SUBHASH CHAND Vs. STATE OF U P

JUDGEMENT

(1.) S. K. Agarwal, J. This appeal arises out of an order of conviction and sentence passed by IV Addl. Sessions Judge, Bijnor in S. T. No. 10 of 1981. He had convicted the appellant under Section 5 (2) of the Prevention of Corruption Act and under Section 16] I. P. C. He has also sentenced the appellant to one year's R. I. and a fine of Rs. 1,000. In default of payment of fine he has further sentenced the appellant to three month's R. I. No separate sentence was awarded to the appellant under Sec tion 1611. P. C.

(2.) THE brief fact of the case is that Ram Kumar P. W. 3 had given an applica tion for a power connection in the Hydel Department. This application was allowed and after an agreement was signed the necessary order for laying the line was sent from the office of Hydel Department to the office of S. D. O. at Kiratpur. Ram Kumar approached the appellants on 23rd March. 1980 for the first time in connec tion with laying of the line. Under the procedure a direction for laying the line for new connection was to be signed or issued by the S. D. O i. e. appellant. THE evidence suggests that this order was issued by the S. D. O. under his signature on 26th March, 1980 but it had reached Ram Murti Lal Gupta P. W. 5 Junior Engineer in the department on 19-4-80 after the arrest of the appellant from his house. In between 23rd March, 1980 and 19th April, 1980 Ram Kumar claimed to have met the ap pellant on 1-2 occasions. Nonspecific dates were given by Ram Kumar. In his state ment about his meeting on one occasion i. e. March and April, admittedly the appel lant was not present in the office and so Ram Kumar could not meet him. After 3-4 days it is alleged that he met him again and made an inquiry with regard to laying the line for his tube- well. He was asked to meet the Inspector. Just 11-12 days before the incident Ram Kumar again met S. D. O. who inquired from him whether he had met the Inspector or not and whether he was informed of the action to be taken by the Inspector. THE reply from Ram Kumar was in the negative. THE appellant then promised to pass the order within a week. Ram Kumar after expiry of a week's time again claimed to have contacted the appel lant. On 17-4-80 he was informed that the order had not been passed. He further told him that he is suffering serious loss be cause of non-availability of the connec tion, therefore, he must pass the order immediately. THEn he was told by the ap pellant that unless him palm is greased an amount of Rs. 50 is paid by Ram Kumar no order can be passed. Ram Kumar went away by promising to return with the money within a day or two. Ram Kumar was not ready to part with any illegal gratification 'to the appellant for taking something which was his right. He had approached Som Datt Tyagi, Vigilance In spector on 18-4-80. In this connection he had prepared an application. Ext. Ka - 10, and gave it to Som Datt Tyagi P. W. 1. This Som Datl Tyagi is Vigilance Inspector and was posted in district Bijnor at the relevant time. Som Datl Tyagi P. W 2 accompanied P. W. 3 Ram Kumar to the District Magistrate's office and got an order for him from the District Magistrate. THE Dis trict Magistrate, had directed him to gel the statement of Ram Kumar recorded by S. D. M. Rain Bahadur who according lo him recorded his statement and noted down the number of his notes in the state ment and thereafter P. W. 3 again was brought back to the office of the District Magistrate and Som Datt Tyagi obtained an order from the District Magistrate for laying the trap to nab the appellant red handed. Afterward Som Dalt Tyagi P. W. I directed P. W. 3 Ram Kumar to meet him at the Police Station at about 11. 30 a. m. on 19-4- 80. THE notes were also returned to Ram Kumar. Som Datt Tyagi retained the application. As per the plan Ram Kumar reached Police Station, Kiratpur on the above said date and time. Som Datl Tyagi arrived at the Police Station around 12. 00 A. M. He sent Ram Kumar to find out whether the accused is present in his office. Ram Kumar after gathering the informa tion came back and informed the Vigilance Inspector that accused is on leave due to ailment and is present at his residence. Som Datt Tyagi after taking three constables in plain clothes from the Police Station and also taking Jamraj P. W.-2 and Pratap Singh P. W. 3, the public witnesses, proceeded towards the house of the appellant. THE appellant was living on the first floor. THEy all went up stairs. After reaching there the Vigilance Inspector alongwith Pratap Singh stationed himself by north side window of the room in which the appellant was lying. Ram Kumar and other companions including police per sonal too position on the western side. Ram Kumar entered the room by opening the door of the room after calling the ap pellant from outside. According to the statement of Ram Kumar and P. W. 2 Jamraj Ram Kumar had closed the door after entry. Inside the room the appellant was asleep. He woke up and sat on the cot. He made an 'inquiry from Ram Kumar whether money is brought. Ram Kumar responded in the affirmative and passed the notes totaling Rs. 50. It is claimed that the appellant had taken those notes from Ram Kumar and after placing them in an envelope lying there had placed that under neath the pillow on his bed. He wrote some thing on a piece of the paper and passed that paper to Ram Kumar to give it to Ram Nath in his office to contact him immediately. In the meantime the Vigilance Inspector and other members of his party entered the room. As soon as these people entered into the room it is alleged that the appellant had taken out the envelope kept under neath the pillow and the Inspector had snatched it from his hand. THEreafter all the formalities were completed at the spot and the appellant was taken to Police Sta tion Kiratpur which is about one furlong from the house of the appellant.

(3.) THE learned Sessions Judge in his judgment at Pages 101 and 102 has returned the finding in the following manner with regard to these so-called independent wit nesses. According to him Jam Raj and Pratap Singh are related to Ram Kumar. Jam Raj and Pratap Singh are also related to each other. Pratap Singh is son-in-law of Jam Raj's brother. Ram Kumar's Brother Pirthi is married to the daughter of the sister of the wife of Lahri. Lahri is elder brother of Jam Raj. All the three witnesses were not strangers to each other. Jam Raj admitted that he had appeared as a witness for the police in numerous cases. Pratap Singh also admitted that he was known to the police. Under these circumstances, the witnesses cannot be said to be independent. No implicit reliance can be placed on any statement of theirs. THEir evidence has to be tested bit by bit. Only the use parts of their statements which are supported by independent evidence are to be accepted in this case. With regard to S. D. Tyagi P. W.-1 and Ram Kumar P. W.-3 the finding returned by the learned Sessions Judge at page 101 is At the very out set it may be mentioned that Sri S. D. Tyagi P. W-1 had taken keen interest in arranging a trap and making it successful. Ram Kumar has also stated that he was deeply interested in the apprehension of the accused. "