D P MITTAL Vs. STATE

JUDGEMENT

(1.) THE appellant has been convicted under S, 5(l)(d) read with S. 5(2) of the Prevention of Corruption Act and sentenced to three yearsâ„¢ rigorous imprisonment and to a fine of Rs. 1,000 ; in default to further rigorous imprisonment for three months. The appellant has also been convicted under S. 161 RPC and sentenced to one yearsâ„¢ rigorous imprisonment and to a fine of Rs. 500/ -, in default to one monthâ„¢s rigorous imprisonment by the Special Judge (S.J.) Kathua. The learned judge has, however, ordered that both the sentences shall run concurrently.

(2.) BRIEFLY put the prosecution case is as follows. Consequent upon the extension of the railway line from Kathua to Jammu, the railway had to build a large number of bridges in order to complete the project. In this connection the firm of Nath. Mal Gopal Lal was given a contract for constructing the Tarnah Kithera and Beih railway bridges by the Northern Railway. The appellant who was working as IOW (Construction) in the Northern Railway was deputed to Kathua to supervise the construction of these bridges. The contract was given to the firm mentioned above as far back as 1969. In the instant case we are not concerned with the Tarnah or the Beih bridges, but the present case pertains to the construction of Kithera bridge which was in charge of the appellant. The contract between the railway and the firm was executed on 11 -12 -1969. According to the prosecution the duty of the accused -appellant was to supervise the construction and record the measurements of the work done by the contractors, and the railway had agreed to give running bills to the contractors, after the measurements were recorded by the lOWs of the bridges concerned and countersigned by the higher officers. It appears that Mr. Chandra Bhan who is DSP CBI received information at Jammu from one Ravi Prakash that another IOW namely LS Verma was demanding bribe from Ravi Prakash, and in that connection he decided to proceed to Kali Bari but before proceeding he took Messrs VS Prabhakar and BR Nanda to Kalibari in order to witness the trap which was to be laid in order to catch LS Varma. When the party reached Kalibari. Ravi Prakash appears to have met the complainant Gopal Lal and mentioned to him about the trap which was about to be laid to catch Varma. The complainant having come to know that the DSP along with the witnesses was stationed at Kalibari, approached Chandra Bhan DSP and stated before him that the appellant had been teasing him for the last 2 1/2 years and had been demanding illegal gratification for passing his bills. The complainant further stated before the DSP that on the morning of 6 -3 -1972 the appellant had approached the complainant again and had threatened him with dire consequences if he did not pay the bribe amounting to Rs.1,000 and ultimately the complainant told the accused that he was prepared to pay Rs.300/ - which he should collect from his house in the evening. The DSP recorded the statement of Gopal Lal (the decoy witness and the complainant in this case) in presence of the two witnesses, namely, Prabhakar and Nanda whom he had taken along with himself from Jammu to Kalibari. It may be stated here that although the complainant had made a very serious charge against the accused, DSP Chandra Bhan did not think it proper or advisable to approach a Magistrate at Kathua in order to record the statement of the complainant, so that some amount of sanctity may be attached to his statement. Instead of taking any such precaution the DSP appears to have taken the complainant at his word and submitted FIR at the head office at Ambala and sent the same to Krishan Kumar constable for a case being registered. I, however, fail to understand why such a hasty step was taken by the DSP when he had before him the uncorroborated testimony of Gopal Lal alone and was at that time not sure whether the trap would succeed or not. One would have understood the DSP sending the FIR after the trap was laid when he was in possession of all the facts, but such a hasty decision by the DSP only shows that he was somehow or the other interested in trapping in the appellant and securing his conviction. This circumstance is further reinforced by the conduct of the DSP in the witness box when he tried to tamper with the court evidence -a point to which I shall refer later. After sending the FIR be directed the complainant Gopal Lal to go to the residence of the appellant and decoy him to his house where the raiding party would be lying in wait for laying the trap. PWs. Prabhkar and Nanda who had accompanied the DSP from Jammu were directed to go to the house of the complainant so as to be witnesses to the actual trap. Prabhakar who was a gazetted officer was meant to be a shadow witness in order to hear the alleged conversation between the complainant and the appellant and to see the actual passing of the currency notes. After these preparations were made, the raiding party reached the house of the complainant and took their seats in a store room which was adjacent to the room where the complainant and the appellant were to talk. The prosecution case further is that as promised the appellant arrive at the house of the complainant at about 7.30 P. M. and entered the room where the complainant was waiting for him. The appellant is alleged to renewed his demand for bribe on which the complainant offered the currency notes of Rs.300/ - to the appellant. It may be stated here that according to the prosecution before the raid was arranged, the complainant had given three rupee hundred notes Rs. 300/ - to the DSP who treated them with phenolphathalein powder and demonstrated to the witness that after having touched the notes if the accused dipped his fingers in a solution of sodium carbonate the colour would turn pink which was supposed to be conclusive evidence to prove that the accused had actually touched the notes with his hands from which an inference of his receiving the bribe could be drawn. To continue the story where it was left, when the appellant entered the room of the complainant at the latterâ„¢s house and repeated his demand for bribe, the complainant as previously arranged passed on the currency notes to the appellant and gave a cough which was the signal for the raiding party to enter the room. The number of the currency notes had also been noted. Thereafter PW DSP Chandra Bhan and other witnesses entered the room and caught hold of the accused. It way further alleged that at the time the raiding party entered the room the accused was holding the currency notes in his hand and kept on holding the same for about 2 minutes. Thereafter Chandra Bhan DSP told the accused that he was under arrest and asked him to dip his fingers in the sodium carbonate solution which the accused refused on which he was forced to dip his fingers in the solution as a result of which the colour of the solution turned pink. According to Prabhakar, the shadow witness, the accused then and there made a statement that he had committed no crime and that the currency notes were being planted on him by the DSP. This stand, however, is seriously opposed by the prosecution. The accused was then arrested, and the solution was kept in a bottle and sealed to be produced in court. After the case was registered against the appellant, the police after due investigation submitted a charge sheet against him and produced him before the learned S. J. for trial with the result indicated above.

(3.) THE accused pleaded innocence and his defence was that the complainant nursed a serious grouse against him because the accused had complained against the complainant regarding pilferation of a few cement bags to the higher authorities. The accused further pleaded that he was not at all concerned with the passing of the bills and therefore there was no motive for him to either demand or accept bribe from the complainant. In other words the appellantâ„¢s case is that he was falsely implicated at the instance of the complainant, Gopal Lal, and DSP Chandra Bhan who planted the money on him which he never tried to keep in his pocket. The accused further pleaded that he was not present at Kalibari on the morning of 6 -3 -1972 because he had to attend the office at Kathua. He has submitted documentary proof in support of this plea. The defence also averred that the accused did not want to dip his fingers in the solution unless the DSP had done it, but he was assaulted and forced to dip his fingers in the solution at the instance of the DSP with the aid of other police officers.