Vijay Singh @APPELLANT@Hash State of Rajasthan & Ors.

U/s. 7 of P.C.

Act","Rigorous imprisonment for one year with fine of Rs.1,000/-, in default of

payment of fine to further undergo one month’s rigorous imprisonment.

U/s. 13(1)(d) r/w

13(2) of P.C. Act","Rigorous imprisonment for three years with fine of Rs.5,000/-, in default of

payment of fine to further undergo three months’ rigorous imprisonment.

U/s. 120 B IPC,"Rigorous imprisonment for six months with fine of Rs.1,000/-, in default of

payment of fine to further undergo one month’s rigorous imprisonment.

U/s. 384 r/w 120-B

IPC","Rigorous imprisonment for three years with fine of Rs.5,000/-, in default of

payment of fine to further undergo three months’ rigorous imprisonment.

Learned Senior Counsel has contended that the prosecution case against first appellant for offences under Section 7, 13(1)(d) r/w 13(2) of the P.C.",

Act and offence under Section 120-B, 384 IPC being founded on wholly unreliable evidence, conviction of second appellant for offences under",

Section 120-B and 384 cannot be sustained. Elaborating his submission in this behalf, learned Senior Counsel submits that sans any cogent evidence",

about conspiracy between both the appellants and lack of proof beyond reasonable doubts, finding of guilt against appellants for charged offences is",

clearly vitiated.,

Per contra, learned Public Prosecutor has stoutly defended the impugned judgment. Mr. O.P. Rathi, learned Public Prosecutor, submits that",

evidence of complainant Manoj Kumar Khatri (PW9) is clear and unequivocal showing demand and acceptance of gratification by first appellant and,

involvement of second appellant in the entire conspiracy.  It is also submitted by learned Public Prosecutor that both the appellants put the,

complainant intentionally in fear by falsely implicating him in offence of illegal gratification and extorted money, therefore, offence under Section 384",

IPC is clearly established.  Lastly, learned Public Prosecutor submits that appellant No.1 himself has produced the currency notes which he",

received from the complainant, while admitting that he had accepted illegal gratification, which is evident from recovery memos and other allied",

documents, therefore, no interference with the impugned order is warranted.",

I have given my thoughtful considerations to the arguments of the learned counsel for parties, perused the impugned judgment and thoroughly",

examined entire record of the trial.,

Conviction of the appellants for charged offences is essentially based on testimony of complainant (PW9) Manoj Kumar Khatri, recovery witness",

PW7 Ashok Kumar, PW10 Keshar Singh, Dy. S.P. ACB, and I.O. PW12 Hamir Singh.  The learned trial Court, upon appreciation of evidence",

of these four witnesses and other alleged incriminating materials, indicted both the appellants. Therefore, at the threshold, it would be just and",

appropriate to make judicial scrutiny of the statements of these witnesses.,

Complainant PW9 has deposed during his examination-inchief that first appellant gave him a phone call for demand of money to settle case of,

bribery against him. He has further asserted that he ascertained identity and other details about first appellant from Jagdish Prasad (second,

appellant).  The witness has also castigated second appellant for his direct nexus with Vijay Singh â€" appellant No.1 to show their conspiracy in,

commission of charged offences under the P.C. Act and extortion pertaining to payment of Rs.30,000 to first appellant on 12.01.2006 near Indira",

Colony, Jaisalmer, besides repeated phone calls are also traceable from the statements of PW9.  In order to prove offence against the appellants,",

PW9 has also narrated his conversation with second appellant â€" Jagdish Prasad regarding settlement of bribe amount and not showing him any,

proof about the alleged crime much less tape recorded conversation.  As the witness PW9 is subjected to extensive cross-examination, it would",

be just and appropriate to consider his testimony in cumulative so as to test its credibility.  During his cross-examination, the witness has admitted",

that he did not personally met first appellant on 10th of January 2006 and 11th of January 2006 respectively and before this incident also he never had,

any access with accused-appellant No.1. A very candid disclosure by the witness during his crossexamination that first appellant never demanded,

money from him personally and he did not record telephonic conversations of these two dates, is significant for creating grave suspicion about demand",

of gratification by first appellant. Suspicion howsoever high it may be cannot take the shape of a proof because under criminal jurisprudence proof,

beyond reasonable doubts is required and not based on mere preponderance of probabilities.,

While it is true that PW9 has made a positive assertion about demand of Rs.30,000 by first appellant but has not furnished any explanation much",

less plausible explanation for submitting complaint Ex.P-13 after a lapse of 11 days, i.e. on 23rd of January 2006. It is also noteworthy that when",

amount of Rs.30,000 was paid by PW9 to first appellant, he went to the spot boarding his car driven by its Driver Nandu Khatri. Therefore, as per",

version of the witness, the amount was paid in presence of Nandu Khatri but surprisingly Nandu Khatri was not examined during trial. This sort of",

situation is sufficient to show that complainant’s version is not corroborated by a material witness who was present at the spot when alleged,

gratification was paid to the first appellant. Witnesses, PW6 Murlidhar Khari and PW8 Ramswaroop Meena, whose names find mention in the",

complaint Ex.P-13, showing their presence when second appellant rang up the complainant on 11th of January 2006 with a threatening tone, too have",

not supported the prosecution case by turning hostile.,

The recovery of the alleged amount of bribe in the office of ACB Outpost, Jodhpur when the first appellant brought the same after admitting his",

alleged mistake of accepting the amount, is also not inspiring confidence.  In absence of transcript of conversation and the recovered notes being",

unsigned and unidentified, it is rather difficult to comprehend that recovery memo Ex.P-10 is worthy of any credence.   Not signing the recovery",

memo by appellant No.1 and his alleged confession being hit by Section 25 & 26 of the Evidence Act, has also rendered the recovery memo",

vulnerable.  At this stage, one glaring loophole of the prosecution case cannot be eschewed inasmuch as at the time of allegedly producing",

currency notes by the first appellant before the ACB Outpost, Jodhpur and preparation of recovery memo Ex.P-10, an independent witness Vasudeo",

Bhootra was also present, who has signed the same as attesting witness but he has not been examined as prosecution witness though he was a listed",

witness dropping the witness by the prosecution without any justifiable reason also exposes serious discrepancies and pitfalls in the prosecution case.,

The other witness of recovery PW7 Ashok Kumar has though in his examination-in-chief has asserted that Vijay Singh admitted his mistake and,

promised to return back the money and thereafter also handed-over envelope containing Rs.30,000 to Deputy Superintendent of Police Keshar Singh",

but during his crossexamination he has pleaded ignorance about Rs.30,000. As a matter of fact, during his cross-examination, witness has said that",

he cannot recall as to why appellant No.1 produced currency notes of Rs.30,000 before the Deputy Superintendent of Police.  The witness has",

also admitted during his cross-examination that in his presence Vijay Singh never admitted acceptance of Rs.30,000 from complainant Manoj Kumar",

Khatri, nor promised to refund said amount to the complainant.",

Therefore, a meaningful consideration of his testimony has also created a situation wherein reliability of recovery memo is under serious cloud lest",

to rely on its authenticity.  Likewise, testimony of PW10 Keshar Singh, who was   Deputy Superintendent of Police, ACB, if read in",

conjunction with the testimony of complainant and PW7 Ashok Kumar, then, the same too is lacking requisite sting to bring home guilt for the alleged",

offences against the appellants. The witness, during his crossexamination, has admitted in clear and unequivocal terms that prior to this case he",

never received any complaint against appellant No.1 and appellant No.2, who was informer of the ACB. Admission of the witness that appellant No.1",

refused to sign recovery memo coupled with the fact of his alleged confession before police officer too cannot be underplayed for repudiating,

recovery memo and discrediting his testimony on the anvil of mandate under Section 25 & 26 of the Evidence Act.  It is candid disclosure of,

PW10 Keshar Singh that Vasudeo Bhootra was one of the attesting witness of recovery memo but his non-examination as witness during trial has,

also rendered his testimony vulnerable. Not producing an independent attesting witness of the alleged recovery despite being a listed witness,",

therefore, has also put the recovery memo under jeopardy.  Â",

Supreme Court in case of Mukhtiar Singh (since deceased) through LRs. Vs. State of Punjab [(2017) Cr.L.R. (SC) 641], while examining such",

serious omissions of the prosecution has held:,

“It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs.3,000/- which",

had been paid or of Rs.2,000/- as made on the day of trap operation is wholly inadequate to comply with the prerequisites to constitute the ingredients",

of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the,

allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs.3,000/- at the first instance is alleged to have",

been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the",

complainant with regard to the demand and payment of Rs.3,000/- as well as the demand of Rs.2,000/- has remained uncorroborated. Further to",

reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such",

demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the",

shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand",

as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent,

and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under section 7 or 13 of the Act.â€​,

As regards statements of I.O., suffice it to observe that by and large these statements are confined to investigation and not inculpatory in",

nature. However, it may be observed that I.O. has also not put any question mark on character and antecedents of the first appellant. Â",

Therefore, in totality of circumstances, in absence of demand and proof about acceptance of gratification, offences under Section 7, 13(1)(d)",

r/w 13(2) of P.C. Act are not proved against first appellant beyond reasonable doubts. The learned trial Court, while convicting the first appellant",

for the aforesaid offences, has not cared to appreciate the evidence in right perspective and also seriously erred in invoking Section 20 of the P.C. Act",

for drawing presumption against first appellant without any cogent evidence about demand and acceptance of illegal gratification, proof of demand is",

sine qua non for drawing presumption under Section 20 vis-a-vis offences under Sections 7 or 11 or clause (a) or (b) of sub section 1 of Section 13 of,

the P.C. Act. Legislature has nowhere envisaged presumption under Section 20 qua offence under Section 13(1)(d) of the P.C. Act. Â,

Now adverting to offence under Section 120-B IPC, suffice it to observe that when the prosecution case to bring home guilt against first appellant",

for offence under Sections 7, 13(1)(d) r/w 13(2) of P.C. Act has backfired, obviously, conviction of both the appellants for offence under Section",

120-B IPC cannot be sustained.  In order to constitute offence of criminal conspiracy, the requisite ingredients are existence of agreement",

between persons who are alleged to have conspired and factum of agreement for doing of an illegal act, or for doing by illegal means an act which",

may itself be not illegal. I am afraid, the evidence available on record is grossly inadequate to establish conspiracy between the appellants. No work of",

the complainant was pending with the first appellant and his nexus with the second appellant as guarantor of a defaulter borrower of the bank are also,

some significant facts which are completely overlooked by the learned trial Court while indicting both of them for offence under Section 120-B,

IPC.   Delayed report by the complainant and other evidence showing role of second appellant in loan transaction with the bank are also vital to,

discredit testimony of complainant being an afterthought to project conspiracy between both the appellants.,

At this stage, it is also pertinent that prosecution witnesses PW3 Gayad Singh, PW4 Dayanand, PW5 Samander Singh and PW6 Murlidhar",

Khatri have not supported prosecution case by turning hostile and likewise, PW8 Ramswaroop Meena has also turned hostile. Therefore, I propose",

to examine the findings recorded by the learned trial Court regarding indictment of both the appellants under Section 384 IPC.  A bare perusal of,

Para 24 of the judgment makes it abundantly clear that learned trial Court for recording finding of guilt against the appellants vis-a-vis offence of,

extortion has simply relied on the alleged confessional statement of first appellant. As a matter of fact, learned trial Court has not at all cared to",

examine the basic ingredients for constituting offence of extortion besides admissibility of the alleged confessional statement.,

There cannot be two opinions that any confession caused by inducement, threat or promise is irrelevant under Section 24 of the Evidence",

Act.  Likewise, confession made by an accused to police officer is inadmissible in evidence under Section 25 of the Evidence Act. Similarly, by",

virtue of Section 26 of the Act, no confession made by any person  whilst he is in custody of police officer shall be used as evidence against such",

person, and therefore, finding of the learned trial Court, solely on the basis of alleged confessional statement, is per se vulnerable. Even otherwise, if",

evidence of the complainant is scrutinized properly, then, I am afraid, it is rather difficult to infer that appellants had put the complainant in fear of any",

injury and thereby dishonestly induced him to deliver any property or valuable security. When demand of money itself is not proved so also payment,

of money by the complainant, obviously, requisite ingredients for constituting offence of extortion are unimaginable. Therefore, the finding of the",

learned trial Court for indictment and conviction of the appellants for offence under Section 384 IPC is wholly unsustainable.,

Upshot of the above discussion is that the instant appeal is allowed and the impugned judgment passed by the learned trial Court is quashed and set,

aside. The appellant No.1 is acquitted of the offence under Section 7, 13(1)(d) r/w 13(2) of P.C. Act as well as for offence under Section 120-B IPC",

and Section 384 r/w 120-B IPC and appellant No.2 is also acquitted of offence under Section 120-B IPC and Section 384 r/w 120-B IPC by,

giving them benefit of doubt.,

The appellants are on bail, and therefore, they need not surrender. Their bail bonds are cancelled.",