Mukut Bihari & ANR.
Vs. State of Rajasthan
[Criminal Appeal No.
870 of 2012]
JUDGMENT
Dr. B.S. CHAUHAN, J.
1.
This
appeal has been preferred against the judgment and order dated 12.10.2011
passed by the High Court of Judicature at Rajasthan (Jaipur Bench) in S.B.
Criminal Appeal No.726 of 2001, by which it has affirmed the judgment and order
of the trial Court dated 7.9.2001 passed by the Special Judge (ACD Cases), Jaipur
in Regular Special Criminal Case No.26 of 1995 (State of Rajasthan v. Mukut Bihari
etc.) whereby the appellant Mukut Bihari stood convicted for the offences punishable
under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of
Corruption Act, 1988 (hereinafter called the Act 1988) and under Section 120B
of Indian Penal Code, 1860 (hereinafter called IPC) and has been awarded the
punishment of rigorous imprisonment for a period of 2 years for each count;
whereas appellant Kalyan Mal has been convicted for the offences punishable
under Section 13(1)(d) read with Section 13(2) of the Act 1988 and under
Section 120B IPC and he has also been awarded the punishment of rigorous imprisonment
for a period of 2 years on each count.
2.
Facts
and circumstances giving rise to this case are that:
A. Rafiq (PW.1) filed a
complaint on 16.11.1994 before the Anti- Corruption Department (hereinafter
called ACD), Tonk that his father Deen Mohd. (PW.8) underwent the treatment
in Sahadat Hospital, Tonk for urinary infection from 24.10.1994 to 12.11.1994. He
stood discharged on 12.11.1994, however he was not issued the discharge ticket
and for which Mukut Bihari-accused demanded Rs.100/- as bribe for issuance of
the same. The said demand was made on 14.11.1994 when the complainant (PW.1)
offered Rs.75/- and 2 Kilogram of Ladoo.
B. In view of the
aforesaid complaint, a trap was arranged and as per plan, the complainant met
Mukut Bihari, appellant in the staff room of the surgical ward of the hospital
and had conversation with him. Both of them went to the store room wherein the
complainant handed over Rs.100/- to Kalyan Mal, appellant at the instance of Mukut
Bihari, appellant. The trap party arrested both the appellants immediately and the
case was registered against them. After completing the investigation, charge
sheet was filed against both of them. During the course of trial, a large
number of witnesses were examined and on conclusion of the trial, the court
found them guilty and imposed the punishment as referred to hereinabove vide judgment
and order dated 7.9.2001.
C. Aggrieved, the
appellants preferred Criminal Appeal No.726 of 2001 before the Rajasthan High
Court which has been dismissed vide impugned judgment and order dated
12.10.2011. Hence, this appeal.
3.
Ms.
Shobha, learned counsel appearing for the appellants, has submitted that for constituting
an offence under the Act 1988, the prosecution has to prove the demand of
illegal gratification. Recovery of tainted money or mere acceptance thereof is
not enough to fasten the criminal liability as the money could be offered voluntarily
and the accused may furnish a satisfactory explanation for receipt of the money.
The trap case should be supported by an independent eye- witness.
The deposition of an interested
witness requires corroboration. The conversation between the accused and the complainant
at the time of demand and accepting the money must be heard /recorded by the
Panch witness. If two views are possible, then the one in favour of the accused
should prevail. In the instant case then the prosecution failed to prove the foundational
fact beyond reasonable doubt. Therefore, the appeal deserves to be allowed.
4.
On
the contrary, Shri Kunal Verma, learned counsel for the State of Rajasthan, has
vehemently opposed the appeal contending that acceptance of tainted money is an
ample proof for conviction of the offences punishable under the Act 1988. It is
not necessary in the trap cases that there must be a shadow witness and
conversation between the complainant and the accused should be recorded or heard
by the independent witness. In absence of the shadow witness, for any reason, accused
cannot insist that demand and acceptance is required by the statute to be
proved by corroboration. In the instant case, the appellant no.2 has accepted
the money at the instance and in the presence of appellant no.1. There is no reason
to disbelieve the testimony of the complainant nor can the recovery of the
tainted money be doubted. Thus, the appeal lacks merit and is liable to be dismissed.
5.
We
have considered the rival submissions made by learned counsel for the parties
and perused the record.
6.
There
are concurrent finding of facts that appellant Mukut Bihari asked for bribe as
stated by Rafiq (PW.1). It is duly supported by Keshar Singh, S.H.O. (PW.10),
the leader of the trap party as he deposed that persons sitting there asked for
money. The acceptance had duly been corroborated by R.C. Pareek (PW.3), who deposed
that the money was lying on the table. Zaheer Ahmed, Constable (PW.7) stated that
he saw Kalyan Mal counting the money. The trap stood proved by the depositions
of Rafiq (PW.1), R.C. Pareek (PW.3), Mohd. Rasheed (PW.6), Zaheer Ahmed (PW.7) and
Keshar Singh (PW.10). All the witnesses narrated fully how the trap was conducted
from the very beginning till the seizure of the tainted money including the
making of seisure memos etc. Dr. Bavel (PW.5) admitted the practice of
donations by patients. Mr. R.C. Pareek (PW.3) and Mohd. Rasheed (PW.6) have been
independent witnesses.
7.
The
courts below considered the facts properly and appreciated the evidence in
correct perspective and then reached the conclusion that the charges stood fully
proved against the appellants. The explanation furnished by the appellants that
they had falsely been enroped due to enmity could not be proved for the reason that
no evidence could be brought on record indicating any previous enmity between
the complainant and the appellants nor any evidence was available to show that
the complainant was not satisfied with the treatment given to his father and he
could act with some oblique motive in order to falsely implicate the
appellants. Thus, under the garb of donation, he had offered the tainted money
to the appellants and got them arrested.
8.
The
law on the issue is well settled that demand of illegal gratification is sine
qua non for constituting an offence under the Act 1988. Mere recovery of
tainted money is not sufficient to convict the accused, when the substantive
evidence in the case is not reliable, unless there is evidence to prove payment
of bribe or to show that the money was taken voluntarily as bribe.
Mere receipt of amount
by the accused is not sufficient to fasten the guilt, in the absence of any evidence
with regard to demand and acceptance of the amount as illegal gratification,
but the burden rests on the accused to displace the statutory presumption
raised under Section 20 of the Act 1988, by bringing on record evidence, either
direct or circumstantial, to establish with reasonable probability, that the
money was accepted by him, other than as a motive or reward as referred to in Section
7 of the Act, 1988.
While invoking the
provisions of Section 20 of the Act, the court is required to consider the explanation
offered by the accused, if any, only on the touchstone of preponderance of
probability and not on the touchstone of proof beyond all reasonable doubt. However,
before the accused is called upon to explain as to how the amount in question
was found in his possession, the foundational facts must be established by the prosecution.
The complainant is an
interested and partisan witness concerned with the success of the trap and his
evidence must be tested in the same way as that of any other interested witness
and in a proper case the court may look for independent corroboration before
convicting the accused person. (Vide: Ram Prakash Arora v. The State of Punjab AIR
1973 SC 498; Panalal Damodar Rathi v. State of Maharashtra AIR 1979 SC 1191; Suraj
Mal v. The State (Delhi Admn.) AIR 1979 SC 1408; Smt. Meena Balwant Hemke v.
State of Maharashtra AIR 2000 SC 3377; T. Subramanian v. The State of T.N., AIR
2006 SC 836; A. Subair v. State of Kerela (2009) 6 SCC 587; State of
Maharashtra v. Dnyaneshwar Laxman Rao Wankhede (2009) 15 SCC 200; C.M. Girish
Babu v. CBI, Cochin, High Court of Kerala, AIR 2009 SC 2022; and State of
Kerala and Anr. v. C.P. Rao (2011) 6 SCC 450)
9.
The
case of the appellants has no merit as the case is squarely covered by the
judgment of this Court in C.M. Sharma v. State of A.P. TH. I.P., AIR 2011 SC
608, wherein a similar issue had been raised that the complainant alongwith the
shadow witness went to the office of the accused but the accused asked the
shadow witness to go out of the chamber. Shadow witness left the chamber.
However, the complainant
brought the shadow witness in the chamber and explained to the accused that he
was his financer. Despite that the accused again asked the shadow witness to
leave the chamber and thus, he went out. The accused demanded the money and the
complainant paid over the tainted money to him, which he received from his
right hand and kept in right side pocket of the trouser. A signal was given,
whereupon he was trapped by the team which apprehended the accused and
conducted sodium carbonate test on the fingers of the right hand and right
trouser pocket of the accused, which turned pink. The tainted notes were lying
on the floor of the office, which were recorded.
10.
This
Court, after considering various judgments of this Court including Panalal
Damodar Rathi (supra) and Smt. Meena Balwant Hemke (supra) held that acceptance
of the submission of the accused that the complainants version required
corroboration in all circumstances, in abstract would encourage the bribe taker
to receive illegal gratification in privacy and then insist for corroboration
in case of the prosecution.
Law cannot
countenance such situation. Thus, it is not necessary that the evidence of a
reliable witness is necessary to be corroborated by another witness, as such evidence
stands corroborated from the other material on record. The court further distinguished
the case of Panalal Damodar Rathi (supra) on the ground that in that case the
Panch witness had not supported the prosecution case and therefore, the benefit
of doubt was given to the accused. In Smt. Meena Balwant Hemke (supra) as the evidence
was contradictory, the corroboration was found necessary.
11.
Undoubtedly,
in Smt. Meena Balwant Hemke (supra), this Court held that law always favours
the presence and importance of a shadow witness in the trap party not only to
facilitate such witness to see but also overhear what happens and how it
happens.
12.
This
Court in Chief Commercial Manager, South Central Railway, Secunderabad &
Ors. v. G. Ratnam & Ors., AIR 2007 SC 2976, considered the issue as to whether
non-observance of the instructions laid down in para nos. 704-705 of the
Railway Vigilance Manual would vitiate the departmental proceedings.
The said manual provided
for a particular procedure in respect of desirability/necessity of the shadow witness
in a case of trap. This Court held that these were merely executive instructions
and guidelines and did not have statutory force; therefore, non-observance
thereof would not vitiate the proceedings. Executive instructions/orders do not
confer any legally enforceable rights on any person and impose no legal
obligation on the subordinate authorities for whose guidance they are issued.
13.
In
Moni Shankar v. Union of India & Anr., (2008) 3 SCC 484, this Court held
that instructions contained in Railway Vigilance Manual should not be given a complete
go-bye as they provide for the safeguards to avoid false implication of a
railway employee.
14.
So
far as the instant case is concerned, the appellants had been working under the
health department of the State of Rajasthan. No provision analogous to the
paragraphs contained in Railway Vigilance Manual, applicable in the health
department of the State of Rajasthan at the relevant time had been brought to the
notice of the courts below, nor had been produced before us. Therefore, it can
be held that it is always desirable to have a shadow witness in the trap party
but mere absence of such a witness would not vitiate the whole trap
proceedings.
15.
In
the instant case, there is no contradiction in the deposition of the witnesses.
The witnesses have truthfully deposed that they did not hear the conversation
between the accused and the complainant. Therefore, their version is without
any embellishment and improvement. There could be no reason/motive for Rafiq
(PW.1) to falsely enrope the appellants in the case. The appeal is devoid of any
merit and is, accordingly, dismissed.
However, considering
the fact that the incident occurred about two decades ago and the appellants
suffer from severe ailments, they have lost their service long ago and suffered
the agony of protracted litigation, the appellant no.1 has been suffering from acute
pancreatitis and both the appellants have served the sentence for more than six
months, in the facts and circumstances of the case, their sentence is reduced
to one year.
..
.J.
(Dr. B.S. CHAUHAN)
.
..J.
(DIPAK MISRA)
New
Delhi,
May
25, 2012.
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