D D SINGH Vs. STATE

JUDGEMENT

(1.) he decision of this case rests on a short point, viz. whether the conviction of appellant D. D. Singh under Section 16 [i. P. C. and Section 5 (2) of the Prevention of Corruption Act 1947 can be sustained on the testimony of Shyam Behari Tripathi (P W. 3) Deputy Superintendent of Police (Vigilance) and his Inspector Surya Bhan Singh (P. W. 4 ). Chhedi Lal, Sohan Lal, Kanhaiya Lal and Mahabir were co-tenure holders of 5 plots 631, 632, 637,625 and 638 of village Bara Sirohi, Tehsil and district Kanpur. In or about November 1975 Ram Lal, father of Bhagirath (P. W. 2) and his neighbour Munni Lal, father of Ram Kishan purchased half share of Chhedi Lal. The other three tenure holders also wanted to sell their share to Ram Lal. On 16-9-1975 they made an application Ex. Ka. 13 to the Collector Kanpur for permission to sell the land. Sohan Lal gave an affidavit (Ex. Ka. 14) in support of this application. There is no material on record on which date this application was actually moved before the District Magistrate. On the margin of the application there is order dated 10-11-1975 passed by the District Magistrate asking Tehsildar Kanpur to report at an early date. It is said that this application reached Tehsil. There is no material on record to show that this application reached the Tehsildar. It is, however, said that Bhagirath and Ram Krishna met the appellant and he demanded an illegal gratification of Rs. 100/- for giving report. Bhagirath had given R. S. 100/- to the appellant in connection with the application of Chhedi Lal for permission to sell his half share in the land. Bhagirath was not in a mood to give further illegal gratification to the appellant. Therefore, he made a complaint to the Superintendent of Police (Vigilance) on 16-1-1976. Sri I. P. Bhagnagar, Superintendent of Police (Vigilance) directed Shyam Behari Tripathi, Deputy Superintendent of Police (P. W. 3) to lay trap. On 17-1-1976 Shyam Behari Tripathi took the statements of Bhagirath and Krishna Kumar i. e. Ram Krishna. Then he arranged to lay a trap on 19-1-1976 during office hours, it is said that on 19-1-1976 Bhagirath gave 3 currency notes of Rs. 20/- each and 4 currency notes of Rs. 10/- each initialed by Shyam Behari Tripathi and treated with the powder to the appellant inside the room of the appellant in the Teshil. The appellant kept the same in the upper pocket of his coat. Shyam Behari Tripathi then arrested the appellant and recovered the currency notes in question. The hands and coat of the appellant were washed in sodium carbonate solution. The wah became pini. At the time of the apprehension of the appellant and recovery of the currency notes Bhagirath. Krishna Kumar. Durga Prasad and Deo Singh members of the public and Surya Bhan Singh and Nathu Singh Inspector (Vigilance) were present. Recovery memo Ex. Ka. 6 was prepared on the spot. Thereafter the appellant was taken to police station Kotwali Kanpur where on the basis of the recovery memo Brij Raj Tewari Head Constable (P. W. 5; prepared check report. The appellant was handed over to the police. Sri R. N. Pandey Inspector (Vigilance) investigated into the case after obtaining requisite sanction. The appellant was challaned. Sri R. N. Pandey died before the commencement of the trial before the Special Judge Kanpur. The prosecution examined Bhagi-rath, Shyam Behari Tripathi and Surya Bhan Singh only. On the other side Mohammad Jaseem, Mahtab Singh Establishment Clerk District Magistrate Kanpur and bri Shital Singh Parihar Naib Nazir, Tehsil, Kanpur (D. Ws. 1 to 3) were examined. Bhagirath did not at all support the prosecution version. He did not even state that the appellant demanded illegal gratification from him. He further stated that complaint to the Superintendent of Police was dictated by Shyam Behari Tripathi. He was confronted with his statement recorded by the investigating. He did not admit to have given the said statement. The prosecution did not examine Krishna Kumar, Deo Singh and Durga Prasad on the ground that they had been won over by the appellant. In this way on behalf of the prosecution there remained the testimony of Shyam Behari Tripathi and his Inspector Surya Bhan Singh. Facts and circumstances appearing on the record against the testimony of Shyam Behari Tripathi may be indicated. (1) Shyam Behari Tripathi directed his Inspector Nathu Singh to call witnesses. He brought Durga Prasad and Deo Singh. It will be noticed that Bhagirath is resident of Vishnupuri, police station Nawab Ganj, Kanpur, Durga Prasad and Deo Singh are residents of Gutaiya Bazar, Kanpur. They are not residents of the locality of Bhagirath. They were not brought by Bhagirath before Sri Shyam Behari Tripathi. The prosecution did not examine Nathu Ram, who had brought these witnesses. There is no material to show that Durga Prasad and Deo Singh were respectable witnesses. Statutory desirability in the matter of searches is that there should be 2 or more independent and respectable witnesses vide Section 100 (4) Cr. P. C. Apprehension of corrupt public servants red-handed is a serious matter. In this matter it is all the more necessary that the arresting officer procures the presence of independent and respectable witnesses. In the present case, there is no material even to show the profession of Durga Prasad and Deo Singh. Shyam Behari Tripathi has no doubt stated that he had in fact made inquiry about their antecedents. Admittedly he made no writing about. In the recovery memo he did not write the profession of these two witnesses. Then he showed complete ignorance if Durga Prasad was working in the soap factory of Narain Singh. He also showed ignorance if Durga Prasad was a rickshaw driver. Shyam Behari Tripathi then showed complete ignorance whether Durga Prasad and Nathu Singh Inspector were witnesses in case of the year 1967, State v. Mammoo. It may be repeated that the prosecution did not examine Nathu Singh Inspector who would have disclosed the respectability of Durga Prasad and Deo Singh, It is thus evident that Shyam Behari Tripathi made no effort/attempt to secure the presence of independent, respectable/reliable witnesses to be present at the time of the arrest of the appellant and the recovery of the bribe money. It is further pertinent to remark that the prosecution did not examine Duaga Prasad and Deo Singh simply on the ground that they had colluded with the appellant. This is a bald statement made by Shyam Behari Tripathi. It means that even Durga Prasad and Deo Singh are not prepared to support the case of the prosecution. (2) Positive case of the prosecution is that application Ex. Ka. 13 dated 16-9-1975 moved by Sohan Lal, Kanhaiya Lal and Mahabir for permission and on which the District Magistrate had passed order on 10-11-1975 had reached the Tehsil and that on the date of the arrest of the appellant, this application was at the table of the appellant or in the office of the appellant and Shyam Behari Tripathi took it into his custody at that very time. Shyam Behari Tripathi made mention about it in the recovery memo. Except for the statements of Shyam Behari Triapthi and Surya Bhan Singh there is no evidence worth the name that the application Ex. Ka. 13 had reached Tehsil Kanpur prior to the date of occurrence. The prosecution could easily produce an official of the Teshil to state that this application had been received in the Tehsil and was handed over to the appellant for necessary action. Moreover, the register of receipt of records etc. of the Tehsil could be produced to show that the application had been received in Tehsil prior to the date of occurrence. On the other side there is positive statement of Mehtab Singh Establishment Clerk (D. W. 2) that the application Ex. Ka. 13 and its accompanying affidavit Ex Ka. 14 were taken from him in the evening of the date of occurrence. He has stated that the serial number of this application was 1221 and that it was entered in the relevant register on 7-11-1975 and that it had not been sent to Tehsil prior to the date of occurrence. He has further stated that the police officer forced him to write serial number 996 on this application Ex. Ka. 13 and to find it out. Application No. 996 was moved on 20-9-1975 and it was moved by one Chhedi Lal vide entry in the register Ex. Ka. 1. This application had already been disposed of. According to Mehtab Singh he could not find the said application. Therefore, he struck off No. 996 from the application Ex. Ka. 13. The learned Special Judge has not believed Mahtab Singh because he made no complaint to the District Magistrate in writing that application Ex. Ka. 13 and affidavit Ex. Ka. 14 were forcibly taken from him in the evening of the date of occurrence by a police officer. Mehtab Singh stated that he had made verbal complaint about it to the Office Superintendent. There are two broad facts which indicate that there is truth in the statement of Mahtab Singh. They are; (1) From the date of the occurrence up to the time of the trial application Ex. Ka. 13 remained in the possession of Shyam Behari Tripathi (P. W. 3) and subsequently in the possession of the investigating officer, an officer of the Vigilance Department. In the title of the application No. 1221 is clearly written. If this application was numbered 996, No. 12?. l could not have appeared in the title. (2) On the margin words and figures "with P. No. 996" are written. These words and figures have been struck off. This clearly lends support to the statement of Mehtab Singh : The position that follows is that Shyam Behari Tripathi has wrongly stated that the application Ex. Ka. 13 was with the appellant at the time of his apprehension on 19-1-1976. (3) Positive case of the prosecution is that just before accepting the bribe money from Bhagirath the appellant started writing his report. The appellant had not completed the reported. Just after apprehending the appellant Shyam Behari Tripathi took that incomplete report in his possession Ex. Ka. 15 Contention of the appellant is that the paper Ex. Ka. 15 was forcibly obtained from him by Shyam Behari Tripathi. As the application Ex. Ka. 13 had not reached the appellant up to the time of occurrence, he could not have wetter the paper Ex. Ka. 15. In this connection it will be noticed that this paper was not handed over at the police station Kotwali at the time of the lodging of the report. In the above circumstances there appears truth in the statement of the appellant that this document Ex. Ka. 15 was forcibly obtained from him by Shyarn Behari Tripathi. (4) It is obvious that Shyam Behari Tripathi and Surya Bhan Singh are interested in the success of the trap. They are obviously interested in obtaining the conviction of the appellant. Shyam Behari Tripathi had laid trap and arrested Dr. B. M. Singh. Nathu Singh Inspector was with him at that time. The case ended in acquittal and the trial Judge made certain observations against him. These observations led to an inquiry against him. In case of Ram Prakash Arora v. The State of Punjab (1), the Supreme Court observed; " The most regrettable feature of the case is that the raiding party was headed by the D. S. P. about whose conduct in investigation in another case serious structures had been passed. He associated himself with Inspector Rajender Lal and Arjan Singh whose antecedents were equally doubtful. They were not even produced as witnesses at the trial. It is highly incomprehensible why the D S. P. did not associate some respectable person or persons whom he could take into confidence rather than take with him Inspector Rajendra Lal and Arjan Singh. " Taking into consideration the broad aspect of the case discussed above, I am of the opinion that reliance cannot safely be placed on the testimony of Shyam Behari Tripathi, the Dy. S. P. and his Inspector Surya Bhan Singh (PWs. 3 and 4 ). It will be noticed that the appellant examined two other witnesses Mohammad Jaseem and Shital Singh Parihar (DWs. 1 and 3 ). Mohammad Jaseem is Collection Amin. After performing his duty in the morning hours he used to come to Tehsil at about 2 P. M. He has stated that on the date of occurrence as soon as the appellant went into his Court-room, 8 or 9 persons entered into his Courtroom, that then the appellant cried out as to who they were and why they were taking his search, that on hearing the cries of the appellant he along with Surendra Singh went into the room of the appellant and found that Shyam Behari Tripathi had apprehended the appellant, that the appellant was not putting on coat, that the coat was hanging at the back of his chair and that the currency notes were recovered from his coat. This statement creates a doubt as to the truth of the statement of Shyam Behari Tripathi. Shital Singh Parihar is Naib Nazir at Tehsil Kanpur. He has simply deposed that the appellant had made reports in writing against his own peon Ram Sanehi as well as against peon of the Tehsildar i. e. Azim Khan. His evidence is of no relevance. Having taken into consideration the entire material on record, it is held that there in is no reliable evidence on behalf of the prosecution and that case set up by the prosecution has not been proved against the appellant. Consequently the appeal is allowed and the conviction and sentence of the appellant under Sections 161 I. P. C. and 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act recorded by the Special Judge Kanpur on 2-5-1980 are set aside. The appellant is on bail to which he shall not surrender. His bail bonds are discharged. .