Vinod Kumar Khare @APPELLANT@Hash State of Madhya Pradesh

Conviction,Sentence

Under Section 7 of the Act of 1988,"Rigorous Imprisonment for 3 years and fine of Rs.8,000/-

in default additional Rigorous Imprisonment for 6 months

Under Section 13(1)(d) read with Section 13(2) of the Act

of 1988","Rigorous Imprisonment for 3 years and fine of Rs.8,000/-

in default additional Rigorous Imprisonment for 6 months

The substantive jail sentences are directed to run

concurrently

In the instant case, it is not in dispute that on the relevant date and time, the Appellant was posted as a Manager in Bhilai Refractories Plant, where",

bricks were being prepared for which quartzite minerals were being requisitioned and before giving tenders, samples were being called and after",

approval of the samples, tenders were being accepted.",

Narendra Kumar Pujari (PW1) is the witness, who, at the relevant time, was posted in the Purchase Department of Bhilai Refractories Plant. He",

has deposed that before inviting tenders, samples were called from the new suppliers and those samples were sent for testing in the Research and",

Control Department. This witness has further deposed that earlier also, Complainant Shambhu Lal Purohit (PW2) had sent some samples for analysis",

which were sent to the Appellant for analysis and vide Ex.P3 and P5, the Appellant had returned those samples with a remark that those samples",

were not fit for approval. This witness has also admitted that Jagdalpur Minerals had never supplied quartzite minerals and their all samples sent for,

analysis were rejected. In paragraph 13, this witness has stated that the Complainant had come to him along with samples 3-4 times, but he had never",

made any complaint.,

R.B. Gupta (PW3) is the witness, who was also posted as a Chargeman in the Laboratory. As per his statement, on 5.7.1989, samples of quartzite",

mineral of Jagdalpur Minerals were received for analysis. The samples were chemically examined whose report was prepared by him on which the,

Appellant had made an endorsement and signed the same.,

Thus, from the statements of Narendra Kumar Pujari (PW1) and R.B. Gupta (PW3), it is clear that earlier also, on two occasions, samples of the",

Complainant were rejected.,

Complainant Shambhu Lal Purohit (PW2) has deposed that in June, 1989, he had sent samples of his specimen stones to Bhilai Refractories Plant",

for analysis. But, when he did not get any result of his samples, he went to the Purchase Department in the month of October. At that time, Narendra",

Kumar Pujari (PW1) asked him to send 200-300 Kgs. of stones for analysis. On this, on 23.10.1989, he sent 200-300 Kgs. of quartzite stones for",

sample analysis. But, when he did not get any result of his samples, he met with the Appellant on 26.10.1989. The Appellant asked him to send some",

more samples. Thereafter also, he did not get any result. He has further stated that on 20.7.1990, he again sent samples to Narendra Kumar Pujari",

(PW1) for analysis. Narendra Kumar Pujari (PW1) told him that he would send those samples to the Laboratory. On 24.7.1990, he visited the",

Laboratory where the Appellant met with him. The Appellant asked him to meet at his house on the same day. On 27.7.1990 at about 9:00 p.m., he",

visited the house of the Appellant. The Appellant told him that if he gives him a bribe of Rs.5,000/-, he will get the samples passed and he asked him to",

arrange the money till the night of 1.8.1990.,

Since he did not want to give money to the Appellant, he visited the Central Bureau of Investigation (C.B.I.) in Room No.3 of Railway Retiring Room",

and submitted a written complaint (Ex.P7). The C.B.I. officials asked him to come with the bribe money in the evening. In the evening, he went to",

them. At that time, panch witnesses J. Pandey (PW4) and P.S. Nair (PW6) met with him there and read his complaint and they also verified the",

complaint from him. The C.B.I. officials asked him to submit the bribe money of Rs.5,000/-. He submitted total 50 currency notes in the denomination",

of Rs.100/- each. A preliminary panchnama (Ex.P8) was prepared in which numbers of the currency notes submitted by him were noted. The above,

statement of Complainant Shambhu Lal Purohit (PW2) has been corroborated by Ashok Kumar Saha (PW7) and both panch witnesses J. Pandey,

(PW4) and P.S. Nair (PW6). Ashok Kumar Saha (PW7), J. Pandey (PW4) and P.S. Nair (PW6) have stated before the Court as has been stated by",

Complainant Shambhu Lal Purohit (PW2) in the Court.,

Investigating Officer Ashok Kumar Saha (PW7) has further deposed that phenolphthalein powder was smeared on the currency notes submitted,

by Complainant Shambhu Lal Purohit (PW2). Thereafter, those notes were kept in the pocket of the pant of the Complainant and he was given",

instructions that the said tainted notes were to be given to the Appellant only on being demanded by him. Thereafter, the trap party proceeded towards",

the house of the Appellant. They reached to the house of the Appellant at about 9:00 p.m. He has further deposed that Inspector S.K. Sharma and the,

Complainant entered the house of the Appellant. The panch witnesses stayed outside the house. The panch witnesses were also instructed to witness,

giving and taking of tainted money between the Complainant and the Appellant and hear the talk carefully. After sometime, the Complainant gave a",

signal then they entered the house of the Appellant and caught him there. In paragraph 10 of his cross-examination also, this witness has categorically",

stated that on being given the signal by the Complainant, all they entered the house of the Appellant.",

At that time, Inspector S.K. Sharma had caught the hands of the Appellant inside his house. Here, he has also categorically stated that the Appellant",

was caught at the gate of the compound. In this regard, Complainant Shambhu Lal Purohit (PW2) has stated that he and C.B.I. Inspector S.K.",

Sharma entered the house of the Appellant. At that time, the Appellant was sitting on a bench. He introduced Inspector S.K. Sharma with the",

Appellant as his business partner. At that time, the door of the house of the Appellant was closed from inside. They pushed the door-bell and got the",

door opened and thereafter they entered the house. When the Appellant asked him whether he had brought the money, he took out the tainted money",

and gave the same to the Appellant. The Appellant kept the tainted money in the pocket of his kurta. The Appellant told that the work will be done,

and he accompanied them till the door of his house for their departure. At that time, he gave a signal to the trap party. Inspector S.K. Sharma, at that",

time itself, caught the hands of the Appellant and the trap party reached there and they also caught the Appellant. The hands of the Appellant were",

washed in two solutions of sodium carbonate on which colour of the solutions turned into pink. On being asked by C.B.I. officials, the Appellant took",

out the tainted money from his pocket. In paragraph 11 of his cross-examination, this witness has stated that earlier also, on two occasions, he had",

given bribe of Rs.5,000/- and Rs.3,000/- to the Appellant and he had told this to the C.B.I.",

officials, but his this statement was not written by the C.B.I. officials. In paragraph 14 of his cross-examination, this witness has stated that he told the",

Appellant that lease of his friend is going to be cancelled and if he (the Appellant) passes the sample then they will go for renewal of the lease.,

Thereafter, he gave the tainted money to the Appellant. He denied the suggestion that he deliberately put the tainted money in the pocket of the",

Appellant. One of the panch witnesses J. Pandey (PW4) has stated that when the Complainant and Inspector Sharma entered inside the house of the,

Appellant, they [J. Pandey himself and other panch witness P.S. Nair (PW6)] were standing outside the drawing room. At that time, the Appellant",

was sitting inside the drawing room. The Appellant asked the Complainant and Inspector Sharma to take their seat. On being asked by the Appellant,

about Inspector Sharma, the Complainant introduced him as his business partner. Thereafter, the Appellant demanded money. The Complainant gave",

the tainted money to the Appellant which the Appellant kept in the right pocket of his kurta. Thereafter, they came out of the house of the Appellant.",

The trap party also reached there and on being asked by Inspector Sharma, the Appellant took out the money and gave the same to the trap party. In",

paragraph 16, this witness has stated that Inspector Sharma and the Complainant entered inside the house of the Appellant. 5-10 minutes thereafter,",

they returned to the compound of the house. This witness has also stated that he heard the talk by standing near the door of the house. At that time,",

other panch witness P.S. Nair (PW6) was also standing with him at the door of the house.,

P.S. Nair (PW6) has deposed that Complainant Shambhu Lal Purohit (PW2) and Inspector S.K. Sharma entered the house of the Appellant and,

they (panch witnesses) were standing outside the house. Everything was visible and audible to them from the place where they were standing. In,

paragraph 8 of his cross-examination, this witness has stated that at the time when they reached to the house of the Appellant, the door of the house",

was already opened and the Appellant was present inside the house. The Complainant taking the name of the Appellant told that they have reached.,

On this, the Appellant asked them to come in. The Complainant and Inspector Sharma entered the house and they stayed at the door of the house.",

This witness has further stated in paragraph 9 that there was a gallery after crossing the door of the house. Another gallery was there after crossing,

another door and thereafter the drawing room of the house was there. A curtain had fallen on the door of the drawing room.,

Investigating Officer Ashok Kumar Saha (PW7) has further deposed that after catching the Appellant, on being asked by the trap party, the",

Appellant took out the tainted money from his pocket. Thereafter, hands of the Appellant were washed in two solutions of sodium carbonate on which",

colour of the solutions turned into pink. Bottles of the used solutions were sealed. The kurta in which the currency notes were kept by the Appellant,

was also washed in a solution of sodium carbonate on which colour of the solution turned into pink. Bottle of that solution was also sealed. The tainted,

currency notes were also dipped in a solution of sodium carbonate on which colour of the solution turned into pink. Bottle of that solution was also,

sealed. In paragraph 12 of his cross-examination, this witness has admitted that after the wash of both the hands of the Appellant in two solutions of",

sodium carbonate, both the solutions were kept in two different bottles and those bottles were marked as No.2 and No.3. Both the panch witnesses",

and the Complainant have also stated that both the hands of the Appellant were washed in two solutions of sodium carbonate on which colour of the,

solutions had turned into pink and thereafter both the solutions were kept and sealed in two bottles.,

On a minute examination of the above evidence, it reveals that as stated by Complainant Shambhu Lal Purohit (PW2), when they reached to the",

house of the Appellant, at that time, the Appellant was sitting outside on a bench kept in the compound of his house. The door of the house was closed",

from inside. The door was got opened after pushing the door-bell and thereafter they entered the house of the Appellant. But, both panch witnesses J.",

Pandey (PW4) and P.S. Nair (PW6) have stated contrary to this and as per their statements, when they entered the house of the Appellant, the door",

of the house was already open. P.S. Nair (PW6) has categorically stated that the door of the house was not got opened after pushing the door bell,

from outside. As stated by P.S. Nair (PW6), the Appellant was sitting in the drawing room from before and he did not come out and he called",

Inspector Sharma and the Complainant from inside the drawing room itself. Apart from this, as stated by the Complainant, after opening the outside",

door of the house of the Appellant, directly the drawing room of the house had fallen and no gallery had fallen between the outside door and the",

drawing room. J. Pandey (PW4) has also stated in similar fashion. But, P.S. Nair (PW6) has stated that after the outside door of the house of the",

Appellant, a gallery had fallen inside. Thereafter, a second door had fallen on which a curtain had fallen. After opening the second door, drawing room",

of the house had fallen.,

With regard to the place where the trap party caught the hands of the Appellant, as stated by Complainant Shambhu Lal Purohit (PW2), panch",

witnesses J. Pandey (PW4) and P.S. Nair (PW6) that the Appellant came out along with Inspector Sharma and the Complainant, at that time, at the",

gate of the garden, the trap party caught the Appellant. But, Ashok Kumar Saha (PW7) has stated that the Appellant was caught by them inside the",

drawing room itself. During cross-examination, in paragraph 10, he has again repeated this fact and has categorically stated that the Appellant was",

caught in the drawing room itself and he denied that the Appellant was caught at the gate of the garden. Thus, there is a material contradiction with",

regard to the place of catching the Appellant.,

As stated by panch witnesses J. Pandey (PW4) and P.S. Nair (PW6), the Complainant and Inspector Sharma first entered inside the house of the",

Appellant and both these witnesses stayed outside the door of the house and from there they heard and witnessed the talk took place between the,

Complainant and the Appellant and from there itself, they witnessed giving of money by the Complainant to the Appellant. But, as stated by J. Pandey",

(PW4) and P.S. Nair (PW6), a curtain had fallen in the drawing room. Therefore, it does not appear to be possible that both these witnesses could",

have witnessed giving of money by the Complainant to the Appellant. Furthermore, as stated by P.S. Nair (PW6), when the Complainant and",

Inspector Sharma entered inside the house of the Appellant, at that time, the Appellant had called them from inside the drawing room and he had not",

come out for calling them. P.S. Nair (PW6) has not stated that he was already aware of the voice of the Appellant. In these circumstances, P.S. Nair",

(PW6) was not in a position to state that between whom the talk took place inside the drawing room behind the curtain fallen on the door of the,

drawing room. In these circumstances, the statement of shadow witness Inspector S.K. Sharma, who had entered inside the house of the Appellant, is",

essential in this case. It was Inspector Sharma only, who could state that what talk had taken place inside the drawing room or how giving and taking",

of money took place between the Complainant and the Appellant. But, Inspector Sharma has not been examined by the prosecution. Why has",

Inspector Sharma not been examined by the prosecution has not been explained by the prosecution. Therefore, an adverse inference can be drawn",

against the prosecution.,

It was the defence of the Appellant that he never demanded or accepted/received any money as bribe from the Complainant and inside the,

drawing room, while going out, the Complainant deliberately put the tainted money in his pocket. From the statement of Investigating Officer Ashok",

Kumar Saha (PW7), after the trap, both the hands of the Appellant were washed in two solutions of sodium carbonate on which colour of the",

solutions had turned into pink. Pocket of kurta of the Appellant was also washed in a solution of sodium carbonate on which colour of that solution had,

turned into pink. After the wash, the used solutions were kept and preserved in different bottles. Complainant Shambu Lal Purohit (PW2) and panch",

witnesses J. Pandey (PW4) and P.S. Nair (PW6) have also stated in similar fashion. But, for chemical examination, only the bottles marked as No.1,",

No.4 and No.5 were sent in which result/report was received to be positive. Investigating Officer Ashok Kumar Saha (PW7) has categorically stated,

that the bottles marked as No.2 and No.3 had contained the preserved solutions which were used for washing the hands of the Appellant. In these,

circumstances, why were the said bottles No.2 and No.3 not sent to the FSL for chemical examination has not been explained by this witness. Had",

the colour of the solutions which were used for washing of the hands of the Appellant been turned into pink, the bottles marked as No.2 and No.3 in",

which those solutions were preserved would have been sent to the FSL for chemical examination. But, the bottles No.2 and No.3 have not been sent",

for chemical examination. Therefore, a suspicion is raised that whether the colour of those solutions which were used for washing of the hands of the",

Appellant had turned into pink or not. Thus, the defence of the Appellant that the currency notes were deliberately put in his pocket and he had not",

touched those currency notes has a substance.,

From the above discussion, it is clear that there are material contradictions in the statements of Complainant Shambu Lal Purohit (PW2), panch",

witnesses J. Pandey (PW4) and P.S. Nair (PW6) and Investigating Officer Ashok Kumar Saha (PW7) on the material points. There is also,

contradiction in the statement about the place of catching the Appellant. Whether the Appellant was caught at the gate of the garden or was caught,

inside the drawing room of his house is not clear. Looking to the contradictions in the statements of panch witnesses J. Pandey (PW4) and P.S. Nair,

(PW6), their presence on the spot, their hearing conversation between the Complainant and the Appellant and their witnessing giving and taking of",

money between the Complainant and the Appellant are doubtful. In these circumstances, statement of shadow witness Inspector Sharma is essential,",

but he has not been examined by the prosecution. Therefore, an adverse inference can be drawn against the prosecution. Furthermore, the aforesaid",

two bottles marked as No.2 and No.3, in which the solutions were preserved after washing of the hands of the Appellant, were not sent for chemical",

examination. This also creates a doubt that whether colour of those two solutions, after washing of the hands of the Appellant, had turned into pink or",

not. Even if recovery of tainted currency notes from the pocket of the Appellant is accepted, this does not establish that the Appellant had made a",

demand for bribe money or had accepted the money as bribe. Thus, in my considered view, the offence alleged against the Appellant is not proved",

beyond reasonable doubt. The Appellant is entitled to get benefit of doubt.,

Consequently, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellant is acquitted of the charges",

framed against him.,

It is reported that the Appellant is on bail. His bail bonds shall continue for a further period of six months in terms of the provisions contained in,

Section 437A of the Code of Criminal Procedure.,

Record of the Court below be sent back along with a copy of this judgment forthwith for information and necessary compliance.,