- (1.) S. I. Jafri, J. The instant appeal has been filed by Zaqaullah appellant hereby impugning his conviction under Section 6, I. P. C. sentence of years R. I. and also his conviction under Section 5 (2) of the Prevention of Corruption Act and sentence of 4 years R. 1. as well as fine of Rs. 1000. 00 recorded by Sri V. S. Bajpai, Special Judge, Nainital vide his judgment and order dated 8-9-1983 in Spl. Sessions Trial No. 4 of 1981.
(2.) THE facts involved in the above appeal are that in the year 1981 Zaqaullah was serving as Wasil flaqi Nawees in Sub-Tehsil Kala Dangi, Dis trict, Nainital. Complainant in the instant case is Satya Pal Singh. He had purchased debris of a hutment belonging to one Naubat with intent to claim regularisation of hi.-, illegal occupation over the land by the District Magistrate Nainital. In the light of the above facts, the prosecution case is that with this object in view, he approached the appellant seeking him to contrive for the complainant the regularisation of his illegal occupation over the land inasmuch as that by the time, Naubat was dead. It is alleged that appellant had agreed to secure this favour under a blandishment from the complainant of Rs. 409. 00 as graft money. It is further alleged this the complainant did not want to part with this money and hence, he approached Harendra Singh Sirohi, Dy. Supdt. of Police (Vigilance) on 22-5-1981 at his residence at Nainital where he handed out a written complaint Ex. Ka 3/8 detailing the facts with regards to demand of graft money by the appellant from the complainant H, S. Sirohi, Dy. S. P. (Vigilance) made an endorsement on the aforesaid application of the complainant to the effect that the aforesaid application had been moved to him at his residence at about 3. 00 p. m. on 22-5-1983. After making an endorse ment on the said application, Harindra Singh Sirohi instructed the complainant to be available at his house at Kala Dangi on 23-5-83 in the afternoon as he would be coming to his house to finalise about he trap to decoy the appellant. THE complainant was also directed to keep Rs. 400. 00 in readiness for being given to the appellant as bribe. On 23-5-83 H. S. Sirohi along with constable Mohan Singh and Driver constable Khem Singh drove to the house of the com plainant at about 4. 00 p. m. where he met the complainant, Lokeshpal and Shyama Charan. In accordance with instructions, the complainant presented Rs. 400. 00 to the Dy. S. P. (Vigilance) in the denomination of Rs. 100. 00 which the Dy. S. P. (Vigilance) initialled and also treated them with phenol- phthalein powder. After treating the currency notes by the aforesaid powder, they were given back to the complainant with instructions to pass on the notes to the appellant. THEreafter necessary formalities were observed. Subsequent to this, it was instructed to the complainant that the appellant be brought to the tea stall owned by Bishan Singh situate in front of the Tahsil Office and transaction of graft money have to be made in the tea stall. THE raiding party led by H. S. Sirohi came to the tea stall of Bishan Singh and took their seats in the aforesaid tea stall. In the meanwhile, the appellant alongwith the complainant, Lokesh Pal Singh P. W. 6 and Shyama Charan came to the tea stall and they also took the tea. After the tea was over, the appellant asked the complainant to accompany him to some distance. It was in between the tea stall and the office of the appellant that the graft money was passed on to the accused appellant by the complainant in full glare of the public witnesses. Lokesh Pal P. W. 6 returned to the tea stall to inform to H. S. Sirohi of the money having been passed on to the appellant, H. S. Sirohi alongwith his companion rushed to the office of the appellant and, therefore, he heard the complainant saying that he had abided by his demand and his application now, he drafted by him. THE appellant rose from his seat and took some blank sheet of paper out of the official almirah and the moment he put his pen on the paper, H. S. Sirohi disclosed his identity and took search of the person of the appellant. THE search of the person of the appellant yielded Rs. 400. 00 from the left pocket of the appellant which were duly initial and treated by the Dy. Supdt. of Police (Vigilance ). THEre after the hands of the accused were dipped in the solution prepared from sodium carbonate and the solution turned pink. A sample of the solution was duly sealed in a phial. After the recovery, the appellant was arrested and taken to the Police Station Kala Danga and at the Police Station a case under Section 161, I. P. C. and under Section 3 (1) of the Prevention oi Corruption Act was registered against the appellant at 4. 30 p. m. and the accused was put behind the lock-up. Sheo Raj Singh, Investigating Officer after concluding investigation, submitted charge-sheet against the accused. The accused pleaded not guilty to the charge in the trial court and attributed his false implication in the case to animosity which the complainant harboured towards him. In his defence, he examined as many as three witnesses, namely, Kewala Nand D. W. 1, Chhatra Singh Bora D. W. 2 and Dhani Ram Ralkashan. In order to prove its case, the prosecution examined as many as nine wilnees and out of them, H. S. Sirohi P. W. 4, Satya Pal Singh, P. W. 5, Lokesh Pal P. W. 6 and Khem bingh P. W. 7 were examined as occular witnesses of the occurrence and recovery of Rs. 400. 00 from the possession of the appellant out of his left pocket.
(3.) SATYA Narain Singh is the complainant in the instant case. He has narrated his own version of the case in detail. Initially, he had purchased debris of the hut of one Naubat with the object of claiming regularisation of his illegal occupation over the land by the District Magistrate, Nainital and with this end in view he had approached the appellant Zaqaullah on 21-5-81 that he wanted regularisation of his possession over the land. The appellant initially demanded Rs. 500. 00 as graft money but it was settled at Rs. 400. 00, The appellant asked the complainant to come to him on 23-5-85 with the money and then he would draft the application to secure the lease of the land in his favour. The complainant was aot willing to give Rs. 400. 00 as graft money and hence, the contacted H. S. Sirohi, Dy. S. P. Vigilance at his residence on 22-5-81 alongwith an application. It was at the residence of Dy. S. P. that the plan to decoy and trap the appellant with the graft money was schemed. For the events subsequent to it, I refer to the prosecution version given out in the earlier part of the judgment. The evidence of the complainant has been assailed by the learned counsel for the appellant on several counts. Dwelling on motive to implicate the appellant in this case, the learned counsel submitted that prior to the occurrence in the instant case, ejectment proceedings were launched against Naubat and Satyapal by the appellant. In this context the evidence adduced by the defence will be worthwhile to be appraised. First of all, the learned counsel took me through the evidence of Kewala Nand Reader, D. W. 1 and a scrutiny of his evidence bears it out that the papers connected with the ejectment proceedings of the complainant and Naubat from the land in dispute had already been sent to Tahsildar, Haldwani on 20-5-81 by the appellant which was received there on 22-5-81 i- e. one day earlier. It is deposed by Kewala Nand that eviction proceedings against Naubat had already been initiated against his unauthorised occupation of the land in dispute and notices in furtherance of those proceedings had been issued by the appellant. This evideace of Kwala Nand D W. 1 is lent full corroboration by the testimony of Chhatarpal D. W. 2, who was working as Supervisor Kanoongo and Dhani Ram D. W. 3 who was working as Collection Amin. In the perspective of the above evidence, motive for the complainant to falsely implicate the appellant in the instant case becomes too obvious inasmuch as that the appellant had embarked upon the ejectment proceedings against the complaiaant and one Naubat (who had died by the time) for which land, the complainant wanted the lease to be regularised. It has been contended by the learned counsel that upon a consideration of the evidtnce of recovery witnesses in entirety, there has been no whisper at any stage in the entire evidence as to the accused appellant having demanded money as bribe from the complainant. The next contention pressed by the learned counsel is that even the solution of phenolphthalein powder which had been sealed in phials as a result of washing is appellant's hands and other witnesses Khem Singh was not sent to be analysed by the Chemical Examiner. It is in the light of the above infirmities which the evidence oi Satya Pal complainant, wear, the testimony of the complainant becomes impeachable. Added to this is the lack of corroboration of the evidence oi the complainant from independent source which is conspicuously wanting in this case. Moreso, his evidence dees not inspire confidence.;