STATE OF RAJASTHAN Vs. B K ROY

JUDGEMENT

(1.) RESPONDENT B.K. Roy was tried for the offence under Section 161 IPC and under Section 5(1)(d) read with Section 5(2) of the Provention of Corruption Act (hereinafter referred to as 'the Act') by the Special Judge, Sriganganagar, and was acquitted by the judgment dated December 16, 1972. The State of Rajasthan feeling dis -satisfied by the order of acquittal has filed the present appeal in this Court.

(2.) BRIEFLY stated the facts of the case giving rise to the trial of the respandent his acquittal and the present appeal by the State of Rajasthan are as under: - -Respondent was Medicel Officer at the Primary Health Centre, Chnani Badi in the year 1970. Re had conducted the post -mortem examination of the dead body of a child Chhani Badi in connection with Case No. 44 under Sections 312 and 318 IPC registered at Police Station Bhirani by Ismailkhan (PW 9) the S.H.O of that Police Station. The allegations were that the respondent wanted to examine all the women of the village to find out as to who was the mother of the deceased child. That, Punamchand Jat (PW 2) had gone to that village and was told by Dhanpat (PW 5) that the Doctor wanted to examine all the women of the village, which should not be done Thereafter Punamchand is said to have met the Doctor at Chhani Badi in the evening of 27 -9 -70 when the post mortem examination was conducted. The Doctor demanded Rs. 200/ - for giving a favourable report. The matter was settled at Rs. 100/ - Punam Chand went to Yaswant Singh (PW 6) Sarpanch who informed him that the Anti -Crruption Officer had come to Bhadra and he should meet him on the next morning at Jogi -vala Canal. The prosecution version is that Yaswant Singh met Addl. S.P. Jabar Mal Mehera (PW 8) at Bhadra Post House at 8.00 P.M. in the night and disclosed the matter to him. The Addl. S.P. informed him that he would reach Jogiwala Canal on the next morning. On 28 -9 -70 Punam Chand (PW 2) went to the Canal at about 8.00 A.M. and submitted an application Ex. P/3 along with a currency note of Rs. 100/ - denomination. At the instance as Addl S.P. Punamcand brought Lal Chand (PW 4) and Moji Ram (PW 1), the two motbirs, in whose presence the application was submitted and the memo Ex. P/4 regarding the delivery of note to Punam Chand for being given to the Doctor on demand was prepared. All of them proceeded in a jeep from Jogiwala Canal and reached near the Primary Health Centre Chhani Badi. Punam Chand and Lal Chand went to the hospital and others remained behind. The discrepancy in the statement of the witnesses regarding the person entering the room of the Doctor to give him the currency note will be discussed at appropriate place. For the present suffice it to say that the prosecution case is that Punamchand gave the hundred rupees currency note to the Doctor and came but of the room and gave signal to the trap party. The Addl. S.P. and Moji Ram went to the hospital and along with Punam Chand and Lal Chand entered the room of the Doctor. The Addl. S.P. disclosed his identity and demanded the currency note. The Doctor took out the currency note and produced it before the Addl.S.P. On being asked to explain the possession of the note, the Doctor is said to have stated that he has nothing to say in the matter. The Addl. S.P. after observing all the necessary formalities of the trap cases, prepared the recovery memo Ex.P. 6. The documents relating to the post mortem, examination of the child were also taken in possession. The Doctor was arrested. Here again there is difference between the prosecution case and the defence version as to whether he was taken to Bhadra because he was unable to furnish surety or the police did not accept the surety to harass him. Any how the facts are that respondent was taken to Bhadra and was enlarged on bail, on his furnishing surety.

(3.) THE learned Public Prosecutor has assailed the findings of the innocence by the learned trial Judge mainly on the ground that provisions of Section 4 of the Act have not been taken into consideration by the learned trial Judge, According to him when the respondent had received Rs. 100/ - currency note and the recovery of the same from his possession has been proved, the burden was upon him to refute the prosecution case that it was received by him not by way of illegal gratification. Mr. Doongar Singh, learned Counsel for the respondent on the other hand contended that mere recovery of money from the respondent will not by itself be sufficient to raise a presumption and, therefore, the burden would still be upon the prosecution to prove that the public servant had obtained the amount by corrupt or illegal means so as to being the case within tha ambit of Section 5(1)(d) of the Act.