Jharkhand High Court
Shambhu Ram vs The State Of Jharkhand Through ... on 22 September, 2021
1 Cr. Appeal (SJ) No.280 of 2020
With
Cr. Appeal (SJ) No.294 of 2020
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 280 of 2020
Shambhu Ram, aged about 62 years, son of Late Ramadhar
Ram, resident of Village -Siri, P.O. -Gori, P.S. -Karagahar,
District -Rohtas (Bihar)
..... Appellant
Versus
The State of Jharkhand through Anti-Corruption Bureau
(Vigilance).
..... Respondent
With
Cr. Appeal (SJ) No. 294 of 2020
Onkar Prasad Gupta, aged about 65 years, son of Late
Harbansh Lal, Resident of Village -Daud Nagar, P.O. & P.S. -
Daud Nagar, District -Aurangabad (Bihar). At present -
resident of Flat No. 545, Ara Garden Residences, Near Jagdeo
Path, P.S. -Hawai Adda, P.O. -GPO, District -Patna (Bihar).
..... Appellant
Versus
The State of Jharkhand through Anti-Corruption Bureau,
Ranchi (Jharkhand)
..... Respondent
[Against the Judgment of conviction and Order of sentence
dated 25.02.2020, passed by the learned Special Judge, A.C.B,
Ranchi in Vigilance (Spl.) Case No. 03 of 2008]
.....
For the Appellant : Mr. R.S. Mazumdar, Sr. Advocate
For the A.C.B. : Mrs. Niki Sinha, Spl. P.P.
.....
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
2 Cr. Appeal (SJ) No.280 of 2020
With
Cr. Appeal (SJ) No.294 of 2020
By the Court: - Heard the parties through video
conferencing.
2. These two appeals have been preferred against
the common Judgment of conviction and Order of sentence
dated 25.02.2020, passed by the learned Special Judge, A.C.B,
Ranchi in Vigilance (Spl.) Case No. 03 of 2008 whereby and
where under the learned court below has held the appellant-
convicts guilty for the offences punishable under Section 7 and
under Section 13(2) read with Section 13(1) (d) of the
Prevention of Corruption Act, 1988 and sentenced the
appellant-convict -Shambhu Ram to undergo Rigorous
Imprisonment for a period of four years for the offence
committed under Section 7 of the Prevention of Corruption
Act, 1988 and to pay fine of Rs.65,000/- with default clause of
undergoing Rigorous Imprisonment for nine months and for
the offence punishable under Section 13(2) read with Section
13(1) (d) of the Prevention of Corruption Act, 1988, the
appellant-convict -Shambhu Ram has been sentenced to
undergo Rigorous Imprisonment for four years and fine of
Rs.65,000/- with default clause of undergoing Rigorous
Imprisonment for nine months, if the fine amount is not paid.
The appellant-convict -Onkar Prasad Gupta has been
sentenced to undergo Rigorous Imprisonment for a period of
four years for the offence committed under Section 7 of the
Prevention of Corruption Act, 1988 and to pay fine of
3 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
Rs.1,50,000/- with default clause of undergoing Rigorous
Imprisonment for one year and for the offence punishable
under Section 13(2) read with Section 13(1) (d) of the
Prevention of Corruption Act, 1988, the appellant-convict -
Onkar Prasad Gupta has been sentenced to undergo Rigorous
Imprisonment for four years and fine of Rs.1,50,000/- with
default clause of undergoing Rigorous Imprisonment for one
year, if the fine amount is not paid and it has also been
ordered that all the sentences shall run concurrently.
3. The brief facts of the case is that the appellant-
convict -Shambhu Ram of Criminal Appeal (SJ) No. 280 of
2020 was posted as the S.D.O. and the appellant-convict -
Onkar Prasad Gupta of Criminal Appeal (SJ) No. 294 of 2020
was posted as Junior Engineer, Rural Engineering
Organization (REO), demanded Rs.41,000/- and Rs.1,00,000/-
respectively from the complainant (P.W.2) who is the Director
of M/s. Ekka Construction Private Ltd. for making payment of
the work related to the construction of Jaldega Road. As the
complainant did not want to give the bribe, he approached the
Superintendent of Police, Vigilance Bureau, Ranchi and
submitted a complaint. The complaint was verified by Prabhu
Dayal who died during the trial, hence could not be examined
as a witness in the trial. Upon verification, as the said Prabhu
Dayal submitted his report confirming the demand of illegal
gratification by the two appellant-convicts as alleged in the
4 Cr. Appeal (SJ) No.280 of 2020
With
Cr. Appeal (SJ) No.294 of 2020
written complaint submitted by the complainant (P.W.2),
hence on the basis of the report submitted by Sri Prabhu
Dayal, FIR of this case has been registered. The investigation
of this case was entrusted to the P.W.7 -Sunil Rojer Fransis
Bedia. A trap was successfully conducted on 14.03.2008. Both
the appellant-convicts were caught red handed after accepting
the bribe amount of Rs.41,000/- by the appellant-convict -
Shambhu Ram and Rs.1,00,000/- by the appellant-convict -
Onkar Prasad Gupta, at different places. After completion of
investigation, charge-sheet for the offences punishable under
Section 7 as well as 13 (2) r/w 13(1) (d) of the Prevention of
Corruption Act, 1988 was submitted against the appellant-
convicts. Separate charges for the said offences punishable
under Section 7 and 13 (2) r/w 13(1) (d) of the Prevention of
Corruption Act, 1988 were framed against both the appellant-
convicts to which they pleaded not guilty and thus were put to
trial.
4. In support of its case, the prosecution altogether
examined 10 witnesses while 02 witnesses, were examined by
the defence being the appellant-convicts themselves as defence
witnesses.
5. Out of the witnesses examined by the prosecution,
P.W.2- Jai Kant Bara is the complainant himself. He has stated
that he is the Director of Ekka Construction Company. He got
the work of repairing of road from Pandhi Pani to Jaldega in
5 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
Simdega district. He completed the part of the work and part
of the work was remaining to be done. When the P.W.2
requested to prepare the bill for the work he has done, the
appellant-convict -Onkar Prasad Gupta (J.E.) demanded
Rs.1,00,000/- as bribe and the appellant-convict -Shambhu
Ram (S.D.O.) demanded Rs.41,000/- as bribe. Earlier also the
P.W.2 gave them some money. As the P.W.2 was not intending
to give money, hence he complained to the Vigilance Bureau
(Now renamed as Anticorruption Bureau). On being proved
by him, the complaint submitted by him has been marked
Ext.-12. He has further stated about S.I. -Prabhu Dayal being
sent by the S.P. to Simdega for verification of his complaint.
On 13.03.2008, on the same day when he made the complaint
to the Vigilance Bureau, Prabhu Dayal went with him and the
P.W.2 and Prabhu Dayal reached the R.E. Office at Simdega at
about 04:00 P.M. P.W.2 met SDO, Shambhu Ram and
requested him to prepare his bill at which Shambhu Ram told
him to pay the remaining bribe amount of Rs.41,000/- and
said that only after that the bill will be prepared. From there,
the P.W.2 went to his office situated at Simdega along with
Prabhu Dayal. At about 05:00-05:30 P.M., the J.E., Onkar
Prasad Gupta came to the office of P.W.2. P.W.2 also requested
Onkar Prasad Gupta for his bill at which Onkar Prasad Gupta
told that until Rs.1,00,000/- as bribe is not paid by the P.W.2,
he will not prepare the bill. All the conversations were heard
6 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
by Prabhu Dayal. Prabhu Dayal intimated to the P.W.2 at 10:00
P.M. on that day that his case has been registered and to
arrange Rs.1,41,000/- and to come with that amount to
Vigilance Office at Ranchi. P.W.2 reached the Vigilance Office
with Rs.1,41,000/-. Prabhu Dayal introduced the P.W.2 with
eight members of the team. P.W.2 has stated in detail about
the pre-trap preparations. He has further stated that the trap
team reached Simdega between 12:30 -01:00 P.M. P.W.2 talked
to the appellant-convicts over phone separately and intimated
them that he has arranged the money and enquired that as to
where, he has to come. They told that they will meet the P.W.2
at about 04:00 P.M. The trap team came to the office of P.W.2
between 03:00-03:30 P.M. Between 04:00-04:30 P.M. SDO,
Shambhu Ram came to the office of P.W.2. At that time, the
P.W.2 was sitting in his office. P.W.2 handed over Rs.41,000/-
which was wrapped in a paper and which was smeared with
phenolphthalein. After giving the money, the P.W.2 gave the
signal. Two persons of the Vigilance came inside and caught
hold of the left and right hand of Shambhu Ram respectively.
The other members of the team also arrived there. From
Shambhu Ram, Rs.41,000/- was recovered in front of the
P.W.2 consisting of 41 currency notes of Rs.1,000/-
denominations each. The numbers of all the notes were tallied
with the numbers mentioned in the pre-trap memorandum.
Upon a search being conducted, from the bag of the S.D.O.
7 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
Rs.34,000/- was seized. The seizure list was prepared. Upon
the hands of the S.D.O. being washed in the solution, the
colour of the solution turned pink. In the meantime, the
manager of the P.W.2 came and informed the P.W.2 that J.E.
does not want to take money in front of the S.D.O., hence he
has called the P.W.2 to his office. The P.W.2 along with Prabhu
Dayal went to the office of the J.E., Onkar Prasad Gupta and
met him. Onkar Prasad Gupta enquired, as to whether the
P.W.2 has brought the money, at which the P.W.2 answered in
affirmative. Then, Onkar Prasad Gupta told that he will come
down to the balcony/corridor. After coming down, the P.W.2
handed over Rs.1,00,000/- which was wrapped in a paper.
Upon receiving the money, the personnel of Vigilance caught
hold of his hands separately. Onkar Prasad Gupta was taken
to the office of the Executive. The money was seized from
Onkar Prasad Gupta. The notes were recovered from the
pocket of Onkar Prasad Gupta. P.W.2 has stated about the
post-trap formalities in detail also including that upon the
hands of the appellant-convict -Onkar Prasad Gupta being
washed with the solution, the colour of the solution turned
pink. In his cross-examination, the P.W.2 has stated that
Memon Ekka is his cousin sister and Enos Ekka is the husband
of Memon Ekka. He further stated that it is a fact that the work
agreement was made between his company, Ekka
Construction Private Ltd. and the Executive Engineer, Rural
8 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
Works. In para-77 of his cross-examination, the P.W.2 has
stated that on 14.03.2008, he did not make any phone calls to
either of the appellant-convicts rather the appellant-convicts
called the P.W.2 over phone. He denied the suggestion that on
13.03.2008, both the appellant-convicts had gone to a place 45
kilometre away where NAREGA work was going on. He also
denied the suggestion that on 10.03.2008, he threatened Onkar
Prasad Gupta, that unless his bill is passed by Onkar Prasad
Gupta, then he will falsely implicate him in a false Vigilance
case. He then submitted that when the trap of Onkar Prasad
Gupta was made, the other appellant-convict was in the
vehicle outside the Collectorate. He also denied the suggestion
that he being the Sala (brother-in-law) of the MLA, wanted
that his forged bills be passed and when the appellant-convicts
refused to pass the bills, he has implicated them in a false case.
It is pertinent to mention here that in the cross-
examination of the P.W.2, no specific question was asked to
him about his testimony in his examination in chief regarding
the demand of money by the co-appellant-convicts, acceptance
of the bribe money by the from the P.W.2 and recovery of the
said amount. Thus the testimony of the P.W.2 in this respect
has remained unchallenged and is to be accepted.
6. P.W.1- Md. Shabab Ansari is a member of the trap
team. He has stated that on 13.03.2008, a trap team was
constituted. He also stated about the pre-trap preparations
9 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
made in the office of Vigilance Bureau on 14.03.2008 from
05:30 onwards in detail. He further stated that they reached
the Simdega Bus Stand at 12:30 P.M. The inspector of Police -
Prabhu Dayal and the complainant were in the office of Ekka
Construction Private Ltd. On getting the information, P.W.1
caught hold of the left hand of the appellant-convict-Shambhu
Ram and Mahesh Prasad Singh caught hold of his right hand.
Upon search being conducted; from the fist of Shambhu Ram,
Rs.41,000/- was recovered. On the numbers of the notes being
compared with the numbers of the notes and denominations
mentioned in G.C. Notes Memorandum, the same tallied.
Apart from that, from the bag of Shambhu Ram, Rs.34,000/-
was recovered. He proved the various documents and also
stated about the post-trap formalities. P.W.1 further deposed
that one employee of Ekka Construction namely Dilip Mahto
informed that J.E., R.E.O -Onkar Prasad Gupta is not
intending to take bribe in front of Shambhu Ram, S.D.O and
he has called them to the Collectorate to take money. The trap
team, complainant and others went there. After some time,
Prabhu Dayal gave a signal by wiping his face by
handkerchief. P.W.1 and Mahesh Prasad Singh saw Onkar
Prasad Gupta counting notes with both the hands and upon
seeing the P.W.1 and others, he put the money in his left
pocket. P.W.1 caught hold of the left hand of the Onkar Prasad
Gupta and Mahesh Prasad Singh caught hold of his right
10 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
hand. In presence of two independent witnesses, Anil Ranjan
and Ranjit Singh, the I.O. gave his search and search of the
appellant-convict was taken. From the left pocket of his full
pant, 100 notes of Rs.1,000/- denominations each were
recovered. The numbers of the notes tallied with the numbers
of the notes mentioned in the G.C. Notes Memorandum. The
fingers of both the hands of the appellant-convict were
washed with the Sodium Carbonate Solution separately and
colour of both the solutions turned pink. He also proved
various documents which have been marked Exhibits. He also
identified the notes which were recovered from the appellant-
convicts. He further stated that upon search being made from
the house of J.E. -Onkar Prasad Gupta, Rs.25,000/- was seized.
In para-32 & 34, he has stated that he has not seen the
complainant giving money and the appellant-convicts
receiving money.
It is pertinent to mention here that there is absolutely no
cross-examination of the P.W.1 in respect of his testimony in
his examination in chief regarding the recovery of the tainted
money from both the appellant-convicts from separate places
or about the presence of the appellant-convict- Shambhu Ram
and his being apprehended from the office of Ekka
Construction. Similarly there is absolutely no cross-
examination of the P.W.1 regarding the testimony that during
the course of verification the appellant-convict Onkar Prasad
11 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
Gupta visited his office on 13.03.2008 between 5.00-5.30 p.m..
Thus the said portion of the testimony of the P.W.1 has
remained unchallenged and is to be accepted.
7. P.W.3- Arvind Prasad Sinha was also the member
of the trap team. He has stated about the pre-trap preparations
in detail. On 14.03.2008 the trap team reached Simdega Bus
Stand at 12:30 P.M. The I.O. sent complainant and the
verifying Officer after giving them proper direction where the
appellant-convict was sitting from before. At about 04:00 P.M.,
P.W.2 and the verifying officer went near Shambhu Ram.
Upon getting the signal, the members of the trap team reached
the office of the Ekka Construction. P.W.3 saw that both the
hands of the appellant-convict -Shambhu Ram was caught
hold of by P.W.1 and Mahesh Prasad Singh. Anil Ranjan Bara
and Ranjit Singh were called. The search of the appellant-
convict was made. From the fist of both the hands of the
appellant-convict, 41 notes of Rs.1,000/- denominations each
were recovered. The numbers of the notes on being compared
with the numbers mentioned in the G.C. Note Memorandum,
tallied. The fingers of the appellant-convict upon being
washed with Sodium Carbonate Solution, the colour of the
solution turned pink. After that all the members of the trap
team reached near the office of the J.E., Rural Engineering
Organization, Simdega which is situated at the Collectorate of
Simdega. P.W.2 and the verifying officer were sent to the
12 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
appellant-convict -Onkar Prasad Gupta. Upon getting the pre-
determined signal from the verifying officer, all the members
of the trap team reached the office of the appellant-convict
situated on the second floor of the Collectorate of Simdega.
P.W.3 saw that the hands of Onkar Prasad Gupta were held by
the two constables of the trap team. Upon search being made
in presence of two independent witnesses, Anil Ranjan Bara
and Ranjit Singh, Rs.1,00,000/- kept in the left pocket of the
full pant of the appellant-convict- Onkar Prasad Gupta, each
of which were notes of Rs.1,000/- denominations; were seized.
Upon the numbers of the seized notes being compared with
the numbers mentioned in the G.C. Note Memorandum, the
same tallied. After that the fingers of the appellant-convict
were washed with Sodium Carbonate Solution and the colour
of the Solution turned pink. In his cross-examination, the
P.W.3 has stated that the first place of occurrence which is the
office of Ekka Construction is situated at a distance of 30 feet
towards east of the main road in Maharaja Complex. In para-
11, he has stated that at both the places of occurrence, P.W.3
has not heard the conversation between the P.W.2 and the
appellant-convicts and he has also not seen the giving and
taking of the bribe between the P.W.2 and the appellant-
convicts.
It is pertinent to mention here that there is absolutely no
cross-examination of the P.W.3 in respect of his testimony in
13 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
his examination in chief regarding the recovery of the tainted
money from both the appellant-convicts from separate places
or about the presence of the appellant-convict- Shambhu Ram
and his being apprehended from the office of Ekka
Construction. Thus the said portion of the testimony of the
P.W.1 has remained unchallenged and is to be accepted.
8. P.W.5 -Barnawas Purty is also the member of the
trap team. He has also stated about the pre-trap preparations
made on 14.03.2008 in detail. He further deposed that on
14.03.2008 at about 12:30 P.M., they reached Simdega. P.W.2
was sent with the bribe amount to the office of Ekka
Construction along with verifying officer. After that the
verifying officer -Prabhu Dayal gave the signal by wiping his
face. The members of the trap team entered inside the office of
Ekka Construction. P.W.5 saw that the constables of the trap
team have caught hold of the hands of Shambhu Ram. He has
also stated about Rs.41,000/- which consisted of 41 notes of
Rs.1,000/- denominations each; being recovered from the fist
of the appellant-convict -Shambhu Ram and upon the
numbers of the same being compared with the numbers
mentioned in the G.C. Note Memorandum, the same tallied.
He also stated that upon the hands of Shambhu Ram being
washed with Sodium Carbonate Solution separately, the
colour of both the solutions turned pink. P.W.5 further stated
that in the meantime, information was received that Onkar
14 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
Prasad Gupta is not intending to take bribe in presence of
S.D.O., Shambhu Ram, hence he has called them to R.E.O.
Office at the Collectorate. P.W.2 was sent with Rs.1,00,000/- to
Onkar Prasad Gupta. After getting the signal P.W.5 and others
of the trap team reached there and near the toilet, beside the
office of the appellant-convict- Onkar Prasad Gupta, situated
on the second floor, the appellant-convict- Onkar Prasad
Gupta was caught red handed with the bribe amount of
Rs.1,00,000/-. When the P.W.5 reached there, he saw the
constables catching hold of both the hands of the said
appellant-convict. He further stated that the constables stated
that the said appellant-convict put the money on his left side
back pocket of full pant; upon seeing the constables. Search of
Onkar Prasad Gupta was made and Rs.1,00,000/- was
recovered from the left pocket of his full pant. He has also
stated that both the hands of Onkar Prasad Gupta upon being
washed with the Sodium Carbonate Solution, the colour of the
solution turned pink. Since, Onkar Prasad Gupta was not
putting on any under wear, hence his pant could not be
washed by removing it. The appellant-convict was arrested
from the residence of Onkar Prasad Gupta, cash of Rs.25,000/-
and measurement book relating to the work of the
complainant (P.W.2) were seized. In para-8 of his cross-
examination, he has stated that he has not heard any
conversation between the P.W.2 and the appellant-convicts
15 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
and he has not seen the appellant-convicts demanding bribe
nor he has seen them taking any bribe.
It is pertinent to mention here that there is absolutely no
cross-examination of the P.W.5 in respect of his testimony in
his examination in chief regarding the recovery of the tainted
money from both the appellant-convicts from separate places
or about the presence of the appellant-convict- Shambhu Ram
and his being apprehended from the office of Ekka
Construction. Thus the said portion of the testimony of the
P.W.5 has remained unchallenged and is to be accepted.
9. P.W.7- Sunil Rojer Fransis Bedia is the I.O. of the
case. He has stated about the investigation done by him in this
case. He has proved the documents. He has stated in detail
about the pre-trap formalities. He further stated that on
14.03.2008, at about 04:00 P.M. on getting the signal, when
they reached the office of the complainant, he saw the P.W.1
and Mahesh Prasad were catching hold of the hand of
Shambhu Ram. He called the two independent witnesses,
Ranjit Singh and Anil Ranjan Bara and upon search being
made, Rs.41,000/- was recovered from the right hand of the
appellant-convict and from the office table of the appellant-
convict, Rs.34,000/- was recovered. Upon the numbers of the
notes of Rs.41,000/- being compared with the numbers
mentioned in the G.C. Note Memorandum, the same tallied.
He further deposed that after they went to the second place of
16 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
occurrence which is at a distance of half kilometre at Simdega
Collectorate. After giving and taking of money, upon
receiving the signal, when P.W.7 reached there, he saw P.W.1
catching hold of the left hand and Mahesh catching hold of the
right hand of Onkar Prasad Gupta. In presence of the
independent witnesses, Ranjit Singh and Anil Ranjan Bara,
search of Onkar Prasad Gupta was made and from his left full
pant pocket, Rs.1,00,000/- consisting of 100 notes of Rs.1,000/-
denominations were recovered. Upon comparing of the notes,
the numbers of the notes tallied. P.W.7 further stated that
upon search of the house of the appellant-convict -Onkar
Prasad Gupta, two M.B. Books and Rs.25,000/- were
recovered. In his cross-examination, in para-22, he has stated
that he has not heard any conversation between the appellant-
convicts and the P.W.2 and in front of him, the appellant-
convicts did not demand any money from the P.W.2 nor
appellant-convicts took any money in front of him. He sent the
solution with which the hands of the appellant-convicts were
washed after 20 days of the trap. He further stated that in the
process of preparing the G.C. Notes Memorandum, the
numbers of the five notes did not tally and after 10-12 days,
P.W.7 submitted an application in the court and made the
correction of the notes.
It is pertinent to mention here that there is absolutely no
cross-examination of the P.W.7 in respect of his testimony in
17 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
his examination in chief regarding the recovery of the tainted
money from both the appellant-convicts from separate places
or about the presence of the appellant-convict- Shambhu Ram
and his being apprehended from the office of Ekka
Construction. Thus the said portion of the testimony of the
P.W.7 has remained unchallenged and is to be accepted.
10. P.W.8- Vidya Kant Pathak is the Special
Magistrate and a member of the trap team. He has also stated
about the pre-trap preparations in detail. He further stated
that trap for Shambhu Ram was laid at 04:00 P.M. When he
reached the place of occurrence, he saw P.W.1 and Mahesh
catching hold of the hands of a person. On being enquired, he
came to know that, the person was Shambhu Ram. On search
being made, Rs.41,000/- was seized from him. The numbers of
the notes and their denominations tallied with the numbers of
the notes as mentioned in the earlier noted numbers. He has
also proved the documents which were marked Exhibits.
P.W.8 has also stated about the hands of the appellant-convicts
being washed in Sodium Carbonate Solution separately, the
colour of the solution turned pink. For the appellant-convict -
Onkar Prasad Gupta, trap was laid at 05:00 P.M. in the
Collectorate of Simdega. When search was made, Rs.1,00,000/-
was recovered from his full pant. The numbers of the notes
tallied with the numbers mentioned in the G.C. Note
Memorandum and upon the hand of the appellant-convict
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Cr. Appeal (SJ) No.294 of 2020
being washed with Sodium Carbonate Solution, the colour of
the solution turned pink. In para-10 of his cross-examination,
P.W.8 has stated that he has not heard any conversation
between the appellant-convict and the P.W.2. He further
stated that he has not seen both the accused persons
demanding bribe from the P.W.2. or the P.W.2 giving the
bribe.
It is pertinent to mention here that there is absolutely no
cross-examination of the P.W.8 in respect of his testimony in
his examination in chief regarding the recovery of the tainted
money from both the appellant-convicts from separate places.
Thus the said portion of the testimony of the P.W.8 has
remained unchallenged and is to be accepted.
11. P.W.9 -Md. Abdul Mannan Khan was also the
member of the trap team. He has stated about the pre-trap
preparations and the contents of the complaint. He also
proved the documents and signatures which were marked
Exhibits. He further deposed that on 14.03.2008, a trap
proceeding was done. P.W.2 and the verifying officer Prabhu
Dayal were sent. First they met the appellant-convict -
Shambhu Ram and after giving and taking of money, the
signal was given. The police personnel caught hold of the
hands in presence of two independent witnesses search was
made. From the right hand of the appellant-convict, the bribe
money was recovered. The same were compared with the
19 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
numbers mentioned in the G.C. Notes Memorandum earlier
and the numbers tallied. He has also stated that upon the
hands of the appellant-convict being washed with Sodium
Carbonate Solution, the colour of the solution turned pink.
Upon search, from the appellant-convict -Shambhu Ram,
additional Rs.34,000/- was also seized. For trap of the
appellant-convict -Onkar Prasad Gupta, a proceeding was
done at Collectorate of Simdega. There also, on signal being
received, two members of the trap team caught hold of the
hands of Onkar Prasad Gupta and upon search being made
from the pocket of the full pant, Rs.1,00,000/- was recovered.
The hands of the Onkar Prasad Gupta being washed with the
Sodium Carbonate Solution, the colour of the solution turned
pink. In his cross-examination, the P.W.9 has stated that he
entered inside Ekka Construction, 5-7 minutes after getting the
signal. In para-11, he has stated that he has not heard the
conversation between Onkar Prasad Gupta and the P.W.2 and
he has also not seen giving and taking of bribe by the
appellant-convicts nor receiving the same.
It is pertinent to mention here that there is absolutely no
cross-examination of the P.W.9 in respect of his testimony in
his examination in chief regarding the recovery of the tainted
money from both the appellant-convicts from separate places.
Thus the said portion of the testimony of the P.W.9 has
remained unchallenged and is to be accepted.
20 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
12. P.W.6- Ranjit Singh is an independent witness. He
has identified his signature on the seizure list which were
marked Exhibits. He has further stated that on 14.03.2008 at
about 04:00 P.M., he came to know that the vigilance Bureau
team is raiding the office of Ekka Construction, he went there
and saw two persons were catching hold of Shambhu Ram-
Assistant Engineer Rural Works Department. Some money
was in his hands. A search of Shambhu Ram was made. All
the 41 notes of Rs.1,000/- denominations each i.e. Rs.41,000/-
were recovered. Thereafter, the Vigilance personnel brought
out the paper and compared the number of the notes
mentioned with the numbers in the G.C. notes memorandum
and the same tallied. The other witness Anil Ranjan Bara also
singed. After the hands of the Shambhu Ram were washed
with the Sodium Carbonate Solution, the colour of the solution
turned pink. Thereafter the Vigilance people also took the
P.W.6 to Collectorate of Simdega. There the trap proceeding of
Onkar Prasad Gupta Junior Engineer was made. When he
reached the office of Onkar Prasad Gupta, he saw that two
personnel of vigilance were catching hold of both his hands.
His search was made and from the left pocket of his pant,
Rs.1,00,000/- consisting of 100 notes of Rs.1000/-
denomination each were recovered. The numbers were
compared and the same tallied. The other witness Anil Ranjan
Bara also signed. Both the hands of the Onkar Prasad Gupta
21 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
were washed with the Sodium Carbonate Solution, the colour
of the solution turned pink. He further stated that he knew
Onkar Prasad Gupta since one and a half years before the
occurrence as he was residing at Ranchi in the same locality of
the residence of P.W.6 and the witness Anil Ranjan Bara is an
employee of Ekka Construction. In para-11 of his cross-
examination, he has stated that he has not seen any
conversation between the P.W.2 and the appellant-convicts
nor he has seen the appellant-convicts demanding money or
taking bribe. In para-15, he has stated that at the time of
occurrence, Enos Ekka was the Minister of Rural Development
and P.W.2 is his Sala (brother-in-law) by relationship.
It is pertinent to mention here that there is absolutely no
cross-examination of the P.W.6 in respect of his testimony in
his examination in chief regarding the recovery of the tainted
money from both the appellant-convicts from separate places
or about the presence of the appellant-convict- Shambhu Ram
and his being apprehended from the office of Ekka
Construction. Thus the said portion of the testimony of the
P.W.6 has remained unchallenged and is to be accepted.
13. P.W.4 -Sachindra Nath Sinha has proved the
sanction for prosecution of the appellant-convicts which were
marked Exhibits 13 & 13/1.
22 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
14. P.W.10 -Satya Prakash Rajhans is the Assistant
Director of SFSL, Ranchi. He has proved the chemical
examination report which was marked Ext.-21.
15. After closure of the evidence of the prosecution,
the statements of the appellant-convicts were recorded under
Section 313 Cr.P.C. regarding the circumstances appearing in
evidence against them. The appellant-convicts denied the
material questions relating to the circumstances appearing in
the evidence against them including that they have not
demanded any money nor they were arrested at the spot. They
also denied any money being recovered from them in answer
to question no.5.
16. In their defence, the appellant-convict -Onkar
Prasad Gupta has examined himself as D.W.1. He has stated
that he obtained certain information under Right to
Information Act which upon being proved by him were
marked Ext. A and B respectively. He claimed that those
documents shows that he was at a distance of 45 kilometre
from Simdega on 13.03.2008 for the NAREGA programme
where the RCC work of Jaldega Banshjore Road was going on
from 08:00 A.M. to 05:00 P.M. on 13.03.2008. He further stated
that on the date of his arrest, no work of the P.W.2 was
pending with him. He further stated that as he opposed the
plan to loot in March by preparing wrong bills without doing
any work, hence he has been falsely implicated in this case and
23 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
on 10.03.2008, P.W.2 came to his house and threatened him
and he sent a letter on 10.03.2008 to the department. In his
cross-examination, he has stated that there is no entry made in
the office of his visit to the site on 13.03.2008 and he did not
make any complaint to police for the threatening given by the
P.W.2 on 10.03.2008.
17. D.W.2 -Shambhu Ram has proved the
information received by him through Right to Information Act
which has been marked Ext.-C and he claimed that he was at a
distance of 45 Kilometers at Jaldega Banshjore Road in
connection with RCC work of NAREGA Programme from
08:00 A.M. to 05:00 P.M. He forwarded the letter of Junior
Engineer regarding the threatening given to him to the
Executive Engineer and the copy of the same was given to the
Superintending Engineer. In this respect, a departmental
proceeding was made and both of them were found not guilty
and were exonerated.
18. The learned trial court after considering the evidence in
the record came to the conclusion that the prosecution has
been able to prove the charges levelled against the appellant-
convicts beyond reasonable doubt and convicted and
sentenced the appellant-convicts as already indicated above.
19. Mr. R.S. Mazumdar, learned Senior Advocate
appearing for the appellant-convicts submits that the learned
trial court failed to appreciate the evidence in the record in its
24 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
proper perspective and could not consider the fact that the
prosecution has miserably failed to establish the factum of
demand of bribe by the appellant-convicts which is the
essential ingredient to bring home the charges faced by the
appellant-convicts in this case. It is next submitted by Mr.
Mazumdar, learned Senior Advocate appearing for the
appellant-convicts that the learned court below failed to take
into consideration the material contradictions in the evidence
of the prosecution witnesses and the learned court below
failed to appreciate the fact that no verification was conducted
by Anti-Corruption Bureau with respect to the genuineness
and correctness of the complaint and with respect to demand
of bribe money. It is further submitted by Mr. Mazumdar,
learned Senior Advocate appearing for the appellant-convicts
that the learned court below failed to take into consideration
the defence of the appellant-convicts which shows that they
were not present in the office on 13.03.2008 and in the
departmental enquiry both the appellant-convicts were found
innocent and were exonerated. It is next submitted by Mr.
Mazumdar, learned Senior Advocate appearing for the
appellant-convicts that the learned court below ought to have
held that the witnesses examined by the prosecution were
interested witnesses and except the P.W.2-complainant none
of the witnesses have either heard the demand of bribe or
giving and taking of bribe by P.W.2 to the appellant-convicts
25 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
at separate places of occurrence. It is next submitted by Mr.
Mazumdar, learned Senior Advocate appearing for the
appellant-convicts relying upon the judgment of Hon'ble
Supreme Court of India in the case of State of Punjab v.
Madan Mohan Lal Verma reported in (2013) 14 SCC 153,
paragraph no.11 of which reads of under :-
"11. The law on the issue is well settled that demand of
illegal gratification is sine qua non for constituting an
offence under the 1988 Act. Mere recovery of tainted
money is not sufficient to convict the accused when
substantive evidence in the case is not reliable, unless
there is evidence to prove payment of bribe or to show
that the money was taken voluntarily as a bribe. Mere
receipt of the amount by the accused is not sufficient to
fasten guilt, in the absence of any evidence with regard
to demand and acceptance of the amount as illegal
gratification. Hence, the burden rests on the accused to
displace the statutory presumption raised under
Section 20 of the 1988 Act, by bringing on record
evidence, either direct or circumstantial, to establish
with reasonable probability, that the money was
accepted by him, other than as a motive or reward as
referred to in Section 7 of the 1988 Act. 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. However, before
the accused is called upon to explain how the amount
in question was found in his possession, the
foundational facts must be established by the
prosecution. The complainant is an interested and
partisan witness concerned with the success of the trap
and his evidence must be tested in the same way as
that of any other interested witness. In a proper case,
the court may look for independent corroboration
before convicting the accused person. (Vide Ram
Prakash Arora v. State of Punjab [(1972) 3 SCC 652 :
1972 SCC (Cri) 696 : AIR 1973 SC 498] , T.
Subramanian v. State of T.N. [(2006) 1 SCC 401 :
(2006) 1 SCC (Cri) 401] , State of Kerala v. C.P.
Rao [(2011) 6 SCC 450 : (2011) 2 SCC (Cri) 1010 :
(2011) 2 SCC (L&S) 714] and Mukut Bihari v. State
of Rajasthan [(2012) 11 SCC 642 : (2013) 1 SCC (Cri)
1089 : (2013) 1 SCC (L&S) 136] .)" (Emphasis
supplied)
26 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
and submits that it is a settled principle of law that
demand of illegal gratification is sine-qua-non for constituting
the offence under the penal provisions of Prevention of
Corruption Act, 1988. It is then submitted that hence mere
recovery of tainted money is not sufficient to convict the
appellant-convicts as the substantive evidence in this case is
not reliable to show that the appellant-convicts have taken the
money voluntarily as a bribe. Mr. Mazumdar, next relied upon
the judgment of Hon'ble Supreme Court of India in the case of
V. Sejappa v. State reported in (2016) 12 SCC 150 wherein the
Hon'ble Supreme Court of India has observed as under in
paragraph nos.16 and 24:-
"16. Viewed in the above background, coupled with
absence of proof of demand, case of the prosecution and
the evidence of PWs 1 and 2 regarding acceptance of
money calls for close scrutiny. On 17-12-1997, PW 1,
Ramakrishnappa went to the office of the appellant
accompanied by PW 2, Obaiah and the raiding party
and PW 3, Srinivasa were waiting outside the office.
PW 2 Obaiah was standing near the door of the
chamber of the appellant and inside the room PW 1
had handed over the tainted currency to the appellant.
On receiving the signal from PW 1, the raiding party
and PW 3 entered into the office of the appellant and
tainted currency notes were recovered from the
appellant.
24. In the present case, the trial court recorded an
order of acquittal on the evidence and circumstances:
(i) delay in lodging the complaint;
(ii) even though the appellant is alleged to have made
the demand on 9-12-1997 at Chitradurga, absence of
the appellant in Chitradurga from 7-12-1997 to 10-12-
1997 and absence of proof of demand;
(iii) doubts raised regarding the submission of the
documents, Exts. P-6 to P-15 by PW 1 for processing
the pension papers and settling the retiral benefits; and
27 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
(iv) inconsistency in the evidence of prosecution
witnesses in establishing the acceptance of the amount
by the appellant." (Emphasis supplied)
and submits that in this case the absence of appellant-
convicts from Simdega on 13.03.2008 shows that the case of the
prosecution about the verification of the complaint is doubtful.
Mr. Mazumdar, learned Senior Advocate appearing for the
appellant-convicts next relied upon the judgment of Hon'ble
Supreme Court of India in the case of Mukhtiar Singh (since
deceased) thru. LR. v. State of Punjab reported in (2017) 8 SCC
136, paragraph no. 24 of which reads as under:-
"24. It would thus be patent from the materials on
record that the evidence with regard to the demand of
illegal gratification either of Rs 3000 which had been
paid or of Rs 2000 as made on the day of trap operation
is wholly inadequate to comply with the prerequisites
to constitute the ingredients of the offence with which
the original accused had been charged. Not only the
date or time of first demand/payment is not
forthcoming and the allegation to that effect is rather
omnibus, vague and sweeping, even the person in
whose presence Rs 3000 at the first instance is alleged
to have been paid i.e. Santosh Singh Lambardar, has
neither been produced in the investigation nor at the
trial. In other words, the bald allegation of the
complainant with regard to the demand and payment
of Rs 3000 as well as the demand of Rs 2000 has
remained uncorroborated. Further to reiterate, his
statement to this effect lacks in material facts and
particulars and per se cannot form the foundation of a
decisive conclusion that such demand in fact had been
made by the original accused. Viewed in this
perspective, the statement of the complainant and the
Inspector Satpal, the shadow witness in isolation that
the original accused had enquired as to whether money
had been brought or not, can by no means constitute
demand as enjoined in law as an ingredient of the
offence levelled against the original accused. Such a
stray query ipso facto in absence of any other cogent
and persuasive evidence on record cannot amount to a
demand to be a constituent of the offence under Section
7 or 13 of the Act."
28 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
and submits that the evidence in the record is inadequate
to bring home of the charges against the appellant-convicts.
Relying upon the judgment of Hon'ble Supreme Court of India
in the case of Ashoo Surendranath Tewari v. Deputy
Superintendent of Police, EOW, CBI & Anr. reported in (2020)
9 SCC 636, paragraph no.12 of which reads as under:-
"12. After referring to various judgments, this Court
then culled out the ratio of those decisions in para 38
as follows: (Radheshyam Kejriwal case [Radheshyam
Kejriwal v. State of W.B., (2011) 3 SCC 581 : (2011) 2
SCC (Cri) 721] , SCC p. 598)
"38. The ratio which can be culled out from
these decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal
prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not
necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal
proceedings are independent in nature to each
other;
(iv) The finding against the person facing
prosecution in the adjudication proceedings is
not binding on the proceeding for criminal
prosecution;
(v) Adjudication proceedings by the
Enforcement Directorate is not prosecution by a
competent court of law to attract the provisions
of Article 20(2) of the Constitution or Section
300 of the Code of Criminal Procedure;
(vi) The finding in the adjudication proceedings
in favour of the person facing trial for identical
violation will depend upon the nature of
finding. If the exoneration in adjudication
proceedings is on technical ground and not on
merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits
where the allegation is found to be not
sustainable at all and the person held innocent,
criminal prosecution on the same set of facts
and circumstances cannot be allowed to
continue, the underlying principle being the
higher standard of proof in criminal
cases."(Emphasis supplied)
29 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
Learned Senior Advocate appearing for the appellant-
convicts submits that since the appellant-convicts have been
exonerated in the departmental proceeding, hence, they
should be acquitted of the charges of this case also. It is lastly
submitted Mr. Mazumdar, learned Senior Advocate appearing
for the appellant-convicts that as the evidence in the record is
inadequate, the appellant-convicts be acquitted by giving
them the benefit of doubt.
20. Mrs. Niki Sinha, the learned Special Public
Prosecutor appearing for the Anti-Corruption Bureau on the
other hand defended the impugned judgment of conviction
and order of sentence and submitted that witnesses of the
prosecution have categorically stated about all the essential
ingredients to establish the charges against both the appellant-
convicts beyond reasonable doubt. It is further submitted by
Mrs. Sinha, that the P.W.2 has categorically stated about the
demand of bribe made both the appellant-convicts on both
13.03.2008 and on 14.03.2008 as well as the acceptance of bribe
by both the appellant-convicts and recovery of tainted bribe
money and besides the P.W.2, the fact of recovery of money
from the appellant-convicts has been corroborated by the
P.Ws.3, 5, 6, 7, 8 and 9 also. It is then submitted by Mrs. Sinha,
that thus this evidence in the record is sufficient to draw
presumption under Section 20 of Prevention of Corruption
Act, 1988. It is also submitted that the appellant-convicts have
30 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
answered to question no.5 in their statements recorded under
Section 313 Cr.P.C. in negative as both the appellant-convicts
have denied the recovery of money from them. So they have
absolutely no defence to put forth in respect of recovery of the
tainted currency notes of the bribe amount from them, which
fact has remained unchallenged in the cross-examination of
the relevant prosecution witnesses and has been proved
beyond the shadow of any reasonable doubt. It is further
submitted by Mrs. Sinha, that the defence evidence put forth
regarding the absence of appellant-convicts on 13.03.2008
from Simdega and their presence at a distance of 45 kilometre
but the charges in this case has been framed for the offences
which occurred on 14.03.2008 and there is absolutely no
evidence put forth by the defence to falsify the occurrence
which took place on 14.03.2008. It is submitted by Mrs Sinha
that the plea of the defence of the remaining absent from the
headquarters of Simdega on 13.03.2008 to falsify the
verification is also devoid of any merit because as admitted by
the defence witnesses themselves; there is no entry in any of
the register to show that the appellant-convicts had gone
away from the headquarters on that day. Mrs Sinha further
submitted that the contention of the defence that the
complainant earlier threatened to falsely implicate them in a
case is not trustworthy because had it been the fact, there is
hardly any possibility of the appellant-convict- Shambhu Ram
31 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
visiting the office of the complainant on 14.03.2008 from
where he was arrested after the successful trap and all the
relevant prosecution witnesses have deposed about his
presence in the office of the complainant and the said fact has
not been challenged in their respective cross-examination of
the witnesses. It is submitted that thus the defence evidence in
this respect is of no help to the appellant-convicts to discard
the prosecution evidence which has well proved the case of
the prosecution beyond the shadow of any reasonable doubt,
as by such evidence all the ingredients of the offences, for
which the appellant-convicts have been convicted have been
vividly and eloquently stated by the prosecution witnesses. In
respect of the contention of the defence, that no work of the
complainant was pending with the appellant-convicts, it is
submitted by Mrs Sinha that the recovery of the measurement
book relating to the work of the complainant from the house
of the appellant-convict Onkar Prasad Gupta as well as the
contents thereof itself is sufficient enough to show that the
work of the complainant was pending with the appellant-
convicts on the date of the trap. It is then submitted that the
besides the documents which have been exhibited during the
trial of him being proved by the prosecution has also
established that the work of the complainant was pending
with the appellant-convict on the date of the occurrence. So
far as the contention of the appellant-convicts regarding the
32 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
departmental proceeding is concerned, it is submitted by Mrs.
Sinha that there is absolutely no evidence in the record to
suggest as to in respect of which of the charges, the
departmental proceedings were going on against the
appellant-convicts and what are the facts in the said
departmental proceedings. So there being absolutely no
material in the record to come to a conclusion that for the
same set of facts, as the facts of this case, the appellant-
convicts faced the departmental proceeding, the Department
proceeding, if any, against the appellant-convict is irrelevant
for this case. It is next submitted that as both the appellant-
convicts have themselves examined as defence witnesses, they
could have easily proved the enquiry report if at all, they have
been exonerated in a departmental proceeding for the same
set of facts as of this case but having not done so, without any
plausible reason, there is no material in the record to give
them the benefit of doubt on the ground that they were
exonerated in a departmental proceeding for the same set of
facts as the facts of this case. Mrs. Sinha, relying upon the
judgment of Hon'ble Supreme Court of India in the case of
State (NCT of Delhi) v. Ajay Kumar Tyagi reported in (2012)
9 SCC 685, paragraph nos.15 and 25 of which reads as under:-
"15. Now we proceed to consider the question of law
referred to us i.e. whether the prosecution against an
accused, notwithstanding his exoneration on the
identical charge in the departmental proceeding could
continue or not?
33 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
25. We are, therefore, of the opinion that the
exoneration in the departmental proceeding ipso facto
would not result in the quashing of the criminal
prosecution. We hasten to add, however, that if the
prosecution against an accused is solely based on a
finding in a proceeding and that finding is set aside by
the superior authority in the hierarchy, the very
foundation goes and the prosecution may be quashed.
But that principle will not apply in the case of the
departmental proceeding as the criminal trial and the
departmental proceeding are held by two different
entities. Further, they are not in the same hierarchy.
(Emphasis supplied)
submits that as the said issue has been authoritatively
decided by the Hon'ble Supreme Court of India and as this
criminal proceeding was not instituted on the basis of the
findings of any departmental proceeding rather this case has
been instituted on the basis of the trap and on the basis of the
said trap subsequently departmental proceeding is claimed to
have been initiated; though there is no document to that effect in
the record, hence exoneration, if any, in the departmental
proceeding is of no consequence so far this criminal prosecution
is concerned. It is then submitted that otherwise also assuming
for the sake of argument, though not admitting that the
appellant-convicts have been exonerated in a departmental
proceeding but ipso-facto that would not result in acquittal in this
case. Mrs. Sinha then submitted that in Radheshyam
Kejriwal v. State of W.B., (2011) 3 SCC 581 paragraph 38 of
which has been quoted in the judgment of Ashoo Surendranath
Tewari v. Deputy Superintendent of Police, EOW, CBI & Anr.
(Supra) relied upon by the appellant-convicts the othor
proceeding then the criminal proceeding was not a departmental
34 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
proceeding rather the same was an adjudication proceeding by
the Enforcement Directorate so otherwise also the said principle
will not be applicable when the other proceeding is a
departmental proceeding. Mrs Sinha next relied upon the
judgment of Hon'ble Supreme Court of India in the case of
Vinod Kumar Garg v. State (Government of NCT of Delhi)
reported in (2020) 2 SCC 88, paragraph nos.13 and 14 of which
reads as under:-
"13. Regarding the hand-wash, Nand Lal (PW 2)
could not recollect full facts and had stated that as far
as he could remember, the appellant had given his
hand-wash and the polythene bag was also washed.
Nand Lal (PW 2) had identified his signature on the
bottles containing the wash of the polythene bag and
also the signature on the papers prepared. Hemant
Kumar (PW 3) had stated that the pant wash was not
done. We would observe that ex facie the hand wash
and the pant wash were not done as the coated money
was put in the polythene bag. Polythene bag was
washed and the wash kept in the bottles as has been
deposed by Rohtash Singh (PW 5). Minor discrepancy
and inability of Nand Lal (PW 2) and Hemant Kumar
(PW 3) to remember the exact details of whether or not
the handwash or pant wash was done would not justify
acquittal of the appellant.
14. The contradictions that have crept in the
testimonies of Nand Lal (PW 2) and Hemant Kumar
(PW 3) noticed above and on the question of the total
amount demanded or whether Nand Lal (PW 2) had
earlier paid Rs 500 are immaterial and inconsequential
as it is indisputable that the bribe was demanded and
taken by the appellant on 3-8-1994 at about 10.30 a.m.
The variations as highlighted lose significance in view
of the proven facts on the recovery of bribe money from
the pant pocket of the appellant, on which depositions
of Nand Lal (PW 2), Hemant Kumar (PW 3) and
Rohtash Singh (PW 5) are identical and not at
variance. The money recovered was the currency notes
that were treated and noted in the pre-raid proceedings
vide Ext. PW 2/G. The aspect of demand and payment
of the bribe has been examined and dealt with above.
The contradictions as pointed out to us and noted are
insignificant when juxtaposed with the vivid and
eloquent narration of incriminating facts proved and
established beyond doubt and debate. It would be
35 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
sound to be cognitive of the time gap between the date
of occurrence, 3-8-1994, and the dates when the
testimony of Nand Lal (PW 2) was recorded, 9-7-1999
and 14-9-1999, and that Hemant Kumar's (PW 3)
testimony was recorded on 18-12-2000 and 30-1-2001.
Given the time gap of five to six years, minor
contradictions on some details are bound to occur and
are natural. The witnesses are not required to recollect
and narrate the entire version with photographic
memory notwithstanding the hiatus and passage of
time. Picayune variations do not in any way negate
and contradict the main and core incriminatory
evidence of the demand of bribe, reason why the bribe
was demanded and the actual taking of the bribe that
was paid, which are the ingredients of the offence
under Sections 7 and 13 of the Act, that as noticed
above and hereinafter, have been proved and
established beyond reasonable doubt. Documents
prepared contemporaneously noticed above affirm the
primary and ocular evidence. We, therefore, find no
good ground and reason to upset and set aside the
findings recorded by the trial court that have been
upheld by the High Court. Relevant in this context
would be to refer to the judgment of this Court in State
of U.P. v. G.K. Ghosh [State of U.P. v. G.K. Ghosh,
(1984) 1 SCC 254 : 1984 SCC (Cri) 46] wherein it was
held that in a case involving an offence of demanding
and accepting illegal gratification, depending on the
circumstances of the case, it may be safe to accept the
prosecution version on the basis of the oral evidence of
the complainant and the official witnesses even if the
trap witnesses turn hostile or are found not to be
independent. When besides such evidence, there is
circumstantial evidence which is consistent with the
guilt of the accused and inconsistent with his
innocence, there should be no difficulty in upholding
the conviction." (Emphasis supplied)
and submitted that keeping in view that the witnesses
were examined long after the date of occurrence hence minor
contradictions are but natural in the testimony and as
undisputedly, the appellant-convicts have signed their arrest
memo as well as the seizure lists coupled with the oral testimony
of the prosecution witnesses examined in the trial is sufficient to
draw presumption under Section 20 of Prevention of Corruption
36 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
Act, 1988 that they received the amount as a motive or reward as
mentioned in Section 7 of the said Act and as they failed to come
forward with any defence regarding the reason for acceptance of
the said tainted currency notes and thus the learned court below
has rightly convicted them for the said offences. Mrs. Sinha,
next relied upon the judgment of Hon'ble Supreme Court of
India in the case of M. Narsinga Rao v. State of A.P. reported in
(2001) 1 SCC 691, paragraph nos.14 and 15 of which reads as
under:-
"14. When the sub-section deals with legal
presumption it is to be understood as in terrorem i.e.
in tone of a command that it has to be presumed that
the accused accepted the gratification as a motive or
reward for doing or forbearing to do any official act
etc., if the condition envisaged in the former part of the
section is satisfied. The only condition for drawing
such a legal presumption under Section 20 is that
during trial it should be proved that the accused has
accepted or agreed to accept any gratification. The
section does not say that the said condition should be
satisfied through direct evidence. Its only requirement
is that it must be proved that the accused has accepted
or agreed to accept gratification. Direct evidence is one
of the modes through which a fact can be proved. But
that is not the only mode envisaged in the Evidence
Act.
15. The word "proof" need be understood in the sense
in which it is defined in the Evidence Act because proof
depends upon the admissibility of evidence. A fact is
said to be proved when, after considering the matters
before it, the court either believes it to exist, or
considers its existence so probable that a prudent man
ought, under the circumstances of the particular case,
to act upon the supposition that it exists. This is the
definition given for the word "proved" in the Evidence
Act. What is required is production of such materials
on which the court can reasonably act to reach the
supposition that a fact exists. Proof of the fact depends
upon the degree of probability of its having existed.
The standard required for reaching the supposition is
that of a prudent man acting in any important matter
concerning him. Fletcher Moulton L.J.
in Hawkins v. Powells Tillery Steam Coal Co.
37 Cr. Appeal (SJ) No.280 of 2020
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Ltd. [(1911) 1 KB 988 : 1911 WN 53] observed like
this:
"Proof does not mean proof to rigid
mathematical demonstration, because that is
impossible; it must mean such evidence as
would induce a reasonable man to come to a
particular conclusion."
and submits that proof does not mean proof to rigid
mathematical demonstration because that is impossible. It is
further submitted that keeping in view the fact that the
witnesses who were examined after a long time of about 5-11
years after the occurrence, as the first witness being the P.W.1
was examined on 17.07.2013 while the P.W.10 was examined
on 03.06.2019 it is but natural that there will be some
discrepancy in the testimonies of such witnesses and the
contradictions cited by the appellant-convicts are so
insignificant and puerile that the same will not entail the
acquittal of the appellant-convicts. It is further submitted by
Mrs. Sinha, that keeping in view huge amount of bribe taken
by the appellant-convicts, the sentence imposed upon them is
also proper. Hence, it is submitted that the learned trial court
having rightly convicted and sentenced the appellant-
convicts, this appeal being without any merit be dismissed.
21. Having heard the rival submissions made at the
Bar and after going through the materials in the record, it is
pertinent to mention here that there is no dispute that it is a
settled principle of law that mere recovery of the bribe money
by itself cannot bring home the charge for the offences
38 Cr. Appeal (SJ) No.280 of 2020
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punishable under section 7 or 13 (2) read with 13 (1) (d) of the
Prevention of Corruption Act, 1988 against the accused
persons of any case, in the absence of any evidence to prove
payment of bribe on demand or to show that the accused
voluntarily accepted the money, as has inter alia been held in
the cases State of Punjab v. Madan Mohan Lal Verma
(supra), V. Sejappa v. State (supra), Mukhtiar Singh v. State
of Punjab (supra) and Ashoo Surendranath Tewari v. CBI
(supra). Now coming to the facts of the case, the shadow
witness in the case namely Prabhu Dayal has died as is
evident from Ext.20 which is the charge sheet of this case
wherein, it has categorically been mentioned against his name
that he is dead and the said fact is not in dispute. So this
leaves the P.W.1 to be the only competent witness who has
seen the demand of money, acceptance of money. As
undisputedly, besides the P.W.2, there is ample evidence in
the shape of testimonies of P.Ws.1, 3, 5, 6, 7, 8 and 9 regarding
recovery of money. So far as the evidence of P.W.2 is
concerned, there is absolutely no cross-examination of him on
any material particulars regarding demand of money,
acceptance of money or recovery of money from the
appellant-convicts. Similarly, there is no cross-examination of
P.Ws.1, 3, 5, 6, 7, 8 and 9 regarding their testimonies of
recovery of the money from the appellant-convicts. There is
absolutely no cross-examination of any of the witnesses of the
39 Cr. Appeal (SJ) No.280 of 2020
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prosecution regarding the colour of the sodium carbonate
solution turning pink upon the fingers of the appellant-
convicts being washed with the solution and the
denominations and number of the notes upon being
compared with the notes recovered, the same were tallied. It is
a settled principle of law as has been held by the Hon'ble
Supreme Court of India in the case of State of U.P. v.
Zakaullah, (1998) 1 SCC 557 that where one of the reasons
which the learned Single Judge advanced for interfering with
the conviction and sentence was that nobody overheard the
demand made by the delinquent officer for bribe, the Hon'ble
Supreme Court of India observed as under in paragraph-14:
"14. The two remaining reasons, i.e., nobody overheard
the demand made by the respondent for bribe and that
the amount was found not in the right pocket but only
in the left pocket, are flippant grounds which should
never have merited consideration.Xxxxxxxxx"
(Emphasis supplied)
wherein in the facts of that case where the
complainant's evidence was jettisoned on the mere ground
that since he had a grouse against the delinquent public
servant he might falsely have implicated the public servant,
the Hon'ble Supreme Court of India observed that such a
premise is fraught with the consequence that no bribe giver
can get away from such stigma in any graft case and went on
to say that the very fact that the complainant filed a complaint
with the Anti-Corruption Bureau is reflective of his grievance.
40 Cr. Appeal (SJ) No.280 of 2020
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Such a handicap in his evidence may require the court to
scrutinize it with greater care, but it does not call for outright
rejection of his evidence at the threshold. In the case of Hazari
Lal vs. State (Delhi Administration) reported in (1980) 2 SCC
390 which was referred to by the Hon'ble Supreme Court of
India in paragraph no.10 of State of U.P. vs. Zakaullah
(supra) it was observed that every citizen of India must be
presumed to be an independent person until it is proved that
he was dependent on police or other officials for any purpose
whatsoever. So in view of this backdrop, similarly because the
P.W.2 is the cousin brother of the wife of MLA does not mean,
his testimony is to be discarded when nothing has been
elicited in his cross-examination to discredit his testimony and
as already indicated above there is absolutely no cross-
examination of him regarding his testimony in his
examination in chief wherein he has stated about the demand
of bribe by both the appellant-convicts at separate places,
payment of bribe amount of ₹ 41,000 and ₹ 1 lakh separately to
the appellant-convicts as well as recovery of the said tainted
bribe amount from the appellant-convicts.
22. The Hon'ble Supreme Court of India also
reiterated the settled principle of law that where upon a bribe
been demanded from a man; if without giving the bribe he
goes to the police or magistrate and brings them to witness the
payment, it will be a legitimate trap and in such cases at the
41 Cr. Appeal (SJ) No.280 of 2020
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most he can be treated as an interested witness and whether
corroboration is necessary or not will be within the discretion
of the court depending upon the facts and circumstances of
each case. In the case of M.O. Shamsudhin v. State of Kerala,
(1995) 3 SCC 351, paragraph- 22 of which inter alia reads as
under:
"22. Xxxxxxxxx Therefore in seeking corroboration for
the evidence of trap witnesses a distinction has to be
drawn where participation of an individual in a crime is
not voluntary but is the result of pressure. In such a
case the element of mens rea to commit the crime is not
apparent and (sic) cannot strictly be classified as an
accomplice and at any rate he cannot be treated as being
on the same footing. Where a bribe has already been
demanded from a man and if without giving the bribe he
goes to the police or magistrate and brings them to
witness the payment it will be a legitimate trap and in
such cases at the most he can be treated as an interested
witness and whether corroboration is necessary or not
will be within the discretion of the court depending
upon the facts and circumstances of each case. However
as a rule of prudence, the court has to scrutinise the
evidence of such interested witnesses carefully."
(Emphasis supplied)
23. The Hon'ble Supreme Court of India also
reiterated the settled principle of law in the case of M.O.
Shamsudhin v. State of Kerala, (supra) that under such
circumstances the corroborating evidence can be even by way
of circumstantial evidence also and that no general rule can be
laid down with respect to the nature of evidence required to
corroborate the testimony of a witness and the same will
depend upon the facts and circumstances of a particular case,
taking into consideration the nature of the crime, the character
42 Cr. Appeal (SJ) No.280 of 2020
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of the trap witnesses etc. and further reiterated the settled
principle of law that as a rule of law it cannot be laid down
that the evidence of every complainant in a bribery case
should be corroborated in all material particulars and
otherwise it cannot be acted upon and that in a case of bribe,
the person who pays the bribe and those who act as
intermediaries are the only persons who can ordinarily be
expected to give evidence about the bribe and it is not possible
to get absolutely independent evidence about the payment of
bribe; by observing thus in paragraph-23 of the said judgment
which reads as under:
"23. Now coming to the nature of corroborating
evidence that is required, it is well-settled that the
corroborating evidence can be even by way of
circumstantial evidence. No general rule can be laid
down with respect to quantum of evidence corroborating
the testimony of a trap witness which again would
depend upon its own facts and circumstances like the
nature of the crime, the character of trap witness etc.
and other general requirements necessary to sustain the
conviction in that case. The court should weigh the
evidence and then see whether corroboration is
necessary. Therefore as a rule of law it cannot be laid
down that the evidence of every complainant in a
bribery case should be corroborated in all material
particulars and otherwise it cannot be acted upon.
Whether corroboration is necessary and if so to what
extent and what should be its nature depends upon the
facts and circumstances of each case. In a case of bribe,
the person who pays the bribe and those who act as
intermediaries are the only persons who can ordinarily
be expected to give evidence about the bribe and it is not
possible to get absolutely independent evidence about
the payment of bribe. However, it is cautioned that the
evidence of a bribe-giver has to be scrutinised very
carefully and it is for the court to consider and
appreciate the evidence in a proper manner and decide
43 Cr. Appeal (SJ) No.280 of 2020
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the question whether a conviction can be based upon it
or not in those given circumstances." (Emphasis
supplied)
Moreover it is a fact that in these days, civilised
people are generally insensitive to come forward to give any
statement in respect of any criminal offence. The Hon'ble
Supreme Court of India in the case of Sadhu Saran Singh v.
State of U.P. & Ors., (2016) 4 SCC 357, observed as under in
this respect in paragraph-29:
"29. As far as the non-examination of any other
independent witness is concerned, there is no doubt that
the prosecution has not been able to produce any
independent witness. But, the prosecution case cannot
be doubted on this ground alone. In these days, civilised
people are generally insensitive to come forward to give
any statement in respect of any criminal offence. Unless
it is inevitable, people normally keep away from the
court as they find it distressing and stressful. Though
this kind of human behaviour is indeed unfortunate, but
it is a normal phenomena. We cannot ignore this
handicap of the investigating agency in discharging
their duty. We cannot derail the entire case on the mere
ground of absence of independent witness as long as the
evidence of the eyewitness, though interested, is
trustworthy." (Emphasis supplied)
24. In the case of State of A.P. v. Kommaraju Gopala
Krishna Murthy (2000) 9 SCC 752 wherein it was held that
when an amount is found to have been passed to the public
servant; the burden is on public servant to establish that it was
not by way of illegal gratification. Paragraphs 10 and 11 of the
judgment in the case of B. Noha v. State of Kerala, reported in
(2006) 12 SCC 277 reads as under:
44 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
"10. The evidence shows that when PW 1 told the accused
that he had brought the money as directed by the accused,
the accused asked PW 1 to take a cut and give the same to
him. When it is proved that there was voluntary and
conscious acceptance of the money, there is no further
burden cast on the prosecution to prove by direct evidence,
the demand or motive. It has only to be deduced from the
facts and circumstances obtained in the particular case. It
was held by this Court in Madhukar Bhaskarrao Joshi v.
State of Maharashtra as follows: (SCC p. 577, para 12)
"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."
11. This decision was followed by this Court in M. Narsinga
Rao v. State of A.P. There is no case of the accused that the said
amount was received by him as the amount which he was
legally entitled to receive or collect from PW 1. It was held in
the decision in State of A.P. v. Kommaraju Gopala Krishna
Murthy that when an amount is found to have been passed to
the public servant the burden is on public servant to establish
that it was not by way of illegal gratification. That burden was
not discharged by the accused." (Emphasis supplied)
25. To the same effect is the judgment of Hon'ble
Supreme Court of India in the case of Tarsem Lal v. State of
Haryana (AIR 1987 SC 806) wherein in the facts of that case
where the Sub-Divisional Officer, and another person went to
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Cr. Appeal (SJ) No.294 of 2020
Tehsil premises in a Jeep and waited near the tea stall for a
signal and on receiving the signal they reached there and on
personal search currency notes of Rs. 150/- were recovered
from the person of the appellant and on these facts the
appellant was prosecuted and was convicted and sentenced
and the facts were not disputed, the Hon'ble Supreme Court of
India observed as under in paragraph 6:
6 . Xxxxxxxxx In fact where the receipt of the amount
and its recovery is not disputed it is not necessary for us
to go through the evidence and examine it afresh,
although learned Counsel went through the evidence in
detail. The only question is as to whether the Courts
below were right in rejecting the explanation of the
appellant for receipt of Rs. 150/-. The explanation given
by the appellant which was seriously pressed by the
learned Counsel for the appellant was that he had
received this amount to be deposited in the small
savings scheme on behalf of Gian Singh but it is
significant that neither he had made any note of this fact
nor given any receipt to Gian Singh. Apart from it is
significant that the Sub-Divisional Officer who was a
revenue officer and the appellant being a Patwari was
his subordinate. The normal conduct of the appellant
would have been to tell him as soon as he arrived for
search that in fact he had received this amount to be
deposited in the small savings scheme. It is impossible to
believe that if the appellant had received this amount for
being deposited in the small savings scheme he would
have not opened his mouth and permitted the search and
recovery of this amount from his pocket to be done by
the Sub-Divisional Officer and allowed the matter to be
handed over to the Police and still would not have come
out to say what he chose to say at the trial. This conduct
of the appellant in not coming out with this explanation
instantaneously goes a long way to make this
explanation just an afterthought specially when Sub-
Divisional Officer conducted the search and recovered
this amount from his person. In this view of the matter
therefore in our opinion both the Courts below were
right in discarding this explanation of the appellant. We
46 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
therefore see no substance in this contention advanced
on behalf of the appellant. (Emphasis supplied)
26. This principle of law was also reiterated by the
Hon'ble Supreme Court of India in its judgment in the case of
State of Gujarat v. Navinbhai Chandrakant Joshi & Ors.,
(2018) 9 SCC 242 : (2018) 3 SCC (Cri) 730, by observing as
under in paragraph 11 :
"11. Xxxxx Since it is established that the accused was
possessing the bribe money, it was for them to explain
that how the bribe money has been received by them and
if he fails to offer any satisfactory explanation, it will be
presumed that he has accepted the bribe."
27. This court is conscious of the fact that the said
judgment in the case of State of Gujarat v. Navinbhai
Chandrakant Joshi, (2018) 9 SCC 242 was later on modified
by the Hon'ble Supreme Court of India reported in State of
Gujarat v. Navinbhai Chandrakant Joshi, (2019) 13 SCC 361
by observing as under:
"1. This is a petition filed by Respondent 1-Accused 2 to
modify the judgment dated 17-7-2018 in State of
Gujarat v. Navinbhai Chandrakant Joshi1. In para 3 of
the judgment, Respondent 1-Accused 2 has been stated
to be the government servant, which is not factually
correct. Though, Respondent 1-Accused 2 is not a
government servant, bribe amount in currency notes of
Rs 500 were recovered from him only; there were signs
of anthracene powder noticed from the shirt pocket of
Respondent 1-Accused 2. Considering the fact that
currency notes were recovered form Respondent 1-
Accused 2, in our view, the ingredients of Section 8 of
the Prevention of Corruption Act, 1988 are established.
The conviction of Respondent 1-Accused 2 under
Sections 7 and 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, 1988 is modified as the
47 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
conviction under Section 8 of the said Act, and the
sentence of one year imposed is reduced to six months.
2. The judgment shall be modified accordingly."
but reiteration of the said principle has remained intact
even after the said modification.
28. So far as the contention of the defence that the
P.W.2 threatened the appellant-convicts to implicate them
with false Vigilance cases is not believable for the reason
firstly, because they did not make any complaint to the police
and secondly because had it been the case, no way the
appellant-convicts would have gone to the office of P.W.2
risking their being involved in a false case. As already
indicated above, there is trustworthy evidence in the record
that the appellant-convict-Shambhu Ram went to the office of
Ekka construction on 14.03.2008 where he was caught red-
handed with the tainted bribe money after he received the
same upon demand from the complainant and the appellant-
convict-Onkar Prasad Gupta when to the office of the
complainant on 13.03.2008 where before the verifying officer
he demanded the bribe from the complainant. So far as Ext. A,
B and C are concerned, perusal of the same do not indicate
that the same shows the presence of appellant-convicts at
Jaldega at a distance of 45 kilometers from Simdega from 08:00
A.M. to 05:00 P.M. as claimed by them. Moreover as rightly
submitted by the learned counsel for the respondent, the
charges involved in this case are for the occurrence which took
48 Cr. Appeal (SJ) No.280 of 2020
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Cr. Appeal (SJ) No.294 of 2020
place on 14.03.2008. So the presence of the appellant-convicts
at a distance of 45 km from Simdega on 13.03.2008 is of not
much significance so far as the charges involved in this case
are concerned. Hence, the said the defence evidence is of no
help to the appellant-convicts.
29. It is also a settled principle of law that when the
witnesses are examined after a long time from the date of
occurrence as in this case, such witnesses cannot recollect and
narrate the entire conversation with the photographic memory
notwithstanding hiatus of passage of time as has been held by
the Hon'ble Supreme Court of India in the case of Vinod
Kumar Garg Vs. State (Government of National Capital
Territory of Delhi) (supra) as relied upon by the learned
Special Public Prosecutor appearing on behalf of Anti-
Corruption Bureau. The discrepancies and contradictions in
the testimony of the witnesses are puerile in nature and
certainly they do not discredit the testimony of any of the
witnesses examined in the case by the prosecution.
30. It is also a settled principle of law that if a party
wishes to raise any doubt as regards the correctness of the
statement of a witness, the said witness must be given an
opportunity to explain his statement by drawing his attention
to that part of it, which has been objected to by the other party,
as being untrue and without this, it is not possible to impeach
his credibility. The Hon'ble Supreme Court of India in the case
49 Cr. Appeal (SJ) No.280 of 2020
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of Laxmibai (Dead) Thr. LRs. & Anr. vs. Bhagwantbuva
(Dead) Thr. LRs. & Ors. reported in AIR 2013 (SC) 1204 in
para-31 in this respect held as under :-
"31. Furthermore, there cannot be any dispute with
respect to the settled legal proposition, that if a party
wishes to raise any doubt as regards the correctness of
the statement of a witness, the said witness must be
given an opportunity to explain his statement by
drawing his attention to that part of it, which has been
objected to by the other party, as being untrue. Without
this, it is not possible to impeach his credibility. Such a
law has been advanced in view of the statutory
provisions enshrined in Section 138 of the Evidence
Act, 1872, which enable the opposite party to cross-
examine a witness as regards information tendered in
evidence by him during his initial examination in chief,
and the scope of this provision stands enlarged by
Section 146 of the Evidence Act, which permits a
witness to be questioned, inter-alia, in order to test his
veracity. Thereafter, the unchallenged part of his
evidence is to be relied upon, for the reason that it is
impossible for the witness to explain or elaborate upon
any doubts as regards the same, in the absence of
questions put to him with respect to the circumstances
which indicate that the version of events provided by
him, is not fit to be believed, and the witness himself, is
unworthy of credit. Thus, if a party intends to impeach
a witness, he must provide adequate opportunity to the
witness in the witness box, to give a full and proper
explanation. The same is essential to ensure fair play
and fairness in dealing with witnesses. (See: Khem
Chand v. State of Himachal Pradesh, AIR 1994 SC 226
: (1993 AIR SCW 3675); State of U.P. v. Nahar Singh
(dead) & Ors., AIR 1998 SC 1328 : (1998 AIR SCW
50 Cr. Appeal (SJ) No.280 of 2020
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1200); Rajinder Pershad (Dead) by L.Rs. v. Darshana
Devi (Smt.), AIR 2001 SC 3207 : (2001 AIR SCW
3042); and Sunil Kumar & Anr. v. State of Rajasthan,
AIR 2005 SC 1096) : (2005 AIR SCW
589)."(Emphasis supplied)
31. Having carefully going through the materials on
record, this Court is of the considered view that the evidence
of P.W.2 is reliable and trustworthy and his vivid and
eloquent testimony is corroborated in the testimonies of
P.Ws.1, 3, 5, 6, 7, 8 and 9 as already discussed above in the
foregoing paragraphs of this judgment and as already
indicated above in the foregoing paragraphs of this judgment
there is no cross-examination of the prosecution witnesses
regarding the ingredients of the offence hence the portion of
unchallenged testimony of the prosecution witnesses as
already indicated above are to be accepted and the same are
sufficient to establish the charges for the offences punishable
under Section 7 as well as Section 13 (2) read with Section 13
(1) (d) of Prevention of Corruption Act, 1988, the essential
ingredient of which being;
(i) Demand of Bribe.
(ii) Acceptance of Bribe.
(iii) and Recovery of Bribe amount.
It is needless to mention that in this case the
appellant-convicts denied the receipt of money from the
complainant by them on the date of occurrence being
14.03.2008 hence the question of explanation envisaged under
51 Cr. Appeal (SJ) No.280 of 2020
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section 20 of the Prevention of Corruption Act, 1988 to
satisfactorily explain the receipt of money for any purpose
other than motive or reward does not arise.
Thus the appellant-convicts having being rightly
convicted for the offence under the said Act, the conviction of
the appellant-convicts as made by the learned trial court in the
impugned judgment is upheld.
32. So far as the sentence is concerned, it is pertinent
to mention here that rampant corruption is seen in every walk
of our life. People, particularly those holding high office, are
frequently seen accepting illegal gratification. In such serious
cases showing mercy to such corrupt official may send wrong
signals. The Hon'ble Supreme Court of India, in the case of
Narendra Champaklal Trivedi v. State of Gujarat, (2012) 7
SCC 80 has observed thus in paragraph -30 :-
"30. Xxxxxxxxxxx It should be paramountly borne in
mind that corruption at any level does not deserve either
sympathy or leniency. In fact, reduction of the sentence
would be adding a premium. The law does not so
countenance and, rightly so, because corruption
corrodes the spine of a nation and in the ultimate
eventuality makes the economy sterile."
33. The appellant-convicts have also not raised any
grievance regarding the quantum of sentence in the appeal
memo. Thus in this backdrop, considering the huge amount of
bribe taken by the appellant-convicts, the sentence also
appears to be proper. Because of the facts of the case as well as
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law discussed above, this Court is of the considered view that
the conviction and sentence of the appellant-convicts are
proper accordingly the same are confirmed.
34. Therefore, the impugned Judgment of conviction
and Order of sentence dated 25.02.2020, passed by the learned
Special Judge, A.C.B, Ranchi in Vigilance (Spl.) Case No. 03 of
2008 is up held and these appeals being without any merit are
dismissed.
35. Perusal of the record reveals that the appellant-
convicts -Shambhu Ram and Onkar Prasad Gupta are in
judicial custody.
36. Let a copy of this Judgment be sent to the learned
court below forthwith.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 22nd September, 2021
AFR/ Sonu-Gunjan/-
