I. S. ISRANI, J. - (1.) THIS criminal appeal has been filed against the judgment and order dated June 16, 1982, passed by learned Special Judge, ACD Jaipur, in Special Criminal Case No. 24/1979, by which the accused appellant was sentenced to one years rigorous imprisonment under Section 161, IPC and also to a fine of Rs. 500/ -. In default of payment of fine, the appellant has to go further simple imprisonment for three months. Under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act 1947, the accused appellant has been sentenced to one year's rigorous imprisoment and also to pay a fine of Rs. 500/ -. In default of payment of fine, he will have to undergo three months further simple imprisonment. Both the substantive sentences to run concurrently.
(2.) IT will suffice for the purposes of this appeal to state that on November 9, 1978, complainant Vishambhar Dayal resident of village Borni, Tehsil Kishangarhbas, district Alwar, lodged a report at Police Station Alwar to Deputy Superintendent of Police, ACD, Alwar, in which it was stated that some years ago, the complainant had purchased some agricultural land in his own name and in the names of his sons and registration of the sale deed was done at Tehsil. Thereafter all the said registries were given to appellant Mohar Singh Halqa Patwari Borni for mutation, who demanded Rs 100/- for doing the same. This amount was paid to him last year. IT was further alleged that the appellant returned four registries after entering mutation but the remaining registries have not yet been entered for mutation and are lying with him. On the previous day. when the complainant met the appellant at Kishangarhbas, the appellant demanded an amount of Rs. 50/- for sweets before the work was done. IT was stated that the complainant does not want to pay illegal gratification and wants the appellant arrested red-handed. On the aforesaid report, Ex. P. 1, the Deputy Supdt. of Police, Alwar, called two motbir witnesses PW 2 Shyama Kant Jaiman and PW 4 Gopal Prasad Sharma through one Prabhu Dayal Sharma. The complainant gave currency notes of Rs. 50/- to the Deputy Supdt. of Police containing a note of Rs. 20/- and three notes of Rs. 10/- denominations. The Deputy Supdt. of Police put his initials on the said currency notes and noted their numbers and got phinalthline powder rubbed on the said currency notes by a constable. The Deputy Supdt. of Police explained to motbirs and complainant with the procedure of phinalthline powder and also gave demonstration to them. The Dy. SP. handed over the signed currency note to the complainant and directed him to give the said currency notes on demand to the accused appellant and give an indication regarding the same by removing his turben from head and rubbing his head. The two motbirs were also directed to remain with the complainant and try to hear the conversation between the complainant and accused appellant and watch the transaction of money. All these proceedings were prepared and are marked as Ex. P. 2. Thereafter the Dy. SP. along with the complainant, both the motbir witnesses and raiding party started in a jeep from Alwar to Kishangarhbas. The raiding party reached Kishangarhbas at about 12. 45 p. m. and sent the complai-nant and the two motbirs to go to the accused while the raiding party followed them and reached the bus stand Kishangarhbas and stayed in a hotel nearby. After some time the Constable came back and informed that the accused appellant was not at Tehsil Kishangarhbas but was at his residential quarter which is situated in bazar. He informed that the complainant and the two motbirs have already started towards the quarter of accused. The Dy. SP and the members of raiding party took their position in the bazar near about the residential quarter of the accused in a scattered manner and kept waiting for the signal to be given by the complainant. It is further stated that while the complainant was going to the quarter of accused, he happened to meet one Ganeshi Lal Sarpanch PW 5 on the way. The complainant asked him to accompany him to the house of accused appellant and recommond him for entering the mutation of the remaining four registries. Thereafter complainant and Ganeshilal also went along with them. The complainant and Ganeshilal went to the quarter of accused appellant through a stair-case and found appellant Mohar Singh and Kishorilal Patwari sitting there and doing some writing work. It is further stated that the complainant and the Sarpanch told the appellant to do the work of the complainant to which the accused replied that he would do the same and demanded Rs. 50/-for sweets. On this the complainant gave the currency notes of Rs. 50/- in the hands of the accused appellant which he put in the pocket of his shirt. Thereafter the complainant and Sarpanch came down and Sarpanch went away The complainant gave signal by rubbing his head whereupon the Deputy Supdt. of Police and two motbir witnesses and members of the raiding party visited the room of the accused appellant. The Deputy Supdt. of Police enquired about the name and address of the accused and the person who was sitting with him. The appellant disclosed his name to be Mohar Singh and that of the other person sitting with him as Kishorilal. The Deputy Supdt. of Police enquired from the appellant as to whether he had accepted Rs. 50/- from the complainant for entering the mutation. The appellant. replied that the complainant did give him the currency notes but he did not accept and threw the same. The currency notes were lying on the floor which the Deputy Supdt. of Police took up and counted through PW 2 Shyama Kant Jaiman one of the motbir witness and found that there were three notes of Rs. 10/- each and one note of Rs. 20/-which were marked as article 4 to 7. The notes bore the initials of the Deputy Supdt. of Police and the numbers of the notes were also tallied which were found to be correct. On being asked regarding the currency notes the complain-; ant said on the spot to Deputy Supdt. of Police that these notes were given to him which he hap put into the pocket of his shirt but on seeing them, he threw away the same. Thereafter a clean glass of water was brought and some sodium carbonate was mixed and there was no change in the colour. Thereafter fingers of both the hands of accused were put into the water, whereupon the solution turned pink whict was put into a clean bottle and got sealed, which bottle is marked Art 2. The same was sealed and the chit pasted on it was got signed by the complainant. Similarly both hands of Kishorilal were also put in the same process but there was no change and the water was put into a clean bottle, which was marked 'b' and the same was also sealed. It is further stated that on asking, the accused appellant produced four registries from his room which were marked Ex. P 6 to 9 and also produced the mutation and receipt book which were also seized by the accused vide Ex. P. 14. It is also stated that on that day Kishorilal was present in the room of appellant and took charge of the office of Patwar from the accused-appellant. Therefore, the Supdt. of Police seized the transfer order of accused and prepared the memo and marked Ex. P. 15. The other four registries were also summoned from the complainant and were marked Ex. P. 10 to 13 The bottles were sent for chemical analysis and according to its report Ex. P. 10 articles 1 and 2 contain sodium carbonate and phinalthline powder and the bottle marked 'b' was found negative.
(3.) THE learned Special Judge (A. C. D.), Jaipur, charged the accused under the sections mentioned above who claimed to be tried. THE prosecution examined as many as nine witnesses in support of the case including PW 8 Collector, Alwar, and PW9 the Investigating Officer. THE accused was examined under section 13, Cr. P. C. and also examined the witness in defence viz. Kishori Lal as D. W. 1. After the completion of the trial the accused appellant was convicted and sentenced as mentioned above. Hence this appeal. The contention of learned counsel for the appellant Shri B. K. Pathak is that the trial court has erred on several counts and has failed to appreciate the evidence in proper perspective. It is pointed out that two motbir witnesses were instructed to remain with the complainant and see the passing over of the money to the accused appellant and also hear the conversation but they have faild to do so and, therefore, their evidence is of no consequence. It is further pointed out that these are evidently interested witnesses and unless their evidence is corroborated by an independent evidence witnesses, reliance should not have been placed on the evidence of motbirs and the complainant himself. It is also contended that P. W. 5 Ganeshilal is a chance witness, who was picked up by the complainant himself and was not instructed to accompany the raiding party. Inspite of all this, if his evidence is correctly analysed, he does not tore the line of prosecution and infact supports defence in as much as he says that the accused appellant in the first instance did not accept the amount of Rs. 50/-offerred by the complainant to the accused appellant. Thus, according to learned counsel is very crutial as the accused appellant did not demand any amount for illegal gratification and amount was offerred by the complainant himself, which was refused and thereafter the complainant forcibly put the same in the pocket of the accused appellant which the accused took out and threw on the floor. Therefore, it is natural that when the fingers of both the hands of the accused were chemically examined, the water turned pink. However, this does not prove that the accused appellant demanded illegal gratification from the complainant. The third contention of the learned counsel is that there was no occasion for the appellant to have demanded illegal gratification as he has been already transferred and had handed-over the charge to Kishorilal, who was sitting at the time also in his room. The fourth contention of the learned counsel is that the prosecution has deliberately tried to suppress independent evidence by not impressing Kishorilal who had seen the complete episode as the prosecution feared that the appellant tore its line. Therefore, he has been examined as DW 1 and the trial court has seriously erred in disbelieving this witness. Lastly, it is contended by the learned counsel that a very important fact was deliberately concealed from the Collector, DW 8 while obtaining sanction from him that the complainant had been already transferred and had handed-over charge to Kishorilal. This fact is also admitted by PW 8 himself. This vitiates the whole trial. The contention of L. K. Sharma, learned Deputy Govt. Advocate is that prosecution has proved the case fully and completely. The Chemical Examination Report shows that the currency notes had been accepted by the accused appellant and he had put the same in his pocket. When his pocket was washed the water turned pink, which is clear indication of his guilt. It is pointed out that evidence of both the motbirs PWs 2 & 4 is reliable and PW 5 Ganeshilal Sarpanch has also supported the prosecution in as much as he said that when the complainant offerred the amount, the same was accepted by the accused appellant. ;