Shivram vs State of M.P.

I.S. Shrivastava, J.—This appeal has been preferred by the appellant being aggrieved by the judgment dated 31.01.2005 passed by the Court of Shri S.D.Ojha in Special Case No. 3/99, by which the appellant Shivram has been convicted u/s 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and sentenced to rigorous imprisonment of three years along with fine of Rs.3,000/- According to the prosecution story, a report was made by Baliram to Superintendent of Police, Khargone that on 18.04.1999 the Tractor No. M10-8970 which was having a blasting machine was seized by the Police Oon through Head Constable Shivram from his Driver Shobharam and a case was registered. On receiving the information of this fact complainant Baliram went to Police Station Oon where he met with Shivram, Head Constable and he asked him that when his Tractor will be released then accused Shivram said that if he will give him Rs. 10,000/- as bribe then he will not beat his Tractor Driver and will release the Tractor earlier. Hence, on this demand he gave Rs. 5,000/- to Shivram and promised to pay Rs. 5,000/- on the next day in the Khargone Court. On 19.04.1999 the complainant went to Superintendent of Police, Khargone for complaint that he has brought Rs. 1,000/- to pay accused Shivram as bribe but he does not want to give him bribe but want to trap him, hence suitable action be taken.

On receipt of this complaint the Superintendent of Police, Khargone prepared a panchnama (Ex.P/4) of this report before the independent witnesses Shri K.S.Solanki, Nayab Tehsildar and Shri Sumersingh Mujalda, Nayab Tehsildar and thereafter a panchanama of notes (Ex.P/2) was prepared in which numbers of notes of Rs.100/- each were noted down in the panchanama and on the corners of each note Shri Rathore made his small initials by green ball pen and thereafter, these notes were handed over to Baliram and he was instructed that he should give it to Shivram at the agreed place in the Court, Khargone and thereafter indicate by scratching his head. Thereafter Baliram Patidar gave the above notes to appellant Shivram and indicated as agreed by putting his hand on the head and scratching his head, thereafter Shri Santosh Singh Rathore, S.D.O.P. along with independent witnesses Shri K.S.Solanki and Shri Sumersingh Mujalda reached on the spot and demanded the notes from Shivram which were given to him by Baliram. Then accused appellant Shivram took out the notes from the pocket of his full pant and gave them to Shri Santosh Singh (PW - 7) and he seized them before the witnesses and prepared the seizure memo Ex.P/5 the dress of the accused was also seized and 39 notes of Rs.100/- and 50 notes of Rs. 50/- each were also given by Shivram from the right pocket of his dress which were also scaled separately by the same panchnama. The dress full pant and shirt of full sleeves, was seized and seizure memo Ex.P/6 was prepared. The spot map Ex.P/18 was prepared and the appellant was arrested and arrest memo Ex.P/17 was prepared and thereafter FIR Ex.P/19 at Crime No. 134/99 was registered at Police Station Kotwali, Khargone u/s 7 and 13(1)(d) of Prevention of Corruption Act and challan was filed after obtaining the prosecution sanction Ex.P/7 After trial the appellant has been convicted and sentenced as mentioned above.

It has been argued by the learned Counsel for the appellant that the appellant has been falsely implicated in this case. He was not having any domain over the release of the Tractor which was seized in the Police Station because it was seized by the Station Officer and it was to be released from the Court. The investigation was defective. The independent witnesses were not procured but they were Nayab Tehsildars and interested witnesses. There was serious discrepancy in the evidence of the witnesses about the place from where the notes were recovered. The notes given as a bribe were not treated with phenolphthalein powder. The full pant from which the notes are said to have been recovered was not having any side pocket or hip pocket while the witness has deposed that the notes were seized from his hip pocket. The spot map and FIR was tampered as they were having the same time 16.20 p.m. while it was not possible to prepare them at the same time, therefore, the prosecution evidence was not reliable, hence the appeal should be accepted.

It has been argued by the Counsel for the respondent that the case was proved from the evidence produced before the Trial Court. The demand and recovery of the notes was proved. The contradictions in the evidence was of minor nature which does not go to the root of the case. The appeal being devoid of merit be dismissed accordingly.

Considered the arguments and record of the Trial Court perused. As regard the recovery of the notes from the appellant it reveals from the statement of Baliram (PW -1) that after reaching in the Court he called Shivram and went to the canteen with him. They had a cup of tea ''and thereafter coming out from the canteen he gave him Rs. 1,000/- which were kept by Shivram in his pocket. At that time, Shivram was in his dress. After giving of the notes he indicated by putting his hand on the head, thereafter S.D.O.P. Rathore, Tehsildar and Nayab Tehsildar came to him and they asked to accused that where are the notes of Rs. 1,000/- which were given to him, thereafter appellant took out the notes from the back pocket of his pant and gave them to S.D.O.R Rathore. They were the same notes. They were seized by panchnama (Ex. P/ 5). During the cross-examination the pant was produced before the witness in the court and he said that the accused was wearing this dress on the date of incident and the accused took out the notes from his back pocket. After seeing the same, the witness accepted this fact that the pant does not have any back pocket. The court also observed that the pant was not having any back pocket. Thereafter in further cross-examination though the complainant Baliram (PW -1) has deposed that he does not remember from where accused took out the notes but in a police statement (Ex.D/1) it has been mentioned that the accused took out the notes from his back pocket. In para 21 of the cross-examination, after observing the pant the witnesses accepted that the pant article D does not contain any side pocket. The witness again admitted in para 22 that there is no side pocket in the pant, hence it is not possible that Rs. 1,000/- may be kept in it.

In this respect Sumer Singh (PW -6), who is an independent witness deposed that the notes were taken out by S.D.O.P. Shri Rathore from the pocket of the shirt of the uniform of the accused. In further cross-examination in para 16 he has admitted that he does not saw the giving of the notes that to whom they were given. He does not saw the S.D.O.P. while taking out the notes from the pocket. First of all he saw the notes in the hands of the S.D.O.P. but he does not know that from where he received it. In this way, this witness has given a different fact that the notes were recovered from the pocket of the shirt of Shivram. The other independent witness Shri S.S. Mujalda was not examined by the prosecution.

Shri Santosh Singh Rathore (PW-7), S.D.O.P., the Investigating Officer in this respect deposed that after the indication of complainant when he reached to the accused and asked him about the notes that first of all he denied and thereafter accepted the receipt of Rs. 1,000/- as bribe. He was asked to give the notes which he received then after taking out the notes from the back pocket of his pant gave him the above 10 notes of Rs. 1,000/-. The number of which were tallied with the numbers mentioned in the panchnama, hence the notes were seized and seizure memo Ex.P/5 was prepared. In cross-examination in para 31 he deposed that accused gave him the notes after taking out from the right hip pocket of his full pant. He did not see that where the accused put the notes after their receipt from the complainant. In this way, this witness also confirmed the fact that accused took out the notes from the right hip pocket of the full pant.

But it is surprising that full pant article D of the complainant was not having any hip pocket or side pocket. This fact was observed by the Court and also admitted by the complainant Baliram (PW-1), therefore, the evidence of Baliram (PW-1) and Santosh Singh Rathore (PW-7) that the notes were taken out from the hip pocket of the pant is not believable. Sumersingh (PW-6) in this respect has deposed that S.D.O.P. Rathore took out the notes from the pocket of the shirt of the accused Shivram but this is not the statement of Baliram (PW-1) and Santosh Singh Rathore (PW-7), therefore, the statement of Sumersingh is not believable in this respect. There is no witness of the fact that the notes were given before him, therefore, considering the above evidence this fact was not proved that the notes were recovered from the hip pocket of full pant of the accused.

It is surprising that the notes of Rs. 1,000/- which were given as bribe to accused were not treated with phenolphthalein powder to prove the fact of receipt of the bribery. This was a major defect in the trap proceeding. In the case of Raghbir Singh Vs. State of Punjab, . It has been held that, "whether a trap is laid for a public servant, it is desirable that the market currency notes, which are used for the purpose of trap, are treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the Court does not have to depend on oral evidence which is sometimes of a dubious character for the purpose of deciding the fate of the public servant." In the case of Balmukund V/s. State of M.P. 1993 JLJ 109 , it has been held that," in the circumstances, ordinarily, in such type of cases powder treatment is made, but the prosecution has not explained or placed any material on record to show why such a process was not followed in the present case, though the trap is said to have been arranged by experienced people like Additional Collector and SDOP. It does not appeal to reason that the officers were not aware of the powder treatment, which is in vogue in the country for about four decades. If such powder treatment had been made, the passing of the bribe and handling of the notes would not have been difficult to be proved. Therefore, the story about the place and the manner of taking bribe is opposed to natural human conduct. That is what has been said by the Apex Court in case of Khilli Ram Vs. State of Rajasthan,

It has also been argued by the appellant Counsel that the independent witnesses were not procured for this trap. Only the interested witness K.S.Solanki, Nayab Tehsildar and Sumersingh Mujalda, Nayab Tehsildar were made the independent witnesses in this case while they were not independent witnesses but were interested witnesses being the Govt. servant.

Considered, the arguments. Though only Sumersingh (PW-6) has been examined as independent witness in this case and his evidence is. not reliable to prove the prosecution case because he has deposed that the notes were seized from the pocket of the shirt of the accused which is not the prosecution case but being the Govt. Officers they can not be said to be the independent witnesses.

It has been argued by the Counsel for the appellant that the investigation is defective because the spot map and FIR has the same time 16.20 p.m. From the evidence it is clear that the spot map was prepared on the spot and thereafter the FIR was lodged at the Police Station after the return of the trap party, hence the time of both these documents should be different. From the statement of Sumersingh (PW-6) it is clear that he does not sign on the spot map on the spot but signed it in the evening. This shows that the documents were prepared arbitrarily by the Investigating Officer and the documents were tampered because Shri Santosh Singh Rathore (PW-7) has admitted that he mentioned the Crime No. on the spot map later on.

Considered the arguments. From the spot map (Ex.P/18) it reveals that it was prepared on the spot on 19.04.1999 which contains the Crime No. 134/1999. In this respect Santosh Singh Rathore (PW-7) deposed that he prepared the spot map Ex.P/18 on the spot and thereafter returned to Police Kotwali, Khargone where FIR Ex.P/19 was lodged. In cross-examination he has admitted that before leaving the spot he prepared the spot map Ex.P/18 which does not contain the time but it is wrong to say that he prepared it after registration of the crime. At the time of the preparation of the spot map he was not knowing the crime number, therefore, he left the respective column blank and, thereafter he entered the crime number in it. This is his working procedure. This shows that the spot map Ex.P/18 was a tampered document. Sumersingh (PW -6) in this respect has deposed that in the evening he was called in the Police Station by S.D.O.P. Shri Rathore and he signed on the spot map. This shows that the spot map (Ex.P/18) is a tampered document and it was prepared arbitrarily and the signatures of the witness was obtained later on in the evening, hence it is not reliable.

The FIR Ex.P/19 bears the time of registration of the it as 16.20 p.m. while the arrest memo Ex.P/17 also bears the time of arrest as 16.20 p.m. Shri Santosh Singh Rathore arrested the accused and registered the FIR, therefore, the time of lodging of the FIR. and arrest could not be the same. Sumersingh (PW -6) in this respect has deposed that the accused was arrested and thereafter Shri Rathore took him to Police Station. Arrest memo Ex.P/17 bears his signature. Santosh Singh Rathore (PW-7) in this respect has deposed that after the registration of the crime at Police Station he arrested Shivram and prepared arrest memo Ex.P/17. This shows that arrest memo was not prepared at the spot while Sumersingh (PW-6) said that the accused was arrested on the spot. The similarity of time 16.20 p.m. on arrest memo Ex.P/17 and FIR. Ex.P/19 shows that both these documents could not be prepared at the same time and it reveals that they have been prepared arbitrarily at the sweet will of the Investigating Officer, hence these proceedings were not reliable.

Therefore, on the basis of the above discussion, we are of the view that the evidence produced by the prosecution before the trial court was not reliable. The notes given in bribe were not treated with the phenolphthalein powder. The evidence about the giving and recovery of notes was not reliable. It was the prosecution story that the notes were recovered from the pocket of the full pant of the accused but the full pant article "D" was not having any side pocket or back pocket, hence the statement of Baliram (PW -1) and Santosh Singh Rathore (PW -7) was not reliable. In this respect Sumersingh (PW -6) deposed that the notes were recovered from the pocket of the shirt, hence this statement was not reliable in this respect. The spot map was a tampered document on which Sumersingh (PW -6) signed in the evening and Santosh Rathore mentioned the Crime No. later on and the FIR and the arrest memo were having the same time 16.20 p.m., hence it reveals that they were prepared arbitrarily. The evidence about the arrest of the accused was also not reliable because according to Sumersingh (PW -6) after the arrest the trap party returned to Police Station while according to Arresting Officer, Santosh Singh Rathore (PW - 7) after the registration of the crime he arrested the accused. Therefore, the prosecution evidence was not reliable and the fact of the recovery of the notes from the appellant accused was not proved. Therefore, on the basis of the above discussion, we are of the view that the appellant was not liable to be convicted, hence this appeal deserves to be allowed. Therefore, the appeal is allowed and the appellant is acquitted from the charges u/s 7 and 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act. His bail bonds are discharged. Fine if deposited be returned.