders, letters, etc. is made and in which signatures of recipients are obtained. He had denied that he had seen the dispatch register but on the order for line dispatch number in the hand of Ram Nath was there and on that basis, he states that this line order was dispatched by Ram Nath. Then he stated that these statements he is making on his imagination and not on the basis of the identification of the writing over it. He had further admitted that when S. D. Tyagi approached him in the night of 19.4.1980, Ram Kumar also accompanied him. Ram Nath at that time was not present. He has further admitted that there is overwriting in Ext. Ka-13. In the absence of any time when this overwriting was made by him he cannot tell. He had tried to explain it by saying that initially the time was put at 4 p.m. and subsequently it had been changed.

Thus, in the circumstances from the evidence of these witnesses, what appears to be clinching is that the line order was signed by the Appellant as early as on 26.3.1980. There is entry in the dispatch register regarding it. Neither the dispatch register nor the dispatch book was taken by the Investigating Officer in his custody. The Courts are deprived of their examination by their non-production. They were very important pieces of evidence for the decision of the above circumstance. It appears to me that this witness had deliberately stated that he received it on 19.4.1980 itself. The trap officer P.W. 1 S. D. Tyagi had approached P.W. 5 and obtained Ext. Ka-13 from him on the basis of the order. Why this order was carried to his house by P.W. 5 is wholly unexplained. He has not stated that he was an official responsible for laying the line. Had it been so, he could have carried the order to his house. Once the absence of the dispatch book along with the non-examination of Ram Nath who was an important witness for the prosecution is taken into consideration, it becomes evident that something black at the bottom was there in the case of the prosecution and documentary evidence, viz., dispatch register and dispatch book and oral evidence of Ram Nath could have provided the Court with unrebuttable proof to this fact. That is why the prosecution had ominously avoided to either take it into custody or produce the same in the Court. Even the Court has not made any serious endeavour to summon any official of the Hydel Department and seek explanation from him with regard to the dispatch book which was a most important piece of evidence. Since it must have contained date on which it was sent from the S.D.O.''s office and also the date on which it was handed over to P.W. 5 Ram Nath. It appears that this witness has made some interpolation in the date and the time of receiving of the line order. The dispatch book was deliberately shown to have been lost. It appears to have purposely been withheld from the Court. The investigating agency had, especially S. D. Tyagi, P.W. 1, had adhered to novel method by obtaining only a copy of it without proving its loss. The reason is not for to seek that the local police was at loggerhead with the Electricity Department. Local staff of the Hydel at Kiratpur had sought police protection from the wrath of the public for disconnecting the connections. The police did not like disconnection of the connection of their favoured ones. That fact is proved from the evidence of P.W. 5. He had identified the signature upon a piece of the paper which probably indicates this fact and is Ext. Ka-2 on record. The evidence of the Investigating Officer further shows beyond doubt that it bears the date 26.3.1980. It was scored out and underneath it 19.4.1980 was transcribed. P.W. 5 Investigating Officer admits it to be in his handwriting. He had obtained the original copy of the order for connection from the Divisional Office but that copy was not produced in Court. This is also something very strange. He has admitted that he had obtained an extract of the dispatch register. Extract of the register was obtained without taking the dispatch register in his custody. No memo was prepared. This further goes to establish that deliberately the dispatch register was withheld from the Court and extracts were obtained from P.W. 5 either under threat or by coercion to its liking by the trap officer or I.O.

These circumstances relied upon by the trial court regarding the extract and the fact that the order was received for laying the line on 19.4.1980 is not borne out from the record. The record establishes that the order was signed on 26.3.1980 and subsequently in order to make out a case against the Appellant, P.W. 5 Ram Nath was pressurised by P.W. 1 S. D. Tyagi to score out that writing. Underneath the original date, a new date 17.4.1980 by pencil was put by P.W. 5. It is further admitted to the Investigating Officer that he had seen the dispatch register from which he had obtained Ext. Ka-13. He had further admitted that he had not prepared any memo for taking into his custody the dispatch book. He had further admitted that he had learnt from the record of the Divisional Office that the date on which the order to lay connection was received in the S.D.O.''s office was 22.3.1980. He had also obtained the receipt from the Divisional Office sent from the Sub-Divisional Office, Kiratpur, but that too was not produced in Court. He has admitted that Ext. Ka-11 is order for connection. There is an endorsement by S.D.O. please issue line order and underneath it there is a date 24.3.1980 which bears the signature of the Appellant. He had further stated that according to his understanding, the order Ext. Ka-11 was prepared on 24.3.1980. According to him, above said order dated 24.3.1980 was ultimately sent to the Junior Engineer. He had admitted that this entry of Ext. Ka-12 was examined by him from the dispatch register. Regarding Ext. Ka-12 there is an entry of 26.3.1980. He had further admitted that register does not bear any entry regarding dispatch on 17.4.1980. He claimed that he had taken that register into custody. He has further admitted that he had learnt that the order was given to the Junior Engineer by Ram Nath. It is also admitted that the brother of the Appellant was present in the room from where the Appellant was arrested. This fact has been denied by the witnesses. But this fact is admitted to P.W. 1 S. D. Tyagi and the Investigating Officer. There is some serious dispute with regard to the topography detailed by the witnesses and noted by the Investigating Officer. Over and above, it is available from the evidence that this Appellant was sleeping when Ram Kumar entered his room. The informant could have easily slipped the envelope containing notes underneath his pillow. When the police party or the informant awoke him, he took it out. It is probable.

The Appellant had examined D.W. 2 Laxman Singh Verma who is Civil Engineer and consultant. He had filed Ext. 7 the map of the house. This map is in serious conflict with the map prepared by the Vigilance Inspector P.W. 6. That further goes to suggest that no trap as alleged by the prosecution was in fact conducted at his house. It further suggests that the Appellant was forcibly lifted from his house by Vigilance Inspector and brought to police station, Kiratpur. He was brought to the police station is admitted by P.W. 2 Jam Raj Singh. All the formalities regarding preparation of papers and phenolpthalein processing of the notes and preparation of the memo was completed at the police station and not at the place of occurrence as alleged. This prosecution was maliciously launched.

In view of the above discussion, this appeal stands allowed. The conviction of the Appellant and his sentences are hereby set aside. He is acquitted of the offences. He is on bail. He need not surrender. His bail bond is cancelled and sureties discharged.