R.R.PRASAD, J. - (1.) THIS appeal is directed against the judgment of conviction and and order of sentence dated 30/09/2013, passed by the A.J.C. XVIIIcumSpecial Judge, CBI (other than AHD Scam), Ranchi, in R.C. Case No. 23(A) of 2004 R, whereby and whereunder the Court having found the appellant guilty for the offence punishable under Sections 7 and 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act, sentenced him undergo R.I. for one year and to pay fine of Rs. 1,000/ for the offence punishable under Section 7 of the PC Act and further to undergo R.I for two years and to pay fine of Rs. 2,000/ for the offence under Section 13(1)(d) read with Section 13(2) of the PC Act, and in default of payment of fine to undergo S.I for two months and four months respectively. Both the sentences were directed to run concurrently.
(2.) THE case of the prosecution, as it appears from the FIR, PreTrap Memorandum (Ext.16), Post Trap Memorandum (Ext.20), is that the complainant Yashwant Kumar Verma (PW4), Secretary, Koyla Mazdoor Sangh, Bhurkunda, District Hazaribagh, approached to appellant Tara Prasad, the then Security Inspector, CCL, Bhurkunda on 27/10/2004, for getting four of his Union men deputed at Weigh Bridge and Sales Department of Bhurkunda Colliery through the Project Officer of the said Colliery. The appellant, for getting the job done, asked for Rs. 5000/ as illegal gratification. When it was told by the complainant that it would not be possible for him to pay the same, the appellant told him to pay Rs. 2000/ at the first instance, failing which the Union Men would never be deputed. Thereupon, the complainant (PW4) submitted a written complaint (Ext.4) to the S.P., CBI, ACB, Ranchi to that effect. After receiving the complaint, the then S.P., CBI, directed one Jagan Rai, SubInspector of Police, CBI, ACB, Ranchi to verify the veracity of the allegation made in the complaint. The said SubInspector, on making verification, when found the allegation to be true, submitted verification report (Ext.11) on 28/10/2004. Thereafter, the FIR was drawn on 28/10/2004 under Sections 7 of the Prevention of Corruption Act, against the appellant. Investigation of which was taken over by one K.K.Singh (PW8), Inspector of Police, CBI, ACB, Ranchi. After registration of the case, a trap team headed by Mr. K.K.Singh, Inspector of Police, was constituted consisting of Mr. Vikash Gupta, R.S.Solanki, both Inspectors, Mukesh Verma, SubInspector, B.K. Ojha, Shailesh Kumar and Sujit Jha, all Constables of CBI and two independent witnesses Amar Nath Prasad (PW5) and Lalan Prasad Yadav (PW6), both LDC of the Office of the Regional Provident Fund Commissioner, EPFO, Ranchi. Thereafter, a PreTrap Memorandum (Ext.16) was drawn after explaining the characteristics of Phenolphthalein powder and its use in the trap. Four currency notes each having denomination of Rs. 500/given by the complainant were treated with phenolphthalein powder and were given back to the complainant( PW4), to be given it to the appellant. PW5 Amar Nath Prasad and PW6 Lalan Pd. Yadav, were asked to remain with the complainant. Thereafter, the trap team left the CBI office and proceeded to the resident of the appellant at about 06.00 P.M. On reaching over there, the complainant, alongwith the independent witness Lalan Pd. Yadav (PW6) come to the gate of the residence of the appellant and gave a call 'Prasad Sahab' 'Prasad Sahab'. On hearing this, the appellant came out from a room and after seeing the complainant asked from him as to whether he has withdrawn money from the Bank. When the complainant replied in affirmative, the appellant extended his right hand towards the complainant. The complainant took out the GC Notes amounting to Rs. 2000/ from the pocket of his shirt and gave it to the appellant, who counted it and then assured the complainant that his work would be done. At that point of time, a prefix signal was given upon which the Trap Team came rushing over there and then the Inspector K.K.Singh (PW8), by disclosing his identity, challenged the accused for having demanded and accepted the illegal gratification. Thereupon, the money was recovered, which, on comparing by the witness Amar Nath Prasad (PW5) with the numbers of note mentioned in the PreTrap Memorandum, found it tallied. Thereafter, hand wash of both the hands of the appellant was done, which on treatment got pink. Upon all the formalities being completed, Post Trap Memorandum (Ext.20) was prepared. Thereupon, the appellant was arrested and then the trap team left place.
(3.) ON completion of the investigation and on procuring order sanctioning prosecution (Ext.1), accorded by Rajendra Prasad Ritolia, ChairmancumManaging Director, CCL, Ranchi, charge sheet was submitted, upon which cognizance of the offence was taken against the appellant. When the appellant was put on trial, the prosecution examined as many as 9 witnesses; of them PW4 the complainant, when was examined by the prosecution, did support the case of the prosecution but on the point of giving bribe money, he deviated himself from his earlier statement as he did depose that when he came to the residence of the appellant and met with him, he, on asking as to whether the money has been brought, kept it over a rack at the instance of the appellant, whereas earlier he had stated in his statement, made under Section I61 Cr.P.C., that the money had been given to the appellant in his hand and then he had counted it. However, PW6 Lalan Pd. Yadav, an independent witness, who had accompanied the complainant, has deposed that when the complainant gave the money on being demand by the appellant, he took it by extending his hand. PW5 Amar Nath Prasad, the another independent witness, who was a member of the trap team, though had not entered inside the room but heard the appellant demanding money and was witness to recovery of the money. PW3 Vimal Chandra Purkait, a Junior Scientist Officer, CFL, Kolkata, upon examining the solution did find that the aqueous solution was that of Phenolphthalein Powder and Sodium Carbonate. He has proved the FSL report as Ext.2. PW8, the Inspector is also a witness to recovery of the tainted money. PW9 is the Dy. S.P., who had taken over the investigation w.e.f. 02/11/2004. The defence also examined four witnesses; of them DWs1, 2 and DW3 have deposed that they had never approached the complainant for their deputation either to Weigh Bridge or to Sales Department. DW4 has testified that the complainant had been removed from the post of Secretary and, as such, there was no occasion for the complainant to approach the appellant for deputation of some of the members of the Union.;