Virendra Kumar Bhaladhare vs State of Madhya Pradesh

M.A. Siddiqui, J.—This appeal has been filed by the appellant against the judgment dated 4.7.2001 delivered by the Special Judge, Jabalpur in Special Case No. 2/98 whereby the appellant has been convicted for alleged offence punishable u/s 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act") and sentenced to R.I. for two years and fine of Rs. 2,500/-, in default of payment of fine to further undergo R.I. for six months on each count respectively. Substantive sentences have been directed to run concurrently. The allegation against the appellant was that when he was posted as Sub-Engineer in Water Resources Department of Govt. of M.P. was given extra duty of assessment and disbursement of compensation to the victims of earthquake which look place in the year 1997 at Jabalpur. He demanded Rs. 1,000/- from complainant Babulal and Hukumsingh for payment of compensation of Rs. 3,000/- to each complainant for their damaged kachcha houses.

In short, the facts of case are that complainant Babulal and Hukumsingh who were the brothers residing separately in their kachcha houses in Balsagar, Tripuri Ward, Jabalpur. Their houses were damaged in earthquake of 1997. Collector, Jabalpur by written directions entrusted the work of assessment of houses and disbursement of compensation up to Rs. 3.000 for each damaged house. Several teams were formed out of which one team was headed by appellant. Survey was made in the month of June, 1997 by the team headed by the appellant in which Babulal (PW.2) was asked to give Rs. 500/- in bribe for compensation of Rs. 3,000 To him, and also Rs. 500/- against the assessment and compensation to be given to his brother Hukumsingh (PW. 1) so demand of Rs. 1,000/- was made by the appellant from complainants. Complainant Babulal (PW.2) assured appellant that as he is poor he could not manage the money, he will give the money as and when compensation will be given to him. As complainants were not willing to give bribe so Babulal (PW.2) approached Supdt. of Police (Lokayukta), Jabalpur and gave written complaint vide Ex.P/1 on 19.06.97. Supdt. of Police (Lokayukta) handed over the case to Deputy Supdt. of Police M.B.S. Jaggi who handed over tape recorder and blank cassette and after giving directions how to operate it asked Babulal to go and record the conversation of appellant and complainant. On 20.06.97 complainant Babulal reached Lokayukta Office and informed that conversation has been recorded, on which witnesses D.K. Choubey (PW.3), and Ashok Jain (PW.4) Executive Engineers, MPEB were called and their services were requisitioned who reached office and before them complainant Babulal handed over the tape recorder together with cassette having conversation of him and appellant, same were seized as per Ex.P/4. By playing the cassette the conversation was heard by witnesses, transcript vide Ex.P/5 was prepared. Babulal gave application Ex.P/2 in which it was alleged that though he got the compensation of Rs. 3,000/-, but his brother Hukumsingh''s compensation was yet to receive and appellant was demanding Rs. 500/- each, total Rs. 1,000/-. On this. Supdt. of Police, Lokayukta handed over the case to Dy. Supdt. of Police S.D.A. Tiwari (PW.8). Trap was arranged in which complainant Babulal tendered currency notes of Rs. 100/- (ten in denomination) total Rs. 1.000/- for which panchnama Ex.P/6 was prepared, their numbers were noted and on each note very tiny signatures of D.K. Choubey were put, phenolphthalein powder was applied on the notes, and complainant and other witnesses were made to understand the trap proceedings. Preliminary panchnama was prepared in this regard. Thereafter during the trap proceedings, on receiving signal from the complainant, Dy. Supdt. of Police S.D.A. Tiwari and other members of trap party recovered tainted currency notes from the floor as accused after putting them in front pocket of his shirt, on seeing the trap party threw them in front of him on the floor which were seized vide Ex.P/11 and hands were washed with sodium carbonate solution which turned pink which was seized vide Ex.P/14. Trap panchnama was prepared and documents were seized.

After further investigation and obtaining sanction from the Law and Legislative Department, charge-sheet was filed. Learned Special Judge framed charges u/s 7 and Section 13(1)(d) read with Section 13(2) of the Act.

Appellant abjured the guilt and pleaded false implication. According to him, he has been falsely implicated in this case. As there was no house of Hukumchand and he was forced to assess and give compensation to Hukumchand whose house was not in existence, on his refusal to make survey and give compensation to Hukumchand, appellant has been falsely implicated in this case. Appellant submitted that compensation of Babulal was already paid to him on 18.06.97. In defence, statements of Haridas Meshram (DW.1) and Sayed Izaz Hussain (DW.2) and four documents D/1 to D/6 were produced.

From perusal of record, it is clear that prosecution produced evidence of Hukumsingh (PW.1), Babulal (PW.2) (complainants). Dhirendra Kumar Choubey (PW.3), Ashok Jain (PW.4) (shadow witnesses). Chandanlal Bahe (PW.5) (Patwari), Rajendra Prasad Goswami (PW.6) (another Patwatri). Mahesh Prasad Tiwari (PW.7), S.D.A. Tiwari (PW.8) Deputy Supdt. of Police and Investigating Officer and Ramgopal Mishra (PW.9) prove its case.

Firstly we have to see whether appellant is a public servant and valid sanction has been taken to prosecute him. Chandanlal Bahe (PW.5), Rajendra Prasad Goswami (PW.6) and Mahesh Prasad Pathak (PW.7) have stated that appellant was made head of the team for survey of the houses damaged in earthquake so he was a public servant. Appellant has also not denied this position in his examination u/s 313 of Cr.P.C. As far as sanction is concerned, Ramgopal Sharma (PW.9) stated that the then Secretary T.P. Sharma accorded valid sanction vide Ex.P/27. It is pertinent to note that sanction has not been challenged so sanction is not disputed.

Hukumsingh (PW.1) stated that he resides separately with his eider brother Babulal. Earthquake took place in which his house and Babulal''s house were damaged, both brothers were to be compensated by the Government for which appellant asked Rs. 500/- each as bribe from each complainant for giving compensation of Rs. 3,000/-. As he was having only Rs. 300/-at that time, he went to appellant with Rs. 300, but appellant refused to accept it and asked him that he will take full amount. Appellant asked the witness that he has to take a money from his brother also, so witness told his brother Babulal that appellant was demanding money on which his brother Babulal said that he will give.

Babulal (PW.2) stated that accused asked Rs. 500/- for each survey for giving compensation Witness assured Babulal that on getting compensation of Rs. 3,000/- he will give Rs. 500 to appellant. Babulal further stated that appellant told his brother that as he has not given the demanded amount so survey will not be done and he will do the survey only after the amount is given to appellant. Appellant was demanding Rs. 500/- for each survey for giving compensation, i.e., total Rs. 1,000/- from both the brothers. As the witness was not willing to give the demanded amount so he approached Lokayukta Office, Jabalpur, complaint (Ex.P/2) was lodged by the witness, a tape recorder was given to him with blank cassette and he was given understanding how to record the conversation panchnama P/3 was recorded. Then the witness approached appellant and recorded conversation in which demand was there. Tape recorder along with cassette was handed over to officers of Lokayukta which was seized vide Ex.P/4, and after hearing the tape recorder vide Ex.P/5 transcript was prepared on which the witnesses put their signatures. Thereafter witness has stated the he tendered currency notes of Rs. 100/- (ten in denomination) total Rs. 1,000/- on which phenolphthalein powder was applied and numbers were noted, panchnama P/6 was recorded. Money was put in his pocket and it was instructed that he has not to touch the money before giving it to the appellant. Then the witness went to Balsagar with the trap team in the noon, survey was going on, when the appellant was asked to take the money he refused to take the money at that time, but told complainant to come at evening. So, in the evening at about 7 O''clock, with the trap team, witness went to Pisanhari Madia and gave tainted currency notes to appellant and after some time to gave the instructed special signal, on which appellant was caught, hands of complainant and appellant were washed with solution of sodium carbonate, the water became pink which was collected and seized. But, in the cross examination, which took place after about two months at the request of defence, this witness admitted material suggestions by defence about demand and acceptance of tainted currency notes, so he was declared hostile at the request of prosecution as he by washing away his examination-in-chief stated that he forcefully thrusted the money into the pocket of accused and accused made no demand from him and he got compensation without any bribe.

Dhirendra Kumar Choubey (PW.3) and Ashok Jain (PW4), Executive Engineers, MPEB supported the version of prosecution by stating that they were called by Deputy Supdt of Police, Lokayukta and they were introduced with Babulal and Babulal told that appellant was demanding bribe for assessment and giving compensation of damaged houses in earthquake and Babulal gave written complaint Ex. P/2. Babulal was handed over a tape recorder with a blank cassette to record the conversation for which panchnama (P/3) was prepared, thereafter on the next day conversation was heard and trap was planned. Ten notes of Rs. 100/- each, total Rs. 1,000/- on which phenolphthalein powder was applied and numbers of which were noted were kept in the pocket of Babulal. Demonstration of washing of hands was done. Babulal was instructed that he has not to touch the money before handing over the same to appellant. Then they accompanied Babulal, Investigating Officer S.D.A. Tiwari and went in the evening to Pisanhari Madia. At Pisanhari Madia Babulal and these two witnesses were dropped and it was instructed to the witnesses that they will try to remain nearby Babulal. At about 8 PM appellant came there and when Babulal and appellant were engaged in conversation, both witnesses were standing at some distance. As soon as Babulal gave special signal trap team approached near the accused. The witnesses have stated that as soon as they reached there, they saw that notes were lying on the floor and appellant was caught by Jaggi and Pandey. Notes were seized and hands of appellant and complainant Babulal and currency notes were washed, the solution became pink.

S.D.A. Tiwari (PW.8), Investigating Officer stated that when he was posted as Deputy Supdt. of Police, Supdt. of Police. Lokayukta on 20.06.97 called him and introduced Babulal and apprised with application P/2. He called D.K. Choubey and Ashok Jain by telephone and trap was arranged and it was successful and tainted notes were recovered from the floor in front of appellant as he threw them on seeing the trap party. These tainted currency notes were seized, panchnama etc. was prepared.

Learned Special Judge, after trial and upon appreciation of evidence adduced in the case, held the appellant guilty and convicted and sentenced him as aforesaid by the impugned judgment, which has been challenged in this appeal.

We have heard learned counsel for the parties.

Learned counsel for the appellant submitted that learned Special Judge has miss appreciated the evidence on record. The tainted currency notes were thrusted in front pocket of his shirt by complainant, Babulal and he immediately threw them on the ground, acceptance of money was refused from very beginning and learned Special Judge committed error in not accepting the explanation given by the appellant immediately after trap and also during trial. According to him, the evidence of complainant about the demand and acceptance was not reliable and suffers with infirmity of inconsistency, discrepancy and material omission. Counsel placed reliance on decisions of Apex Court in G.V. Nanjundiah Vs. State (Delhi Administration), and Raghbir Singh Vs. State of Punjab,

On the other hand, learned Special Public Prosecutor for SPE, Lokayukta submitted that demand was proved, trap was successful and on seeing the trap party, appellant threw the tainted currency notes which were recovered just in front of him from the floor and when his hands and pocket of the shirt were washed, it turned into pink. He submitted that conviction of appellant was justified due to statutory presumption u/s 20(1) of the Act. He submitted that evidence of complainant, which was given in examination-in-chief and after postponing the evidence differs as he was won over earlier part of the statement was very well relied and discussed by the learned trial Court. He placed reliance on decisions of Apex Court in Hazari Lal Vs. State (Delhi Administration), and Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh,

Learned counsel for appellant submitted that Dhirendra Kumar Choubey (PW.3) and Ashok Jain (PW.4) are not independent witnesses. Dhirendra Kumar Choubey (PW.3) is a pet witness as he has admitted in para 10 of his cross-examination that he came to give evidence in three cases in favour of Lokayukta, he stated that it is his second case and he has also given statement previously. He also admits that he went to Lokayukta on 19.06.97 and 20.06.97 but all documents bear the date 20.06.97. Further he stated that he remembered the dates as he got it noted in the diary, but this diary was never produced even after giving opportunity to produce it. Counsel submitted that D.K. Choubey (PW.3) and Ashok Jain (PW.4) both were posted as Executive Engineer in MPEB. Apart from it, Ashok Jain (PW.4) admitted that he went on 19.06.97 and 20.06.97 but signatures of 20.06.97 are there even on application (P.2) which was said to have been given on 19.06.97. Counsel submitted that every date is of 20.06.97 even on the document of 19.06.97. He further submitted that both persons were taken from the same office so these witnesses are not reliable.

Learned counsel for appellant has placed reliance on para 8 of decision in Raghbir Singh v. State of Punjab (supra), relevant portion of which is quoted below:-

8.......................We must take this opportunity of impressing on the officers functioning in the anti-corruption department to insist on observing this safeguard as zealously and scrupulously as possible for the protection of public servants against whom a trap may have to be laid. They must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. We cannot, in the present case, rely on.

Learned counsel for the appellant contended that since the evidence of alleged witnesses was not trustworthy, appellant cannot be convicted merely on the evidence of complainant, who turned hostile and gave discrepant and inconsistent versions. Counsel placed reliance on the decision of Banarsi Dass v. State of Haryana AIR 2010 SC 1539 in which complainant and other witnesses turned hostile. The Apex Court dealt with the matter as under:-

PW.2 insisted on changing the Khasra Girdawaris and after she got annoyed, she got him falsely implicated. Money alleged to have been recovered from him, in fact was lying on the table without his knowledge or demand. PW.2 has also stated in her statement that she kept the money on the table after some altercation with the accused. In these circumstances, it is difficult for the Court to hold that the prosecution has established the offence against the accused, that he accepted the money voluntarily as illegal gratification The effect of the statement of PW.2 and PW.4 has a substantial adverse effect, on the case of the prosecution. There are other witnesses examined by the prosecution which are formal witnesses and in the absence of support of PW.2 and PW.4, the prosecution has not been able to establish the charge (demand and acceptance of illegal gratification by the accused), thus entitling him to some benefit on the technical ground of two witnesses i.e. PW.2 and PW.4 turning hostile. In the light of the statement of two hostile witnesses PW.2 and PW.4, the demand and the acceptance of illegal gratification alleged to have been received by the accused for favouring PW.2 by recording the Khasra Girdawaris in the name of her mother cannot be said to have been proved by the prosecution in accordance with law. We make it clear that it is only for the two witnesses having turned hostile and they having denied their statement made u/s 361 of the Cr. P.C. despite confrontation that the accused may be entitled to acquittal on technical ground. But, in no way we express the opinion that the statement of witnesses including official witnesses PW.10 and PW.11, are not accepted by the Court. Similarly, we have no reason to disbelieve the recovery of Ex. P-1 to P-4 vide Ex. P-D.

For appreciating the evidence of such witnesses, in the case of G.V. Nanjundiah Vs. State (Delhi Administration), the Apex Court observed:-

Learned Special Judge and also the High Court have placed much reliance upon evidence of R.1 Verma and R.N. Khanna and the Deputy Superintendent of Police as to the acceptance of the bribe by the appellant and recovery of the bribe amount, from him. R.1. Verma and R.N. Khanna have been stated to be two independent witnesses. So far as R.N. Khanna is concerned, he categorically admitted in his cross-examination that he had earlier joined three or four such raids for traps organized by the C.B.I. Khanna and Verma work in the same office and there is substance in the contention made on behalf of the appellant that both of them are very much known to the police. It was the Deputy Superintendent of Police who had called them from their office for the purpose of being trap witnesses. We do not think that in the circumstances, either of them can be called an independent witness.

As per above discussion, both witnesses D.K. Choubey (PW.3) and Ashok Jain (PW.4) are not independent witnesses and their version should strictly be scrutinized.

Learned counsel for appellant, submitted that statement of S.D.A. Tiwari (PW.8) Investigating Officer who is not only interested in prosecution, but also in conviction should not be accepted without corroboration as he has not procured the independent witnesses and on 20.06.97 prepared the documents and signatures of pet witnesses were taken ante dated.

Per contra, learned counsel for respondent supports the judgment and conviction. He submitted that complainant Babulal was not hostile from very beginning and upto his examination-in-chief which was done on the previous dates, he was telling truth, and after taking time by the defence he has been won over and in his cross examination by the defence he stated that he thrusted the notes in the pocket of appellant and no demand was made from him. He has placed reliance on Khujji alias Surendra Tiwari vs. State of M.P. (supra). He has also placed reliance on decision in Hazari Lal v. The State (Delhi Admn.) (supra) in which it has been held that even where the complainant does not support the prosecution case, the conviction can be based on the version of Investigating Officer and also on surrounding circumstances. Counsel further placed reliance on decision in State of U.P. Vs. Dr. G.K. Ghosh, wherein it was held that in case of an offence of demanding and accepting illegal gratification, depending on the circumstances of the case, the Court may feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the police officers even if the trap witnesses turn hostile or are found to be independent. When besides such evidence there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case.

Learned counsel for the respondent placing reliance on the decisions of Apex Court in Gian Singh Vs. State of Punjab, and Hazari Lal v. The State (Delhi Admn.) (supra) contended that in a trap case the conviction of accused may be based on the evidence of police officer who laid the trap, if his evidence is trustworthy. In case of Hazari Lal (supra), Supreme Court observed:-

Where the evidence of the Police Officer who laid the trap is found entirely trustworthy, there is no need to seek any corroboration. There is no rule of prudence, which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case a court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally in the facts and circumstances of another case the court may unhesitatingly accept the evidence of such an officer. This all a matter of appreciation of evidence and on such matters there can be no hard and fast rule nor can there be any precedential guidance

In the light of above propositions, when we critically scrutinize the evidence of D.K. Choubey (PW.3) and Ashok Jain (PW.4), we find that these two officers were from the same office so they cannot be called independent witnesses as per law laid down by the Apex Court in G.V. Nanjundiah and Banarsi Dass (Supra).

As far as decision in Khujji alias Surendra Tiwari vs. State of M.P. (supra) is concerned, it has been held that the evidence of hostile witnesses cannot be treated as effaced or washed off the record altogether, part of his evidence which is otherwise acceptable can be acted upon. So in each case it has to be seen that what evidence is admissible.

After cross-examination of Babulal (PW.2) he has not been re-examination which could have been done, so his cross-examined by the defence has not been challenged at all. He is a witness whose evidence lies somewhere between truth and falsehood. Naturally he cannot be treated as a wholly reliable witness.

Learned counsel for respondent submitted that demand is very much there in tape-recorder.

Per contra, learned counsel for the appellant submitted that complainant Babulal has specifically told that he cannot say that voice of the appellant is there with him and moreover no laboratory or expert report has been obtained and no voice match has been done of the complainant, so transcript vide Ex. P5 has no value and conversation on tape recorder cannot be accepted as a reliable corroborative evidence.

Learned counsel for appellant submitted that as notes were trusted in his pocket, he throw the same immediately on the floor, for which Haridas Meshram (DW1) stated that notes were thrusted by the person and appellant threw them forthwith and said that why notes have been thrusted in his pocket. A.S.I. Syed Izaz Hussain (DW2) stated that matter was reported to Collector and the then Collector vide Ex. D/2 wrote letter to Supdt. of Police, Lokayukta on 25.7.1997 in which it has been stated that notes were thrusted forcefully and appellant has been falsely implicated in this case. Vide Ex/ D/6(c) Supdt. of Police. Jabalpur on 8th September. 1998 reported the matter to Director, SC & ST National Commission, Bhopal in which it has been written that demand of bribe was not found reliable and it, seems that appellant has been falsely implicated in this case. These letters of Collector and Supdt. of Police Jabalpur, show that there was no house of Hukumsingh so he could not be given compensation at all so in order to create pressure, false accusation of the appellant cannot be overruled.

Learned counsel for respondent submitted that application of Hukamchand Ex. P/19 was seized vide Ex. P/15 by the Investigating Officer from the house of appellant. So appellant has motive and opportunity for bribe.

Per contra, learned counsel for appellant submitted that this application has not been legally proved, even there was no whisper in the statement of Hukumsingh PW1 that he ever gave such application for compensation. So, this Ex. P/19 is not admissible in evidence at all. No ration card or its photo copy or electricity bill was produced. So circumstances are also not in favour of prosecution. The possibility of false implication cannot be ruled out.

Learned counsel for appellant also submitted that the version of S.D. Tiwari (PW8) and F.S.L. report (Ex. P/24) is silent on the point that the particular solution belonging to the appellant was ever sent or examined. So, an important lacuna is there.

After careful consideration of the evidence adduced by the prosecution and by defence, and the submissions made by learned counsel for the parties, we are of the view that prosecution has failed to prove guilt of appellant beyond reasonable doubt. For the reasons aforesaid, appeal is allowed. The judgment of conviction and sentence as delivered by the trial Court is set aside. Appellant is acquitted of the charges. His bail bond and personal bond are discharged.