S.I.Jafri - (1.) THIS appeal filed by Bhagwan Singh appellant, results from his impugnment of the judgment and order dated 11-5-1988 in Special Trial No. 1 of 1987 passed by Sri Girish Chand, Special Judge (District and Sessions Judge) Kanpur Dehat-recording conviction under Section 161 IPC and sentence of 1 1/2 years' R. I. and also under Section 5 (2) of the Prevention of Corruption Act and sentence of 2 1/2 years' R. I.
(2.) BEFORE dwelling on the case of the prosecution, it would be useful to preface the events preceding the occurrence in the instant case. In the year 1985, Bhagwan Singh appellant was posted as Sub-Inspector at Police Station Rura Distt. Kanpur Dehat. One Badlu resident of village Kalin Ka Purwa moved an application before the Sub-Divisional Magistrate in the month of November 1985 complaining therein that Babulal, father of the complainant Vijai Singh, PW 2 had encroached upon his land and it is illegally being retained in his possession by Vijai Singh and ultimately, it was sought in the application that the encroached land be redeemed from the complainant and be restored to the applicant In the application, the dread of breach of peace over the said dispute was also expressed. Consequent to this application the learned Magistrate directed the Station Officer Rura to enforce peace and maintain law and order. The Station Officer endorsed the said application to the appellant who was posted as Sub-Inspector and the appellant went to the village Kalin Ka Purwa. inspected the disputed place and after the necessary inspection he took with himself Vijai Singh complainant to the Police Station. It is alleged that at the Police Station Vijai Singh, complainant was threatened with false implication in the case of cutting green trees without permission and illegally committing theft of the wood. It is further alleged that it was demanded of the complainant that if he is agreeable to pay Rs. 1000/- to the appellant, only then he would be able to stay clear of false implication in the case. It is further alleged that Balram Singh, PW 5 who is the brother-in-law of complainant Vijai Singh and who had come to the Police Station after 15 minutes of the complainant's being taken to the Police Station, pandered to the illegal demand of the appellant by paying a sum of Rs. 800/- and secured release of the complainant Vijai Singh with a word that balance of Rs. 200/- shall be paid lateron. After the release of the complainant. Vijai Singh, the remaining sum of Rs. 200/- was demanded by the appellant on a number of occasions but the complainant Vijai Singh evaded payment on each occasion. Pestered by repeated minatory attitude of the appellant, Vijai Singh complainant filed an application before Vikram Singh PW 1 who was serving as Deputy Superintendent (Anti-corruption) on 6-12-1985 recounting therein all that had happened to him and also stating that he is yet being pestered with repeated demands by the appellant for Rs 200/- out of the amount of Rs. 1000/- the appellant had already accepted Rs. 800/- as illegal gratification as a consideration against his false implication in the aforesaid case. It was further stated in the said application that the appellant is due to accept the remaining sum of Rs. 200/- at, his office on 7-12-1985 and he may be decoyed with the said amount. On this application, Vikram Singh PW 1 decided on the course in order to entrap the appellant on 7-12-1985. The currency notes worth Rs. 200/- of the denomination of Rs. 50/- each which the complainant had given to Vikram Singh PW 1 towards payment of illegal gratification to the appellant, were treated with phenolphthalein powder as well as signed by Vikram Singh and after performing the requisite formality, the currency notes were handed back to the complainant for being delivered to the appellant. However on 7-12-1985, the trap could apt materialise owing to non-availability of the appellant and it was put off to 10-12-1985 On 10-12-1985, the entire trap party consisting of Vikram Singh, Dy. Superintendent, Ram Naresh Sharma, A. K. Sharma and Sum Nath Dubey arrived at the appointed place i.e. the tempo stand at 1.30 P.M. on 10-12-1985 at Rura as schemed on 6-12-1985. On arriving at the tempo stand, the party collected two public witnesses, namely, Suresh Chand Goswami and Ghulam Ali PW 6. Thereafter; the party proceeded towards the house of the appellant who was living in a tenanted house 200 metres away opposite Police Station Rura. At a stone's throw distance from the house of the appellant, there was a wooden Gomti in which a betel shop was being run. The entire trap party closed in towards the Gomti and concealed themselves by the side of Gomti and adjacent Parchuni shop. The complainant was instructed thoroughly before delivering the currency notes to the appellant. Vijai Singh complainant and the aforesaid two Public witnesses namely, Ghulam Ali PW 6 and Suresh Chand Goswami proceeded in the direction of the house of the appellant where the appellant was sitting on a chair in the Verandah with a table placed before him. On reaching the Verandah of the appellant, the complainant informed the appellant that he had come with the balance amount of Rs. 200/- and pleaded that he now be cleared of the criminal case of tree cutting; Thereupon, the appellant went inside the house and after short while, he emerged with four papers in hand, which he gave to the complainant and before heading out the papers, he accepted the money quipping that he had done a job for him for a meagre amount of Rs. 1000/- which the job would have cost him Rs. 2000-/. This conversation is alleged to have been over-heard by the members if the Trap party from behind the betel and the Parchuni shops which the prosecution claimed to be within the bearing distance. On being satisfied that the appellant had accepted the money, Vikram Singh, PW 1 rushed to the place and disclosed his identity. On noticing Vikram Singh, the appellant placed currency notes on the table and he took the same in his possession. Vikram Singh PW 1 caught hold of the appellant also. The hands of the appellant were dipped into the solution prepared from sodium carbonate and washed, which turned pink. A recovery memo was prepared and the appellant thereafter was taken into custody. The appellant was brought to the Police Station where on the basis of a report lodged by Vikram Singh PW 1, a case was registered against the appellant at 6.15 P.M. Satish Chand Mehta Inspector, Vigilance conducted investigation into the case. He recorded the statement of the witnesses and prepared a site plan. However, charge-sheet was submitted in the court by S. D. Yadav, Inspector Vigilance. The appellant pleaded not guilty to the charge and attributed his false, implication in the case to enmity. He has denied the alleged recovery from him and in support of his defence, the appellant examined four witnesses. The prosecution in support of its case, examined in all nine witnesses and out of them Vikram Singh, PW 1, Vijai Singh PW 2, Ashok Kumar PW 3 and Ghulam Ali PW 6 were examined as ocular witnesses of the recovery from the appellant at the occurrence.
(3.) FIRST of all, I take up the testimony of Vikram Singh for scrutiny and appraisal. Vikram Singh, PW 1 has dwelt upon the prosecution case in detail-deposing that on 6-12-1985 he was posted as Dy. Superintendent (Anti corruption) Kanpur. On that day, Vijai Singh complainant PW 2 came to see him in the office at about 1.30 P.M. accompanied by Vijendra Singh and another. All the specifications need not be rehearsed in this judgment and I would dwell on those which are only necessary for the proper decision in this case. As stated in the earlier part of this judgment, the complainant gave an application Ex. Ka 1 to Vikram Singh, PW 1 in which it was disclosed that the complainant had already parted with a sum of Rs. 800/- towards pandering to the illegal demand of the appellant that a further sum of Rs. 200/- is being demanded by the appellant. Together with this application, a sum of Rs 200/,- in the denomination of Rs. 50/- each was also given to the witness. The aforesaid currency notes were treated with phenolphthalein powder and also initialled by Vikram Singli. Lateron, details as to decoy the appellant were thrashed out and complainant was duly instructed. An 6-12-1985 it was decided that the trap shall be baited on 7-12-1985 but it could not materialise on that day and as such it was deferred. On 9-12-1985, the complainant moved another application to Vikram Singh Stating therein all the details about the delivery of money on 10-12-1985 settled with the appellant afresh. On 10-12-1985, it was decided that trap party shall be available to the complainant at the tempo stand Rura where-from they would proceed. As per scheme, the trap party arrived at the aforesaid tempo stand on 10-12-1985 from where they collected two public witnesses in order to witness the trap proceedings. The complainant along with two public witnesses, namely, Ghulam Ali and Suresh Chand Goswami started for the house of the appellant which was situated opposite to Police Station Rura. The members of" the trap party concealed themselves behind a wooden Gomti and a parchuni shop in order to over-hear the conversation between the complainant and the appellant. It is stated by the witness that from the point where he and his party had concealed themselves, the appellant could be seen sitting in the Verandah on a Chair with a table in front of him. It is further stated by the witness that the conversation which had taken place between the complainant and the appellant were clearly audible and he could hear the appellant saying to the complainant that the work which he has done for him could cost him Rs. 2000/- and he has done it for a meagre sum of Rs. 1000/-. It was further stated by him that he had also noticed the complainant giving currency notes to the appellant who after accepting the bribe in his hand, put the currency notes on the table. On being satisfied that the currency notes have been delivered to the appellant, the witness rushed to the Verandah of the house of the appellant, divulged his identity to the appellant and caught hold of him. It is further stated by the witness that before he and his party men could catch hold of the appellant, he had dumped the currency notes on the table. Subsequent to this, the hands of the appellant were subjected to washing in the solution of sodium carbonate which waxed pink. A recovery memo was also prepared at the spot in full glare of the witnesses. Lateron, the appellant was brought in custody to the Police Station where the witness lodged a written report as a result of which a case was registered under the aforesaid sections against the appellant. The testimony of the witness Vikram Singh, Dy. Supdt. (Anti-Corruption) has been assailed by the learned counsel for the appellant primarily on the ground that he being the leader of the trap party, had become interested in the success of the trap and as such he was highly partisan. In the circumstances, his evidence bears thorough scrutiny. In the first place, it is pointed out by the learned counsel that admittedly as is also borne out from his testimony, Vikram Singh, PW 1 did not recover the currency notes from the person of the appellant and he had taken those currency notes into his possession from the table The next attack of the learned counsel on the evidence of the witness is on the ground that the truthfulness of the evidence of Vikram Singh to the effect that the hands of the appellant were subjected to washing in the solution prepared from sodium carbonate on the spot and that the solution had turned pink, is etched away by the statement of Ghulam Ali PW 6 made under Section 164 CrPC in which it was conceded in no delphic terms by the witness that after the arrest of the appellant, pbenolphthalein powder was sprinkled on the hands of the appellant and then his hands were subjected to washing in the solution prepared from sodium carbonate. Once in witness box, when Ghulam Ali was confronted with this statement made by him under Section 164 CrPC, he did not specifically deny the same except saying that he did not recollect whether he had made such statement or not. The third point of attack was the investigation in the case. It is contended by the learned counsel that Vikram Singh was not only interested in the success of the trap but had shown undue interest in the investigation of the case being entrusted to one of his subordinates, namely, Satish Chand Mehta Inspector Vigilance. It is clearly indicated from the statement of Satish Chand Mehta Inspector that he took up the investigation of the case under orders of Vikram Singh, PW 1 and hence no credence can be given to the evidence of Vikram Singh as to connect the accused with the crime. It is next contended by the learned counsel that the claim of Vikram Singh in his statement to the effect that the conversation between the applicant appellant and the complainant were within the hearing distance from the place where he and his party men had concealed themselves and also the assertion of Vikram Singh and his party that they had noticed giving of the bribe money to the appellant by the complainant and thereafter placing of the currency notes on the table, cannot be given any credence vis-a-vis the statement of T?M 9 Raja Ram, constable Moharrir and the site plan of the place of occurrence inasmuch as the place where Vikram Singh and his men had entrenched themselves lies between 30 to 40 steps away from the place where the alleged currency notes were delivered to the appellant by the complainant. The above contentions of the learned counsel for the appellant are fully borne out from the facts and circumstances on the record. It transpires that it was at the behest of Vikram Singh, PW 1 that the investigation in the case was entrusted to Satish Chand Mehta Inspector Vigilance. It is also borne out from the record that the specific statement made by Ghulam Ali under Section 164 CrPC has not been categorically denied. It is also reflected from a study of the site plan that the conversation between the appellant and the complainant could not be heard or the transaction of currency notes be noticed by Vikram Singh and his party men- it being 30-40 steps away as admitted by the witness namely Raja Ram PW 9. These are gaping infirmities which warrant cognizance by this Court. The shadow of doubt on the prosecution case is further lengthened out by the statement of Ghulam Ali made under Section 164 CrPC before the Magistrate that phenolphthalein powder was first sprinkled on the hands of the appellant and his hands were thereafter subjected to washing in the solution prepared from sodium carbonate. All the above contentions converge to tell one and the same Story that all is not fair with the prosecution case.;