- (1.) VIRENDRA Saran, J. Zamil Ahmad has filed appeal against the order dated 13-12-1982 of Sri Rajendra Nath IVth Additional Sessions Judge, Basti passed in Special Case No. 1 of 1980. The learned Judge has convicted the appeal under Section 161, I P. C. and under Section 5 (2) of the Prevention of Corruption Act and sentenced him to one year's R. I. under each of the counts.
(2.) THE prosecution case against the appellant is that on 5-7-1978 the appellant was posted as Ahelmad in the Court of S. D. M, Dumeriaganj, District Basti. According to the prosecution case No. 85 of 1977 Smt. Sarojni Devi v. Bajrangi under Section 145 Cr. P. C. was pending in the Court of S. D. M. , Dumeriaganj, District Basti. Smt. Sarojani Devi is wife of Bhagirathi Misra PW 7 who was doing pairvi in the said case. Bhagirathi Misra is practising in medicine in Itwa Bazar where a weekly market is held on each Wednesday. In case Bhagirathi Misra had to attend the Court in connection with the case on Wednesdays he had to suffer professional loss hence he wanted that dates may not be fixed on Wednesdays. On 20-6 -. 978 the learned S. D. M. had not come to the Court and 5-7-78 was fixed as the next date. THE same was a Wednesday. On 4-7-1978 Bhagirathi Misra gave an application Ext-ka-2 to Sri Hari Murti Singh. THE then District Magistrate who by his order Ext-ka-1 directed that Vigilance Inspector to lay a trap On 5-7-1978 P. W. 1 Harbans Misra, Vigilance Inspector went to Itwa Bazar and recorded the statement of PW 7 Bhagirathi Misra who gave a five rupee Note JE 798768 (Ext. Ka-4) to the Vigilance Inspector who treated the note with phanolapthalien powder and handed over the note to PW 7 for being given in bribe to the appellant. THE trap party consisting of PW 2 Harbans Misra, Vigilance Inspector, Bhagirathi Misra PW 7, Avdhesh Prasad PW 3 and Thakur Prasad PW 6 and some police constables proceeded to the Court of learned S. D. M. and reached there at about 2 O'clock in the noon. While PW 7 Bhagirathi Misra was sent to give Rs. 5 as illegal gratification to the appellant PW 3 Avdhesh Prasad was directed to inform the Trap Inspector when the amount had been paid to the appellant. At about 1 O'clock the case under Section 145, Cr. P. C. Smt. Sarojni Devi wife of Bhagirathi Misra was called out and the appellant placed the file before the learned S. D. M. who gave a date due to rush Bhagirathi Misra could not know the date at that time. When the S. D. M. left the Court the accused alongwith the file came back to his seat. Bhagirathi Misra requested the accused to let him know the date in the case and the appellant replied the Wednesday has not been fixed and demanded Rs. 5. Bhagirathi Misra gave the five rupee note (Ext-Ka-4) to the appellant who kept the same in the packet of his Bushshirt. At about 1. 45 p. m. PW 3 Avdesh Prasad informed the Vigilance Inspector that the illegal gratification had been paid. The Vigi lance Inspector went inside the Court room and disclosing his identity recover ed the said five rupee note from the pocket of the applicant's Bushshirt. There were three other currency notes of Re. 1 each in the pocket of the appellant. The finger of the appellant and the pocket of his Bushshirt were dipped in a solution of Sodium Corbonate and its colour turned pink. The samples were prepared Exts. Ka-6 & 7 and they were sealed and a memo was prepared. The Bushshirt was also sealed. The recovery memo Ext. ka-9 was also prepared and the samples were sealed. These articles were taken vide Ext. Ka-9. The file of case No. 85 of 1977 was also sealed vide memo Ext. Ka-10. The appel lant taken into custody and a First Information Report was lodged at P. S. Dumeriaganj at 4. 15 p. m. vide Ext. Ka-11. The Investigation of the case was conducted by Sri Onkar Nath Singh, Vigilance Inspector. After completing the investigation and obtaining the sanction for prosecution he laid of charge-sheet.
(3.) THE appellant denied the charge and claimed to be tried. In support of its case the prosecution has examined as many as 10 witnesses. PW 1 Murli Shyam Manohar was the then District Magistrate. He has proved the sanction to prosecute Ext. Ka-1. PW 2 Hari Bansh Misra, Vigilance Inspector, who laid the trap, PW 3 Awadesh Prasad, PW 6 Thakur Prasad Singh and PW 7 Bhagirathi Misra are witnesses of fact, PW 4 H C. Paras Nath Yadav, PW 5 Munna Singh Constable Vigilance are formal wit nesses PW 8 Dr. G. D. Misra Junior Scientific Officer who has analysed the solu tion in his laboratory. PW 10 Damodar Prasad Misra took down the F. I. R. at P. S. Dumariganj. PW 9 Onkar Nath, Vigilance Inspector who was investi gated the case. After the evidence was recorded, appellant was examined. He denied the prosecution allegations and added that the earlier to the present incident there was another incident regarding which an F. I. R. was lodged against certain lawyers namely Shyam Ji, Ram Chandra and Bhagwati Prasad for snataching Rs. 24 from Sri Ram Kumar Peshkar. The appellant was doing pairvi on behalf of Ram Kumar because he was a leader of the employees besides being a neighbour of Ram Kumar. The appellant pleaded that PW 7. Bhagirathi Misra had been set up by the said lawyers and the preference case has been concocted against him. The appellant examined DW 1 Vishwanath Prasad and DW 2 Shiv Kumar. Vishwanath Prasad was Chief Revenue Assistant in the Collectorate, Basti while Shiv Kumar has proved the chik F. I. R. lodged by Ram Kumar Peshkar.;