OM PRAKASH MATHUR Vs. STATE

JUDGEMENT

(1.) THE appellant, who was a Sub -Inspector of Railway Protection Force, Jaipur, has been convicted under Section 161, I.P.C. and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act by the learned Special Judge, Jaipur, and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/ -, in default of payment of fine to undergo further rigorous imprisonment for three months.

(2.) THE prosecution case against the appellant, shortly, stated, is that Om Prakash appellant was functioning as a Sub -Inspector in charge of Railway Protection Force post attached to Western Railway, Jaipur, in the beginning of April, 1969. As Sub -Inspector of Railway Protection Force, it was one of his duties to make an investigation of a crime of unlawful possession of railway property punishable under Section 3 of the Railway Property (unlawful possession) Act, 1966. While investigating a case of unlawful possession of railway property (Cr. No. 9 of 1969) he required the attendance of one R.K. Malik, who was posted as Shunter, 'A' Great Locoshed, Jaipur, and who was temporarily working in that capacity at Loco -shed Phulera. The appellant, therefore, sent a telegram to Loco Foreman, Loco -shed, Phulera, on 20th April, 1969, to spare Shri R.K. Malik and to send him to Jaipur for interrogation in the said case. In response to that R.K. Malik came to Jaipur on 22nd April, 1969, in the forenoon. The appellant informed Shri R.K. Malik that there was a charge against him that he had pilfered and droped two bags of coal belonging to the railway at railway crossing No 222 and that he would be arrested in that connection The appellant further told him that he would be released on bail, provided he was prepared to produce a surety Shri R.K. Malik thereupon brought Shri P.C. Mehta, who offered himself to stand surety for him, but the appellant refused to accept Shri Mehta's surety bind on the ground of his being a public servant. Shri Mehta then went away from there leaving behind Shri R.K. Malik and the appellant. After Shri Mehta had gone away, the appellant demanded a bribe of Rs. 1000/ -, from Shri R.K. Malik as a reward for showing favour to him in the exercise of his official function. Shri R.K. Malik made entreaties to spare him as he claimed to be innocent and unable to meet the demand of bribe on account of his poverty. The appellant, thereupon, told Shri Malik that if the Utter wanted to avoid arrest, he would have to make a part payment of Rs. 500/ -, to the appellant for obtaining a release order and that the remaining sum of Rs. 500/ -, would have to be paid by him later on for getting the case finally hushed up against him. Shri R.K. Malik then came to his residence and thought over the matter. He did not like to give any bribe to the appellant so he wrote a complaint and went to the office of the Special Police Establishment in the afternoon of 24th April, 1969. He met Shri Ram Chander, Deputy Superintendent of Police, Special Police Establishment in his office and produced before him the complaint along with currency notes of Rs. 800/ -. Shri Ram Chander received the complaint and the currency notes. As he was busy with some official work, he called Shri P.D. Ajmera, Inspector in his room and directed him to arrange a trap with the help of Shri K.L. Rao, P.N Shukla, Chunni Lal, A.S.I. and one Constable. Shri Ram Chandra made an endorsement on the written complaint and Ex P. 2 in this behalf and returned the five Government currency notes of the denomination of Rs. 100/ -, each to Shri Malik. Shri P.D. Ajmera, Inspector, Special Police Establishment, then asked the Superintendent, post -offices on telepone to send some officer from his office for secret work. Then he contacted one Shri G.D. Sharma, Inspector, post -offices, Bharatpur, who had come to the Special Police Establishment Office in connection with some other work and requested him to be an eye witness to the trap. Shri G.D. Sharma agreed to play the role of a Motbir. After a short while, Shri Sudershan Chandra, Clerk of the office of the Superintendent, post offices, Jaipur, also came there. Shri P.D. Ajmera, informed him that he was required to eye witness the trap. Shri R.K. Malik was introduced to Sudetshan Chandra and the other two Inspectors. Shri P.D. Ajmera, then read over the contents of the complaint Ex. P. 2 to the witnesses in the presence of Shri Malik and the Inspectors. Shri R.K. Malik admitted the truth of the contents of the complaint. Shri P.D. Ajmera then smeared each of the five Government currency notes with phenol phethalein powder and gave them back to Shri R.K. Malik with a direction that the latter would hand them over to O.P. Mathur on his demand. He gave necessary instructions to Sudershan Chandra Sharma, G D Sharma and the Inspectors. Shri R.K. Malik was instructed to give a signal to the raiding party by moving bis handkerchief as soon as the amount was accepted by O.P. Mathur. Shri Sudershan Chandra was directed to accompany Shri R.K. Malik to overhear the talk and to eye witness the payment of the bribe to Shri O.P. Mathur. Shri P.D. Ajmera then prepared a memorandum Ex. P. 3 and read it over to the members of the raiding party, who signed it after going through its contents at about 3 45 p. m The raiding party consisting of Sudershan Chandra, P.N Shukla, K.L. Rao, R.K. Malik, ASI., Chunni Lal and Foot Constable Ganpat Singh started from the office of the Superintendent of Police for laying a trap. An entry to this effect was made in the general diary after informing Deputy Superintendent of Police, Shri Rim Chandra. At about 4 pm. the raiding party leached the railway station, Jaipur and proceeded towards Goods Shed. Shri R.K Malik and Shri Sudershan Chandra were directed to go ahead and the other members followed them keeping a safe distance. Shri Sudershan Chandra and Shri R.K Malik crossed the railway crossing and met O.P. Mathur, appellant, who was having a cycle with him and a pad of papers on its carrier. Sudershan Chandra stood nearby at a distance of 4 or 5 ft. from Shri R.K. Malik and the appellant. The other members of the raiding party went to the main gate of the Goods Shed after crossing Shri R.K Malik and the appellant en the road. After a short while, O.P. Mathur accompanied by R.K. Malik went towards the goods shed building and took a turn towards merchants waiting hall situated on the left side of the building. O.P. Mathur put the bicycle infront of the merchants waiting hall and after taking out some paper from the pad, he went towards the brake van along with R.K. Malik after crossing the A.M.I. godown. The raiding party also followed him and took positions near the steps of open courtyard of the goods shed office. Chunni Lal and Sudershan Chandra, however, reached near the AMI godown and took positions there near the brake van O.P. Mathur wrote a relieving letter and handed it over to R.K. Malik with its carbon copy. R.K. Malik signed the letter and gave it back to the appellant who kept the original with him and handed over the carbon copy of that letter to R.K. Malik. After receiving the relieving letter, R.K. Malik took out five hundred rupees currency notes and handed them over to O.P. Mathur The appellant counted them and put them in the upper right hand pocket of his bush -shirt along with with the original copy of the letter. R.K. Malik then gave the agreed signal to the raiding party by moving the handkerchief which be had placed below the collar of his shirt. The appellant and R.K. Malik then started towards the merchants waiting hall followed by the raiding party. The appellant went inside the merchants waiting hall and R.K. Malik remained outside. The raiding party rushed into the merchants waiting hall from different gates thereof and caught the appellant P.D. Ajmera disclosed his identity and showed identity card to O.P. Mathur He asked the appellant to produce Government currency notes of Rs. 500/ -, which he had received as a bribe from R K. Malik. The accused gave no answer and tried to make good his escape. P D. Ajmera warned the appellant that he was under arrest and that he should not make an attempt to run away. (EX P. Mathur, however, tried to disengage himself from the grip of P.D. Ajmera and the two Inspectors of the Special Police Establishment by giving kicks and pushes At that time three 'Rakshaks' (Constables of the Railway Protection Force) came there to the rescue of the appellant. P.D. Ajmera warned these persons also after disclosing his identity to them, not to intervene and make an attempt to help the appellant in making good his escape. O.P. Mathur, on the other hand, asked one of the Constables, namely, Madho Singh, to call for more Constables for his huff's. Thereupon all the three Constables went away from there. Madho Singh began to whistle for calling other Constables R.L. Rao, Inspector apprehended danger to the life and limb of the raiding party. So he rushed to the room of Chief Goods Clerk to inform the S.P. Office upon telephone. Meanwhile he sent a message to the S.P. Office for help and returned to the merchants waiting hall. He asked Chunni Lal and others to shut the doors of the office of the Chief Goods Clerk and the merchants waiting hall. While the doors were being closed, the appellant all of a sudden lay flat on the floor of the room after holding the pockets of his bush -shirt tight with his hands, P.D Ajmera and P.N. Shukla made an attempt to make him stand but O.P. Mathur bit P.N. Shukla in his arm. As the appellan - was strong enough and physically heavy, P.D. Ajmera and P.N Shukla could not succeed in their attempts to make him stand on his legs. Shortly afterwards stones were thrown on the doors from outside and some Constables of the Railway Protection Force entered the merchants waiting hall from the gate of the Chief Goods Clerk. These Constables opened the doors and allowed the other Constables to enter the hall. They were armed with sticks, pieces of slippers and fire -wood. Their number was about 20 or 25. Inspite of warnings given to them by the Inspectors, they assaulted Sarvashri P.D. Ajmera, P.N Shukla and K.L. Rao at the instance of O.P. Mathur and inflicted serious blows on their persons. As a result of the blows P.D. Ajmera and the two Inspectors Sudarshan Chandra, Ganpat Singh and Ganpat Lal received a good number of injuries. Duringthis scuffle, O P. Mathur freed himself and after snatching a short stick from the hand of one of the Constables of the Railway Protection Force, dealt a blow with it on the head of Shri P.N. Shukla. The Constables of the Railway Protection Force pushed Shri P.D. Ajmera and the Inspectors out of the merchants waiting -hall. O.P. Mathur ran away from there into the room of the Chief Goods Clerk. He was followed by Shri K L. Rao. The Constables of the Railway Protection Force then began to beat Shri K.L. Rao. They pushed him also out of the merchants waiting hall. After a short while Shri Ram Chandra, Deputy Superintendent of Police arrived at the place of the occurrence along with Mahendra Singh, Tejbahadur Singh and other members of his staff. At their sight, the Constables of the Railway Protection Force ran away from there. Shri Ram Chandra directed one of the staff members to remove the injured to the hospital immediately. He found Shri K.L. Rao lying on the ground in an injured condition outside the merchants waiting hall. He approached Shri Rao who informed the Deputy Superintendent of Police that O.P. Mathur had gone upstairs after making good his escape. Shri Ram Chandra then asked ASI Chunni Lal to bring another Motbir to eye -witness the recovery as he was told that Shri G. D. Sharma, Motbir had run away during the scuffle that ensued between the n embers of the raiding party and the appellant and his party, Shri Ram Chandra followed by the members of his staff, Sudarshan Chandra and Shri Malik went upstairs to find out the appellant. When he reached the court yard of the first floor, he shaw O.P. Mathur entering a room. He rushed into the room but the appellant was not found hrerein. The next door of the room was open. Shri Ram Chander came out of that room from the next door and saw O P. Mathur climbing the stairs for going on the roof of that building. Shri Ram Chander chased him on the roof and found the appellant trying to enter in a 'Bukhari'. He caught hold of O.P. Mathur, who at first offered some resistance but on seeing other persons with Shri Ram Chander, completely surrendered himself and requested the Deputy Superintendent to tell his companions not to cause any harm to him. O.P. Mathur was nervous and perturbed. He had some injuries on his head and blood -stains on his hands. The Deputy Superintendent of Police brought O.P. Mathur down -stairs to the office room of the Chief Goods Clerk. There in the office of the Chief Goods Clerk A.S.I. Chunni Lal brought one person Shri Sheocharan Jha, Mechanical Inspector, Rajasthan Transport Department, to eye witness the recovery of the currency notes from the possession of the appellant. Shri Sheocharan Jha was introduced to Ram Chandra, Deputy Superintendent of Police, who began to explain to him the background of the case and the purpose for which he was brought there by Chunni Lal. While Shri Ram Cnandra, Deputy Superintendent of Police was talking to Shri Sheocharan Jha, the appellant, all of a sudden, put off his bush -shirt and kept it on the table in front of it. Shri Ram Chandra asked the appellant why he had taken off his bush -shirt but the latter did not give any reply. Thereupon the Deputy -Superintendent of Police asked Shri Sudarshan Chandra to search the right upper -band pocket of the bush -shirt of the appellant. Shri Sudarshan Chandra took search of the pocket and took out five Government currency -notes of Rs. 100/ -, each with one letter. He searched the other three pockers of the bush -shirt but found nothing therein, Ram Chandra, Deputy Superintendent of Police tallied the number of the Government currency notes recovered from the pocket with the number mentioned in the memorandum Ex. P. 3 in the presence of Sarves Sri Sudarshan Chandra and Sheocharan Jha, who also compared the numbers of the notes with the notes with the numbers mentioned in the memorandum and found them tallying with each other. Thereafter the Deputy Superintendent sent for water and a tumbler and put sodium carbonate powder in it. He then got the right -hand upper pocket of the bush -shirt of O.P. Mathur from which the money and the letter were recovered dipped in the solution, the colour of which - after a short -while, turned purple. The purple coloured solution was put in a bottle and sealed properly. At the instance of the Deputy -Superintendent of Police Shri Mahendra Singh, Inspector prepared a recovery memo Ex P. 6 and read, it over to the witnesses, who themselves perused its contents and put heir signatures to it. The Deputy -Superintendent also signed it there and then. The specimen of the impression of seal put to the bottle was fixed on the recovery -memo at five places. The seal was then handed over to Shri Sheo -cbaran Jha Motbir for safe custody. A copy of the recovery -memo was offered to O.P. Mathur but he declined to take it. An endorsement relating to the appellant's refusal to accept the copy was made in the recovery -memo and was signed by the Deputy Superintendent of Police, Shri Mahendra Singh, Shri R.K. Malik and others, The Deputy Superintendent of Police then directed Sudarshan Chandra to search the person of O.P. Mathur Upon search of a pocket of the pantaloon worn by O.P. Mathur being taken by Sudarshan Chandra, softie articles, e. g. one Government currency note of Rs. 10/ -, two ball point pens, one green ink pen (plato), one handkerchief and one bunch of keys containing five keys were recovered. A memo of search containing details Of these recoveries was made on the spot by Shri Mahendra Sineh Inspector, which is Ex. P. 8 on the record The memo was signed by the Deputy Superintendent Shri Ram Chandra. Mahendra Singh Inspector ad the Motbirs. The Deputy Superintendent of Police then got the person of Shri R.K. Malik searched by Sudershah Chandra. Upon search, a carbon copy of the relieving order was recovered from his possession, which i8 Ex P. 9. This carbon copy was seized by the Deputy Superintendent of Police vide memo of search Ex. P. 10. An arrest memo was then prepared and O.P. Mathur was handed over to the custody of Station House Officer, Government Railway Police.

(3.) THE learned Additional Special Judge, Rajasthan, Jaipur, charge -sheeted the appellant under Section 161, I.P.C. and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and recorded the prosecution as well as defence evidence. The prosecution examined as many as 21 witnesses at the trial to substantiate the charges against the appellant The accused -appellant produced 8 witnesses to prove his innocence The plea of the appellant was that he did not demand a sum of Rs. 1000/ - as bribe from Shri R.K. Malik, nor did he inform Shri R.K. Malik that a part payment of Rs. 500/ -, should be made to him for obtaining a relieving letter and the balance of Rs. 500/ - might be paid to him after some days for getting the case finally hushed up against him. According to his version, the relieving letter was handed over by him to Shri R.K. Malik at his residence in the afternoon of 24th April, 1969. He further denied that five Govt. currency notes of Rs. 100/, each were kept by him in the breast pocket of his uniform bush -shirt along with the original relieving letter Ex. P, 7 and that they were recovered by Sudarshan Chandra upon search of his bush -shirt in his presence. He gave his own version by stating that when he was coming down stairs, Ram Chandra, Dy. S.P. met him at the last downward -step of the stair -case and took him to the gallery where he was made to sit on a chair and given a tumbler of water Shri Ram Chandra and Shri Mahendra Singh then asked him to put off his bush -shirt which he did and put it on the back of the chair. Then he was taken to the adjoining room and at his back the Government currency rotes were planted in the pocket of his bush -shirt and were falsely shown to have been recovered from it. According to the appellant, he was entrapped in this false case by the Special Police Establishment and the Government Railway Police Officers, who were annoyed with him because he had not obliged them by dropping some criminal cases against their men. The learned Special Judge considered the entire evidence on the record and found the appellant guilty of both the charges. Hence this appeal.