VIJAY DAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ACCUSED Vijay Dan was convicted under Section 161, IPC and sentenced to nine months rigorous imprisonment by the learned Special Judge, Anti -Corruption Cases, Jodhpur by his judgment dated 30.4.80. The accused has com -up in appeal to challenge his conviction and sentence.

(2.) PUT briefly, the prosecution case is that the accused was posted as Head Constable at Police Outpost Utamber, PS Shergarh district Jodhpur in May, 1975. In that capacity he was conducting investigation in police Case No. 8/75 against PW 5 Om Prakash, PW6 Pukhraj and others for offences under Section 452, 148 etc of the Penal Code, it was alleged in that case that the miscreants went in a three -wheeler Auto -Rikshaw No. RJQ 8653 to commit the offences. On 8.5.75, the accused arrested PW 5 Om Prakash and PW 6 Pukhraj at Jodhpur and also seized the aforesaid vehicle. He took them to Police Station, Mahamandir and lodged them in the police Lock -up. PW 1 Chhagan Lal, who is father of Pukhraj (PW 6) approached the accused to get his son released as the betrothal ceremony of lis daughter's marriage was going to be solemnized in that very evening. The accused refused to oblige and advised him to move the Court concerned for bail. Next day, on 9.5.75, Chhagan Lal again approached the accused. There were morning hours for the Courts in those days. The accused brought the arrested persons to the Court and lodged them in the prisoner's room situate nearby. The accused demanded a sum of Rs. 100/ - from Chhagan Lal to get his son released on bail. He also told Chhagan Lal that in case the money was not paid to him, he would apply for police custody remand of the arrested persons. Chhagan Lal pretended to have no ready money with him at that time and left the place assuring the accused to soon return with money. Hihagan Lal immediately approached Shri Rameshwar Lal (PW 11), Additional Superintendent Anti corruption Police, Jodhpur and appraised him of the situation. He expressed his desire to get the accused arrested and caught red -handed in a trap He submitted written report Ex. P1 for this purpose. The Additional Superintendent decided to lay the trap against the accused and called PW 2 Vijay Singh and PW3 Raddhey Shyam as Motbirs. He took currency notes of Rs 110/ -, one being of Rs 20/ - and the others being of Rs. 10/ - from Chhagan Lal, sprinkled phenolphthalein powder over them in the presence of Chhagan Lal and the motbirs and made a demonstration before them as to how the water of the powder would become red. He noted down all that he did on Ex. P1. Thereafter he and the party proceeded to the Court premises, Chhagan Lhl went to the Guards -room and gave the currency notes to the accused. The accused put the currency notes in the pocket of his pant. As planned, he thereafter gave a signal to the police party by rubbing his hand over the head. The Additional Superintendent, on getting the signal immediately came there, arrested the accused and recovered the currency notes from him Memo Ex. P4 was prepared then and there on the spot of this trap showing therein how the accused was found in possession of the currency notes. His hands were washed and the wash was filled in a bottle. The bottle was sealed. The case was registered against the accused under Section 161, IPC and 5 of the Prevention of Corruption Act, 1947 (hereinafter called 'the Act'). The usual investigation ensued. The bottle was sent for chemical examination. The contents of the bottle were found to contain phenolphthlein and sodium carbonate. The report of the Chemical Examiner is Ex. P14 Sanction to prosecute the accused was obtained from the Deputy Inspector General of Police, Jodhpur On the completion of investigation, the police submitted a challan against the accused The learned Special Judge framed charges under Sections 161, IPC and 5(1)(d) read with 5(2) of the Ace against the accused. The accused pleaded not guilty and demanded the trial. The defence put forward by him was that DW1 Girdbari the nephew of PW 1 Hihagan Lal owed a sum of Rs. 100/ - to him. Chhagaa I al came to him with letter Ex D2 from Girdhari and gave Rs. 100/ - to him. He wrote receipt of receiving the money on the back of Ex. D2 and returned it to Chhagan Lal. Hence he did not oblige Chhagan Lal and refused to release his son Pukhraj, Chhagan Lal developed an animus against him. It resulted in his false trap. During trial, the prosecution examined 12 witnesses and filed some documents. In defence, the accused examined two witnesses and also filed some documents. On the conclusion of trial, the learned Special Judge drew a presumption under Section 4(1) of the Act and disbelieved the defence version put by the accused. He, however, held that no case under Section 5 of the Act was made out. The accused was consequently acquitted of the charge under Section 5 of the Act but was convicted under Section 161, IPC and sentenced as mentioned at the very out -set. Aggrieved against his conviction and sentence, the accused has taken this appeal.

(3.) IN reply, the learned Public Prosecutor supported the judgment of the Court below and submitted that the approach of the learned Special Judge was perfectly legal and justified, it was the duty of the accused to rebut the presumption arising against him under Section 4(1) of the Act. The accused had utterly failed to discharge that burden. The trial Court bad advanced a number of convincing reasons as to why the defence version could not be accepted as true. Reliance in support of the contention was placed on the words' 'unless the contrary is proved' occurring in Section 4(1) of the Act and certain observations made in Dhanwantri v. the State of Moharastra : 1964CriLJ437 and (2) Chatal Das v. the State Gujarat : 1976CriLJ1180 . I have taken the rival contentions into consideration.