LAXMIDAS MANIKPURI Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This appeal is directed against the judgment of conviction and order of sentence dated 15th June, 1994 passed by learned 1st Additional Sessions Judge & Special Judge, Bilaspur, in Special Criminal Case No. 1/88, whereby and whereunder the deceased-appellant Shantidas was held guilty of commission of offence under Sections 161 of IPC and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 of the IPC and sentenced to undergo R.I. for 1 year and fine of Rs. 1000/- and in default of payment of fine, additional R.I. for 3 months. Case of the prosecution is that the deceased-appellant; on the date of incident, was posted as Patwari of Village-Bhaison. It is the case of the prosecution that the complainant-Bodhwa approached the appellant for mutation and correction of revenue records on the basis of registered sale deed (Ex. P-4), by which, land was purchased in favour of his sons Shriram, Balaram, Balmiki and Jagdish, who had purchased land from one Hira Singh vide registry (Ex. P-4). It is the case of the prosecution that the appellant demanded bribe of Rs. 450/-, which the complainant was unable to pay and he proposed to pay Rs. 210/-, which was not accepted by the appellant. Further case of the prosecution is that the complainant again contacted the appellant few days before 19-3-1986, on which date the appellant insisted for bribe. As the complainant was not willing to give any bribe, a complaint (Ex. P-1) was lodged in the office of the Dy. Superintendent of Police, Vigilance Bilaspur. On receipt of complaint, preparation for trap was initiated. Two panch witnesses were called, who are stated to have verified the complaint. Thereafter, the demonstration of sodium carbonate solution with phynolpthelein powder was given to the complainant in the presence of panch witnesses. Complainant produced four notes of Rs. 100/- and one of Rs. 50/-. Their numbers were noted and phynolpthelein powder was smeared and then it was kept in the pocket of the complainant. Record of pre-trap proceedings was prepared vide pre-trap Panchnama (Ex.-P-2). Thereafter, the trap party alongwith the complainant proceeded to village Bhainso. According to prosecution story, complainant went inside the office/Gram Sachivalaya and handed over the tainted money to the appellant and then came out to give signal, whereafter trap party along with panch witnesses arrived at the spot and the appellant was searched. Some currency notes, not being tainted money were recovered from the pocket of the appellant. The appellant was thereafter inquired about the tainted money and when search was carried out, currency notes were found wrapped in an application for mutation kept inside the sale deed documents. All these documents were found kept inside the mutation register kept in the office. Thereafter, hands of the appellant, complainant, witnesses were washed. Currency notes and the application were also dipped in the solution of sodium carbonate. The trap party prepared separate bottles containing wash as described above. Vide Ex. P-7, currency notes, mutation register, were shown to have been seized from the appellant in the presence of panch witnesses--N.G. Lokhande (P.W. 1) and R.C. Panda (not examined). Vide Ex. P-8, currency notes of Rs. 120/- other than tainted money were also seized from the appellant. Trap Panchnama in Ex. P-3 was prepared. Map of the spot was prepared in Ex. P-6 by Dankeshwar Singh (P.W. 4) and dehati nalishi in Ex. P-9 was recorded followed by FIR (Ex. P-10). The samples drawn during trap were sent to FSL, Sagar (Ex. P-11) and report of FSL was received (Ex. P-12). Sanction for prosecution was obtained vide order dated 12-3-1987 (Ex. P-14). On the basis of material contained in the charge sheet learned trial Court framed charges on 14-10-1988 for alleged commission of offences under Section 161 of the IPC and Section 5(1)(d) read with Section 5(2) of the Act of 1947. The appellant abjured guilt and demanded trial. In order to prove its case, the prosecution examined as many as 7 witnesses. The appellant was examined under Section 313 of the Cr. P. C. in respect of incriminating circumstances and evidence appearing against him, which were denied by him. The appellant came with the defence that the allegation of demand of bribe is false as the mutation and entries were already made in favour of purchaser on 5-3-1986. He stated that on his complaint, Sukhdas, Kotwar of village Jhilmili and Mandas, Kotwar of village-Bhainso were suspended and the complainant-Bodhawa approached him on their behalf to take back the complaint, which was not acceded to, and therefore, at the instance of those two Kotwars, complainant lodged false report. He also stated that he had not given the stamp papers and the tainted money, but, they were seized from the spot and he was compelled to sign the seizure memo. In support of his defence, the appellant examined Anandram as D.W. 1.

(2.) Relying upon the case of the prosecution and disbelieving the defence of the appellant, learned trial Court held the appellant guilty of alleged commission of offence and convicted and sentenced him as described above, against which instant appeal has been filed.

(3.) Assailing the correctness and validity of impugned judgment of conviction and order of sentence, leaned counsel for the appellant argued that the prosecution has failed to prove beyond reasonable doubt the demand, acceptance and recovery. It is contended that the story of demand by the appellant is liable to be disbelieved because much before the date on which the complaint was lodged, the necessary correction of revenue records had already been done and entries to that effect were also made in the mutation register (Ex. P-15) by the appellant on 5-3-1986. It is also contended that even according to the complainant (P.W. 3), he is illiterate and can neither read nor write and he deposed before the Court that he does not know as to what is written in Ex. P-1 and did not disclose before the Court as to who prepared/typed the complaint. Therefore, present is a case where the complainant was used by those two Kotwars against whom complaint was made by the appellant and they were suspended. He also stated that evidence has come on record to show that the complainant is next door neighour of Mandas, Kotwar of village-Bhaison, who was suspended on the complaint of the appellant. Next submission is that the conduct of the complainant is unusual as he never informed anybody either regarding demand or regarding lodging of complaint, not even to his own sons in whose favour the mutation was to be made and who were the actual purchaser of the land vide registered sale deed (Ex. P-4). It is also contended that even according to the prosecution witnesses, at the time when the complainant met the appellant and trap was arranged, two persons namely Anandram and Udayram were present. During investigation, their statements were also recorded, but, prosecution did not examine both of them, whereas the appellant examined Anandram as defence witness, who has not supported the case of prosecution. Learned counsel for the appellant also highlighted that the story of demand in the facts and circumstances of the case, which makes probable false implication, is liable to be disbelieved in the absence of independent corroboration because Rameshwar who is stated to be present at the time of demand has not been examined and those who were present at the time when the complainant met the appellant have not supported the case of the prosecution. Out of two independent panch witnesses, only one has been examined, whereas other has been given up. N.G. Lokhande (P.W. 1) does not say that he either witnessed transaction or board any conversation between the appellant and the complainant. Therefor on the absence of any independent corroboration, the story of demand and acceptance are highly doubtful. It is further contended that the tainted notes were not recovered from the possession of the appellant, but, they were wrapped in application dated 12-6-1985 (Ex. F-5), which itself was kept within the folds of registered sale deed. The sale deed was found kept inside the mutation register (Ex. P-15). Therefore, the possibility of false implication cannot be ruled out that the tainted currency notes were secretly passed on to the appellant without his knowledge that the revenue documents contain those notes. Learned counsel for the appellant lastey submitted that the evidence of panch witness--N.G. Lokhande (P.W. 1) explains how the appellant came in contact of the traces of phynolpthelein powder, possibly on account of handling the sale deed, within the folds of which tainted money was wrapped in application dated 12-6-1985. Therefore, the conviction is unsustainable in law.