Smt. Bidya Pandey Nurse vs State Of U.P.
2023 Latest Caselaw 25517 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Reserved on: 21.07.2023
 
                                                                                 Delivered on: 20.09.2023
 
Neutral Citation No. 2023:AHC:181374
 
Court No. - 78
 

 
Case :- CRIMINAL APPEAL No. - 5385 of 2004
 
Appellant :- Smt. Bidya Pandey Nurse
 
Respondent :- State of U.P.
 
Counsel for Appellant :- S.K. Tewari,A.K. Awasthi,Digvijay Tiwari,Manish Tewari
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Raj Beer Singh,J.

1. This criminal appeal has been preferred against the judgement and order dated 12.10.2004, passed by the learned Additional District and Sessions Judge, Court No. 1, Siddharth Nagar, in Special Criminal Case No. 01/2003, State Vs. Smt. Bidya Pandey Nurse @ Bidyawati Pandey @ Bidaywati Upadhyay, under Section 304-A I.P.C. and Section 5/7/13 Prevention of Corruption Act, P.S. Siddharth Nagar, District- Siddharth Nagar, whereby, appellant accused Smt. Bidya Pandey Nurse @ Bidyawati Pandey @ Bidaywati Upadhyay has been convicted under Section 7/13 of Prevention of Corruption Act (hereinafter referred as P. C. Act), Section 304-A I.P.C. She was sentenced to 3 years R.I. with fine of Rs. 500/- under Section 7 and 5 years R.I. with fine of Rs. 700/- under Section 13 of P. C. Act and one year R.I. under Section 304-A I.P.C. In default of payment of fine, she has to undergo an additional imprisonment.

2. Heard Sri Manish Tiwary, learned Senior Advocate, assisted by Shri Digvijay Tiwari, learned counsel for the appellant and learned A.G.A. for the State.

3. According to prosecution version, on 04.12.2001, the complainant Dr. V. N. Tiwari has submitted a 'tehrir' exhibit Ka-5, in the Police Station alleging that on 10.08.1999, one Smt. Vihalawati came in the hospital for delivery of child and that one employee of the hospital, namely, Ram Prasad has demanded Rs. 50/- and later on, Rs. 250/- from her. The appellant/accused, who was working as nurse in the hospital, also attended the said patient but did not inform any doctor. Due to delay in treatment, ovary of patient Vihalawati has burst and in the absence of any proper treatment, she died. In Magisterial inquiry, the staff nurse appellant-accused Smt. Bidya Pandey Nurse @ Bidyawati Pandey @ Bidaywati Upadhay was found guilty and on the basis of that inquiry report, first information report was lodged. The case was registered under Section 304-A I.P.C. and Section 5/7/13 Prevention of Corruption Act. During investigation, the investigating officer prepared site plan of the spot and recorded statements of witnesses. Sanction for prosecution of appellant/accused was obtained and after completion of investigation, charge-sheet was submitted.

4. The Trial Court framed charges under Section 304-A I.P.C. and Section 5/7/13 Prevention of Corruption Act. The accused pleaded not guilty and claimed trial.

5. In order to prove its case, the prosecution has examined four witnesses. PW-1 Atul Kumar Srivastava, Dy.S.P. has investigated the case. PW-2 Dr. V. N. Tiwari, deputy C.M.O. Siddhartha Nagar is informant of the case. PW-3 Ram Prasad is husband of the deceased and PW-4 Ram Kumar is eye-witness of the incident.

6. After prosecution evidence, appellant/accused was examined under Section 313 Cr.P.C., wherein, she has denied the prosecution evidence. However, no evidence has been adduced in defence.

7. After considering the evidence on record, the Trial Court has convicted the appellant and sentenced her, as stated in para No. 1 of this judgement. Being aggrieved of the impugned judgement and order, the appellant has preferred this criminal appeal.

8. Before proceeding further, it would be apt to quote the provisions contained under section 7 and section 20 of the P.C. Act, which read as under:

"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 seven 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.

9. A bare perusal of the above section shows that the necessary ingredients of this offence are: (i) the accused either must be a public servant or expecting to be a public servant; (ii) the accused should accept or obtain or agrees to accept or attempts to obtain from any person; (iii) for himself or for any other person; (iv) any gratification other than legal remuneration; (v) as a motive or reward for doing or forbearing to do any official act or to show any favour or disfavour.

10. Section 20 of the P.C. Act, 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 or 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) and (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 inference of corruption may fairly be drawn."

11. This section provides that the court may draw a presumption that the illegal gratification is a motive or reward for carrying out any official act in terms of section 7. However, this presumption can only be drawn once the factum of the demand for gratification and its acceptance is proved during the trial.

12. Hon'ble Supreme Court in State of Maharshtra v. Dhyaneshwar Laxman Rao Wankhede, 2009 (10) SCALE held as under:

"16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid downin Section 20 of theAct, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt."

13. In case of B. Jayaraj v. State of Andhra Pradesh, (2014) 13 SCC 55, the Hon'ble Supreme Court inter alia held as under:

"7. In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P., (2010) 15 SCC 1 and C.M. Girish Babu Vs. C.B.I, (2009) 3 SCC 779."

14. In case of M.R. Purushotham v. State of Karnataka, (2015) 3 SCC 247, the Hon'ble Supreme Court has reiterated that in such cases, the prosecution has to prove that there was a demand and there was acceptance of illegal gratification by the accused. A three Judge bench of the Apex Court in B. Jayaraj vs. State of Andhra Pradesh reported in (2014) 13 SCC 55 held that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7 P.C. Act. In the absence of 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 established.

15. Keeping the aforesaid position of law in view, it would be pertinent to peruse evidence of the instant matter. In evidence PW-2 Dr. V. N. Tiwari, who is informant of the case, has stated that he was working as Deputy C.M.O. in district-Siddharth Nagar and he has lodged the first information report of this case in pursuance to the letter of Director General, Medical and Health Services. In his cross-examination, he has inter alia stated that at the time of incident, Ram Prasad was posted in the district hospital, Siddharth Nagar but he was not posted in his office. He has stated that he has not mentioned anything in the first information report regarding any demand of amount made by appellant/accused.

16. PW-3 Ram Prasad, who is husband of deceased Vihalawati, has stated that his wife was pregnant and the delivery of child was likely to take place. While she was feeling labour pain, he has brought her to district hospital Siddharth Nagar. Appellant/accused Smt. Bidya Pandey Nurse @ Bidyawati Pandey @ Bidaywati Upadhay has met her and that his wife was admitted in the hospital. On asking of appellant/accused Smt. Bidya Pandey Nurse @ Bidyawati Pandey @ Bidaywati Upadhay, he has brought some medicines from outside. His wife was provided treatment but her condition deteriorated and he was asked to take her to Gorakhpur. He has further stated that he has not given any bribe to appellant/accused Smt. Bidya Pandey Nurse @ Bidyawati Pandey @ Bidaywati Upadhay and that on the same day, his wife Vihalawati has died. He further stated that some leader has taken him to the office of C.M.O. and proceedings were got done. PW-3 Ram Prasad was declared hostile.

17. PW-4 Ram Kumar has stated that the wife of Ram Prasad was likely to give birth to a child and thus, they have brought her to district hospital Siddharth Nagar, where she was admitted in the hospital by appellant/accused Smt. Bidya Pandey Nurse @ Bidyawati Pandey @ Bidaywati Upadhay. The appellant/accused has asked to bring medicines worth Rs. 200/- from outside. During treatment, Vihalawati has died. PW-4 Ram Kumar was also declared hostile.

18. PW-1 Atul Kumar Srivastava, Dy.S.P. has conducted investigation of the case. He has inter alia stated that he took up further investigation of this case on 23.07.2002. He obtained sanction for prosecution of appellant vide exhibit Ka-1. The appellant/accused was arrested. Statements of witnesses were recorded and charge-sheet, exhibit Ka-2, was filed.

19. It may be seen that so far charges under Section 7/13 Prevention of Corruption Act are concerned, the husband of deceased as well as another eye-witness PW-4 Ram Kumar have not supported the prosecution version and turned hostile. PW-2 Dr. V.N. Tiwari, who is informant of the case, has also not made any such statement that the appellant/accused has demanded or accepted any amount. There is absolutely no evidence that appellant/accused, while working as nurse in the said hospital, demanded any amount or illegal gratification from PW-3 Ram Prasad in relation to admission or treatment of his wife. Similarly, alleged independent witness PW-4 Ram Kumar has not made any such statement that appellant/accused has demanded any money or any illegal gratification. He has merely stated that the appellant/accused has asked to bring some medicines from outside. PW-3 Ram Prasad and PW-4 Ram Kumar were declared hostile and cross-examined on behalf of prosecution but no such fact could emerge so as to support the prosecution version. These witnesses have also denied their statements recorded under Section 161 Cr.P.C. Thus, it is quite apparent that there is no evidence to prove that the appellant has made any demand or accepted any illegal gratification. As observed earlier, so far as the offence under Section 7 P. C. Act is concerned, it is settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 P. C. Act unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. Recently, a Constitution Bench of the Hon'ble Supreme Court in Neeraj Dutta v. State (Government of NCT Of Delhi), (2023) 4 SCC 731, after analyzing the entire law on Section 7 and 13 of P. C. Act, 1988, inter-aia observed that proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution, is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and (ii) of the P. C. Act. In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. In the instant matter, as observed earlier, there is no evidence to prove any demand of illegal gratification and the subsequent acceptance and no recovery has taken place and thus, the prosecution has failed to prove the charges under Section 7/13 P. C Act. It appears that the Trial Court has failed to appreciate the evidence in correct perspective and the conviction of appellant/accused under Section 7/13 P.C. Act is based on conjunctures and surmises.

20. So far the charge under Section 304-A I.P.C. is concerned, before proceeding further, it would be relevant to peruse provisions of section 304-A, I.P.C., which reads thus;

"304A. Causing death by negligence.--Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

21. Coming to the facts of the present case, it may be observed that in the first information report, it was mentioned that the deceased was attended by the appellant-accused and she did not inform the doctor, but mere this fact would not be sufficient to prove the charge under section 304-A I.P.C. There is no credible evidence that the appellant/accused, while working as nurse, has provided any treatment to the deceased or caused death of deceased by doing any rash or negligent act. PW-3 Ram Prasad, who is husband of deceased, has merely stated that his wife (deceased) was admitted in the hospital by appellant/accused and she has asked him to bring some medicines from outside and that his wife was provided treatment. PW-3 Ram Prasad has not made any such statement that his wife suffered death due to any rash or negligent act of appellant/accused. Similarly, PW-4 Ram Kumar has also not stated any such fact that deceased was provided treatment by appellant/accused or she did any rash or negligent act towards deceased. Though, in the first information report, it was mentioned that the appellant/accused has attended the patient (deceased) and she herself has tried to provide treatment to the deceased and did not inform any doctor but in his statement before the Trial Court, the informant/PW-2 Dr. V. N. Tiwari has not stated any such fact. There is nothing to show that PW-2 Dr. V. N. Tiwari was an eyewitness and from his statement it appears that he has lodged the first information report in pursuance to the direction of the Director General, Medical and Health Services. There is no such medical report or any other expert report that deceased has died due to improper treatment. It appears that no post mortem of deceased has been conducted. No doctor or expert has been examined during investigation or before the Trial Court to show that deceased was provided any treatment or that she died due to any rash or negligent act in her treatment. It is well settled that the prosecution has to prove its case beyond doubt. Conviction of an accused cannot be based only on assumptions or conjunctures. So far the charge under section 304-A I.P.C. is concerned, in view of evidence on record and considering the facts and circumstances of the case, the appellant/accused is entitled for benefit of doubt.

22. Thus, there is no evidence to prove the charges under Section 7/13 P.C. Act and that so far conviction under Section 304-A I.P.C. is concerned, appellant/accused deserves benefit of doubt. It appears that the Trial Court did not appreciate evidence in correct perspective and convicted the appellant/accused on the basis of surmises and conjunctures. The conviction of appellant is not based on evidence. Considering the entire facts and material on record, the appellant/accused is entitled for acquittal.

23. In view of aforesaid, conviction and sentence of the appellant/accused Bidya Pandey Nurse @ Bidyawati Pandey @ Bidaywati Upadhyay, recorded by the Trial Court vide impugned order dated 12.10.2004, is set aside and the appellant-accused is acquitted of the charges levelled against her.

24. Appeal is allowed in above terms.

Order Date :- 20.9.2023

Suraj