Ramji Yadav vs State Of U.P.
2016 Latest Caselaw 7452 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 28.09.2016
 
Delivered on 08.12.2016
 

 
A.F.R.
 
Court No. 52
 

 
Case :- CRIMINAL APPEAL No. - 5855 of 2015
 

 
Appellant :- Ramji Yadav
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Pradeep Kumar Rai
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Pratyush Kumar,J.

The instant appeal filed, on behalf of the accused-appellant, is directed against the judgment and orders dated 30th November, 2015 passed by Special Judge (Prevention of Corruption Act) Court No. 5, Gorakhpur in Special Case No. 48 of 2008 (State Vs. Ramji Yadav) whereby the appellant has been convicted under section 7 of the Prevention of Corruption Act, 1988 and punished with rigorous imprisonment of three years and fine of Rs.10,000/-, in default of payment of fine, he has been further directed to undergo imprisonment of four months, under section 13(1)(d) r/w section 13(2) of the said Act he has been convicted and sentenced to undergo rigorous imprisonment of four years and to pay fine of Rs.20,000/-, failing which to undergo additional imprisonment of six months.

Heard Sri Kamal Krishna, Senior Advocate, assisted by Sri Pradeep Kumar Rai, learned counsel appearing for the appellant, Sri V.P. Singh Kashyap, learned Additional Government Advocate for the State-respondent and perused the lower court record.

The facts giving rise to the present appeal may be noticed as under:

That on 4th October, 2008 Smt. Meena Devi gave a written report addressed to In-charge Inspector, Anti Corruption Cell of the Vigilance Establishment, Gorakhpur, stating therein that her daughter Km. Rani aged 12 years was kidnapped on 14th June, 2008 by Rakesh and Arvind, she made a search for the girl but without success. She approached the police of police station concerned but they did not pay any heed to her complaint, on 05.07.2008 they only entered the information of missing of her girl. Thereafter she moved an application to the District Magistrate, on whose order case was registered, investigation was entrusted to Sub Inspector Ramji Yadav, In-charge police outpost Lalghat, P.S. Jiyanpur, District Azamgarh. Ramji Yadav, first demanded Rs.5000/- from her to recover the girl, she could arrange only Rs.3000/- but he did not recover the girl and only arrested the accused person and sent them jail. Now he was accusing her and demanding Rs.2000/- more, he had asked her to bring money at 9.00 a.m. on 06.10.2008 at police outpost Lalghat or Lalghat market, she requested the arrest of the appellant.

The pre-trap inquiry was conducted and opinion was recorded by one Inspector that complaint was found true, thereafter raiding officer Mahima Pratap Rai, Inspector Vigilance Establishment, Gorakhpur was authorized to make the trap, thereafter pre-trap memo was prepared, therein number of notes were recorded, they were treated with phenolphthalein powder, after completing the formalities tainted money was handed over to the complainant and raiding party proceeded to Azamgarh, due to paucity of time independent witnesses of trap could not be obtained to District Magistrate, Azamgarh and only in town Lalghat two persons, namely, Kalpnath Chauhan and Rambali were procured as independent witnesses and after giving suitable instructions to Smt. Meena Devi, raiding party on 06.10.2008 at 10.45 AM at outpost Lalghat waited and caught the appellant while demanding and accepting Rs.2000/- as bribe from Smt. Meena Devi, at the spot crowed gathered, thereupon the appellant and the complainant were taken to police station Jiyanpur, District Azamgarh where formalities were completed, trap memo was prepared, check FIR was registered at Case Crime No. 588 of 2008, under sections 7/13(1)(d) r/w 13(2) of the Prevention of Corruption Act, investigation was conducted by Vigilance Establishment, Gorakhpur, who after completing the investigation and after obtaining prosecution sanction submitted the charge-sheet against the present appellant.

The appellant stood for trial before the Special Judge (P.C. Act), Gorakhpur. He was charged under section 7 and 13(1)(d) r/w section 13(2) of the Prevention of Corruption Act. He denied the charges and claimed to be tried.

On behalf of the prosecution besides the documentary evidence six witnesses were examined. Thereafter statement of the appellant was recorded under section 313 Cr.P.C. wherein he admitted that in the year 2008 he was posted as Sub Inspector at outpost Lalghat, P.S. Jiyanpur, on the direction of higher authorities on the complaint of Smt. Meena Devi case of kidnapping of her daughter Rani was registered at the police station, rest of the facts stated by the prosecution witnesses were denied by him. According to him, since he made an investigation against Smt. Meena Devi in reference to selling by her Km. Rani daughter of her brother Kumar Ram @ Kumar and during investigation he found the charges against Smt. Meena Devi substantiated, he was falsely implicated. Though she was arrested by another Investigating Officer and she was released on bail. According to him, Rani in her statement recorded under section 164 Cr.P.C. has substantiated the allegations against Smt. Meena Devi, for those reasons he had been falsely implicated by her.

In the defence three witnesses were examined on his behalf.

One additional statement of the appellant was recorded under section 313 Cr.P.C. in reference to the report of State Forensic Science Laboratory reflecting that the water with which he was made to wash his hands after trap contained sodium carbonate phenolphthalein, these facts were denied by him.

On behalf of the appellant in support of the appeal it has been submitted that there was no pre-trap inquiry conducted by the Vigilance Establishment, complaint was made on 04.10.2008 and on 06.10.2008 trap was carried out. Second argument is that in the trap memo there is no mention that bribe was demanded by the appellant. It has been further submitted that no trap was conducted, no bribe was demanded, all the facts were concocted so as to give colour of taking bribe by the appellant, therefore, no case under the Prevention of Corruption Act is made out.

The learned counsel for the appellant further submits that learned Special Judge has not appreciated the evidence in proper perspective, Bechu P.W.2 nowhere stated that bribe was demanded, Noor Mohd. P.W.3 nowhere said hands of the appellant were washed at P.S. Jiyanpur. Learned counsel for the appellant further submits that from the place where the members of the trap party were waiting and the place where the appellant is said to have taken the bribe was at the distance of 35-40 steps, it was not possible that any one could hear the words spoken by the appellant. He further submits that the link evidence has not been produced to show that the sample sent for scientific examination were the same which were collected when the allegedly hands of the appellant were washed. The last argument is that Smt. Meena Devi is the woman of bad character, she indulges into human trafficking, when the appellant took cognizance of her misdemeanour, Smt. Meena Devi in collusion with the Vigilance Establishment had falsely implicated him, from the defence evidence motive for false implication has been proved from the defence but ignored by the learned Special Judge.

On behalf of the State-respondent these arguments have been repelled and it has been submitted that the findings recorded by the learned Special Judge are well substantiated from the record, cogent reasons have been given in support thereof, the appeal has no substance.

Before I propose to deal with the arguments submitted by the respective parties, I would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C. Further I would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

To appreciate the arguments advanced on behalf of both the parties, it would be gainful to briefly mention the evidence adduced by the prosecution and the defence.

Smt. Meena Devi P.W.1 is the complainant, she has supported the prosecution version, she has proved her application dated 04.10.2008 Ext. Ka-1, her statement recorded there Ext. Ka-2, her signature on pre-trap memo Ext. Ka-3 and on trap memo Ext. Ka-4. She has also identified the recovered currency notes material Ext. Kha-1 to Kha-4 and bottle containing samples material Ext. Kha-5 to Kha-8.

Ram Bali Gaud P.W.2 is the independent witness of the trap, he has supported the prosecution version and identified his thumb impression on trap memo.

Vijay Kumar P.W.3 is the formal witness, he has proved the prosecution sanction Ext. Ka-5.

Noor Mohammad P.W.4 is the Head Constable posted at police station Jiyanpur on 06.10.2008, he has proved check FIR Ext. Ka-6, copy of the report of the general diary Ext. Ka-7.

Mahima Pratap Rai P.W.5 is the Circle Officer, Khajani, who was Inspector in Vigilance Establishment, Gorakhpur in the year 2008, he had led the trap party and conducted the trap proceedings, he has supported the prosecution version.

Inspector Loknath Yadav (Retd.) P.W.6 is the Investigating officer, he gave the details of steps taken in the course of investigation and proved the site plan Ext. Ka-8, order passed Superintendent of Police, Vigilance Establishment Ext. Ka-9 and charge-sheet Ext. Ka-10.

Kumar Ram @ Ram Kumar D.W.1 is the father of Rani and brother of Smt. Meena Devi, who has stated that on 10.05.2005 Smt. Meena Devi had sold his wife and children, he reported the matter but no action was taken by the police. Due to election politics Smt. Meena Devi had lodged the false FIR against Rakesh, Arvind and Nanda, he has proved copy of the FIR Ext. Kha-1 and copy of application dated 26.02.2008 Ext. Kha-2.

Rani D.W.2 has supported the defence version and stated that her aunt Smt. Meena Devi had sold her to Fahim, who took her to Haryana and again he sold her to Vikram and Vikram forcibly had sexual intercourse with her, she was rescued by his sister-in-law and she was sent to Azamgarh.

Brijesh Kumar Singh D.W.3 is the second Investigating Officer of case crime no. 514 of 2008 ( State Vs. Rakesh). According to him, the appellant had recorded in the case diary that Smt. Meena was responsible for disappearance of Rani, he has proved statement of Rani recorded under section 164 Cr.P.C. Ext. Kha-5 and charge-sheet submitted against Smt. Meena Devi and Fahim Ext. Kha-6.

In view of material available on record and statements made on behalf of the parties for adjudication of appeal the following points for determination arises:

1. Whether on 06.10.2008 a valid trap had taken place wherein appellant was caught red handed while demanding and accepting bribe of Rs.2000/- as public servant from Smt. Meena Devi ?

2. Whether prosecution has been able to prove its case beyond all reasonable doubts against the present appellant ?

3. Whether appellant has been falsely implicated on account of animosity borne by Smt. Meena Devi against him ?

Point of determination No.1

On this point the following arguments in support of the appeal have been submitted :

(i) No pre trap enquiry was conducted, (ii) from the evidence of Noor Mohammad P.W.4 it is established that no trap had taken place.

Before adjudicating the arguments I would like to place on record that first necessary ingredients to constitute the offences are only being seen prima facie only thereafter while dealing with the arguments on point of determination no.(2) on each of the ingredients evidence of prosecution would be disclosed and evaluated.

According to the prosecution on 04.10.2008 Smt. Meena Devi made a complaint at the Anti Corruption Cell of the Vigilance Establishment, Gorakhpur. In reference to question no. 4 in the statement of the appellant recorded under section 313 Cr.P.C. the appellant had answered this question that he had no knowledge about those facts. Smt. Meena Devi P.W.1 has not only proved original application dated 04.10.2008 Ext. Ka-1 but also gave statements supporting the facts narrated in the application. Contents of this application has been disputed by the appellant on the strength of this fact that he kidnapped girl Rani was not the daughter of Smt. Meena Devi. However, defence witness Kumar Ram @ Kumar D.W.1 in his statement has admitted that his daughter Rani used to live along with her mother with Smt. Meena Devi his sister, thus lawful custody of the girl with Smt. Meena Devi at the relevant time is admitted to the appellant. Being responsible for her safe custody, on finding her missing, she had lodged a first information report at police station Jiyanpur. In that written report Smt. Meena Devi has referred Rani as her daughter. Being sister of her father it is not uncommon for an aunt to refer her niece living with her, as daughter, therefore, I am of the opinion that prior to 04.10.2008 Rani was missing and Smt. Meena Devi being her defacto guardian had lodged a first information report at police station Jiyanpur, which was investigated by the appellant and on account of conduct of the appellant Smt. Meena Devi approached the Anti Corruption Cell of the Vigilance Establishment at Gorakhpur with the complaint Ext. Ka-1.

Thereafter her statement is corroborated by the statement of Mahima Pratap Rai P.W.5 the then Inspector of Anti Corruption Cell, Gorakhpur, who has substantiated the version stated by Smt. Meena Devi and also conducted pre-trap inquiry. On her complaint Ext. Ka-1, report of Mahima Pratap Rai P.W.5 dated 04.10.2008 the then Inspector finds place at the margin of second page. Thus, I have no doubt that prima-facie the facts constituting pre-trap events have been prima-facie established.

Thereafter Smt. Meena Devi P.W.1, Rambali Gaud P.W.2 and Mahima Pratap Rai P.W.5 have supported the prosecution version in reference to the trap. Their statements are corroborated by the pre-trap memo Ext. Ka-2, trap memo Ext. Ka-3 and recovery memo Ext. Ka-4. On the basis of these evidences the prosecution has prima-facie established all the ingredients constituting the trap proceedings. Thus, in reference of point of determination, it is held that on 06.10.2008 a valid trap took place, wherein the appellant was arrested red handed while demand and accepting bribe of Rs.2000/- as public servant from Smt. Meena Devi, thus, point no.2 is answered accordingly.

Point of determination No.2

On behalf of appellant evidence of prosecution version have been assailed on various grounds. In reference to Smt. Meena Devi P.W.1 it has been submitted that she was a woman of bad character, she had sold wife and children of her brother Kumar Ram @ Ram Kumar D.W.1, in reference to kidnapping of Rani, this fact was found by the Investigating Officer, the appellant and by the second Investigating Officer, she was arrested on that charge and finally charge-sheeted.

Though on this point arguments have been submitted on behalf of the appellant at length but in the present matter the controversy is whether appellant had demanded bribe from Smt. Meena Devi and whether he was caught red handed while demanding and accepting Rs.2000/- as bribe from Smt. Meena Devi in connection with his official work as Investigating Officer.

The purpose of this trial was not to judge the conduct, character and past record of Smt. Meena Devi. She is the complainant, according to prosecution version the appellant demanded bribe from her, usually bribe is demanded either from the persons who want undue advantage either pecuniary or otherwise including avoiding implication in criminal cases or to get the official work performed promptly to their advantage. If either of the version is taken to be true, there is nexus between the collision of appellant and Smt. Meena Devi, either she wanted the girl to be recovered or she wanted to be screened out from the criminal charge in either of the condition she was seeking favour of the appellant and according to the prosecution the appellant demanded bribe of Rs.5000/- from such a person.

The story is natural and probable and regardless of character of Smt. Meena Devi, she was under pressure to pay bribe to the appellant, her subsequent conduct in approaching the Anti Corruption Authorities rather reflects that she had no guilty intention, she wanted the welfare of the family. For these reasons I do not think that suggestion of the defence or evidence adduced by the defence in this regard is relevant and has weight enough to demolish the testimony of Smt. Meena Devi.

From the perusal of her statement as a whole I find that she is a woman of rural background, by running a tea stall she was able to earn her livelihood, she has faced the test of cross-examination successfully. The minor discrepancies occurring in her testimony bears no significance because her statement has been recorded after interval of almost three years that too in a piecemeal. Except these discrepancies her statement is unblemished, she is natural and probable witness and her testimony is worthy of reliance.

The statement of Rambali Gaud P.W.2 has been impeached on two grounds that he bore enmity to the appellant because he had managed to stop his old age pension, which was granted by good offices of Smt. Meena Devi. This may be a reason for him to depose before the Court but on the touch stone of cross-examination his testimony remained unshaken, except on the point of time, he has stated that he reached the police station Jiyanpur at 4.00 PM whereas according to prosecution version trap was conducted at 10.45 AM at Lalghat police outpost and at 1.45 PM FIR was lodged at police station Jiyanpur. He is rustic villager, for him, time does not bear so much importance as it bears to city bred man. Rustic villagers treat after noon from loosely, at it may be 1.00 PM or 3.00 PM or it may be at 4.00 PM because they assess the time of the day on the basis of their work schedule. For this reason, I do not find discrepancy in reference to time occurring in his testimony to be of much significance.

He is also a witness of trap memo, recovery memo and seizure memo. His presence is natural and probable, his evidence is duly corroborated by the statements of other witnesses and documentary evidence, his testimony also appears to be worthy of reliance.

Third and most important witness is Mahima Pratap Rai P.W.5, he is the officer, who led the trap party and caught the appellant red handed while demanding and accepting the bribe. He is also a police officer, he has no reason to falsely implicate the present appellant, he is the witness to the aforesaid raid, he is natural and probable witness, he has faced the test of cross-examination successfully. Even during cross-examination he could not be assigned any reason to falsely implicate the appellant. His evidence is impartial in nature, without any inherent blemish, I find him to be trustworthy and reliable witness.

At this juncture arguments submitted on behalf of the appellant to show that evidence of the aforementioned witnesses is not worthy of reliance can be conveniently dealt with.

Pre-trap inquiry considering paucity of time and statement of Mahima Pratap Rai and his endorsement appended on Ext. Ka-1 indicates that pre-trap inquiry was undertaken and prima-facie facts mentioned in the complaint were found substantiated, therefore, I am of the opinion that the arguments challenging the validity of the trap on the basis of absence of pre-trap inquiry is not substantiated.

On behalf of the appellant fairness of the trap proceedings has been questioned but during cross-examination of Deputy Superintendent of Police Mahima Pratap Rai P.W.5 the then Inspector leading trap party nothing adverse could be extracted to show that the witness was influenced for any extraneous reason, thus, this argument is the empty one and it is not substantiated from the record.

Third argument is that no demand was made by the appellant for paying bribe to Smt. Meena Devi and its omission in the trap memo is conspicuous. It has been further submitted on behalf of the appellant that when trap memo is silent on this point no amount of oral evidence can substitute the omission occurring in the trap memo.

This argument when considered with the next argument advanced on behalf of the appellant that from the site plan Ext. Ka-8 it transpires that at place marked with letter 'A' trap party along with independent witness was present, from place marked as 'X', the appellant was arrested while accepting Rs.2000/- as bribe. In between two places there is a public highway, due to this distance it can be gathered conversation taking place between the appellant and Smt. Meena Devi P.W.1 could not possible to be heard, therefore, omission in the trap memo regarding demand of bribe stands satisfactorily explained.

Now remains whether demand of bribe by the appellant could be proved by the prosecution. Smt. Meena Devi P.W.1 has stated that she was called by the appellant on 06.10.2008 with Rs.2000/- , thereafter she informed Anti Corruption Cell of the Vigilance Establishment, Gorakhpur, she came back from there with the trap party, she was provided treated currency notes and the appellant was arrested while taking these treated currency notes from Smt. Meena Devi P.W.1. Her statement in reference to demand of bribe is not only corroborated by her statement made in the complaint dated 04.10.2008 Ext. Ka-1 but from her conduct and presence of trap party at the relevant time at the relevant place.

On this point statement of Rambali Gaud P.W.2 also supports the statement of Smt. Meena Devi P.W.1, though he has not made specific statement that he had heard the demand of bribe made by the appellant or appellant taking money from Smt. Meena Devi P.W.1 but he supports the facts of trap and arrest of the appellant from Lalghat police outpost. Vagueness of his statement indicates that neither he is an interested witness nor he is a tutored witness.

Deputy S.P. Mahima Pratap Rai P.W.5 has supported the statement of Smt. Meena Devi P.W.1 at this point. His cross-examination continued for two days but he has not been even given suggestion that he has not heard and seen what he deposed on oath in reference to trap of the appellant. For these reasons, I am of the opinion that the demand of bribe stands fully proved and arguments advanced on behalf of the appellant is without substance.

On behalf of the appellant following cases have been referred in reference to importance of demand of bribe money by the accused.

1. M.R. Purushotham Vs. State of Karnataka [2015 Crl. L.J. 72] in that case complainant did not support the prosecution version that the accused demanded bribe but in the present case complainant has supported this fact and her statement is corroborated from the statements of two witnesses along with her own previous conduct, therefore, the ratio of the case referred above is of no help to the appellant.

2. Prabhat Kumar Gupta Vs. State of Jharkhand and another [(2014) 14 Supreme Court Cases 516] on behalf of the appellant reliance has been placed on the observation made in para-17 of the report. For ready reference para-17 is quoted hereinbelow:-

"17. In Subbu Singh the prosecution had proved that the money was demanded as bribe and the same was received by the accused and in view of Section 20 of the Act it was observed that in such circumstances, the accused is to establish that the amount was not received as bribe. As we have observed earlier the prosecution has not been able to prove that the money was received by the appellant as bribe and, therefore, the presumption as contemplated under Section 20 of the Act would not arise."

In this case the prosecution could not prove that money was received by the appellant as bribe, therefore, the Hon'ble Apex Court refused to raise presumption contemplated under Section 20 of the Act. As seen hereinbefore in the present case demand of bribe made by the appellant stands proved beyond all reasonable doubt. For this reason, the afore-quoted para is of no help to the appellant.

3. B. JAYARAJ Vs. State of Andhra Pradesh [2014 Crl. L.J. 2433]. In this case the Hon'ble Apex Court has clarified that only recovery of currency notes would not constitute an offence under section 7 of the Prevention of Corruption Act unless it has been proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. In this case also the complainant did not support the prosecution version in reference to the demand of bribe and its acceptance by the accused but in the present case facts are not similar and for the reason indicated in reference to case no. (1) the ratio of the present case is of no help to the appellant.

4. C.SUKUMARAN Vs. State of Kerala [2015 LawSuit(SC) 65]. In that case the demand of bribe by the accused was not found to be proved against the accused, for this reason, his conviction under section 7 of the Act as also under section 13(1)(d) r/w section 13(2) was found unsustainable. Thereafter the Hon'ble Apex Court has emphasized the need of proving acceptance of illegal gratification but in the present case demand of bribe and its acceptance by the appellant stand proved beyond reasonable doubt, therefore, the ratio of this case is of no help to the appellant.

5. State of Punjab Vs. Madan Mohan Lal Verma [2013 Crl. L.J. 4050]. In this case Hon'ble Apex Court has observed that when demand and acceptance of bribe stands proved and presumption contemplated under section 20 of the Prevention of Corruption Act is raised then the Court is required to see the explanation of the accused on the touchstone preponderance of probability and not on the touchstone proved beyond all reasonable doubt. In the present case in reference to question no. 6 the appellant has denied that he was caught while demanding and accepting bribe of Rs. 2000/- from Smt. Meena Devi. The only explanation offered on his behalf is that he was falsely implicated because he was the Investigating Officer of a matter wherein complicity of Smt. Meena Devi in human trafficking came into light.

It is noticeable that against Mahima Pratap Rai P.W.5 he has not made any allegation nor explained the conduct of the officer nor he had imputed any extraneous reason for this witness to falsely implicate him, thus, explanation tendered by him is not satisfactory on the touchstone of the preponderance of probability. The defence evidence is also vague, it does not deal with the fact in issue that whether bribe was demanded and accepted by the appellant as stated by the prosecution or not.

In reference to present point of determination one other argument has been submitted that trap memo was not prepared at the spot where allegedly the appellant accepted the bribe but Mahima Pratap Rai P.W.5 has disclosed the reason which persuaded him to take the appellant to the police station Jiyanpur where the proceedings after trap were conducted. I do not find any substance in the oral argument that the appellant was forcibly taken to the police station and false recovery was shown from him. On this point I do not find evidence of Noor Mohammad P.W.4 to be worthy of reliance. He is subordinate police officer to the appellant, possibility cannot be ruled out that on his pressure he has stated whatever he was asked for during the cross-examination. He is only scribe of check FIR. His statement elicited during the cross-examination would not amount to contradictory to the prosecution version because neither he is a witness to the recovery or trap memo nor he is supposed to see the trap proceedings.

Learned counsel for the appellant has also submitted that the link evidence in the form of water of the phenolphthalein powder has not been taken into consideration while assessing that the appellant has demanded and accepted Rs.2000/- as bribe from Smt. Meena Devi as bribe. The prosecution has proved that when the ocular version is trustworthy, in such a situation, the link evidence has no value on the face of it.

In view of above it is held that the prosecution has successfully proved its case as narrated earlier beyond reasonable doubt, thus, the point of determination no. 2 is answered accordingly.

Point of determination No.3

The case of the defence has been noticed hereinbefore in order to substantiate the defence, documentary as also oral evidence as have been adduced by evidence.

Kumar Ram @ Kumar D.W.1 supports the defence version but during the cross-examination he admits that his wife and children used to live with Smt. Meena Devi at the relevant time. It is claimed by the defence that on 26.07.2008 he gave an application to the S.S.P. Azamgarh stating therein that Smt. Meena Devi had sold his wife and children on 10.05.2005, if this fact is true, it has to be explained by the defence why for more three years Kumar Ram D.W.1 remained silent about the selling of his wife and children. It appears unnatural that after more than three years he would make this complaint to S.S.P. Azamgarh, on his own accord, I do not find his evidence to be worthy of reliance.

Km. Rani D.W.2 has supported the defence version. From her statement it transpires that she is a tutored witness. She does not say that she was sold on 10.05.2005, she does not say that her mother and other brothers and sisters used to live with Smt. Meena Devi also. Her statement against the complainant does not appear to be voluntary, therefore, I do not find her a reliable witness.

Brijesh Kumar Singh D.W.3 is the second Investigating Officer, who charge sheeted Smt. Meena Devi in Case Crime No. 514 of 2008 registered on the FIR of Smt. Meena Devi. He has merely proved the charge-sheet. He had no personal knowledge, he had not examined the prosecutrix himself, his evidence is of no help to the defence.

The documentary evidence filed on behalf of the defence also suggest the same facts and I find this documentary evidence of no worth for the reasons mentioned above. I am of the opinion that Smt. Meena Devi fearing for her liberty and honour had to succumb to the demand of the appellant and paid Rs. 3000/- as bribe which she could hardly arrange. Thereafter, when more money was demanded she made a complaint which resulted in the arrest of the appellant. Her complicity in human trafficking is not relevant here. The relevant point is that she was under the pressure of the appellant, who at the relevant time was a public servant and in a discharge of official duty, he had demanded and accepted bribe from Smt. Meena Devi. The defence version remained unsubstantiated and I hold that the appellant has not been falsely implicated on account of animosity borne by Smt. Meena Devi. The point of determination no. 3 is answered in negative accordingly.

In the last one argument has been submitted that the prosecution sanction is not valid. This ground does not find place in the memo of appeal but I permitted to the learned counsel for the appellant to submit his argument on this point.

The prosecution sanction Ext. Ka-5 has been filed on behalf of the prosecution and proved by Vijay Kumar P.W.3, he was the then Deputy Inspector General of Police and at present Director General (Prosecution). In the cross-examination he has stated that he had nothing to do with the facts of the present case, he has no personal knowledge and he had accorded the prosecution sanction on the basis of evidence collected during the investigation. He denied the suggestion that he mechanically accorded the prosecution sanction. From his statement and the facts mentioned in the prosecution sanction Ext. Ka-5 I am of the opinion that the prosecution sanction is legally valid and it is not defective. In this reference on behalf of the appellant the case of P.L. Takwal Vs. State of M.P. [2011(7) SCC 167] has been referred wherein the Hon'ble Apex Court has observed that the Court should properly inquire whether all the relevant material were placed before the competent authority and the competent authority had referred the same so as to form the necessary opinion. In the present case statement of competent authority Sri. Vijay Kumar P.W.3 the then Deputy Inspector of Police is enough to arrive at a conclusion that in the present matter he has perused all the evidence collected during the investigation and thereafter, accorded the prosecution sanction. The case referred on behalf of the appellant is of no help to him. Ext. Ka-5 reflects that all the documents along with case diary were place before Sri Vijay Kumar P.W.3 the then Deputy Inspector General of Police and after perusing the same he had accorded the prosecution sanction.

Thus, arguments advanced on behalf of the appellant are without substance, appeal is bereft of merit and deserves to be dismissed. The findings recorded by the learned trial Judge are well substantiated, cogent reasons have been given in support thereof. There is no infirmity therein, appeal lacks merit and deserves to be dismissed. The criminal appeal is dismissed. Conviction and sentence of the appellant are hereby affirmed. The appellant is directed to serve out the remaining sentence as directed by the trial Judge vide judgment and order dated 30.11.2015. The appellant is on bail, the trial Judge shall procure his attendance and send him to jail.

The office is directed to communicate this decision to the court concerned for compliance forthwith and to send back the lower court record.

[Pratyush Kumar,J]

Order Date :- December 8th, 2016

Prajapati