Deocharan v. State

HIGH COURT OF CHHATT!SGARH' BILASPUR CRA No. 2105 of 1997 - Deocharan, Son of Puniram, aged about 42 years, Patwari, resident of Village Limtara (Sakti) Distt. Bilaspur (MP) -~-- Appellant

Versus

- State of MP through the Special Police of Lokayukt Office, Bhopali ---- Respondent Shri VC Ottalwar, Advocate.

For Appellant For Respondent/State Shri Neeraj Mehta,vPL.

Hon'ble Shri Justice Pritinker Diwaker Judgment On Board 07/02/2017

1. This appeal directed against the judgment dated 25.9.1997 passed Special Judge/First Additional Sessions judge, Bilaspur Speciai Criminal Case No.10/1992 convicting accused/appellant under Sections 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (for short 'the Act of 1988') and sentencing him to undergo Sl for year and fine Rs.1000/~ each count with default stipulations respectively.

.The facts case, brief, are at relevant time accused/appellant was working as Patwari and posted at Village - Khamariya, Chanadongri, Devri. it is alleged that the appellant demanded RslOOO/r Sunderlal Yadav

(PW-5) for partition of holdings. As the complainant did not want 'to give bribe to the appeiiant, he made a written complaint dated 25.9.1990 (EXP/l) addressed Dy.S.P., Lokayukt stating therein that the appellant has demanded Rs.1000/- from him lieu of doing partition of holdings, he is not interested to give him that bribe and therefore, requested that the appellant be trapped. Upon receipt this complaint, two official witnesses PW-9 Kamannayan Banchu, Agriculture Development Officer and PWRR Dubey, Assistant District inspector Education, were summoned initial panchanama (Ex.D/2) prepared.

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These witnesses were introduced with complainant;

complaint made by the complainant was verified;

endorsement was made on the complaint;

after making preparation, chemical test was demonstrated by applying phenolphthalein powder on ten currency notes of 100 denomination;

numbers of the notes were recorded;

said notes were put shirt pocket complainant. The complainant was specifically instructed to hand over these currency notes to the appellant in his hand only when he demands the bribe and not to touch the same before that. He was also instructed that after handing over the bribe amount, he should give signal to the trap party by coming out from the house iighting matchstick pretext smoking bidi.

Likewise, both official witnesses were also //'

instructed to remain near the complainant as far as possible so " that they can overhear the conversation and see the transaction between complainant and appellant.

The solution was '

Kept in sealed bottle and after completing ail the formalities, the

trap party proceeded for house appeHant.

The appeHant was found his house, the complainant handed over the bribe to the appeHant, which was kept by him in the register (EXP/6) and'after receiving signal from the compiainant, theitrap party reached spot, caught hoid appeliant, currency notes, which were kept in the register, were seized, Thereafter, hands ofthe appeiiant were dipped solution of sodium carbonate, on which colour of the solution turned pink which was kept a separate bottle.

Likewise, being asked PW-9 Kamalnayan Banchu took out currency notes register, its numbered were tallied from initial panchanama and found to be the same, These notes were also dipped in the solution and colour ofthe solution turned pink. Page No.14 ofthe said register was dipped in the solution, on which its colour tuned pink.

All the solutions were kept in separate bottles and sealed.

All these proceedings were duly recorded trap panchanama EXP/7.

Spot map ExtP/8 prepared.

Unnumbered Dehati Nalishi EXP/13 recorded 25.9.1990 thereafter regular FIR (EXP/i4) was registered on 8.10.1990 under Section 7 of the Act, 1988 against the appellant. After obtaining sanction (EXP/17), the appellant was prosecuted.

.The trial Court framed charge against under Section 7 and 13(1)(d) read with 13(2) ofthe Act, 1,988. .The prosecution order bring home charges levelled against accused/appellant examined witnesses.

r Statement of accused/appellant was recorded under Section 313

CLP'C.

in which he denied the Charges leveiied against him and pleaded innocence faise implication offence, defence, he examined three witnesses. After hearing the parties, trial Court has convicted sentenced i'the accused/appellant as described above.

. Counsel fordthe appellant submits thatthe appellant has been falsely implicated in this case as neither demand nor receipt of amount proved by the prosecution as required under the law.

that the bribe amount has not been seized from the possession of the appellant and it was found register. The appellant had never accepted any bribe.

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that from the register bribe amount has been taken out by PW-9 Kamalnayan Banchu eventuality, after washing hand solution, colour solution should have turned pink, but as per prosecution case when hands other prosecution witnesses were washed, colour solution did not turn pink it only after washing hands appellant and the complainant that the colour turned pink, that the appellant was not authorized to do partition of holdings it Tehsildar Anjani Kumar Nath (PW-12) who competent do this this fact has been admitted Tehsildar.

tha't considering contradictions statements important prosecution witnesses, involvement of the appellant in accepting the bribe appears to be doubtful and thus he is entitled

to be acquitted of the charge by giving him benefit of doubt. '

iastly he submits that the Court below has completely overlooked the statements of defence witnesses.

6. On the other hand, supporting the impugned judgment, codnsel for the State submits that the demand and acceptance has been duly proved prosecution trial Court after due appreciation entire evidence has rightly convicted sentenced the appellant, which warrants no interference by this Court. He submits that PW-12 has nowhere stated that it is only /'_ Tehsildar who perform work, for which bribe K, demanded accepted by the appellant.

It has been argued that the statement of Tehsildar is to be read as a whole and not in part,

7. Heard counsel for the parties and perused the material available on record including the impugned judgment.

8. PW-1 RR Dubey was working as Assistant District inspector, Education Department, at the relevant time. He was independent wK member of the trap party.

He has stated that on 25.9.1990 he went to Vigilance Office, Bilaspur on the instructions of Protocol Officer, Biiaspur where met Shri Gaur, Dy.S.P.

who introduced him with Sunderial Yadav.

The complaint written by the complainant was read by him.

Solution of sodium carbonate was prepared and their hands were washed with that solution, on which colour solution remained same.

The informed them r demanding bribe Rs.1OGO/- for partition holdings.

The

gave ten notes denomination, tota!

Rs.1000/-.

Thereafter, one constable Rambahadur applied phenoiphthalein power those currency notes kept same shirt pocket oi the complainant.

The compiai'nant instructed hand over said amount appeilant only when he demands for the same and not to touch it before that.

After completing necessary formalities, they left for Village Devri at about 6.30 pm by jeep and stopped the jeep a bit ahead of the village and from there the complainant along with constable went on foot residence appeltant.

The complainant was instructed that after giving bribe amount to the appellant, he should give them signal by lighting the matchstick after coming out from his house, On such signal being given, the trap party entered the house of the appellant, who at that time was wearing lungi and vest. There separate solutions of sodium carbonate were prepared and hands all the members trap party were washed, however, colour solutions remained same.

When hands were washed, colour turned pink.

The solutions were kept separate bottles and sealed. The bribe amount was kept in the register at page No.14, said page being washed solution, colour of the same turned pink and likewise, when the bribe amount was dipped in the solution, its colour turned pink.

He also a witness complaint EXP/1, preliminary panchanama Ex.P/2, seizure memos EXP/3, EXP/4, Ex.P/5, EXP/6 trap panchanama EXP/7.

In cross-examination, '

remained firm and reiteratedAas to the manner in which the trap

proceedings were conducted.

. PW-6 Rambahadur, Head Constable, who was also a memer of b the trap party has fully supported the prosecution case. He has stated 25.9.1990 caHed Shri Toppo, introduced with complainant, SS Gaur, Shri Parmeshwar Singh Sitaram, Chemical test was conducted office, however, colour of the solution did not turn pink. The trap party proceeded for the house of the appellant at about 6 pm and after reaching spot, along with went house appellant, however, stood outside house f:

whereas the complainant went inside the house. After some time the complainant came out of the house and gave signal to the trap party lighting matchstick, which trap party reached there. He and one Parmeshwar caught hold of hands of appellant, being asked Shri Toppo about bribe amount, the appellant informed that it in the mutation register.

Thereafter being asked Shri Toppo, prepared solution of sodium carbonate, hands all the members trap party were washed solution, however, colour of solution did not change and when hands were washed, colour turned pink, which kept a separate bottle.

On being tallied, number bribe amount were found same which were handedover complainant. The said currency notes were also washed solution and the colour turned pink, which was kept in a separate bottle. Likewise, when hands of Shri Banchu (trap party member) \

were washed, colour solution turned pink.

ln cross~examination, he has stated that the bribe amount kept register were taken out Shri Banchu, When the paper of the register where the bribe amount was'2kept washed solution, colour turned pink.

He also remained firm cross-examination nothing could be elicited him render evidence untrustworthy or doubtfuli 10.PW-9 Kamalnayan Banchu, an independent trap witness, was l working as Agriculture Development Officer at the relevant timer While supporting the prosecution case he has stated that he was called by Dy.

Director to the Vigilance Office, Bilaspur, on which he went there and met the complainant and other police officers, He states that he was informed by Shri Toppo (PW-11) that the is demanding Rs.1000/- from the complainant as bribe therefore, be caught red handed.

He read complaint made by the complainant and satisfied himself about its contents by enquiring from the complainant. He is a witness to complaint EXP/1. Chemical test proceedings were demonstrated before him and the solutions were sealed. The complainant gave ten notes of 100 denomination, numbers of which were noted by him and he then handed over the currency notes to Shri Toppo. Thereafter, one constable applied phenolphthalein powder those notes and kept the same in the pocket of the complainant with an instruction to give the same to the appellant only when he demands for it and not to touch the same before that. All the

trap member's'

hands were washed sodium carbonate solution, which colour solution did not turn pink.

Personal search all members made no objectionable thing was found their possession.

All this'Was recorded in the preliminary panchanama EXP/2, which bears his signature.

After completing necessary formalities, trap party proceeded for the residence of the appellant at about 6.30 prn by jeep and stopped the jeep at the outskirt of the village and there went towards house appellant.

Rest members trap party took their position and waited for the signal of the complainant. After about 15 minutes the complainant came out of the house and gave the pre-decided signal to the trap party, on which they entered j house. The appellant was caught hold by Shri Singh and another constable.

On being asked, admitted have accepted money from the complainant for mutation and informed same kept register table.

Thereafter, solution of sodium carbonate was prepared, hands trap party members were washed, however, the colour of the solution remained same.

When hands complainant, page of the register where the bribe amount was kept, the bribe amount and hands of the appellant were washed in the solution, colour turned pink and solutions were kept separate bottles and sealed. When his hands were washed in the solution, colour of the same turned pink.

The seized currency notes bore same serial number as were mentioned '

preliminary panchanama.

All relevant documents were

[a seized vide EXP/3 P/6.

In crosg-examination, defence could not elicit anything from him which could impeach his credibilityi ~11i PW-11 RJ Toppo, at reievant time working as inspector.

He has stated upon receiving complaint compiainant Sunderlai Yadav recorded unnumbered FIR under Section 7 of the Act (EXP/t3) and forwarded the same for registration Bhopal received back same after registration of Crime No104/90 under Section 7 of the Act. He '

states after receiving complaint two government witnesses namely Shri Kamalnayan Banchu (Agriculture Development Officer) and Shri RR Dubey (District School inspector, Bilaspur) were summoned and they were introduced with the complainant. These witnesses read the complaint and after enquiring from the satisfied themselves about its contents accordingly? made endorsement this effect.

Demonstration chemical test made befcre these witnesses.

He has made almost similar statement as have been made by PWs-t, 6 & regarding trap proceedings.

He has duly proved seizure memos and trap panchanama. He has stated that all the bottles containing solutions of sodium carbonate were sent for chemicat examination to FSL vide EXP/15 and the report of FSL / EXP/16.

He has stated sanction for prosecution duly obtained vide EXP/17., tn crossexamination, he remained firm and the defence could not point out any infirmity in the prosecution case.

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12. PW-2 Hardevlal, brother of the complainant, has stated that the his brother/complainant had planted eucalyptus plants in the land admeasuring 3.14 acres for its fencing irrigation they wanted have loan bank.

When approached the bank officials, they advised him to have separate possession land only then could get loan accordingly, stamp paper Rs.5/~ prepared which signed him also.

PW-3 Makhanlal, Revenue Inspector, prepared the spot map EXP/8. PW-4 Saripunnisa Khan, clerk Tehsil Office, Takhatpur, has proved service record appellant.

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PW-5 Sunderlal, complainant, has stated has 16.97 acres of land, which is recorded as joint holdings and in partition, got 3.14 decimal land, which has planted eucalyptus plants.

He states for obtaining loan'

approached the bank, on which the bank official advised him produce document regarding his possession of 3.14 decimal land therefore, contacted for partition holdings.

The appellant demanded Rs.3000/- for this purpose, however, after negotiation, the matter was settled at Rs.1000/-.

As did not want give any bribe appellant, approached Sarpanoh Salikram informed him about illegal demand by the appellant and then both ofthem came Bilaspur on 25.9.1990. The complaint was written by Salikram at instance same given Dy.S.P., Vigilance Office.

Thereafter, the officials witnesses were summoned, they

/z C©$ enquired about contents complaiht and after aatisfying themselves put their signature on the complaint. This witness has also stated about demonstration Chemical test, recording serial number currency notes, applying of phenolphthalein powder on the same, keeping it in his pocket and the instructions given to him about the use of those currency notes.

He has proved preliminary pancha'nama EXP/2, He has categorically stated that when reached house appellant, asked him whether has brought money when (complainant) »\/ \ requested for sparing Rs.200/- for himself, the appellant told that has give Rs.1000/~ not less than that, otherwise work would not be done.

Thereafter, he gave Rs.1000/- appellant, which was counted by him and kept in the register on the table. Then he gave the pre-decided signal to the trap party by smoking b/d/ and they reached there and appellant was caught.

Thereafter, currency notes were seized register, hands currency notes were washed in the solution and the colour of the solution turned pink. The said solutions were sealed in separate bottles.

ln his crossexamination, he has denied all adverse suggestions put him defence categorically stated had demanded bribe from him for doing the partition of holdings and accepted the bribe amount from him.

14, PW~7 Salikram a witness to whom had approached first along with this witness had gone

/3 vigilance office for making complaint against appeHant He has partly supported prosecution case PW~1O Sitaram, Constable office of Lokayukt has helped prosecution agency at the time initial panchanama.

PW-12 Anjani Kufmar Nag, Tehsildar, has stated for partition holdings, application filed and in case such partition is disputed, either notices are issued or publication made but case it not disputed, application can be filed before Patwari through certifying officer even eventuality, parties are summoned publication notices He states any such work which is being done by the Patwari, is official work, He has stated mutation done revenue officer after order of the revenue officer or inspector, corrections are made in Rin Pustika and revenue records and Rln Pustika signed Patwari, inspector and revenue officer.

PW-13 DR Yadav has proved sanction EXP/17.

15.

DW-1 Jethuram, brother complainant, has stated they are five brothers, he had raised objection on the application of the complainant that name of the complainant should not be recorded alone in respect of the land of their mother. He states knowledge, after Patwari/appellant to get his name recorded.

However, crossexamination states partition ancestral land has already been done, his share has already been recorded name and in the joint aCcount, names of his brother and mother are recorded.

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16. DW'2 Tarandas, Kotwar, has stated that on the date of incident sitting opposite house appeHant a platform along with six other persons. The compiainant reached there time appellant came out from hd'use carrying a bucket met complainant, who told that he has some work with him, The appellant then told sit house, complainant went inside the house and thereafter, the trap party entered the house after some time, appellant came went house.

DW-3 Manendra Tiwari, has made almost N/ similar statement as has been made by DW-2.

17.

Close scrutiny evidence makes it clear for purpose partition holdings (PW-5) had approached the appellant, who at the relevant time was working as Patwari demanded Rs,3000/- for doing this work, however, after negotiation the same was settled at Rs.1000/-t A written complaint (EXP/1) made Dy.S.P., Lokayukt.

After receipt of complaint, official witnesses PWVQ Kamannayan Banchu, Agriculture Development Officer PW-l RR Dubey, Assistant District inspector Education, were summoned, they were introduced with the complainant and informed about complaint made him.

After reading complaint enquiring they recorded their satisfaction complaint about its genuineness.

After making preparation, test,was'

demonstrated applying phenolphthalein powder ten currency notes

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denomination;

numbers notes were recorded;

said notes were put in the shirt pocket of the complainant with an instruction to hand over these currency notee to the appeHant his hand only when demands bribe not touch same before that.

He was also instructed after handing over the bribe amount, he should give signal to the trap party by coming out from the house appellant and lighting matchstiok on the pretext of smoking bidi. The complainant in the Court has fully supported prosecution case The other prosecution witnesses PW-t, PW-9, who are independent witnesses members of the trap party as well as PWvtt while supporting the prosecution case have categorically stated about the manner which trap proceedings were conducted, caught red handed, his hands being washed in the solution, its colour turned pink and seizure of the currency notes and other relevant documents.

Even when the page of the register where bribe amount kept, washed, colour solution turned pink.

\ l8. All the legal and procedural formalities were undertaken by the prosecution receiving pre-decided signal complainant, members trap party approached recovered said currency notes possession.

On said currency notesbeing treated chemically, phenolphthalein solution turned pink.

Thus, prosecution has proved its case leading every possible cogent and clinching evidence in support of its case and no legal

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flaw there their part.

As regards argument that when bribe amount was taken out register by PW-Q Kamalnayan Banohu, that eventuality, after washing his hand with the solution, celour of the solution should have turned pink but it has not turned pink, the same is without any substance because PW-9 has specifically stated evidence that when hands were washed, colour solution turned pink, Moreover, no such suggestion was given to any of the witnesses by the defence their cross-examination.

The defence taken through examination defence witnesses not as such which basis entire prosecution case can be doubted Though defence has examined brother complainant, but even , statement the appellant cannot draw any benefit. This apart, no plausible explanation has been offered statement recorded under Section 313 of Cr.P.C. 19.

The court below has also taken into consideration each every aspect of the case coupled with the evidence of witnesses while recording a finding to the effect that the accused/appellant had demanded later accepted Rs.1000/- as illegal gratification complainant.

Even defence has not produced any evidence to the contrary on basis of which a conclusion other than conviction can be recorded this Court, Being so, the conclusion drawn by the court below holding the accused/appellant guiltyundet $ections 7, 13(1)(d) read with 13(2) Act, being based .on due appreciation h

evidence on record is not liable to be interfered with. 20.

in the result, the appeal being without any merits liable to be dismissed and is dismissed as such. The appellant is reported to be on bail, therefore, bail bonds stand cancelled directed be taken into custody forthwith serve out remaining part ofthe sentence.

y/ Sd/- Pritinker Diwaker , if r M 'E Judge Khan