BASHIR AHMAD WANI Vs. STATE

JUDGEMENT

(1.) DESPITE all possible efforts the appellant -accused has conspicuously failed to appear and prosecute the appeal for last over 18 years. After the appellant or his counsel failed to appear, all efforts to serve appellant -accused have proved abortive. The accused -appellant despite opportunity(ies) has not appeared. The case cannot be allowed to pend any further when the age of this appeal is over 23 years, no matter accused has opted not to appear and avail the opportunity.

(2.) HEARD . Perused. One Banti Devi was allotted vacant piece of evacuee land in Ward No. 5 of Samba Town on monthly rent under the orders of custodian back in January 1951. She had raised a Kacha house on the land. The Assistant Custodian Samba took objection to raising of this house. Complainant (PW1) Dev Raj S/o Said Banti Devi on learning about the matter attended the office of custodian, where he met accused appellant clerk of the evacuee department. Accused conveyed to complainant that either the rent would be enhance or the allotment would be cancelled but yet if PW1 or/and his mother was/were interested to have the land and at the same time continue to pay the rent at present rate, then they have to pay him illegal gratification of Rs. 100/ -. Complainant reported the matter to Dy. S.P. (Anticorruption Organisation Jammu) and handed over a written report EXPF to the organisation. After registration of the case (FIR No. 7/76), PW5 one Amrik Chand Dy. S.P. arranged and laid a trap. In presence of prosecution witnesses 2 and 3, Rs. 10/ - denomination currency notes were handed over to complainant PW1 by PW5 after the Dy. S.P. PW5 treated these notes with phenolplithalein powder and the notes were signed by the witnesses. The complainant was asked to contact and meet accused any pay the currency notes to him. Another witness PW4 was instructed to shadow him and the moment, amount was paid to accused to give signal to the party and the witnesses by rubbing his head. The accused in the vicinity of Charider Kumars shop was paid the bribe amount who kept the amount in his shirt pocket. On receiving the pre -determined signal from PW4, the raiding party standing at some distance appeared on the scene. On search of the accused notes were recovered from his upper pocket of the shirt. Witnesses PW2 and PW4 who had already noted down the numbers of notes tallied same and identified the notes. Accuseds hands were washed with Sodium Carbonate solution and the hand wash solution turned pink, indicating existence of tainted bribe money. After necessary sanction, accused was send up for trial.

(3.) ACCUSED pleaded not guilty to charge u/s 5(2) r/w 5(1)(d), of the Prevention of Corruption Act, 2006. Prosecution examined six witnesses including investigating officer in support of its case. The seized notes EXP1 to EXP10 (vide EXPb) as also the evidence connected with phenolplithalein test and other circumstances including recovery of notes on recovery tallying with numbers on currency notes paid was tendered during trial. Accused pleaded not guilty and examined three witnesses in defence. Accuseds specific plea was that the currency notes EXP1 to EXP10 were not recovered from him but from one Chander Kumar shop Keeper to whom complainant had paid this amount. The three witnesses produced have broadly spoken those lines but Ghana Ram and Krishan Dev have admitted that the hands of the accused were washed in their presence and the colours of the hand -washed water did turn pink. Even the witnesses have on closer cross -examination spoken that the money was recovered from accused. The all important witnesses Chander Kumar shop keeper from whose shop, the amount is stated by accused to have been recovered has not been examined, though cited as defense witness.