Sri Ram Vinay Sinha vs State Of U.P.
2022 Latest Caselaw 21356 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

	Judgment reserved on 12.10.2022
 
                   Judgment delivered on 16.12.2022
 
Court No. - 66 
 
Case :- CRIMINAL APPEAL No. - 1642 of 1984 
 
Appellant :- Sri Ram Vinay Sinha 
 
Respondent :- State of U.P. 
 
Counsel for Appellant :- N.N. Singh,A.K.Rai,D.K. Singh,D.K.Sinha,V.C. Tewari,Y.C.Tiwari 
 
Counsel for Respondent :- A.G.A. 
 

 
Hon'ble Samit Gopal,J.

1. The present Criminal Appeal under Section 374 Cr.P.C. has been preferred by the appellant Ram Vinay Sinha, against the judgment and order dated 4.6.2984 passed by Sessions Judge, Mirzapur in Special Trial No.2 of 1983 (State Vs. Ram Vinay Sinha by which he has been convicted and sentenced to 2 years R.I. under Section 5(2) of Prevention of Corruption Act and 2 years R.I. under Section 161 IPC. The sentences have been ordered to run concurrently.

2. The present case starts with a complaint given by the original complainant Lallan Prasad Srivastava, S/o Munnan Prasad Srivastava (here-in-after referred to as the original complainant) addresed to the S.P. Vigilance Department, Varanasi stating therein that he is resident of village Karaunda, Police Station Mandiyahu, District Mirzapur. Apart from farming, he also is a contractor. In the financial year 1980-81, a Work Order No.68837/579 dated 25.2.1981 was issued in his name for work of mud by Assistant Engineer, 3rd, Mirzapur Canal Division, Robertsganj, Ram Vinay Sinha for Rs.3,500/-. The work was to be completed by 8.4.1981. The site was identified as Loosa Minal, Police Station Mandiyahu, District Mirzapur. He completed the work on 7.4.1981. Prior to it he was paid Rs.1,407/- as an initial payment/running payment on 31.3.1981. On 7.4.1981, Ashok Kumar Tiwary, the concerning Additional Engineer, Loosa inspected the work and did the measurement of it which was entered into M.B. No.1139 from page 103 to 113. As per the measurement of the Assistant Engineer, he has to get Rs.1,514/-. The M.B. has been received by Ram Vinay Sinha, the Assistant Engineer, 3rd, Mirzapur Canal Division in the Robertsganj Office. There is money lying in the fund. He contacted Ram Vinay Sinha, the Assistant Engineer, 3rd, Mirzapur Canal Division, Robertsganj for his payment who demanded Rs.200/- as bribe for early payment. Looking to the situation, he agreed for payment of Rs.200/- as bribe to Ram Vinay Sinha but he wants that Ram Vinay Sinha, the Assistant Engineer, 3rd, Mirzapur Canal Division, Robertsganj be arrested while taking the bribe. The said application is Exb: Ka-1 to the records and is dated 15.5.1981.

3. After receiving the said application of the original complainant, the S.P., U.P. Vigilance Department, Varanasi sent a letter to the Director Vigilance, U.P. Lucknow dated 15.5.1981 with request that appropriate sanction be taken for a trap since the said officer is a gazetted officer. The said letter is Exb: Ka-6 to the records.

4. On the said letter dated 15.5.1981, permission was granted vide letter dated 16.5.1981 for laying a trap in pursuance of which the formalities were started and currency notes being one note of Rs.100/-, two notes of Rs.20/- and six notes of Rs.10/- (total Rs.200/-) were taken and were treated with phenolphthalein powder and given back to the original complainant for giving it to the concerned person. A memo of the same was prepared on 25.5.1981 by the Deputy S.P. Vigilance of which there were witnesses also including the original complainant. The said memo is Exb :-Ka-7 to the records. The hands of the original complainant were got washed with Sodium Carbonate and the said solution turned pink which was sealed. The proceedings of trap then started. As decided on 25.5.1981, the original complainant along with the Dy. S.P. and other police personnels went to the office of Ram Vinay Sinha on which he asked original complainant as to whether he has brought the money to which he answered in affirmative and requested him to make his payment after which on demand, the original complainant gave him the asked money which was then counted by him and kept in his diary. The said work was done at about 7 p.m. The trap team then immediately reached there, introduced themselves and the money which was kept in the diary which was held by the accused between his chest and hand was taken and the said notes were taken out, their numbers were tallied from the previous document and they were kept in an envelope and sealed. The fingers of both the hands of the accused were then washed in Sodium Carbonate solution which turned light pink. The solution was then sealed. A recovery memo was prepared on 25.5.1981 about it. The same is Exb: Ka-9 to the records.

5. Subsequently on the basis of the original complaint and the recovery memo, FIR was lodged by Shyam Prakash Mishra, Deputy Superintendent of Police, U.P. Vigilance Establishment, Varanasi on 25.5.1981 at 20:40 hours as Case Crime No.186 of 1981 under Section 161 IPC and Section 5/2 of the Prevention of Corruption Act, Police Station Robertsganj, District Mirzapur against Ram Vinay Sinha. The Chik FIR is marked as Exb: Ka-17 to the records. The site-plan of the place of occurrence was prepared which is Exb:Ka-19 to the records.

6. The sanction for prosecution was given by the Hon'ble Governor, Uttar Pradesh which was communicated by the Secretary, Government of Uttar Pradesh vide order dated 6.12.1982. The same is marked as Exb:Ka-14 to the records.

7. The recovered material was sent to the Forensic Science Laboratory, U.P., Lucknow for its examination. A report dated 9.11.1981 was sent by the Director for Forensic Science Lab, U.P. Lucknow giving his opinion therein that the currency notes were found to contain phenolphthalein powder and further that the solution marked as 1, 2 and 3 were found to contain phenolphthalein and Sodium Carbonate. The said report is Exb:Ka-15 to the records.

8. The investigation concluded and a Charge Sheet No.13 of 1981 was submitted against the accused-appellant under Section 161 IPC and Section 5(2) of the Prevention of Corruption Act. The same is Exb:Ka-20 to the records.

9. Vide order dated 6.6.1983 passed by the Sessions Judge, Mirzapur, charge under Section 5(2) of the Prevention of Corruption Act and Section 161 IPC was framed against the accused-appellant.

The accused pleaded not guilty and claimed to be tried.

10. The prosecution in order to prove its case examined five witnesses. Shyam Prakash Mishra, Deputy Superintendent of Police, Vigilance Department was examined as P.W.1., Lallan Prasad Srivastava, the original complainant was examined as P.W.2., Dr. Gopal Data Mishra, Senior Scientific Officer, Senior Forensic Science Lab, Lucknow was examined as P.W.3., . Ashok Kumar Tiwary, Junior Engineer, Irrigation Department, Robertsganj was examined as P.W.4., Shailendra Bahadur Singh, Inspector Vigilance Department, Varanasi was examined as P.W.5.

11. Dashrath, a witness of the trap was examined as C.W.1.

12. Apart from the witnesses examined, Rajendra Nath Singh, Constable, Vigilance Department, Varanasi, Ram Murti Pandey also a Constable in the same Department and further Mitthal Ram Pal, Steno in the same Department have given their affidavits in the matter. The same are also on record in which they have given as their testimonies.

13. The accused apart from his statement under Section 313 Cr.P.C. has also given his written statement under Section 315 Cr.P.C. after closure of the prosecution evidence.

14. The trial court considering the entire aspect of the matter, convicted the accused-appellant as stated above.

15. Heard Sri D.K. Singh, learned counsel for the appellant, Sri S.B. Maurya, learned counsel for the State and perused the records of this appeal and also the trial court records.

16. Learned counsel for the appellant argued that the alleged money was recovered from a diary. It is not a case in which the accused was caught red-handed accepting the alleged money as bribe. It is argued that it is only after there is a demand and acceptance of the said money then a presumption under Section 20 of the Prevention of Corruption Act will come into play. It is argued that even taking the entire matter to be true but without accepting it if there may be a demand but the acceptance of money is not proved, some money was kept in a diary it cannot be taken to be an active acceptance of it. To buttress his submissions learned counsel has place the following judgements of the Apex Court:-

1. (2014)14 SCC 516 Prabhat Kumar Gupta Vs. State of Jharkhand and another (para no.10-17)

2. K. Shanthamma vs The State Of Telangana : Crl. Appeal No.261 of 2022 (decided on 21.2.2022) para no.7.

17. It is argued that since the fact of active acceptance of the alleged money is not proved. It is further argued that there are serious contradictions in the statement of the original complainant Lallan Prasad Srivastava, P.W.1, which would go to show that proceedings of trap were totally manipulated and the appellant has been falsely implicated. Further it is argued that Dashrath C.W-1, the alleged witness of trap has also stated of not seeing the trap proceedings and the applicant taking any bribe money and as such there is no independent witness to support the prosecution case. The appellant deserves to be acquitted and the present appeal deserves to be allowed.

18. Per contra learned counsel for the State while opposing the arguments of learned counsel for the appellant and the present appeal argued that the present case is a trap case. The proceedings of trap were very well executed. The demand of money and its acceptance is proved through the evidence on record. The report of the Forensic Science Lab identifies the notes to be the same which were treated with Phenolphthalein and were given to the accused-appellant as bribe and as such it cannot be said that he did not accept the money of bribe. Dashrath, C.W-1 is an independent witness to the trap proceedings. He has signed on the bottles and the recovery memo. His testimony is intact and he proves the same. There is ample evidence to show that the accused-appellant demanded a bribe of Rs.200/- which was agreed to be paid by the original complainant after which he made a complaint to the vigilance department and then the formalities of trap were completed and then trap was laid and the same notes as were treated and identified prior to the trap were recovered from the diary of the accused-appellant which would go to show that he has accepted the bribe money. The prosecution has proved its case beyond reasonable doubt. The present appeal thus deserves to be dismissed.

19. P.W.1. Shyam Prakash Mishra is the Deputy S.P. Vigilance Department, Varanasi. He states that in February, 1981, Prem Chand Singh was posted as S.P. Vigilance in the department. On the application dated 15.5.1981, he has signed on it and has written for the stenographer to take dictation of it. He identifies his writing and signatures. The said application is marked as Exb:Ka-1 to the records. He states that on the same day a letter was sent under his signature on which 15.5.1981 is the date mentioned. The same is marked as Exb:Ka-2 to the records. He states that at that time D.S. Bhatnagar was the Director Vigilance. He identifies his signature and writing. He had directed the Secretary Vigilance on 16.5.1981 to send a letter. He proves the same which is marked as Exb:Ka-3 to the records. Bhoorey Lal was the Secretary, Vigilance at that time and he identifies his writing and signature. He states that he had passed an order permitting for laying a trap vide order dated 16.5.1981, the said order is marked as Exb:Ka-4 to the records. He states that then Sri Bhatnagar directed the S.P. Vigilance, Varanasi to proceed with the matter. Sri Prem Chand Singh vide order dated 21.5.1981 directed him to initiate proceedings for a trap, the said order is marked as Exb:Ka-6 to the records and he proved the signature and writing on it.

20. Lallan Prasad Srivastava, Contractor had come to his office on that date in Varanasi. He had inquired from him about the application which he had given on which he told him that on 25.5.1981, Rs.200/- has to be given to Ram Vinay Sinha, the Assistant Engineer as bribe. He ordered him that he should come with the said money on 24.5.1981 at 4 p.m. at Robertsganj Bus Station. On 24.5.1981 in the evening he on a Government vehicle along with other officials reached Robertsganj Bus Station along with Inspector Indra Dev Singh, Shiv Shankar Singh, Shiv Adhar Mishra and Vijay Pratap Singh and 2-3 constables of his department. Lallan Prasad Srivastava met him at the Bus Station along with two people. He took them to the Inspection Bunglaw and then sent them to Chopan Police Station. He stayed at the Inspection Bunglaw. On 25.5.1981 in the morning at about 8 a.m. all the people collected at the Inspection Bunglaw. Lallan Prasad Srivastava gave him one note of Rs.100/-, two notes of Rs.20/- and six notes of Rs.10/-. He noted the numbers of the said notes and then treated them with phenolphthalein powder. The notes were then given back to him who kept them in the pocket of his shirt. He was then directed to first handover the money of bribe. After the notes were kept by him in his pocket, his fingers were washed in Sodium Carbonate solution which turned pink from white. The said solution was then stored in a bottle and was labeled immediately. He and the witnesses Dashrath Singh and Indra Dev Singh signed on it. The same is marked as Exb:-1 to the records. A memo was prepared by him and signed by Dashrath, Sumaru, Lallan Prasad Srivastava and other persons which is marked as Exb:Ka-7 to the records. The said bottle was closed and sealed. They then went to Robertsganj from the Inspection Bunglaw. They took Sub Inspector and civil police constable from the Police Station Robertsganj. They reached Police Chauki Robertsganj. Lallan Prasad Srivastava then inquired as to whether Ram Vinay Sinha is in the office or not. He was informed that he has gone to Obera and will come in the afternoon. In the evening at about 5 p.m. again it was inquired and then it was known that he has come back and will go to the office after some time. After knowing that Ram Vinay Sinha has come to his office, the said persons walked from the Police Chauki to his office at about 6 p.m. The office is situated in the same building in which he lives. The witnesses Indra Dev Singh, Shiv Shankar Singh and Constable Phool Raj Singh walked behind Lallan Prasad Srivastava and reached the office. They sat in the office of the Head Clerk. The Head Clerk was present at that time who was told that they are the relatives of Lallan Prasad Srivastava. He then states to court that the officers of Vigilance Department do not wear uniform, they were all in plain dress. He states that besides the said room, there is a hall in which two clerks sit and there is a curtain in it behind which Ram Vinay Sinha sits. His table and chair is there. At that time it was about 6.45 p.m. There was light of electricity in the room. Lallan Prasad Srivastava went to Ram Vinay Sinha and he was standing on the other side of the curtain and sat on a trunk kept there which was kept just touching the curtain. Lallan Prasad then told Sinha that he has come for the payment of his bill on which Sinha asked whether he has brought money to which Lallan Prasad replied in affirmative. After saying yes, Lallan Prasad took out the notes from his pocket and gave it to the accused. He states to court that the curtain was slightly pulled and as such he could see the handing over of the money. Sinha then took the notes in his hand, counted them and kept them in a diary kept on his table. He then called the person sitting in the room of the Head Clerk and the witnesses and his team by action. After they came, he went to the place where Sinha was sitting and introduced himself. The diary was with Sinha and was beneath his left hand and he was writing something on a paper. He then took the diary from beneath his hand and saw that the notes were kept in it. He found the notes to be the same which were noted by him and a memo was prepared by him in Chopan. He kept the notes in an envelope. The envelope was opened in court in which there were eight notes which were marked as Exb:2. The numbers of the notes were also written on the envelope and the envelope was sealed and stamped. He got the signature of Lallan Prasad and the witnesses on it. He identified the envelope which was marked as Exb:Ka-8 to the records. The fingers of both the hands of Ram Vinay Sinha were washed by Sodium Carbonate solution which turned red. The same was stored in a different bottle and was labeled and signed by Inspector Shiv Shankar Singh and witness Dashrath Singh, the same is marked as Exb:3 to the records. Then the fingers of Lallan Prasad Srivastava were also washed by Sodium Carbonate solution which turned pink, the same was stored in another bottle and sealed. It was also labled and then signed by the witnesses and Inspector, the same is marked as Exb:3. A memo was prepared of the said proceedings which was proved by him and he identifies his signature, the same is marked as Exb:Ka-9 to the records. The copy of the same was given to the accused and he signed on it. Ram Vinay Sinha was then taken into custody. He then asked the Head Clerk of the office as to whether any notice was given by Sinha to Lallan Prasad, Contractor that his payment would be done after inspection of the work, the copy of the same is marked as Exb:Ka-10 to the records. A reply was given to the same immediately. The same is marked as Exb:Ka-11 to the records. He then gave information to the Executive Engineer regarding the arrest of the accused. The same is marked as Exb:Ka-12 to the records. The Head Clerk received the same and signed it and put the date on it. The accused was then taken into custody and the 3 bottles and the envelope with notes were taken to Police Station Robertsganj at about 8.40 p.m. and a written information was given at the police station, the same is marked as Exb:Ka-13 to the records. The material was deposited at the police station. On the next day he went to Varanasi. He was interrogated by the Investigating Officer in Varanasi.

21. P.W.2 Lallan Prasad Srivastava is the original complainant. He states that he is working as a Contractor in the Canal Division from 1980-82. He states that the accused Ram Vinay Sinha at that time was posted as Assistant Engineer in Canal Department, Robertsganj. On 25.2.1981, he was given work order for some extra work for Rs.3,500/-. The work was done in two installments. On 31.3.1981, the first installment of Rs.1400/- was paid by Ram Vinay Sinha. The remaining work was completed on 7.4.1981. Awadhesh Kumar Tiwari, Junior Engineer was directed to supervise the work. He inspected the work on 7.4.1981, measured it and submitted his measurement book on 8.4.1981 in the office of the accused. As per the same, he was to be paid Rs.1514/-. He met Ram Vinay Sinha, accused many times for it. Sinha told him in the first week of May that he should pay him Rs.200/- and then his payment will be done. He agreed to it. He said that he is going on leave and will come on 25.5.1981. He stated that he did not like him asking for bribe. He had done the work as per rules. He then met the S.P. Vigilance, Varanasi on 15.5.1981 and gave him an application which is marked Exb:Ka-14 to the records. He was told to come after a week. He then went to him on 21.5.1981. The S.P. Vigilance sent him to Deputy S.P., Vigilance Department Sri Mishra who inquired about it from him. He told him that he is to give money on 25th. The Deputy S.P. then told him to come with the said money on 24th in the evening at 4 p.m. at Robertsganj Bus Station. He reached the Bus Station with Dashrath and Sumaru where the Deputy S.P. came in his official vehicle. There were some other people with him. He and his companions were then taken in the said vehicle to Chopan Inspection Bunglaw by Sri Mishra. Sri Mishra then stayed there but sent him and other people to Police Station Chopan. He then stayed there with other people in the night. He reached Inspection Bunglaw as per directions on 25.5.1981 at 8 a.m. He gave the notes to Sri Mishra. The numbers of notes were noted by him and they were treated with the powder and then returned back to him with the direction that the same be given to the accused. He kept the same in the pocket of his shirt. His fingers of both the hands were then washed and the solution then turned red. The same was kept in a bottle, sealed and a memo was prepared which is Exb:Ka-7 on which he has signed. Dashrath and Sumaru were there. Dashrath signed and Sumaru put his thumb impression. They then went to Police Station Chopan. From the police station, S.I. and two Constables were also taken and they went to Police Chauki Robertsganj which is about one furlong away from the office of Sinha. He was then asked to see as to whether Sinha is in the office or not, he inquired there and came to know that he will come by 11 a.m.. He then went to the office at 5 p.m. and inquired about it and it was told that he will be coming shortly. The office is on the first floor of the building. Sinha lives in the same building. He informed the Dy. S.P. about it. At about 6 p.m., Sri Mishra with three other persons and Inspector, Sumaru and Dashrath and the police of police station went to the office of the accused. He and three police personnels went on the 3rd floor. The others were standing outside below. The police officials then sat in the room of the Head Clerk. He also sat there. The Head Clerk asked him as to whether he has brought money or not to which he said that he has brought it. He then took the measuring book and the work order register to the Assistant Engineer Sinha who was sitting in his office. The Head Clerk then came back and told him to go inside. He told him to keep the money in the diary of Sri Sinha. He then reached the office of Sri Sinha and found his measurement book there. He was told to sit. To a question as to where the Dy. S.P., Sri Mishra was called in the office of Sinha, he states that he had till that time not come there. He did what the Head Clerk told him. He states that the notes which were treated with the powder and were told to be given by Sri Mishra were then kept in the diary of Sri Sinha. To court he states that Sri Sinha saw him keeping the notes in the diary. To a question as to whether Sinha asked him anything about the notes, he states that he did not. He states that then Sri Sinha told him to come after some time. He then went out and went towards the place where the Head Clerk sits and then saw the Deputy S.P. there. The Deputy S.P. was sitting in the room of the Head Clerk and was saying something by gestures and then the persons standing outside below came there. The diary of Sri Sinha was kept below his left hand. Sri Mishra introduced himself and took the diary. He opened the diary and found the notes kept there. He compared the numbers of the notes with the numbers written by him in Chopan. He then took water from the Surahi kept in the office in a glass and washed the fingers of both the hands of Sri Sinha with water. The water turned red which was then kept in a bottle and sealed. Then the fingers of both the hands of the said witness were washed by Sri Mishra by water which also turned red, the same was also sealed. The said notes were then kept in an envelope and then sealed. A paper was prepared by Sri Mishra which is Exb:Ka-9 to the records. He signed on it. Sumaru and Dashrath were present at that time. To court he states that the paper which was written by Sri Mishra was read by him and written simultaneously and he thought that what is being said is being written. He then states that Sri Mishra then took accused and all the material to the Police Station. He also took the diary, MB, work order register at the police station. The accused was placed in the lock-up. A copy of Exb:Ka-9 was given to the accused there. To court again he states that he is "Sahitya Ratna" in B.A. He states that when the accused demanded a bribe of Rs.200/- then he thought that it is not proper and such person should be got arrested and as such he gave an application to the S.P. Vigilance. He wanted to get the accused arrested as he had demanded money. He identified the nine currency notes Exb:Ka-2 which he kept in the diary of the accused.

22. He was then cross-examined by the counsel for the State with permission of the court on the basis of an application moved by him. He states that he was interrogated by the Investigating Officer in the matter. He further states that there was a box kept in the room in the west where Sri Sinha was sitting. There was a chair kept between the box and his chair. Sinha was facing West. There was a table between him and the accused. The diary Exbt:C-1 was kept on the table in which he had kept the money. He states that Sri Mishra Deputy S.P. did not go with him in the office above and also he did not tell that he is his relative. The three Inspectors of Varanasi had gone with Sri Mishra to the office and they were made to sit near the Head Clerk. Mishra did not follow him and did not sit on the box in the room. He states that he did not state in his statement given to the Investigating Officer that Deputy S.P. Sri Mishra went to the office where he was stated to be his relative and he sat in the room of the Head Clerk and later on he followed him to the room of the accused and sat on the box. He states that he does not know as to how the same has been written in his statement. He states that Sinha did not ask him as to whether he has brought the money or not but he himself told him that he has brought the money and his work may be done. After saying the same, he gave Rs.200/- but the same were not given in his hand and neither did he count the notes and kept them in the diary. He states that in the meantime Mishra and other employees sitting in the room of the Head Clerk and the persons standing outside below the office did not reach there. He does not know as to how the same has been written in the C.D by the Investigating Officer. He states that he did not give any such statement to the Investigating Officer that Sinha Engineer asked him whether he has brought the money on which he said yes and told him that his payment be done today and then he took out the bribe money from the pocket of his shirt which was taken by him, counted and then kept in the diary which was kept there and the diary was then kept below his left hand and in between Sri Mishra the Dy.S.P. and the Head Clerk came in the room and the other persons standing outside also came there. He states that when he came to Sinha from outside then he saw Mishra Dy.S.P. standing at the door of the room of the Head Clerk. He states that it is incorrect to state that he is changing his statement on the saying of the accused. He states that he does not know as to how in Exb:Ka-9, it is written that on his asking he gave the money to him and then Ram Vinay Sinha counted it and kept it on page no.11 of the diary. To court he then states that he does not remember whether he went to Investigating Officer from the room of Assistant Engineer Sri Sinha on his saying.

23. On the cross-examination by counsel for the accused, he then states that on the West of the curtain, there were two tables in the hall in which the clerks of the office were sitting. They were not called at the time of writing of the Fard. He states that the bottle in which the wash of the fingers was kept, was neither signed by him nor by Ram Vinay or any other person. The two clerks were facing North and were sitting and the box was towards there South. On the West of the curtain, a small rack was kept. They were sitting at about 10 feet away from Sinha. He did not talk to the two clerks. The Head Clerk and the said two clerks were present at the time of writing of the papers of the matter. The proceedings concluded at about 8 p.m. He reached the Police Station at about 8-8.30 pm and stayed there for about 10-15 minutes and then went away. In the morning at about 11 a.m. when he had asked about the whereabouts of Sinha and up-to 5 p.m. he remained at the Police Chauki. He had told Mishra that Sinha comes to the office at about 11 a.m. The police of the Police Station were also sitting at the Police Chauki. He states he does not know whether he told this to the Investigating Officer or not that he went to see Sri Sinha in his office. He states that Sri Sinha has seen him keeping the notes in the diary. The diary was kept in the centre of the table. He does not remember as to from whom Mishra had got the glass with water. To court he states that previously Junior Engineer Awadhesh Kumar had taken money @ 16% for clearing his bills. Sri Mishra did not ask any money for clearing his first bill. He is working as a contractor since the last 1½ year. Now he is doing farming. He states that in the same contract, penalty was levied one on him and he has suffered a loss. The Head Clerk had also asked for Rs.200/- for passing his bill and the same was told to him by Sinha. The Head Clerk has asked it in April 1981. He states that he is not telling a lie that the washing of fingers of Sinha was done at that time. To court he states that after washing the fingers in the solution of Sri Sinha, the documents were prepared then only on it he had signed. To a question that he had signed on the said paper Exbt. Ka-9 at the Police Station, he gives answer that he has signed one paper at the Police Station but he does not remember which paper it was. To a further question that the paper Exbt. Ka-9 was written at the Police Station, he states that he does not remember of it. He states that it is incorrect that with the Police he has got a false case lodged. The checking of the work used to be done by Junior Engineer Awadhesh and then papers were given in the office. The payment used to be done by the Head Clerk. To court he states that when on the saying of Sri Sinha he went out of the room, the diary was kept on the table in which the said notes were kept. He states that he understands that he has given bribe money to Sri Sinha which was accepted by him.

24. Dr. Gopal Dutt Mishra, Senior Scientific Officer, State Forensic Science Lab, Rajasthan was examined as P.W.3. He states that previously he was posted as Junior Scientific Officer in Uttar Pradesh, State Forensic Science Lab. On 22.10.1981, a special messenger Constable Ram Murti Pandey had brought a letter with 3 sealed bottles and one specimen sealed in an envelop. He found the seals to be intact and tallied with each other. The bottles were marked as nos.1, 2 and 3 and the envelope was marked as no.4. The material was tested. In the envelope, there were notes which were also tested. The numbers have been written in his report. He has prepared the report of the result of testing. He states that after testing he sealed the bottles and the envelop. He proves the said report. The details of the said reports have already been stated above.

25. Ashok Kumar Tiwary, Junior Engineer, Irrigation Department was examined as P.W.4. He states that in the year 1981, he was posed at Robertsganj. At that time Sri Ram Vinay Sinha was posted as Assistant Engineer. The office was in Robertsganj and he was working with Sinha. He proves the work order register and the handwriting of Sri Sinha. He further proves the handwriting of Lallan Ram Srivastava. He states that he has done the first measurement on 29.3.1981 and the second on 7.4.1981. The dates of measurement are mentioned in the measurement book. He proves the same. He states that Lallan Lal Srivastava has signed at both the places. He further states that the first bill of Rs.1407/- was paid on 30.3.1981. The second bill was not paid. Sri Sinha passes order for payment of bills.

26. Sri Shailendra Bahadur Singh, P.W.5 was posted as a Trap Inspector in the year 1981 in District Jaunpur which falls within the Vigilance Department Zone, Varanasi. He got the investigation of the matter from Prem Chand, Superintendent of Police on 28.5.1981 which was received by him on 3.6.1981. He recorded the statements of the original complainant and Dashrath Singh. He was then transferred on 19.11.1981. The investigation was transferred to Ram Singh, Inspector who submitted charge sheet. He identifies his handwriting and proves the charge sheet.

27. Affidavits of Constable Rajendra Nath Singh, Constable Ram Murti Pandey dated 1.3.1984 have been filed. They were posted in the Vigilance Department, Varanasi. Rajendra Nath Pandey states of depositing three bottles and an envelop in the Vigilance Department, Varanasi. Constable Ram Murti Pandey states of depositing the same in the Forensic Science Lab, Lucknow. Another affidavit of Mittal Ram Pal, Steno, Deputy Superintendent of Police, Vigilance Department, Varanasi Division dated 7.3.1984 has been filed. He states of receiving the said articles and then sending them to the Forensic Science Lab.

28. Dashrath was examined as C.W.1. He states that he knows Lallan Prasad, Contractor. He was the Supervisor of the contract which was given to the Contractor. He and Sumaru were brought to Robertsganj on 24.5.1981 by Lallan Prasad. He was told that money will be given to him when it is paid by the Irrigation Department. He states that 4-5 people along with Lallan Prasad had come to Robertsganj Bus Station at about 4 p.m. and took him and Sumaru with them. They stayed in the night at Police Station. They were then taken to Chopan in a house. The person in the house asked him about his profession which he told as being a ''met'. He states that he came to know about the giving of bribe on 25.5.1981 at Robertsganj Police Station at about 8 p.m. In the morning one person applied some powder on the notes and gave it to Lallan. Then the same person got the fingers of Lallan washed and the water turned red. It was kept in a bottle. A label was affixed on it on which he signed. He also signed on a paper. They then went to the Police Station from where 2-4 Constables also joined them. They were present at the Police Chauki throughout the day. There he came to know that Deputy Superintendent of Vigilance and Inspector is with them. At about 6.45 p.m. they reached near the office of the Canal Division. He, Sumaru, the Deputy S.P. and and an Inspector were standing below and outside the office. The others had gone up. After some time they were called up stairs. He went there and then the Deputy S.P. called him and said to check the diary whether it contains note. The diary was kept on the table. The Deputy S.P. opened the diary and he saw the notes in it. The Deputy S.P. said that they are the same notes which were given to Lallan Prasad in Chopan on which powder was applied. Then two registers, diary, watch were taken and they went to the Police Station. He was made to sign on a paper. He also signed on the labels of two bottles in which red coloured water was present. He signed on some other papers but does not know what was written. Then he, Lallan and Sumaru went away. He states that Lallan Prasad had ditched him on that day. He states that his statement was recorded by the police. He states that he had gone to Lallan to take money. He was asked as to whether he saw anyone giving bribe or taking bribe to which he refuses. He states that the fingers of Ram Vinay Sinha were not washed before him. He states that when the notes were found in the diary, Ram Vinay Sinha did not say anything. He was sitting on the chair on the directions of the Deputy S.P. He went with him.

29. In the cross-examination he states that on 25.5.1981, the notes were given by Lallan Prasad to Deputy Superintendent of Police in the house. He did not hear that the notes were returned to Lallan Prasad after applying powder. To court he states that he did not tell the Investigating Officer that the hands of Sri Sinha were washed and water turned red and neither did he tell that the Deputy Superintendent of Police returned the notes to Lallan Prasad and told him that the said notes be given to Sri Sinha and neither did he tell that the Deputy Superintendent had gone up stairs. He states that the said fact as written in the statement are false. He further states that he did not ask Lallan Prasad as to why he did not tell him regarding the giving of bribe and other things as there was a wedding in his house and he was to get Rs.662/- from him. He was not given money by Lallan Prasad till date. He does not ask him about it now as he told him that he would give him when he gets it. He denies the suggestion that he has colluded with Ram Vinay Sinha and is not telling the true facts.

30. The accused in his statement under Section 313 Cr.P.C. denied the entire incident. He states that when he was in the lock-up at Robertsganj Police Station then at about 10.30 p.m., a police Inspector came and gave him a paper Exbt. Ka-9 and told him to sign on it. He asked him as to what it is on which he said that when he gets the copy from the court, he may read it. He told him that if he writes on it received copy, then he would give a copy to him. He wrote it and signed it. He then did not meet the said person and neither did he give any copy to him. He states that he has prepared some notes which he wants to give in his statement which was permitted and as such his note under Section 315 Cr.P.C. were given by him which is dated 2.5.1984 which were taken by the trial court.

31. The trial court then convicted the appellant as stated above.

32. After having heard the learned counsel for the parties and perusing the record, it is evident that that the case as set up by the prosecution is of the accused-appellant demanding Rs.200/- from the original complainant for clearing his second bill for the work done by him for which work order was issued to him. The original complainant then decides of getting a trap laid and getting the accused arrested while accepting bribe on which as per the prosecution a trap was laid and the accused was arrested. The prosecution case as per the FIR/recovery memo is that the appellant accepted nine notes from the original complainant after which both his fingers were got washed with Sodium Carbonate solution which turned light pink and was sealed. Even the fingers of the original complainant were washed with the said solution which also turned light pink which was also sealed. The said notes were recovered from page number 11 of a diary which was kept on the table of the accused-appellant below his left hand. The said diary, notes were recovered. The original complainant in his statement states that he went to the accused-appellant and kept the notes in the diary. While being cross-examined, he states that the said notes were not taken by the accused-appellant and counted by him. He further states that water in a glass was taken from a Surahi. In so far as C.W-1 Dashrath, one of the alleged witnesses of the recovery is concerned, he states that he did not see the accused taking money. In so far as the accepting of the notes is concerned, the version of the original complainant who is the star witness of the case and Dashrath C.W-1 who is allegedly an independent witness goes to shows that the notes were not given in the hands of the accused-appellant. Even the specific case of the original complainant is that the alleged notes were kept by him in the diary of the accused and the accused-appellant saw the original complainant keeping the said notes in the diary but did not ask anything about it. In so far as the question of demand of bribe money is concerned, the evidence about the same is lacking. The evidence of the original complainant and even that of Dashrath, C.W.1 the alleged independent witness of the trap goes to show that the accused did not demand any money from the original complainant. The original complainant had kept the money of bribe in the diary of the accused which was then taken by the raiding team. In such circumstances the actual process of trap which consists of the accused demanding bribe, original complainant giving bribe in hand, the same being accepted by the accused and then he being caught by the raiding team is incomplete. As the evidence is to the effect that the money was kept by the original complainant in the diary of the accused-appellant, the question of the solution of hand wash as done of the fingers of both the hands of the accused-appellant turning pink does not arise. Even further the original complainant states that water from the Surahi was called for it. There is even serious discrepancy with regards to the same. The checks and balances with regards to the sanctity of a trap proceeding do not satisfy the trap proceedings to be as per the settled norms. Even discrepancy of the movement of notes goes to show that the same is not consistent and is difficult to be believed to be true as being taken by the accused-appellant in his hand. The testimony of P.W.2 Lallan Prasad Srivastava, the original complainant does not transpire confidence at all. Looking to the said discussion as above the present appeal is allowed.

33. The judgment and order of the trial court is hereby set-aside. The appellant is acquitted of the charges levelled against him.

34. The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged.

35. The office is directed to send the certified copy of this judgment along with the trial court records to the trial court concerned for necessary information and follow-up action.

          (Samit Gopal, J.)

Order Date :- 16.12.2022

Gaurav