Yashpal Malik and Another vs State of Rajasthan

Farooq Hasan, J.—These five appeals (three filed by Yashpal Malik & two by D.S. Naruka against three different same dated judgments in three criminal cases Nos. 15/76, 16/76 & 17/76, lend themselves to disposal by this common judgment because as has been jointly contended by the parties, the charges levelled against the present appellants are of similar nature although they relate to different months, in respect of different parcels.

In each of three criminal case Nos. 15/76, 16/76 & 17/76, Yashpal Malik has been convicted under Sections 161, IPC, & Section 5(2) of the Prevention of Corruption Act, whereas D.S. Naruka with the aid of Section 120B IPC, but each of the present appellants in each of criminal cases, referred to above, has been sentenced as under:

Under Section 161, IPC, - I year''s R.I. Under Section 5, Prevention of - one year''s R.I. with a fine of Rs. 500/- (In default, Corruption Act, futher one month''s R.I.) 3. Substantive sentences under both the counts, in each of the criminal cases were ordered to run concurrently.

The present appellants had been working as Customs Inspector at Foreign Post Office, Jaipur. Similar charges against these appellants are that they while functioning as government servant in Foreign Post Office, Jaipur, demanded & accepted illegal gratification and then released three foreign parcels sent by one, Shri Tolaram from Hong Kong. Containing tape recorders three in numbers, without charging customs duty & other taxes etc. Three tape recorder''s parcel Nos. 14568, 18459 & 18890 (equivalent foreign parcel Nos. 2757, 687 & 8080 respectively) in favour of Satnam Kaur & Rajesh Kumar, without charging custom of Rs. 395/- for each parcel, are alleged to have been released by the appellants for illegal gratification of Rs. 200/-, Rs. 230/- & Rs. 250/- respectively in Spl. Cr. Case Nos. 15/76, 16/76 & 17/76, in May, September & October 1975.

Upon receipt of an information from secret sources the CBI investigated the matter and found the appellants other accused persons indulged in such a racket. Therefore, after thorough preliminary investigation, first information reports were lodged in the CBI. After usual investigation by the CBI, the challans were presented in the Court of Special Judge (CBI cases), Jaipur, against the present appellants in three criminal cases, ibid. They were charged for the offences punishable u/s 420, 477A, 161 read with Section 120B IPC, and Section 5(2) read with Section 5, Prevention of Corruption Act, 1947. They pleaded not guilty and claimed to tried.

After due trial, the learned trial Court acquitted both the appellants of offences punishable under Sections, 420, 477A & 420/120B, IPC. But, it convicted & sentenced them, as stated above.

Since the trail Court admittedly based its finding in all the three cases upon the common evidence adduced by the prosecution, and that being so, common question of law & facts arise, therefore, at the joint request of the parties, these five appeals are being disposed of by this common judgment.

Pertinently, the State has not filed any appeal against the present appellants against their acquittal under the impugned judgments.

I have heard the learned Counsel for the parties and perused the entire record.

Learned Counsel for the appellants contended that in order to find the appellants guility by the offence punishable u/s 161, IPC, and/or with the aid of Section 120B IPC, Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, the prosecution must prove that, the impugned demand was of corruption Act, the prosecution must prove that, the impugned demand was made specifying the amount of illegal gratification and that amount was voluntarily accepted by them. Learned Counsel urged that the impugned conviction is based on the evidence of those witnesses who according to their own statement, can be held to be accomplice. It is settled law that the evidence of an accomplice cannot be accepted without any corroboration. The learned trial Court fell in error in holding that the evidence of Shrawan Kumar & Asumal-accomplice witnesses stood corroborated by that the other witnesses.

The learned Counsel for the CBI supported the judgment of the learned trial Court and submitted that the learned trial Court after discussing the entire evidence came to this conclusion that the prosecution witnesses cannot, in any way, be termed as accomplice ones, and it was justified in placing reliance upon their testimony.

The question requires to be examined is, whether the prosecution succeeded in bringing home offences punishable u/s 161, 120B and 5(1)(d) read with 5(2) of the Prevention of Corruption Act?

Admitedly, there was no complaint from the side of the consignees about the demand of bribe obviously because, they were accomplices. According to Asumal (PW1) when he and Shrwan Kumar were talking about tape recorder, appellant - Malik is alleged to have demanded Rs. 200/- for release of the tape recorder, and Shrawam Kumar paid Rs. 300/- as is costs. In cross-examination, Asumal admitted that they used to maintain account book. But, it appears that no entry about this amount has been shown to have been made. He is very well aware, as would be evident from his admission in his cross-examination, of the fact that giving bribe and doing business of foreign goods without paying customs duty are offences. According to his version in cross examination on 22.10.75, when he was taking one tape recorder to the shop of Sunil Trading Company after taking it from the house of Tolaram, the Customs Officials had intercepted him. He admitted that in Ex. D. 2 he had not given out any thing about the demand of bribe and payment to Malik while his statement was recoded.

Shrawn Kumar (PW2) Asumal brought Tolaram at his shop whereas according to Asumal, Tolaram was already there Shrawan Kumar deposed that he used to ask Asumal if he wanted anything to be sent for from Hongkoing and used to pay its cost to Asumal, and according to Shrawan Kumar, Malik came at his shop and demanded amount for release of tap recorder without charging customs duty. But, apparetly he did not show presence of Asumal at that time. In cross-examination, Shawan Kumar resiled from his earlier version given out the investigating agency. In Ex. D. 3 there is no mention of meeting in between the investigating agency. In Ex. D.3, there is no mention of meeting in between Malik & him alongwith Asumal and of demand of any bribe from them or payment of bribe by him to Malik. That apart according to Ex. D. 3, he did not know in whose name the taps recorder was sent from Hongkong, while it had also been stated therein that Tape recorder was asked to be sent at his address at the instance of Rajkumar. He assigned no reason for not charging customs duty.

As would be evident from the aforesaid narration of the facts and circumstances and admissions wrung out from their versions, they are seemingly accomplice witnesses and their versions consist of contradictions in respect of material particulars about the story of demand and payment of bribe. Even, Shrawam Kumar (PW 2) being bribe giver did not make any complaint to anybody and that being so, the trial Court, itself, held him as an accomplice witness besides Asumal but it erred in holding that their versions were of corroboative, because, in my considered view, they are not better than accomplice witnesses inasmuch as on account of their contradictory versions on material particular in respect of demand of bribe and its payment, and not corroborative to each others besides other prosecution witnesses, they are liars, and are like infirm witnesses and they cannot become reliable because it has been corroborated by a number of witnesses of the same brand, as has been laid down by the Apex Court in Muluwa and Others Vs. The State of Madhya Pradesh, .

In the case at hand, as regards the allegation of demand and payment of bribe above named two persons can be said to be witnesses but, none of them is of credence because, as held above, they are accomplice and had stated nothing in regard to the demand and payment of bribe before the customs officials just after the interception of the tape recorder by them, nor there is evidence of taking money by Malik for D.S. Naruka or any whispering about any talk of any person with D.S. Naruka.

Nirmal Chand (PW 6) being postal officials who had allegedly opened the parcel, admitted that besides him, the Attending clerk & packers of the parcels were also present at that time and in Ex. P.8 (content register), he, himself had written ''Food'' as content of the parcel & the word, ''Free'' but he further stated that when he got reopened it, a tape recorder was found therein and so, he, scored the word; ''Food'' and wrote ''Type recorder'' but did not correct the word ''Free''. According to him, in cross-examination, the attending clerk used to write the contents of the parcel in the attending slip but the Tape recorder was not written in that slip (Ex. P.9) which contained his signature but does not contain the custom Inspector''s signature or initial. That apart, he admitted that no record was prepared regarding reopening of the parcel and that he did not make inquiry in this regard, inasmuch as on reopening, a tape recorder was found of which, admittedly, no report to the Deputy Post Master to whom the parcel & its checking report are said to be generally sent, was made by him. The witness further aditted that the word, ''Tape Recorder'' in Ex. P.8 was in different ink than other writing''s ink.

Thus, viewed, it is clear that he (PW 6) was also an accomplice but for corroboration to his verison the attending clerks have not been examined, apart from some of the packers who were very important witnesses so to unfold the fact, as to what item was in the parcel when were opened Moreso, the manner fact, as to what item was in the parcel when were opened. Moreso, the manner in which Nrimal Chand scored the word. ''Food'' clearly goes to raise presumption that he might have manipulated the things at some later stage and in order to save their own skin, he and Sarwan Kumar are prone to adduced false evidence. Thus, it is a case of lacking independent corroboration in material particulars of the evidence of an accomplice, and keeping in view the contradictory evidence of Asumal (PW 1), Shrawan Kumar (PW 2), & Nirmal Chand (PW 6) in material particulars, as discussed above, which not only effected reliability of their evidence but also, put the Court in difficult situation to arrive at the truth, I find that their such evidence remained unexplained rather smaks of deliberations and that being so, they deserves to be completely ignored. And, the trial Court has grossly erred in acting upon the evidence of three accomplice witnesses which remained uncorroborated by an independent source rather remained contradictory to each other in respect of material particulars on the charge punishable u/s 5(1)(d) & 5(2) of the Prevention of Corruption Act.

I find from the report of the Assistant Collector of Customs (Ex. D.3) that it does not make a reference rather even makes out no case of demand of bribe by the appellants from any other person or even Shrawan Kumar. According to it, their case was that the appellant had not charged the customs duty leviable on the articles released from the foreign post office. But in whole hog, the prosecution by way of embellishment and be aggregation, unfolded subsequently different story for the offences, charged and it could not have been successful to base their allegations. Therefore, even from the papers annexed to the report of the Assistant Collector (Ex. D.2) the evidence of Assmal does not reflect the story of the prosecution as exaggerated subsequently.

The incriminating articles, like tape recorders could not have been recognised by the prosecution witnesses, inasmuch as the prosecution failed to prove as to whether the articles like tape recorders recovered alegedly were the same for which the appellants had not charged the customs duty leviable thereon, and in this view of the matter, it cannot be established beyond reasonable doubt the appellants had released any articles duty free on acceptance of the alleged bribe from Sharwan Kumar.

Scanning the evidence carefully, I am not satisfied that the guilt of the accused has been proved beyond doubt. Demand by the accused for the bribe is an essential ingredient of the offence and that has an important part to play in ascertaining whether the trap laid is legitimate or illegitimate. I must reiterate that in the case at hand, admittedly, there was no recovery of money nor the accused were caught while allegedly accepting the bribe, nor there was any trap laying, nor there was any complaint from the side of the consignee about the alleged demand of bribe. It is not the prosecution case that the appellants had demanded any bribe nor that it has laid any trap nor that they had at the demanded any money from Shrawan Kumar. Contrarily, as adumbrated above, as per Assistant Collector''s report (Ex. D.3) the allegation made against the appellants was that they had got the articles released as duty free. There is nothing on record that according to the customs officials, & the investigation made thereon, the appellant had ever raise any demand of bribe. I have already seen that apart from the question of corroboration, the discrepant and inconsistent nature of the evidence has itself made the evidence unacceptable. It is unfortunate that the trial Court by considering extraneous circumstances and drawing inferences which are nothing but mere suspicion connecting these appellants with the crime convicted them.

As regards conspiracy, admittedly the duties of the both the appellants were different having seating arrangements on different tables. There is nothing on record to suggest that both of them had a meeting of the mind or that D.S. Naruka had ever demanded bribe from any body or had any knowledge of the alleged demand or payment of bribe by other co-accused. More ever, none of the prosecution witnesses deposed that any share from the alleged bribe amount was received by D.S. Naruka. Thus it could not be held that he was sharing the intention with V.P. Malik or was acting on his behalf. Under these circumstances, the evidence as it stands does not establish the offences even against both of them beyond reasonable doubt.

In the result, all the five appeals are allowed. The impugned convictions & sentences by virtue of the judgments under these appeals, passed against both the appellants are set aside. They are on bail. Their bail bonds are directed to be dischaged. The record be sent back.