S.K.MAL LODHA, J. - (1.) RESPONDENT B.K. Roy was tried for the offence under Section 161 IPC and under Section 5(1)(d) read with Section 5(2) of the Provention of Corruption Act (hereinafter referred to as 'the Act') by the Special Judge, Sriganganagar, and was acquitted by the judgment dated December 16, 1972. The State of Rajasthan feeling dis -satisfied by the order of acquittal has filed the present appeal in this Court.
(2.) BRIEFLY stated the facts of the case giving rise to the trial of the respandent his acquittal and the present appeal by the State of Rajasthan are as under: - -Respondent was Medicel Officer at the Primary Health Centre, Chnani Badi in the year 1970. Re had conducted the post -mortem examination of the dead body of a child Chhani Badi in connection with Case No. 44 under Sections 312 and 318 IPC registered at Police Station Bhirani by Ismailkhan (PW 9) the S.H.O of that Police Station. The allegations were that the respondent wanted to examine all the women of the village to find out as to who was the mother of the deceased child. That, Punamchand Jat (PW 2) had gone to that village and was told by Dhanpat (PW 5) that the Doctor wanted to examine all the women of the village, which should not be done Thereafter Punamchand is said to have met the Doctor at Chhani Badi in the evening of 27 -9 -70 when the post mortem examination was conducted. The Doctor demanded Rs. 200/ - for giving a favourable report. The matter was settled at Rs. 100/ - Punam Chand went to Yaswant Singh (PW 6) Sarpanch who informed him that the Anti -Crruption Officer had come to Bhadra and he should meet him on the next morning at Jogi -vala Canal. The prosecution version is that Yaswant Singh met Addl. S.P. Jabar Mal Mehera (PW 8) at Bhadra Post House at 8.00 P.M. in the night and disclosed the matter to him. The Addl. S.P. informed him that he would reach Jogiwala Canal on the next morning. On 28 -9 -70 Punam Chand (PW 2) went to the Canal at about 8.00 A.M. and submitted an application Ex. P/3 along with a currency note of Rs. 100/ - denomination. At the instance as Addl S.P. Punamcand brought Lal Chand (PW 4) and Moji Ram (PW 1), the two motbirs, in whose presence the application was submitted and the memo Ex. P/4 regarding the delivery of note to Punam Chand for being given to the Doctor on demand was prepared. All of them proceeded in a jeep from Jogiwala Canal and reached near the Primary Health Centre Chhani Badi. Punam Chand and Lal Chand went to the hospital and others remained behind. The discrepancy in the statement of the witnesses regarding the person entering the room of the Doctor to give him the currency note will be discussed at appropriate place. For the present suffice it to say that the prosecution case is that Punamchand gave the hundred rupees currency note to the Doctor and came but of the room and gave signal to the trap party. The Addl. S.P. and Moji Ram went to the hospital and along with Punam Chand and Lal Chand entered the room of the Doctor. The Addl. S.P. disclosed his identity and demanded the currency note. The Doctor took out the currency note and produced it before the Addl.S.P. On being asked to explain the possession of the note, the Doctor is said to have stated that he has nothing to say in the matter. The Addl. S.P. after observing all the necessary formalities of the trap cases, prepared the recovery memo Ex.P. 6. The documents relating to the post mortem, examination of the child were also taken in possession. The Doctor was arrested. Here again there is difference between the prosecution case and the defence version as to whether he was taken to Bhadra because he was unable to furnish surety or the police did not accept the surety to harass him. Any how the facts are that respondent was taken to Bhadra and was enlarged on bail, on his furnishing surety. After obtaining necessary sanction for the prosecution of the respondent, challan was put up against him for the aforesaid offence in the Court of Special Judge, Anti -Corruption, Sriganganagar. The learned Judge chargesheeted the respondeat for the aforesaid offences. He pleaded not guilty and the trial proceeded. Nine witnesses were examined by the prosecution to substantiate its case. In his statement Under Section 302 Cr. PC (Old), the respondent dernied the allegation of receiving illegal gratification and stated that 100 rupee currency note Ex, P - 1 was given to him by Lal Chand (PW 3) towards his fees and cost of medicines which some dues in connection with the treatment of the members of his family. That, after adjusting that amount he returned Rs. 10/ - to Lal Chand. That at the time of the recovery itself he had told that he had received the amount towards the fee and cast of medicines and returned Rs. 10/ - but the explanation was not written by Jhabar Mal (PW 8), He also stated that he had asked him to write the explanation in English as he did not know Hlndi but the record was repared in Hlndi which he was unable to read and, therefore, he had to sign under compulsion. The respondent also took the plea that Lal Chand (PW 4) and his family members wanted free service and free medicines from him and were, therefore, annoyed with him. It was also stated that Mahendra Punia, son -in -law of Jhabar Mal (PW 8) was computer under him in the Family Planning and wanted to get his tour programme verified without undertaking any tour and because of his (respondent) refusing to do so, he was not on good terms with him and had spoken adversel against him to his father -in -law. That, Punia Pokharmal, another compounder under him was also aggrieved with him because of the loss of his private practice on account of the respondeat being posted at the hospital. The class four servants of the Primary Health Centre Chhadi Badi viz. Shivkaran (DW 1) and Gurucharan (DW 2) were examined to substantiate the defence version. The learned trial udge did not believe the prosecution case that the currency note was received by the Doctor as illegal gratification for giving any favourable report so that women of the village Bair may not be put to medical examination. He found substance in the defence version of the payment of the amount being made by Lal Chand to the respondent by way of fees and cost of medicines. The learned Judge taking into consideration the inconsistent statement of the prosecution witnesses and the unbelievable story put up by the prosecution, acquitted the respondent for the charges levelled against him. Hence this appeal by the State of Rajasthan.
(3.) THE learned Public Prosecutor has assailed the findings of the innocence by the learned trial Judge mainly on the ground that provisions of Section 4 of the Act have not been taken into consideration by the learned trial Judge, According to him when the respondent had received Rs. 100/ - currency note and the recovery of the same from his possession has been proved, the burden was upon him to refute the prosecution case that it was received by him not by way of illegal gratification. Mr. Doongar Singh, learned Counsel for the respondent on the other hand contended that mere recovery of money from the respondent will not by itself be sufficient to raise a presumption and, therefore, the burden would still be upon the prosecution to prove that the public servant had obtained the amount by corrupt or illegal means so as to being the case within tha ambit of Section 5(1)(d) of the Act.;