Jharkhand High Court
Bindeshwari Singh vs The State Of Jharkhand on 8 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 356 of 2001
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(Against the judgment of conviction dated 14.08.2001 and order of sentence
dated 17.08.2001 passed by learned Special Judge, C.B.I., Dhanbad in R.C.
Case No. 19(A)/94(D)
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Bindeshwari Singh ....Appellant
-Versus-
The State of Jharkhand ....Respondent
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellants : Mr. A.S. Dayal , Advocate
For the Respondent : Mr. Anil Kumar, ASGI
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19/08.08.2023 Heard learned counsel for the parties.
2. This appeal is directed against the judgment of conviction and
order of sentence dated 14.08.2001 & 17.08.2001, respectively passed by
learned Special Judge, C.B.I., Dhanbad in R.C. Case No. 19(A)/94(D),
whereby the appellant was convicted for the offence punishable under
Section 7 of P.C Act and was sentenced to undergo R.I. for 3 year; R.I for 3
years under Sections 13(2) r/w 13(1)(d) of the P.C. Act, 1988; R.I. for 3
years under Section 477-A of I.P.C. All the sentences were ordered to run
concurrently.
3. The prosecution case in brief is that the appellant demanded Rs.
100/- from the complainant for not harassing him in marking his attendance
and the said money was recovered from the appellant. The complaint was
verified by the Inspector of C.B.I. and after submission of his report, the
case was registered on 29.06.1994.
4. Learned counsel for the appellant made the following
submissions:
(1) The prosecution has failed to establish/prove the demand of
illegal gratification by the appellant.
(2) There are several contradictions in the evidence of the
prosecution witnesses and none of the witnesses examined, were
independent.
(3) P.W.2 (Ramji Ram), P.W.3 (Sheo Lal) & P.W.5 (T.J. Ghosh)
were members of trap team.
P.W.2 is unable to say whether Security Office was one
storied or double. He was unable to say about number of rooms or
location of office of Personnel Manager.
P.W.3 at para 24 is unable to say who had gone to Modidih
colliery with him or by how many vehicles the Trap Team had
gone.
The manner of trap as envisaged by all the 03 witnesses is
highly doubtful to the extent as to whether they were members of
trap team or had actually witnessed the trap.
Even P.W.5 is unable to give/say about location of place of
occurrence.
(4) P.W.9 has stated at Para 8 that money was recovered from
hand of accused Bindeshwari Singh by Investigating Office,
whereas; according to Memo of recovery, the recovery was made
by Sheo Lal (P.W.3) whereas Personnel Manager (P.W.7), at
para-1 has stated to have seen the money on the table. Thus
demand, acceptance and recovery has not been proved beyond
reasonable doubt.
(5) If P.W. 7 is to be believed, possibility of plantation cannot
be ruled out. As per P.W.7 (Sr. Manager) there was one more
person named Gaya Tiwari who was present, but he has not been
examined and has been withheld by prosecution. Thus, it can be
inferred, had he been examined there was possibility of him not
supporting the case of prosecution.
(6) It is doubtful whether shadow witness had reached near
office and was able to hear conversation as he says he was outside
the door whereas complainant did not say that shadow witness
went to place of occurrence.
5. Appellant was also convicted under Section 477A I.P.C read with
Section 120B I.P.C. In the instant case, prosecution has failed to examine
the handwriting expert to prove that it was the appellant, who has done
falsification of accounts.
Relying upon the above contentions, learned counsel for the
appellant prays for acquittal.
6. Learned A.S.G.I for the C.B.I opposed the prayer of the appellant
for acquittal and submits that no error has been committed by learned trial
court and prosecution witnesses have considerably proved the charge
against the appellant by cogent evidence. It is an open and shut case, where
the appellant was trapped red handed. The technical issues raised by the
appellant does not have much substance; inasmuch as, the prosecution has
proved that the C.G note of Rs. 50 and C.G notes of Rs. 10 five in numbers
were seized from the possession of the appellant. As such, no interference
is required.
7. Having heard learned counsel for the parties and after going
through the L.C.R and the impugned judgment, it appears that the
prosecution has failed to establish/prove beyond all shadow of reasonable
doubts, the demand of illegal gratification by the appellant. There are
several contradictions in the evidence of the prosecution witnesses.
Ramji Ram (P.W.2), Sheo Lal (P.W.3) & T.J.Ghosh (P.W.5) were
members of trap team. P.W.2 is unable to say the structure of Security
Office as to whether it was single or double storied. He was unable to say
about number of rooms or location of office of Personnel Manager.
P.W.3 at para 24 is unable to say who had gone to Modidih
Colliery with him or by how many vehicles the Trap Team had gone or
how many stayed with the Trap Team.
The manner of trap as envisaged by all three witnesses is highly
doubtful to the extent that whether they were members of trap team or had
witnessed the trap. Even P.W.5 is unable to give/say about location of place
of occurrence.
8. The complainant (P.W.9) does not say whether Ramji Ram
(P.W.2), shadow witness or anybody else had accompanied him when he
had gone to the security office for giving the bribe. P.W.9 has stated at Para
8 that money was recovered from hand of accused Bindeshwari Singh by
Investigating Officer, whereas according to Memo of recovery, the
recovery was made by Sheo Lal (P.W.3), whereas Personnel Manager
(P.W.7), at para-1 has stated to have seen the money on the table. Thus
demand, acceptance and recovery has not been proved beyond reasonable
doubt. There is no cogent evidence to show that the seized currency notes
or bottle were sealed.
If P.W. 7 is to be believed, possibility of plantation cannot be
ruled out. As per P.W.7 (Sr. Manager) there was one person namely Gaya
Tiwari, who was present at the time of seizer but he had not been examined
and has been withheld by prosecution. Had he been examined there was
possibility of him not supporting the case of prosecution.
9. The prosecution case was of demand for doing nothing wrong
with attendance of complainant. It is doubtful whether shadow witness had
reached inside the office and/or was so near to the place of occurrence that
he was able to hear conversation as he says he was outside the door
whereas complainant did not say that shadow witness went to place of
occurrence.
10. One important aspect is to be seen that there is no evidence to the
effect that the complainant (P.W.9) had ever made any complaint to the
authorities of the Colliery including P.W.7, who was the Personnel
Manager of the Colliery with regard to the demand of gratification, which is
evident from Paras 13 & 16 of P.W.7. On the other hand, it is appears from
Paras-17 and 22 of P.W.7 that several charge-sheets & warnings were given
to Dularchand for being absent.
At this stage, it is also pertinent to observe that making of
concocted story and false implication cannot be ruled out by the
complainant because admittedly he was facing a departmental proceeding
where charge-sheet was also submitted against him for unauthorized
absence.
Further, the prosecution has failed to prove that the shadow
witness was well within his reach, so as to corroborate the demand and
handing over the note; which is not proved in the instant case beyond
reasonable doubts. In this regard reference may be made to the case of
Mukut Bihari & Anr. Vs. State of Rajasthan delivered 25th May, 2012
reported in (2012) 11 SCC 642, wherein at Paragraph-14 the Hon'ble Apex
Court has held as under:
"Para-14. Undoubtedly, in Smt. Meena Balwant Hemke
(supra), this Court held that law always favours the presence
and importance of a shadow witness in the trap party not only
to facilitate such witness to see but also overhear what
happens and how it happens."
At the cost of repetition, P.W. 9 has stated at paragraph-8 that
money was recovered from hand of the accused by the Investigating
Officer, whereas as per the Memo of recovery, the recovery was made by
P.W.3, whereas P.W.7, who was the Personnel Manager at Para-1 has
stated that he has seen the money on the table. All these lacunae has been
ignored by learned trial court while convicting the appellant and looking to
the overall facts and circumstances of the case and the background that the
complainant was also facing departmental proceeding, false implication
cannot be ruled out.
11. Admittedly the documents were never sent to any handwriting
expert to testify the handwriting of those documents as to whether the
cutting and the entry has been made by the appellant or not and the
appellant has been convicted merely on presumption that since he was the
custodian of register, he is presumed to have committed the falsification of
account; In absence of this necessary evidence the conviction under this
section is not sustainable in the eyes of law.
12. Having regard to the discussions made hereinabove, the impugned
judgment requires interference. Consequently, the impugned judgment of
conviction dated 14.08.2001 and order of sentence dated 17.08.2001 passed
by learned Special Judge, C.B.I., Dhanbad in R.C. Case No. 19(A)/94(D),
is hereby, quashed. Accordingly, the instant appeal stands allowed.
13. The appellant shall be discharged from the liability of his bail
bond.
14. Let a copy of this order be communicated to the trial Court and
the Lower Court Record be sent to the court concerned forthwith.
(Deepak Roshan, J.)
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