Delhi High Court

R.C. Kundu vs The State (Nct Of Delhi) C.B.I. on 20 May, 2011

Author: M. L. Mehta

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           Crl. A. No. 256/2002

%                         Judgment reserved on : 1st APRIL, 2011
                          Judgment delivered on :   20th MAY, 2011


R.C. KUNDU                                             ... APPELLANT

                            Through:   Mr. Sunil Kumar, Sr. Advocate
                                       with Mr. Atul Kumar, Advocate.

                       Versus

THE STATE (NCT OF DELHI)                             ... RESPONDENT
C.B.I.

                            Through:   Mr. Narender Mann, Special
                                       Public  Prosecutor for the
                                       State/CBI.


CORAM:
HON'BLE MR. JUSTICE M.L.MEHTA

1. Whether the Reporters of local papers
   may be allowed to see the judgment?                  Yes
2. To be referred to Reporter or not?                   Yes

3. Whether the judgment should be                       Yes
   reported in the Digest?


M.L. MEHTA, J.

1. This criminal appeal is directed against the judgment dated

26th March, 2002 and the order dated 27th March, 2002 of the

learned Special Judge Mr. R.K. Gauba whereby the

appellant/accused was convicted under Section 7 and 13(1)(d)

read with Section 13(2) of the Prevention of Corruption Act,

1988 (for short „the Act‟) and was sentenced to undergo

rigorous imprisonment of four years with fine of `500/- on

each count. Both the sentences were to run concurrently.

2. Since the impugned judgment and order have been assailed

on various grounds and the main challenge is centered around

the analysis of the prosecution witnesses as done by the

learned Special Judge, it would be useful to briefly narrate the

facts of the case.

3. Complainant, Ved Prakash (PW2) was working as Sr. Depot

Agent in booth No. 1197, Sewa Nagar, New Delhi of Delhi Milk

Scheme („DMS‟). The accused R.C. Kundu, at the relevant

time, was posted as an Assistant Milk Distribution Officer

(AMDO) in DMS and was looking after the area of Sewa Nagar.

The complainant PW2 made a complaint against accused vide

Ex. PW2/A dated 30th November, 1990 to Sh. Ashok Kumar

(PW10) of CBI. It was to the effect that the accused had come

to his booth on 2nd November, 1990 and leveled false

accusation that the complainant was involved in the black

marketing of milk and also threatened to get him removed

from the booth. The complainant further stated that accused

also asked him to come to his office at Shadipur Depot, Delhi

on 29th November, 1990 at about 11:30 a.m. He went and

met the accused where he demanded `500/- from him and

threatened that in the event of non-payment he would be

removed from the job by leveling some accusations against

him. The complainant stated that when he pleaded inability to

pay the demanded amount the accused agreed to accept

`400/-. The complaint also indicated that the accused was to

come on 2nd December, 1990 at about 7.00-7.30 a.m. near

booth No. 497 opposite Defence colony for taking the said

amount.

4. FIR was registered and arrangements for laying trap were

made by Mr. Kishore Kumar (PW8). Two independent

witnesses, namely Mr. Kundan Singh (PW3) and Mr. P.Chander

Shekharan (PW4) were joined in the proceedings. The pre-

trap proceedings were conducted. The complainant came

along with four currency notes of `100/- each (Ex. P4 to P7),

the numbers of which were noted down and were treated with

phinolpathlene powder followed by demonstration of the use

of powder by the Investigating Officer in the presence of the

complainant and the two public witnesses PW3 and PW4.

Public witness Mr. Kundan Singh (PW3) was directed to remain

present along with complainant during the trap proceedings

as a shadow witness and PW4 was advised to remain close by.

The trap party reached booth No. 497 where the accused

came at around 7.00 a.m. and met the complainant. There

the accused demanded payment of bribe money which was

handed over by the complainant in the presence of the

shadow witness PW3. The accused counted the same with

both hands and then put it in the left side of the pocket of his

long gown which he was wearing. Subsequently, when

challenged by the raiding party, money was recovered from

the said pocket of the accused. Washes of both the hands of

the accused were taken separately, which in the process

turned pink. All the washes were separately bottled and

sealed and later on sent to the CFSL which confirmed the

presence of phenolpathlene powder and sodium carbonate.

The pre trap proceedings were reduced in writing in handing

over memo Ex.PW2/B and the post raid proceedings, in the

recovery memo Ex.PW2/C. Sanction for prosecution of the

accused was accorded by Mr. Deepak Jain (PW1), Deputy

General Manager, Admn., DMS. The accused was

chargesheeted and he pleaded not guilty and claimed trial.

5. The prosecution examined as many as thirteen witnesses. In

the statement recorded under Section 313 Cr.P.C. the accused

denied the prosecution case in entirety. He, however,

admitted about his arrest on 2nd December, 1990 near booth

No. 497, Sewa Nagar and also that he used to inspect and

check booths of his area. He admitted about his presence,

recovery and arrest at booth No. 497 and also about the

seizue of his scooter from there. With regard to the recovery

of `400/- from him he stated that the complainant was a

regular defaulter in depositing the cash with the cashier on

daily basis and was in the habit of borrowing money from one

or the other for making up the short falls of the money to be

deposited with the cashier. He stated that in October, 1990

the complainant fell short of money and for making payment

to the cashier he borrowed `400/- from him and the

repayment of which he evaded despite being reprimanded by

him. He said that this `400/- was taken by him from the

complainant as refund of the said loan. The accused also

stated that the complainant was indulging in black marketing

of milk and vide order dated 29th November, 1990 (PW2/B) his

services were terminated with effect from 3rd December, 1990

by him and Mr. Gautam Chand (PW9). He pleaded that it was

on account of this grudge that the complainant has got him

trapped. The accused also referred to the termination of

service of the complainant on 18th December, 1990 vide order

marked X4 on account of his having been found mixing water

in the milk. He also questioned the validity of the sanction

granted by PW1. No evidence was led in defence by the

accused.

6. I have heard learned counsel for the appellant and the

prosecution and have perused the records. Learned defence

counsel submitted that the complainant was carrying grudge

against the accused on account of later having entertained

complaints against him regarding adulteration and

overcharging and ultimately being responsible for terminating

his job. He submitted that the statement of the complainant

made in the Court was contrary to his statement in the

complaint and so he was not reliable. The learned counsel

also submitted that PW4 Mr. P.Chander Shekharan did not

support the prosecution case at all and so he could not be

relied upon. The learned counsel submitted that the accused

was in the habit of utilizing the booth money for his purposes

and then run short of the cash to be deposited with the

cashier and was in the habit of borrowing money from

different persons and in the process when he got short of

money in October, 1990 he borrowed `400/- from him and

that it was this amount of `400/- which was refunded by the

complainant to the accused and was ultimately recovered

from him at the time of trap on 2nd December, 1990. The

learned counsel also disputed the validity of sanction of

prosecution of accused. In support of his contentions, the

learned counsel relied upon the cases, namely, A. Subair v.

State of Kerala (2009) 6 SCC 587, Man Singh v. Delhi

Administration AIR 1979 SC 1544 and State of Karnataka

v. Ameer Jan AIR 2008 SC 108.

7. On the other hand, learned counsel for the CBI submitted that

the accused was abusing his position to his advantage by

harassing the complainant and that there was infact no

complaint against the complainant but a complaint against

someone else was sought to be planted against the

complainant as an afterthought to wriggle out of the post trap

situation. With regard to the testimony of PW4, the learned

counsel for CBI submitted that though this witness was cross-

examined by the prosecutor, but on reading his testimony as

a whole it may be seen that he did support the prosecution

case. Regarding the testimony of complainant, the learned

counsel submitted that the complainant made consistent

statement and nothing could be elicited in his lengthy cross-

examination. Learned counsel further submitted that the

factum of recovery of tainted money being admitted and the

accused having failed to rebut the presumption arising against

him, it was a clear case of demand and acceptance of money

by the accused from the complainant as illegal gratification.

8. With regard to the sanction for prosecution it was held by the

Supreme Court in the case of Ameer Jan (supra) as under :-

"7. We agree that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not.

8. For the aforementioned purpose, indisputably, application of mind on the part of the sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. We have noticed hereinbefore that the sanctioning authority had purported to pass the order of sanction solely on the basis of the report made by the Inspector General of Police, Karnataka Lokayuktha. Even the said report has not been brought on record. ..."

9. In the present case, PW1 Deepak Jain, who was the DGM, was

competent to appoint and remove Group „C‟ and „D‟

employees of DMS and accused being Group „C‟ employee, Mr.

Jain was thus competent to grant sanction. He stated that he

accorded sanction to prosecute the accused. He proved this

sanction order as PW1/A. He also stated that before granting

sanction he had gone through the documents regarding the

facts of the case and applied his mind. He denied that he did

not apply his mind or that he had just signed the dotted lines

of the draft submitted to him by CBI. The learned Special

Judge rightly relied upon the testimony of this witness and

held the sanction for prosecution to be valid. There is no

reason to interfere with this finding.

10. I am conscious of the fact that in a case like this, where the

complainant is subordinate to the accused and was allegedly

facing some allegations of adulteration of milk and over

charging and was under the supervision of the accused, the

testimonies of prosecution witnesses and particularly the

complainant are to be scrutinized with great caution. Before

proceeding to see as to whether learned Special Judge rightly

appreciated the testimonies of the prosecution witnesses and

other material evidence, it would be relevant to take note of

the defence of refund of loan of `400/- by the accused to the

complainant and recovery thereof from the accused at the

time of raid. As noted above, the plea of the accused was that

the complainant was in the habit of borrowing money from

one or the other for making payment to the cashier and in the

process he also borrowed `400/- from him in October, 1990

and it was this money that was refunded by the complainant

to him on 2nd December, 1990 and which came to be

ultimately recovered from him during the trap.

11. The essential ingredients of Section 7 are:

(i) that the person accepting the gratification should be a

public servant;

(ii) that he should accept the gratification for himself and the

gratification should be 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 function, favour or

disfavour to any person.

12. Insofar as Section 13(1)(d) of the Act is concerned, its

essential ingredients are:

(i) that he should have been a public servant;

(ii) that he should have used corrupt or illegal means or

otherwise abused his position as such public servant, and

(iii) that he should have obtained a valuable thing or

pecuniary advantage for himself or for any other person.

13. In the case of Man Singh (supra) which was relied upon by

the learned defence counsel, it was held thus:-

"2. ... We have gone through the evidence and we find that there are intrinsic circumstances in the case which fully probablise the defence of appellant and show that the explanation given by him is reasonable.

... It is well settled that in such cases the accused is not required to prove his defence by the strict standard of proof of reasonable doubt but it is sufficient if he offers an explanation or defence which is probable and once this is done, the presumption under Section 4 stands rebutted. In the instant case, from the evidence referred to above, the defence of the appellant has been clearly proved under Section 3 of the Evidence Act..."

14. In order to substantiate his defence, suggestions were given

to PW2 in cross-examination that on various dates his cash

was short and that he deposited the cash on subsequent dates

or that he did so after borrowing from other persons. He

denied all these suggestions. The complainant (PW2) also

categorically denied that since he used to give money to the

cashier he had taken loan of `400/- from the accused in the

month of October, 1990 or that he had asked the accused to

come to depot number 497 for getting back his loan of `400/-

on 2nd December, 1990. It may be noted that complainant

stated that when he met the accused at depot no. 497, the

accused enquired "kaam ho gaya, paise vaise laye ho ya nahi"

(work has been done. Have you brought money or not). In

his cross-examination, a suggestion was put to

PW2/complainant on behalf of the accused that when accused

met him at depot No. 497 in the morning of 2nd December,

1990, accused asked him "kya mera paise laye ho"(Have you

brought my money), to which he said, yes I have brought it

and here it is. To similar effect was the statement of PW3 who

stated that the accused asked the complainant if he had

brought money (kya paise laye ho) to which complainant

stated yes I have (haan laya hun). PW3 further stated

thereafter that accused enquired as to how much money he

had brought to which complainant replied that he had brought

`400/-. On this, the accused stated that give me whatever

you have brought (Jo kuch bhi laya hai la de). On this,

complainant took out the currency notes and gave it to the

accused. Some suggestions were given to Shri Kundan Singh

(PW3) in his cross-examination to which he replied in this

manner, "It is correct that at the spot the DMS booth Kundu

enquired from Ved Prakash "PAISE LAYO HO". I do not

remember as to whether accused said "KYA MERA PAISA LAYO

HO". Thereafter he said I have brought the money. I cannot

say if the money given by Ved Prakash to Kundu was towards

the return of loan money taken by Ved Prakash from the

accused earlier. It is wrong to suggest that I am deposing

falsely at the instance of the CBI." It is also seen that a

suggestion was given to PW8 that the accused had himself

taken out the tainted amount from his pocket and had claimed

even at that stage that the same pertains to the loan given

earlier to the complainant. This suggestion was also denied

by this witness.

15. From the above, it is seen that this plea not only apparently

seems to be unbelievable but will not appeal to any reason.

The accused was not only unhappy with the working of the

complainant on account of some complaints against him, but

also on account of his habit of irregularly making the deposit

with the cashier and borrowing the money from different

persons. With this type of conduct of the complainant, it

would not appeal to any reason that the accused, who was not

only senior officer of the complainant but was competent to

entertain complaints against him, would lend him `400/- for

enabling him to make payment to the cashier of the DMS. It

also does not appeal to me that he will to go to booth No. 497,

which is not that of the complainant, for taking refund of the

said `400/- in the cold early morning at 7.00 a.m.

16. There is another interesting aspect of the matter which needs

to be taken note of. According to the accused, a complaint

was received against the complainant on 15th November, 1990

and thereafter, he along with Gautam Chand (PW9) visited

booth no. 335 but there they came to know that the complaint

was with regard to booth no. 1197 and then they went to

booth no. 1197 where they found the complainant over

charging `5 instead of `4.50/- and that he was warned on

giving apology. The said complaint is put on record as Ex.

PW5/B and the written apology Mark X1 and warning as Mark

X2. PW5/Smt. Kamla Dhingra, who was Deputy Manager,

Distribution, Delhi Milk Scheme at the relevant time, admitted

that this complaint related to booth No. 335. The complainant

in that matter was one Sh. Nand Kishore r/o N-623, Sewa

Nagar. According to PW6, this complaint was recorded by him

as Ex.PW5/B on telephonic complaint of Nand Kishore. A look

at Ex. PW5/B gives an interesting picture. There are some

cuttings on this complaint. PW6 also admitted over writing

and stated that writing booth No. 335 has been deleted and

replaced with 1197. This leaves no doubt that the complaint

Ex. PW5/B of Nand Kishore was with respect to booth no. 335

and was written by Mr. Mathur/PW6. PW6 did not know as to

who had tempered this complaint. The complaint was taken

by none else than accused and PW9/Shri Gautam Chand.

According to PW9 at the booth no. 335 they learnt that

complaint related to booth no. 1197 and so they arrived at

booth no. 1197 of the complainant and there they found the

complainant overcharging. In the complaint Ex. PW5/B made

by Nand Kishore in respect of booth no. 335 there is a

clarification report in the handwriting of accused and PW9

Gautam Chand, stating that they enquired from the

customers, but there was no complaint regarding extra

charging and that they did not observe any harsh behavior. It

is also interesting that allegations of extra charging and mis-

behavior as mentioned in the complaint relating to booth No.

335 were later confronted to the complainant at booth no.

1197.

17. Another interesting aspect in this regard which is noticed is

that PW5 Smt. Kamla Dhingra, who was Deputy Manager of

Distribution at the relevant time and was responsible for

looking after the distribution of milk to milk booths and also to

supervise the working of the field staff concerned and also to

attend the complaints against them herself visited the booth

No. 1197 of complainant. She stated that no customer made

any complaint regarding over charging or adulteration by

accused, though there were complaints regarding his

behaviour.

18. In this backdrop of the complaint, the so called apology of the

complainant and warning extended to him which are

respectively marked X1 and X2 would have no meaning.

These are the documents which can easily be created,

procured and managed. The learned Special Judge has rightly

not relied upon those documents because these are not

proved on record being photocopies.

19. PW2/complainant has deposed about all that he stated in his

complaint Ex. PW2/A. He very categorically stated and

maintained about the visit of the accused and Gautam Chand

(PW9) at his booth on 22nd November, 1990. The accused

took away his I-card and asked him to come to the office on

29th November, 1990 at 11:30 a.m. Accordingly, he went to

the office and met the accused. There the accused demanded

`500/- and stated that in case he failed to pay him `500/-, as

demanded, he will be removed from his booth. He requested

the accused with folded hands and later on at this request the

accused reduced the amount to `400/- and asked him to pay

the said money on 2nd December, 1990 at 7:30 p.m. at booth

no. 497. He also stated and maintained with regard to entire

pre-trap and post-trap proceedings and the presence of

Kundan Singh (PW3) and PW4. He also in consonance with the

allegations as made in the complaint deposed in detail about

the post-trap proceedings and the recovery of `400/- from the

accused. He was subjected to lengthy cross-examination by

learned defence counsel which mainly centered around the

allegations that he used to run short of money and was in the

habit of borrowing from others and in the process has

borrowed `400/- from the accused and that amount was

refunded by him to the accused on 2nd December, 1990. He

maintained the allegations as set out in the complaint.

Nothing could be elicited from his cross-examination to doubt

his testimony. PW3 who accompanied as a shadow witness

has also supported the prosecution case of demand,

acceptance and recovery. He too was subjected to lengthy

cross-examination and nothing material was brought out to

doubt him. PW2 also stated that after keeping the notes in

his gown, the accused returned his I-card Ex.P-9 which he had

taken from him on 22nd November, 1990. Though, this fact

was not recorded in his statement under section 161 Cr.P.C.,

but he maintained in his cross-examination about the accused

having taken his I-card and then returned after taking `400/-

from him. PW3 also identified the I-card Ex. P-9 of the

complainant. .

20. Though, PW4 tried to resile from his statement, but during the

course of his cross-examination by learned prosecutor this

witness supported the prosecution. Initially he denied having

met and seen the complainant before the raid, but

subsequently he admitted having met the complainant and

having read and understood the complaint Ex. PW2/A. He also

admitted preparation of handing over memo Ex. PW2/B in his

presence and all the pre and post trap proceedings. Though,

initially he stated that he did not notice if the accused

extended his hands towards the complainant for taking

money, but in answer to a question by the learned prosecutor

he admitted that in his statement under Section 161 Cr.P.C.

he had stated that the accused extended his left hand towards

the complainant and took bribe money and kept the same in

his gown. He also stated that he did not recollect if accused

counted that money with both hands. He further stated that

on receipt of signal all reached at the milk booth and the CBI

official apprehended the accused from both wrists and

thereafter CBI officials disclosed their identity. He stated in

the cross examination as follows, "I do not remember as to

what was the responsibility of Kundu. I cannot admit or deny

if Kundu told that he has kept the bribe money in the left

pocket of his gown. However, I do remember that the CBI

officials recovered the tainted money from the left pocket of

gown of kundu... I cannot admit or deny if I was asked by Shri

Kishore Kumar, Inspector to recover the bribe amount from

the pocket of the accused. I do not remember about the fact

that number of recovered notes were compared with the

numbers noted down in Ex. PW2/B by one of the CBI officials.

It is correct that after the recovery I was handed over the

memo Ex. PW2/B and thereafter myself and Kundan Singh

(PW3) compared the number of recovered tainted notes."

21. Though, somewhat shaky, but PW4 has corroborated the

testimony of PW2, PW3 and also PW8 not only with regard to

recovery of tainted money from the accused, but also as

regard to acceptance of same by the accused. PW2 and PW3

have corroborated each other on all material aspects with

regard to demand, acceptance and recovery of currency notes

of `400/-

22. Though, the receipt of the tainted money and its recovery is

not in dispute, but the same is further confirmed from the

testimony of PW7 who analysed the washes and confirmed the

presence of phinolpathlene powder and sodium carbonate in

washes.

23. From the above discussion it is seen that there is admitted

evidence with regard to the acceptance and recovery of `400

from the testimony of PW2 and PW3. It is also established

that there was a categorical demand of `400/- by the accused

from the complainant and acceptance of the same in the

shape of tainted money and subsequent recovery of the same

from the pocket of his gown. The case A. Subair (supra)

relied upon by the defence related to illegal demand of `25/-

only. While interpreting the requirements of Section 7 and

Section 13(1)(d) of the Act, the Supreme Court held as under:-

"The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or

request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established.

... Sub-section (3) of Section 13 is a "non-obstante clause". It provides that where the gratification is trivial and the Court is of opinion that no inference of corruption may fairly be drawn, it may decline to draw the presumption as referred to in Sub-sections (1) and (2). In other words, the Court is not bound to draw a presumption under Section 20 where the alleged gratification is too trivial."

24. It was in the peculiar facts of trivial nature of illegal demand

that the Apex Court invoked sub-section (3) of Section 20 of

the Act.

25. Section 20 of the Act provides that where at the trial it is

proved that an accused has accepted or obtained or agreed to

accept or attempted to obtain any gratification (other than

legal remuneration), it shall be presumed unless the contrary

is proved, that he accepted or obtained or agreed to accept or

attempted to obtain such gratification as a motive or reward

as mentioned in Section 7 or, as the case may be, without

consideration or for a consideration which he knows to be

inadequate. The requirement of this Section is only that it

must be proved that the accused has accepted or obtained or

agreed to accept or attempted to obtain gratification. It may

be proved by direct evidence as in the present case. It has

been proved from the direct evidence of testimonies of PW-4

and PW-5 that the gratification was accepted as a motive or

reward for helping the complainant in the criminal case

pending against him and other co-accused persons. In the

case of Madhukar Bhaskarrao Joshi v. State of

Maharashtra (2000) 8 SCC p. 571, the Apex Court held as

under:-

"12. 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 the said 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 an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."

26. In the case of C.M. Girish Babu v. CBI, Cochin, High Court

of Kerala (2009) 3 SCC 779, it was held as under:-

"21. It is well settled that the presumption to be drawn under Section 20 is not an inviolable 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."

27. Though, the burden of proof on the accused to rebut the

presumption under Section 20 is not akin to that of the burden

placed on the prosecution to prove the case beyond

reasonable doubt, but the same, in any case, was required to

be discharged at least by preponderance of probability, which

the accused has miserably failed to discharge.

28. In view of our aforesaid discussion, it is seen that nothing

could be brought out by the defence neither from the

witnesses nor was any evidence led to rebut the

presumptions. If there were some truth in the plea that the

amount which was recovered was refund of loan allegedly

given by the accused to the complainant, the same would

have been very conveniently proved by the accused both by

examining himself as a witness or someone else acquainted

with these facts. No evidence in this regard has been elicited

from Gautam Chand who was examined as PW9. The story of

loan as presented crumbles on its own legs like the story of

complaint against the accused. Having discussed above that

the defences of accused were not probable, the presumption

of guilt under Section 7 also gets attracted by virtue of Section

20 of the Act.

29. In view of evidence of the prosecution witnesses particularly

PW2, PW3, PW4 and PW8, I do not see any infirmity or

illegality in the order passed by learned Special Judge and

therefore, I do not see any reason to interfere with the same.

30. With regard to the quantum of sentence, the learned defence

counsel prayed for lenient view stating that the case is about

twenty one years old and the accused has already undergone

lots of hardships. In the case of State of A.P. v.

V.Vasudeva Rao, (2004) 9 SCC 319 also occurrence took

place nearly 14 years back as in the present case. The

Supreme Court held in that case that the protracted trial is no

ground to mitigate the gravity of the offence. While noting

down the legislative intent of prescribing minimum mandatory

punishment of one year, the court held as under:-

"31. In the present case, how could the mere fact that this was pending for such a long time be considered as a "special reason"? That is a general feature in almost

all convictions under the Act and it is not a specialty of this particular case. It is a defect inherent in implementation of the system that longevity of the cases tried under the Act is too lengthy. If that is to be regarded as sufficient for reducing the minimum sentence mandated by Parliament the legislative exercise would stand defeated.

32. Considering the age of the accused, we reduce only the sentence to the minimum of one year without touching the fine imposed, but do not find any justifiable reason to reduce it below the minimum."

31. In the case of V. Vasudeva (spura), keeping in view the

factual matrix, the Apex Court imposed the minimum

sentence of one year. In the present case also though the

occurrence had taken place nearly twenty one years back and

during this period the accused has gone old, but this factum

cannot be infact taken into account to reduce the sentence

than the minimum prescribed under the Act. Guided by the

decision of Hon‟ble Supreme Court in the case of V.Vasudeva

(supra), I am also inclined to impose minimum sentence as

prescribed in this case as well. Thus, while maintaining the

conviction under Section 7 and Section 13(1)(d) read with

Section 13(2) as imposed by learned Special Judge, the