Sadho Ram Singh vs State Of U.P.
2016 Latest Caselaw 3235 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
RESERVED
 
Court No. - 27
 

 

 
Case :- CRIMINAL APPEAL No. - 2827 of 2015
 

 
Appellant :- Sadho Ram Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Dileep Kumar, Ashish Kumar Srivastava, Sheetla Prasad, Surendra Tiwari
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Mrs. Ranjana Pandya,J.

1. Challenge in this appeal is to the judgement and order dated 23.5.2015 passed by Special Judge Prevention of Corruption Act, Varanasi in Special Case No. 19 of 2013 (State Vs. Sadho Ram Singh) arising out of Crime No. 87 of 2002, under Section 7/13 (1)(d) read with Section 13(2) Prevention of Corruption Act, Police Station- Adalhat, District-Mirzapur, whereby the accused appellant was found guilty under Sections 7 and 13 (1)(d) read with section 13(2) of Prevention of Corruption Act, 1988 and was sentenced to 5 years' rigorous imprisonment and Rs. 20,000/- fine under Section 7 and sentenced to 5 years' rigorous imprisonment and Rs. 20,000/- fine under Section 13(1)(d) read with Section 13(2) Prevention of Corruption Act, 1988 with default stipulation.

2. Brief facts of the case are that the complainant moved an application on 19.3.2002 to the S.P. Vigilance Department, Varanasi Sector stating that the accused Sadho Ram Singh demanded money to declare the daughter of the complainant as pass in the matriculation examination. He informed the officers concerned that he wanted to get the accused trapped. Formalities were completed and the trap was organized.

3. As per the prosecution case, the daughter of the complainant namely Amarjeet Kaur was the student of Chandra Shekhar Azad Inter College, Rupaudha and was appearing for the matriculation examination. Her Roll No. was 2006348 and her center for examination was Chandra Shekhar Azad Inter College, Rupaudha, Mirzapur. The accused-appellant Sadho Ram Singh was the Principal of that college, who undertook to get the girls through the matriculation examination, if they paid Rs. 10,000/- to 20,000/- per scholar. The accused-appellant Sadho Ram Singh has also demanded Rs. 10,000/- from the daughter of the complainant. The complainant contacted the accused-appellant and asked him at which the appellant told him that if he wanted his daughter to pass in the matriculation examination, he will have to pay Rs. 10,000/-, otherwise she would fail that year also as she failed in the previous year. The complainant was frightened and said that he was very poor and could not pay that amount. Further, the accused-appellant also said that he would either change the copy or facilitate copying to enable the girl to clear her matriculation examination.

4. The complainant Harshpati became perturbed and requested the appellant, but the appellant was not ready and was not willing to do the job without any bribe and insisted that he would ensure that the girl fails in her examination. Constrainedly, the complainant said that he would pay Rs. 5,000/-, but he wanted to get the appellant trapped red-handed. At this the the official Vehicle bearing No. UP 32 S 4641 was obtained alongwith the driver and in the evening 6:00 p.m. was decided to get the appellant caught red-handed. The necessary articles namely phenolphthalein powder, sodium carbonate, needle-thread, lacquer (लाह), stamp, candle and empty bottle were obtained from the office. The police alongwith the complainant at 5:00 p.m. proceeded by Jeep No. UP 32 S 4641 with the trapped team members and reached at bypass crossing at 17:45 hours via Narayanpur railway over-bridge. Inspector Harihar Ram was directed to call the independent witness. He reached after 15 minutes with Ravindra Pandey and Pawan Kumar Singh. The independent witness, the police party and the complainant were introduced to each other. The purpose was narrated to the independent witness, who agreed to be witnesses to the incident.

5. The complainant gave 10 currency notes bearing No. 0BA001491, 5CP277263, 5fl-278927, 6AG-163664, 4bA 779342, 2Cd157699, OEU 323040, UPW 129411, 5BM803375, 8AE859503, valuing Rs. 5,000/-, and said that those currency notes were to be given as bribe. The number of currency notes were noted by Raghvendra Singh, D.S.P., Vigilance. They were treated with phenolphthalein powder and the currency notes were handed over to Harshpati Singh with the direction that those particular notes were to be handed over to the accused-appellant. Shri A.K. Rai, Superintendent of Police, Vigilance Department, Varanasi Sector conducted the necessary interrogation, recommended for permission of the trap proceedings to the Government and obtained the prior permission for trap proceedings

6. On 20.3.2002 permission was granted and approved to conduct the trap proceedings, thereby S.M. Naseem directed the officers to proceed with the mission. Shri A.K. Rai, Superintendent of Police, passed the orders for trap on 21.3.2002. Inspector Ravi Shankar Mishra, Harihar Rai, Matwar Yadav and Constables Ram Ji Singh and Siddhnath were directed to assist the mission, who were introduced to the complainant in the chamber of Shri A.K. Rai. All the concerned persons were issued necessary directions. The informant Harshpati Singh took the currency notes, amounted them, wrapped in the white paper and kept in the left pocket of his Kurta. Inspector Ravi Shankar Mishra prepared sodium carbonate solution, got the palms and fingers of Harshpati Singh and Raghvendra Singh, D.S.P., washed in the solution separately. Both the solution turned pink, which were kept in separate bottles and sealed it.

7. Again the matter was discussed with the complainant, witnesses and other associates and it was decided that they would proceed to the college. When all the people reached near the college, they all searched each other. Harshpati Singh was having the treated notes. No one else having any illegal article. The complainant got down from the jeep and entered into the college premises. He was followed by Deputy S.P. Raghvendra Singh and witness Ravindra Pandey. The appellant Sadho Ram Singh was sitting in his room just opposite to the gate. There was light in his chamber. The witness and the Deputy S.P. followed the complainant and reached the chamber of the Principal. The principal asked the complainant as to who the other people were, at this complainant said that their wards were also appearing for the exams and they wanted to meet the Principal. The principal asked the complainant where he had brought Rs. 5,000/-, at this Harshpati Singh took out the treated notes wrapped in white paper from his left pocket and handed over it to the accused-appellant, who counted the money and held it in his right hand. Suddenly, D.S.P. Raghvendra Singh rushed towards the appellant and caught his right hand. All the witnesses also came to the spot. Rupees five thousand bearing the same numbers were recovered from the hand of the accused-appellant Sadho Singh. The recovered currency notes were kept in a open envelope. Ravi Shankar Mishra prepared sodium carbonate and both the hands palms and fingers of the accused-appellant were got washed in the solution, which turned pink, which was collected in an empty bottle and sealed it. Sodium Carbonate was got prepared and the hands and palms of the complainant and the D.S.P. were got washed the solution which turned pink and also sealed in separate bottle. The paper in which the currency notes were wrapped was also taken from the accused and sealed. The accused revealed his name to be Sadho Ram Singh @ Sadho Singh. He was taken into custody. He was searched at which two keys were found from his pocket. One wrist watch, a bundle of keys were also found from his possession. The accused-appellant stated that key Nos. 34 and 44 relates to the cupboard, where the copies of question paper of the board examination were kept. Since, the Principal was apprehended, many people started collecting there.

8. The accused-appellant and others were brought to the police station. The appellant told that on 22.3.2002 in the afternoon the examination was scheduled to be held, hence all the Executive Officers of the district were apprised of the occurrence and requested to get the examination held in order. The accused-appellant was made to converse with the school teacher Ram Bodh Singh on his request. The recovery memo was prepared and got signed by all the witnesses.

9. The prosecution examined as many as seven witnesses. P.W. 1 is Raghvendra Singh, D.S.P., Vigilance Department. He proved the application given by the complainant and the order passed by S.P., Vigilance as Exhibit Ka-1. He further proved the permission to launch proceeding as Exhibit Ka-2. This witness also proved the permission granted by the Principal Secretary, Vigilance as Exhibit Ka-3 and the note written by the Principal Secretary, Vigilance as Exhibit Ka-4. This witness further proved the endorsement made by the then S.P. A.K. Rai as Exhibit Ka-5. This witness prepared the memo, which was proved by him as Exhibit Ka-6 and the recovery memo as Exhibit Ka-7. He proved the sodium carbonate as material Exhibit 1 to 6. He further proved the currency notes as material Exhibit 7 to 16. P.W. 2 is Harshpati, the complainant, who moved the complaint stating that he was interested to get the accused-appellant trapped. P.W. 3 is Ravi Nath Pandey, who is said to be an independent witness, who witnessed the accused accepting bribe and the recovery of the bribe money from the possession of the accused. P.W. 4 is Pawan Kumar Singh, who is also the independent witness to the recovery, who identified the signatures on Exhibit Ka-6 and Ka-7. P.W. 5 is Inspector Harihar Ram, who accompanied the team and arrested the accused. He also proved the recovery of the treated notes from the possession of the appellant. He proved his signatures on the memo. P.W. 6 is Matwar Yadav, he is also the witness to the recovery and the trapped proceedings. P.W. 7 is Keshav Prasad Gupta, the Investigating Officer to whom the investigation was entrusted. The witness submitted charge-sheet against the accused, which was proved by this witness as Exhibit Ka-8. He further prepared and proved the charge-sheet as Exhibit Ka-9. This witness further proved the chik report as Exhibit Ka-10 and the Fard as Exhibit Ka-11.

10. After examining the aforesaid witnesses, the statement of the accused was recorded under Section 313 Cr.P.C., in which he denied the occurrence and stated that he had been falsely implicated with the connivance of Mohan Singh. The accused-appellant produced Ram Dular Singh as D.W. 1, who brought the record summoned by the court.

11. After hearing counsel for the parties, learned lower court found the accused-appellant guilty and sentenced him as has been specified in Para 1 of the judgement.

12. Feeling aggrieved, the accused-appellant has come in appeal.

13. I have heard Shri Rajrshi Gupta, learned counsel for the appellant, learned A.G.A. for the State and perused the trial court record.

14. Learned counsel for the appellant has submitted that the prosecution has miserably failed to prove demand of bribe and even the acceptance of bribe, hence the whole prosecution case crumbles down like heap of cards. Demand of bribe is a condition precedent to convict the accused under the provisions of Prevention of Corruption Act, 1988. Shri Rajrshi Gupta, learned Advocate has insistently urged that the prosecution had failed to prove any demand of alleged illegal gratification involved, and thus, the vitally essential ingredient of the offences both under Sections 7 and 13 of the Prevention of Corruption Act being conspicuously absent, the appellant ought to have been acquitted of the charge on both counts. He has further submitted that even assuming without admitting that the recovery of the tainted notes from the appellant had been established, sans the proof of demand which is a sine qua non for an offence both under Sections 7 and 13 of the Act, the appellant's conviction as recorded by the trial court is on the face of the record unsustainable in law and on facts.

15. Per contra learned A.G.A. has submitted that the evidence of the prosecution witnesses taken as a whole, demonstrably proved the demand, receipt and recovery of the illegal gratification sought for and as such no interference with the appellant's conviction is warranted. It is expedient at this juncture to set out the relevant extracts of Sections 7 and 13 of the Prevention of Corruption Act, under which the appellant has been convicted. Section 7 and 13 reads as under:

Sec. 7: Public servant taking gratification other than legal remuneration in respect of an official act.-- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.

(Explanations) --(a) "Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.

(b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.

(c) "Legal remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.

(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.

Sec. 13: Criminal misconduct by a public servant

(1) A public servant is said to commit the offence of criminal misconduct,-

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or

(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(d) if he,-

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

Explanation.-For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.

16. Learned counsel for the appellant has placed reliance on (2009) 6 SCC 587: A. Subair Vs. State of Kerala, in which it has been held that :

"while dwelling on the purport, the section 7 and 13 of the Act ruled that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to proof a conviction."

17. Learned A.G.A. for the State has submitted that the evidence of the prosecution witnesses, taken as a whole, demonstrably proved the demand, receipt and recovery of the illegal gratification sought for and as such no interference with the appellant's conviction is warranted.

18. Thus, mere possession and recovery of currency notes from an accused without proof of demand would not enable the court to convict the accused. In the absence of the any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved, the court said while referring to its verdict. The proof of demand, thus, has been held to be an indispensable essentially and permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 of the Act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it is true that in absence of proof of demand, such legal presumption under Section 20 of the Act could not demand. Thus, it emerges that the proof of demand of illegal gratification is the gravamen of the offence and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under the provision of Prevention of Corruption Act. Thus, as a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence would not entail his conviction thereunder.

19. A very spirited endeavour has been made by the learned A.G.A. by stating that there is sufficient evidence on record to prove the demand of illegal gratification and recovery of the tainted notes from the possession of the appellant by the trap team and also the chemical re-action of the sodium carbonate qua, the appellant, but I think the factum of demand has to be proved beyond all reasonable doubt.

20. Reverting to the oral evidence in the case of Raghvendra Singh, Deputy S.P., Vigilance, in his examination-in-chief has verbatim supported the prosecution case. This witness have to undergo the test of cross-examination. He is not the witness of demand of illegal gratification, but he has stated that the complainant Harshpati moved an application that the accused demanded illegal gratification from his daughter and even from him. Thus, this witness is not the witness of demand of illegal gratification. Harshpati Singh, P.W. 2, is alleged to be the witness, from whom the illegal gratification was demanded by the appellant Sadho Ram Singh @ Sadho Singh.

21. In the examination-in-chief Harshpati Singh has stated that his daughter is the student of Chandra Shekhar Azad Inter College, Rupaudha, who was appearing for the High School examination. During the relevant period her centre was Rupaudha, where the Principal was appellant namely Sadho Singh. Sadho Singh, used to take Rs. 10,000/- from the student to get them "passed" in the high school examination. Further, this witness has stated that his daughter told him that the accused told her to bring her father along. The daughter of the complainant Harshpati Singh is Amarjeet Kaur. The whole prosecution story revolved around her, because she was the student, who was involved and who had to be got "passed" in the high school examination. She was not produced by the prosecution for the reasons best known to the prosecution, inasmuch as she was the first person from whom demand was made. The prosecution has failed to assign any reason for not producing Amarjeet Kaur, due to which adverse inference should have been drawn against the prosecution for non-production of Amarjeet Kaur and the absence of any reasonable and plausible explanation for her non-production.

22. P.W. 2 Harshpati Singh, has stated that he went to the college and met Sadho Singh, who demanded Rs. 10,000/- to get his daughter "passed". The occurrence is said to have taken place and the alleged recovery is said to have affected on 21.3.2002, whereas the complainant moved an application to get the accused trapped on 19.3.2002. Harshpati Singh, P.W. 2 has admitted that on 18.3.2002 his daughter had already appeared in the Hindi Ist Paper. On 20.3.2002, she had to appear for her Hindi IInd Paper and on 21.3.2002 for her Sanskrit Paper. Now, if all the three papers i.e. Hindi Ist, Hindi IInd and Sanskrit papers were conducted and were over on 18.3.2002, 20.3.2002 and 21.3.2002 respectively, I could not think that there could even any purpose in making demand of payment to the appellant on 21.3.2002 after the paper was over. I am aware that the application was moved on 19.3.2002, but even then on 18.3.2002, one paper had already definitely been conducted. Thus, the only half hearted evidence demand of illegal gratification is the sole statement of Harshpati Singh, P.W. 2, who is also the member of the complete trap team.

23. In (2013) 12 SCC Page 406: Sujit Biswas Vs. State of Assam, in which it has been held that:

"The reiteration of the golden principle runs through the web of the administration of justice in criminal cases has been done. It has further been held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmises or conjectures. Thus, on the material on record when judged on the touch stone of legal principles adumbrated hereinabove, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification."

24. As far as the recovery of treated notes is concerned, if the demand is not proved beyond all reasonable doubt, recovery would be of no consequence. However, mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.

25. The learned A.G.A. has submitted that the onus of proof was upon the appellant to explain as to how he came into possession of the amount recovered from him during the trap. The argument of the learned counsel is obviously based on Section 20 of the Prevention of Corruption Act, 1988 which reads as under:

"20. Presumption where public servant accepts gratification other than legal remuneration.- (1) Where, in any trial of an offence punishable under Section 7 of Section 11 or clause (a) or clause (b) of sub- section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(2) Where in any trial of an offence punishable under Section 12 or under clause

(b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or as the case may be without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-sections (1) (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn."

26. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that such gratification was accepted as motive or reward for doing or forbearing to do any official act. So the word gratification need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like gratification or any valuable thing. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do any official act. So the word gratification must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.

27. It is well settled that the presumption to be drawn under Section 20 is not an irrebuttable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification.

28. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. "It is well established that where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence of proof his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4 under the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur verdict of guilt. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden shifts to prosecution which still has to discharge its original onus that never shifts, i.e.; that of establishing on the whole case the guilt of the accused beyond a reasonable doubt."

29. Learned counsel for the appellant has stated that there are vast discrepancies and contradictions in the statements of the witnesses, hence where witnesses make to inconsistent statements either at one or two stages, their testimony cannot be said to be credible and mere recovery of money is not sufficient to convict the accused as has been held in 1979 CrLJ Page 717: Suraj Mal Vs. State (Delhi Administration).

30. Coming to the proof of recovery of treated notes from the possession of the accused, P.W. 1 Raghvendra Singh Deputy S.P., Vigilance, has stated that treated notes were recovered and when the hands of the relevant persons was got washed, the solution turned pink, which was sealed and sent for chemical examination. He has admitted that the complainant did not mention the place and time where the illegal gratification was to be paid. The backbone of this case is the recovery memo. The original recovery memo is Exhibit Ka-6 and its photocopy was got prepared by the prosecution and although not got proved, but it was part of the case diary. The original recovery memo was bearing Paper No. 59Ka, whereas the photocopy was bearing Paper No. 12Ka, but perusal of the original and photocopy of recovery memo revealed that the photocopy was not at all the photocopy of the original memo. The I.O. was confronted with this aspect of the matter and has admitted that while he was submitting the charge-sheet, he could not peruse and see the original recovery memo. He annexed the photocopy of the original memo with the case diary, which was definitely in the photocopy of the original case. This witness being P.W. 7 Keshav Prasad Gupta, has admitted that xokg us isij ua0 [email protected] ns[kdj dgk fd nlds iq'r ij dsoy 6 vknfe;ksa ds gLrk{kj gSaA dkxt la[;k 13 [email protected] ds iq'r ij fujh{kd gfjgj jke ds gLrk{kj gS ;k ughA bl ij dqy 6 O;fDr;ksa ds gLrk{kj gSA

31. He has further admitted that he did not get the original recovery memo regarding recovery of the currency notes with the case diary, only duplicate copy attached with the case diary. Thus, it is evidence that this witness only perused the photocopies, which according to his own admission were not the correct copies of the original recovery memo. Even P.W. 1 Raghvendra Singh has admitted that 12 Ka 1 and 12 Ka 2 are the photocopies of 51 Ka 1 and 51 Ka 2. He has also admitted that 31 Ka 1 and 31 Ka 2 are the photocopies of 59 Ka 3 and 59 Ka 4. But Paper No. 12 Ka 2 bears only 8 signatures, whereas Paper No. 59 Ka 2 bears 9 signatures. He could not explain who was the 9th person who put his signature on the recovery memo. He has further admitted that there were variations in the signatures of both the papers. The admission by this witness shattering the whole prosecution case are being reduced as follows :

"isij ua0 12 [email protected] ds ihNs dh rjQ o isij [email protected] ds ihNs dh rjQ ua0 vkQ flxuspj esa vUrj gSA isij ua0 [email protected] esa ftl LFkku ij esjk gLrk{kj ds mij fdlh dk Hkh gLrk{kj ugha gS tcfd isij ua0 59 [email protected] esa esjs gLrk{kj ds Bhd mij ,d gLrk{kj cuk gqvk gS ;g fdldk gLrk{kj gS eSa ugha crk ldrkA isij ua0 13 [email protected] esa mijksDr gLRkkj dh rjg esjs gLrk{kj ds ck,a rjQ dkQh nwj cuk gqvk gSA isij ua0 59 [email protected] esa esjs gLrk{kj ds mij tks gLrk{kj cuk gqvk gS ftls eSa igpku ik jgk gwW mlds mij johUnz ikaMs ds gLrk{kj cus gS tcfd isij ua0 13 [email protected] esa johUnz ikaMs ds gLrk{kj nwljh txg ij cus gq, gSA isij 13 [email protected] esa ;g bckjr fd ,d izfr izkIr fd;k o mlds uhps gLrk{kj eqfYte o rkjh[k 21-3-2002 ugha fy[kh gqbZ gS tcfd isij ua0 59 [email protected] esa ;g bckjr fy[kh gqbZ gSA ;g ckr lgh gS fd isij ua0 13 [email protected] esa gLrk{kjksa o isij ua0 59 [email protected] 4 esa gLrk{kjkss ds LFkku vyx vyx gSA isij ua0 13 [email protected] 2 esa gLrk{kjksa ds uhps flQZ nks gLrk{kjksa ds uhps rkjh[k nh gqbZ gSA tcfd isij ua0 59 [email protected] 4 esa 4 gLrk{kjksa ds uhps rkjh[k nh xbZ gSA"

32. Harshpati Singh is P.W. 2, who has admitted that when the examinations are in progress, a home-guard and peon is deputed on the gate of the college, who did not permit anybody to enter in the college premises because after the test examinations are over, preparation for the next test examination commenced. Ravindra Nath Pandey, P.W. 3 is said to be independent witness to the recovery, who has somehow supported the prosecution version. In his examination-in-chief he revealed that when the daughter of the complainant was get examined in the school he gone there. His cross-examination makes the whole prosecution case crystal clear that there was no recovery at all from the appellant. His cross-examination runs as follows :

"ge yksxksa dks igys ls gh ekywe Fkk fd lk/kks flag dks Qyka rkjh[k dks fxjQrkj djkuk gSA lk/kks flag dks baLisDVj lkgc Ldwy ds esu xsV ls gh ysdj Fkkus pys x;s FksA vkSj Fkkus ij ,d eqM+k gqvk dkxt baLisDVj lkgc us fudkyk vkSj lk/kks flag ls dgk fd bl ij viuk uke irk fy[kks vkSj ml eqM+s gq, dkxt dks [kksydj lk/kks flag tc viuk uke irk fy[kus yxs rks baLisDVj lkgc us og dkxt ys fy;kA blh dkxt esa baLisDVj lkgc us fj'orh uksV j[kk FkkA ijh{kk ds le; Ldwy dk xsV ckgj ls cUn jgrk gS rFkk ogka ij gksexkMZ o pijklh rSukr jgrs gS fdlh dks vUnj ugha tkus nsrsA blhfy, baLisDVj lkgc us lk/kks jke dks xsV ij cqyok;k vkSj ogka ls ysdj Fkkus pys x;sA vkSj Fkkus ij gh lc fy[kk i<+h gqbZ rFkk ge yksxksa us viuk viuk gLRkk{kj cuk;kA f'kf'kvksa ij o nks dkxtksa ij esjs Hkh Fkkus ij gLrk{kj gq, FksA Ldwy ds okbl fizflaiy eksgu flag Hkh Fkkus ij ekStwn FksA"

33. This witness has clearly stated that the hands of Sadho Singh and Harshpati Singh were got washed at the police station, as soon as the appellant proceeded to write his name on the plain paper handed over by the inspector, his hands were got washed on the solution, which turned pink. He has very specifically stated that he did not see any bribe money in the hands of the appellant, thus, this alleged independent witness Ravindra Nath Pandey could not come to the rescue of the prosecution. The other alleged independent witness is Pawan Kumar, P.W. 4, who has out-rightly denied of having seen anything. He has stated that he was called on that day by the Vice Principal Mohan Singh to the police station. When he reached the police station besides Mohan Singh, Harshpati Singh, Ravindra Nath Pandey, Sadho Singh and some other vigilance officers were present. When he reached, Inspector asked Sadho Singh to write his name on plain paper, when the appellant began write on that plain paper, the Inspector took that paper from him, got the hands of the appellant washed in the solution and the solution was collected in a bottle. He assigned all the documents at the police station. He has also revealed that Vice Principal Mohan Singh had told him 20 to 25 days prior that if Sadho Singh is arrested, he would become the Principal. Thus, this witness has also failed to prove any recovery.

34. P.W. 5 is the Inspector Harihar Ram, who has contradicted Harshpati and has stated that the home-guard is not deputed at the gate of the college at the time of examination. This witness has admitted that he did not enter the room at the time of trap and for the first time in court he has stated that since the appellant saw the complainant, he demanded bribe and took them in his right hand. This witness admitted that photocopy of original recovery memo did not bear his signatures. Thus, the prosecution case as regards recovery of the treated currency notes is also highly doubtful.

35. In the statement recorded under Section 313 Cr.P.C., the accused-appellant has specifically stated that he had been falsely implicated with the connivance of Mohan Singh, who was at that time Vice Principal, because Mohan Singh wanted to become Principal. There was series of litigation between the appellant Sadho Singh and the Vice Principal Mohan Singh, which resulted in false accusation of the appellant.

36. D.W. 1 is Ram Dular Singh, who has admitted that Mohan Singh filed a writ before the Hon'ble High Court against the appellant Sadho Singh, which was dismissed. He has also stated that on 18.3.2002 from 7:30 to 10:30 Hindi Ist Paper was conducted. On 19.3.2002 from 2:00 p.m. to 5:00 p.m. Intermediate examinations were to be held. On 20.3.2002 from 7:30 to 10:30 Hindi IInd Paper was to be conducted and from 2:00 p.m. to 5:00 p.m. on 21.3.2002 Sanskrit Paper was to be conducted. This witness has specifically stated that on 21.3.2002 he was present in the Principal's office, when the copies were being sealed and the preparations for the next test examinations were in progress, when suddenly the peon came and said that some persons immediately want to see the Principal, at which the Principal went out of the room and from the gate he was taken away by the police. This statement of D.W. 1 Ram Dular finds support from the statement of Ravindra Nath Pandey, P.W. 3, who has stated that the accused-appellant Sadho Singh was arrested from the gate of the office. Thus, in these circumstances when enmity of the Vice Principal Mohan Singh with the present appellant Sadho Singh was proved on record and neither the demand of illegal gratification nor recovery thereto was proved, the learned lower court had passed the judgement on surmises and conjectures in convicting the accused-appellant, when both the fact has not been proved against him beyond reasonable doubt.

37. Thus, on the basis what has been stated and discussed above, I find that the learned lower court has misled itself in reaching to the conclusion that the accused is guilty for the offence charged. Thus, the accused is entitled to be acquitted and the appeal is liable to be allowed. Hence, the impugned conviction and sentence dated 23.5.2015 passed by Special Judge Prevention of Corruption Act, Varanasi in Special Case No. 19 of 2013 (State Vs. Sadho Ram Singh) arising out of Crime No. 87 of 2002, under Section 7/13 (1)(d) read with Section 13(2) Prevention of Corruption Act, Police Station- Adalhat, District-Mirzapur is hereby set aside.

33. Accordingly, the appeal is allowed. The appellant is in jail. He shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. shall be complied with.

34. Let a copy of this order be sent to the trial court concerned.

Order Date :- 31.5.2016

Anurag/-