Vijay Kumar Shankar @ Kumar Vijay ... vs The State Of Jharkhand
2023 Latest Caselaw 712 Jhar

                        1                        Cr. Appeal (SJ) No.504 of 2003




 IN THE HIGH COURT OF JHARKHAND AT RANCHI
           Cr. Appeal (SJ) No. 504 of 2003

[Against the Judgment of conviction and Order of sentence
dated 24.03.2003, passed by the learned Additional Judicial
Commissioner- cum Special Judge, Vigilance, Ranchi in
Vigilance P.S. Case No.25 of 1986]


Vijay Kumar Shankar @ Kumar Vijay Shankar, son of Sri Sheo
Shankar Singh, resident of Village- Kharant, P.S.- Masaurhi,
Dist.- Patna at present residing at Kusheshwar Ashthan, P.S.-
Kusheshwar Ashthan, Dist.- Darbhanga
                                         .....          Appellant
                         Versus
1. The State of Jharkhand
2. Sri Ram Nandan Ram, son of Sri Bharosa Ram, resident of
   Village- Rol, P.S.- Chanho, Dist.- Ranchi
                                      .....  Respondent
                           .....

For the Appellant : Mr. Ranjan Kr. Singh, Advocate : Mr. Prabhas Chandra Jha, Advocate For the Vigilance : Mrs. Nehala Sharmin, Spl P.P.

.....

                            PRESENT

     HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY


By the Court: -     Heard the parties.

2. The appellant has preferred this appeal being

aggrieved by the Judgment of conviction and Order of

sentence dated 24.03.2003, passed by the learned Additional

Judicial Commissioner- cum Special Judge, Vigilance, Ranchi

in Vigilance P.S. Case No.25 of 1986 whereby and where under

the learned court below has held the appellant-convict guilty

for the offences punishable under Section 161 I.P.C. for which

he has been sentenced to undergo Rigorous Imprisonment for 2 Cr. Appeal (SJ) No.504 of 2003

one year and also for the offence punishable under Sections

5(2) read with Section 5 (1) (d) of the Prevention of Corruption

Act, 1947 for which he has been sentenced to undergo

Rigorous Imprisonment for a period of one and half year and

fine of Rs.5,000/- and in case of default of payment of fine to

undergo Simple Imprisonment for a period of three months. It

was ordered that both the sentences shall run concurrently

and the period of sentence already undergone by the convict

shall be set-off.

3. The case of the prosecution in brief is that when

the appellant-convict was posted as Junior Engineer in

Chanho Block Office, he demanded the bribe of Rs.600/- from

the complainant for preparing bill of Rs.2,000/-in respect of

the loan for getting a well-constructed under the 20-

Programme Point. It is also alleged that the appellant-convict

has warned the complainant that unless the complainant

makes illegal gratification, the cheque will not be issued. The

complainant submitted his complaint to the Superintendent of

Police, Vigilance, Ranchi. The Superintendent of Police,

Vigilance, Ranchi entrusted the matter for verification and

after the report of the officer concerned regarding the truth of

the allegation, a trap was laid on 24.09.1986 at the Block Office

of Chanho. The appellant-convict was caught red handed

while taking the bribe of Rs.400/-. Search of the appellant-

convict was duly made and the sleaze money was recovered.

3 Cr. Appeal (SJ) No.504 of 2003

4. After investigation, charge sheet was submitted

against the appellant-convict for having committed the

offences punishable under Section 161 I.P.C. and Sections 5(2)

read with Section 5 (1) (d) of the Prevention of Corruption Act,

1947. The charges for the said offences were framed against

the appellant-convict to which the appellant-convict pleaded

not guilty.

5. In support of its case, the prosecution altogether

examined 13 witnesses.

6. P.W.1- Biglal Oraon was the Deputy

Superintendent of Police (Vigilance) on the date of occurrence-

on 24.09.1986. He deposed about the pre trap preparations in

detail. He further deposed that the members of the trap team

reached Chanho Block Office at 11:00 am and took their

position. P.W.1 was in the verandah of the said office. The

appellant-convict reached the office at about 12:00 noon and

on seeing the complainant; P.W.1 enquired from him whether

the complainant has brought the money. The complainant

answered in the affirmative and handed over the currency

notes kept in the envelope to the appellant-convict. The

members of the trap team reached the spot. The hand of the

appellant-convict was caught and the appellant-convict was

challenged by informing that he has taken bribe and search of

the appellant-convict was made. He has stated about the post

trap formalities like the preparation of the general currency 4 Cr. Appeal (SJ) No.504 of 2003

note memorandum. He has proved the documents over which

his signature was appearing. From the left side pant pocket of

the appellant-convict, four currency notes of 100/-

denomination each was recovered. The numbers of the notes

tallied with the numbers of the currency notes mentioned in

the G.C. note memorandum prepared during the pre-trap

preparations. He also stated about the fingers of the appellant-

convict being washed with sodium carbonate solution and

upon washing the fingers, the colour of the solution turned

pink. The currency notes recovered and pant of the appellant-

convict were seized after preparing the seizure list. In para-62

of his cross-examination, he has stated that in his presence,

from the complainant, the appellant-convict did not demand

bribe for preparing the bill and passing the bill. In para-30 of

his cross-examination, he has stated that at about 12:30 pm, the

appellant-convict asked the complainant in presence of P.W.1

as to whether the complainant has brought the money. In

para-37, P.W.1 has stated that after the bribe was taken, the

complainant gave the signal.

7. P.W.2- Belasices Toppo has deposed that on

24.09.1986 a trap was laid of which, P.W.2 was a member. He

proved his signatures appearing on different documents.

P.W.2 has stated in detail about the pre trap preparations.

P.W.2 was the shadow witness, for the trap. He saw the

complainant talking to appellant-convict. He saw the 5 Cr. Appeal (SJ) No.504 of 2003

complainant handing over the currency notes from the

envelope to the appellant-convict. He also saw that the

appellant-convict counted the currency notes and kept the

same of his left side pocket of his full pant. After seeing, P.W.2

signaled the members of the trap team. P.W.2 caught the right

hand of the appellant-convict and another police man caught

the left hand of the appellant-convict. Other members of the

trap team surrounded the appellant-convict. Police personnel

revealed their identity and challenged the appellant-convict of

having taken the bribe of Rs.400/-. He proved the G.C. note

memorandum which has been marked Ext. 1/2 and 1/3. He

has also stated about the post trap formalities like washing the

fingers of the right hand of the appellant-convict in the

sodium carbonate solution. He has stated the seizures were

made in the case. In his cross-examination, in para-16, he has

stated that he saw the appellant-convict taking money in the

verandah and thereafter, he signaled the members of the trap

team.

8. P.W.3- Mrinal N. Singh is the then A.S.I.,

Vigilance. He is also a witness on the point of trap. He has

proved his signature on the relevant registers. He has stated

about the trap having taken place and he saw Belasices Toppo

and Martin Barla catching hold of the hands of the accused.

He has also stated about recovery of the four currency notes of

Rs.100/- denomination each from the left side pocket of the 6 Cr. Appeal (SJ) No.504 of 2003

full pant of the appellant-convict. In his cross-examination,

P.W.3 stated that he saw the hand of the appellant-convict

being caught by the police personnel. He has also stated about

the four currency notes, whose numbers tallied with the

numbers of currency notes mentioned in the G.C. note

memorandum; were recovered from the pocket of the full pant

of the appellant-convict. The appellant-convict was challenged

that he has taken bribe. In para-20, he has stated that he did

not see the notes which were taken as bribe, in the court, on

the date of his deposition.

9. P.W.6- Martin Barla is also a member of the trap

team. He has stated in detail about the trap which took place

on 24.09.1986. Garvet Hembrom gave a signal regarding the

bribe money. P.W.6 and P.W.2 caught hold of hand of the

appellant-convict. P.W.1 came there and called two

independent witnesses. Upon search of the pocket of the

appellant-convict, Rs.400/- was recovered from the left side

pocket of the full pant of the appellant-convict. He has also

stated about the hand and pocket of the pant of the appellant-

convict having been washed by the sodium carbonate solution

which became pink. In para-27, he has stated that he has not

seen demanding and taking of money.

10. P.W.7- Ram Naresh Singh was also a member of

the trap team. He has deposed in detail about the pre trap

preparations and he has proved his signature on various 7 Cr. Appeal (SJ) No.504 of 2003

documents. He has further submitted that the allegations

against the appellant-convict was verified by Gabriel

Hembrom and found the same to be true. At 12:30 pm, the

appellant-convict came and met the complainant on the

verandah and at that place, towards the southern side; the

appellant-convict took the bribe money from the complainant.

Thereafter, the hand of the appellant-convict was caught. He

has also stated about the appellant-convict was challenged

that he has taken the money from the complainant. On being

searched, in presence of witnesses from the left side pocket of

the pant of the appellant-convict, four currency notes of 100

denominations were recovered. In para-47, he has stated that

he has not seen the appellant-convict taking the bribe money.

11. P.W.10- Manohar Singh Biruwa was also a

member of the trap team. He deposed in detail about the pre

trap preparations. He saw the hand of the appellant-convict

being caught by Martin Barla and Balasices Toppo. The

Deputy Superintendent challenged the appellant-convict by

saying that he has taken bribe. He has stated in detail about

the post recovery formalities also and upon search of the

appellant-convict, from the left side pocket of the full pant of

the appellant-convict, Rs.400/- was recovered and upon the

same being washed with solution, the colour of the solution

turned pink. In his cross-examination, he has stated that at the 8 Cr. Appeal (SJ) No.504 of 2003

time of search of the appellant-convict, both the hands were

caught by two of the police personnel.

12. P.W.12- Ramnandan Ram is the complainant. He

has deposed that he was entrusted the work of digging the

well for the purpose of irrigation. He dug the well. The claim

was of Rs.14,000/-. He got Rs.6,000/- in three installments. He

submitted application for the fourth installment to the B.D.O.

The B.D.O. sent the application to the appellant-convict who

was junior engineer for payment. The complainant met the

appellant-convict for preparing the bill. He identified the

appellant-convict who was standing in the dock. The

appellant-convict told him to spend Rs.600/-. P.W.12 agreed

for the same. Then he submitted an application to the

Vigilance Bureau. He identified his application which was

marked Ext. 8. Therefore, Hembrom, went for verification of

his complaint but on that date, they could not contact the

appellant-convict. Thereafter, again the verifying officer went

with the complainant. The appellant-convict stated that the

complainant has to spend Rs.400/-, then only the bill of the

complainant will be prepared. The complainant told the

appellant-convict to prepare the bill and he will pay the

money after 4-5 days. He then went to the Vigilance office. He

handed over Rs.400/- to the Deputy Superintendent of Police

of Vigilance office. Thereafter, the documents were prepared.

He has stated about the pre trap preparations. He has stated 9 Cr. Appeal (SJ) No.504 of 2003

that at the time of trap, the appellant-convict told him that the

bill has not been prepared and when the complainant offered

him the money, the appellant-convict refused to receive the

same saying that he is busy. At that point, P.W.12 was

declared hostile. Though he was put leading questions by the

prosecution but he did not support the case of the prosecution.

In his cross-examination, he has stated that B.D.O. himself

made the payment to the P.W.12.

13. P.W.13- Parmeshwar Ravidas is the I.O. of the

case. He has stated that the occurrence is of 24.09.1986. He has

also deposed about the pre trap preparations. He received the

signal and reached the place of occurrence and saw that B.

Toppo and Martin Barla were catching hold of the hand of the

appellant-convict. He has also stated about the post trap

formalities including the recovery of Rs.400/- from the pant

pocket of the appellant-convict and the preparation of post

trap formalities and upon washing the fingers of the

appellant-convict, the same turned pink.

14. P.W.4- Gopal Jee Jha has proved the chemical

examination report of the sodium carbonate solution.

15. P.W.5- Dubraj Singh is an independent witness

being the panchayat sewak. He has stated that one person was

caught and he was asked to be a witness. He has proved his

signature which was marked exhibit.

10 Cr. Appeal (SJ) No.504 of 2003

16. P.W.8- Maheshwar Prasad Mishra is a Joint

Secretary, Personnel, Administrative Reforms Department,

Govt. of Jharkhand. He was the special magistrate of Vigilance

Bureau in 1986. On 24.09.1986, he was the member of the trap

team. He has stated about the pre trap formalities in detail. He

further deposed that on going to the place of occurrence upon

receiving the signal, he saw that hand of the appellant-convict

was caught by Belasices Toppo and Martin Barla. He has also

stated about the post trap formalities.

17. P.W.9- Churaman Ram is an independent witness.

He has deposed that he was told to be a witness and he has

proved his signature which was marked exhibit. He identified

the seizure list prepared in his presence. In his cross-

examination, he has stated that the content of the seizure list

was read over to him then only he signed.

18. P.W.11- Ramnath Chaubey has proved the

sanction for prosecution of the appellant-convict.

19. After closure of the evidence of the prosecution,

statement under Section 313 Cr.P.C. of the appellant-convict

was recorded, regarding the circumstances appearing in

evidence against him, during the trial, wherein he denied the

allegation of demand, acceptance and recovery of bribe and

pleaded that he has falsely been implicated in this case.

20. Learned trial court after taking into consideration

the evidence in the record came to the conclusion that the 11 Cr. Appeal (SJ) No.504 of 2003

evidence in record is sufficient to establish the charges against

the appellant- convict beyond reasonable doubt and convicted

and sentenced him as already indicated above.

21. Mr. Ranjan Kumar Singh, learned counsel for the

appellant-convict submits that the learned trial court failed to

appreciate the fact that there is absolutely no evidence in the

record regarding the demand of money by the appellant-

convict. It is next submitted by Mr. Singh that before the

repeal of Section 161 of Indian Penal Code by Section 31 of

Prevention of Corruption Act, 1988, the same envisaged

punishment for public servant taking the illegal gratification

other than legal remuneration in respect of an official act and

as the offences involved in this case is punishable under

Section 5 (2) read with Section 5 (1) (d) of Prevention of

Corruption Act, 1947 as well as Section 161 of Indian Penal

Code and as the complainant has categorically stated that the

appellant-convict refused to accept the bribe and no

independent witness has been examined by the prosecution on

the point of demand and acceptance or recovery of the alleged

bribe amount from the appellant-convict and only person who

has stated about the demand of bribe is Vigilance officer and

that too in para-62 of his cross-examination, he has

contradicted his examination-in-chief by admitting that in his

presence, the appellant-convict had not demanded money

from the complainant. Further the testimony of the P.W.1 also 12 Cr. Appeal (SJ) No.504 of 2003

suffers from contradictions in the manner that he has

categorically stated that the complainant-P.W.12 handed over

the currency notes to the appellant-convict kept in an envelope

which is contrary to the case of the prosecution, a case of the

prosecution is that the complainant handed over the currency

notes to the appellant-convict, hence the testimony of P.W.1 is

not of unimpeachable character. It is then submitted by Mr

Singh that none of the witnesses have stated as to what was

the answer of the appellant-convict, when he was allegedly

challenged by the trap party; the same vitiates the prosecution

evidence by suppressing the material facts. It is next submitted

that the prosecution without any plausible reason has avoided

producing an important witness like Garvet Hembrom who is

stated to be the verifying officer of the complaint of the

complainant and also a member of the trap team. It is next

submitted by Mr Singh that in view of the fact that the

complainant has not supported the case of the prosecution has

raised a grave suspicion about the false implication of the

appellant-convict in this case, withholding of an important

witness like the verifying officer as well as an important

member of the trap team from the witness box, has certainly

prejudiced the appellant-convict which makes the person of

the prosecution suspicious. Hence, it is submitted that in the

absence of any evidence of demand of money and in view of

the testimony of complainant that the appellant-convict 13 Cr. Appeal (SJ) No.504 of 2003

refused to accept the money by him, in this case, the appellant-

convict be acquitted by at least giving him the benefit of doubt

and therefore the judgment of conviction and the order of

sentence be set aside and the appellant-convict be acquitted of

all the charges.

22. Mrs. Nehala Sharmin, learned Spl. P.P. on the

other hand defended the impugned judgment of conviction

and order of sentence and submitted that P.Ws. 1 to 8 and 10

to 13, have supported the factum of recovery of the bribe

money from the appellant-convict and upon his fingers being

washed with the sodium carbonate solution, the colour of the

solution turned pink and this evidence in the record is

sufficient to lead one to the only conclusion that the public

servant has committed criminal misconduct by corrupt and

illegal means abusing his position as a public servant obtained

for himself, cash of Rs.400/-. Hence, it is submitted that this

appeal being without any merit be dismissed.

23. Having heard the submissions made at the Bar

and after going through the materials in the record, it is

pertinent to mention here that as has been observed by the

Hon'ble Supreme Court of India that in a case where the

offences under Section 161 of Indian Penal Code and Section 5

(1) (d) read with Section 5 (2) of Prevention of Corruption Act,

1947 was involved, requiring corroboration of the testimony of

the personnel of vigilance department by the independent 14 Cr. Appeal (SJ) No.504 of 2003

witnesses was proper, in the case of State of U.P. v. Dharam

Chand Jain reported in (1987) 2 SCC 641, paragraph no.4 of

which reads as under:-

"4. For non-examination of the two independent witnesses the prosecution only declared that they have been won over but there was no material produced to establish this. This was an additional circumstance considered by the learned Special Judge and in the context of these circumstances after scrutinising the evidence of the Vigilance Inspector in detail the learned Judge came to the conclusion that prosecution has not been able to establish beyond doubt their case, consequently acquitted the respondent. The High Court also refused to grant leave to the State to prefer an appeal against acquittal."

In that case where the offence under Section 161 of

Indian Penal Code and Section 5 (1) (d) read with Section 5 (2)

of Prevention of Corruption Act, 1947 was involved and

independent witnesses were not examined on the ground that

they were won over and there was no material produced to

establish that such witnesses were won over and only the

vigilance inspector supported the case of the prosecution, the

Hon'ble Supreme Court of India, concurred that the acquittal

of the respondent of that case was proper.

24. The Hon'ble Supreme Court of India in the case of

M.R. Purushotham v. State of Karnataka reported in (2014

AIR SCW 5740), in the facts of that case as the complainant

did not support the case of demand of bribe and was declared

hostile, observed as under :

"When PW1 Ramesh himself had disowned what he has stated in his initial complaint in Exh.P1 before PW4 Inspector Santosh Kumar and there is no other evidence to prove that the accused had made any demand, the evidence of PW3 Kumaraswamy and the contents of Exh.P1 15 Cr. Appeal (SJ) No.504 of 2003

complaint cannot be relied upon to conclude that the said material furnishes proof of demand allegedly made by the accused."

25. Now coming to the facts of the case, except the

examination-in-chief of P.W. 1 who is the police officer in

Vigilance Department, which of course, has been contradicted

in para-62 of his deposition, there is absolutely no evidence in

the record to suggest that the appellant-convict demanded the

bribe. Pitted against the same is the testimony of the

complainant himself wherein, he has categorically stated that

the appellant-convict refused to receive the money when he

offered by saying that he is busy and even the shadow witness

has not seen the money being given or taken by the

complainant to the appellant-convict and most of them are

post occurrence witnesses. Further it is also a fact that the

P.W.1 has stated that the complainant handed over the bribe

money to the appellant-convict, by keeping the money in an

envelope, which is contrary to the case of the prosecution as

well as the testimony of other witnesses of the prosecution

that the complainant gave currency notes to the appellant-

convict. Further there is no plausible reason has been put forth

by the prosecution for not examining the verifying officer as a

witness in the case; when he was also a member of the trap

team. Thus the sole testimony of the P.W.1, in the considered

opinion of this Court falls short of establishing the victim of

demand and acceptance of the bribe money by the appellant-

16 Cr. Appeal (SJ) No.504 of 2003

convict, beyond reasonable doubt. It is apposite to mention

that except the P.W.1 whose testimony is not of

unimpeachable character for the reasons already mentioned

above, there is no evidence put forth by the prosecution

regarding the effect of demand of bribe money by the

appellant-convict.

26. Under such circumstances, keeping in view that

the fact that charges which the appellant-convict faced are

under Section 161 of Indian Penal Code and under Section 5

(2) read with Section 5 (1) (d) of Prevention of Corruption Act,

1947, this Court is of the considered view that this is a fit case

where in the absence of any cogent evidence regarding

demand of bribe, the appellant-convict be acquitted by giving

him the benefit of doubt.

27. Accordingly, the impugned Judgment of

conviction and Order of sentence dated 24.03.2003, passed by

the learned Additional Judicial Commissioner- cum Special

Judge, Vigilance, Ranchi in Vigilance P.S. Case No.25 of 1986

is set aside and the appellant-convict- Vijay Kumar Shankar @

Kumar Vijay Shankar is acquitted of both the charges faced by

him in the trial, by giving him the benefit of doubt.

28. Perusal of the record reveals that the appellant-

convict- Vijay Kumar Shankar @ Kumar Vijay Shankar is in

custody. In view of his acquittal, he is directed to be released 17 Cr. Appeal (SJ) No.504 of 2003

from custody unless his detention is required in connection

with any other case.

29. In the result, this appeal is allowed.

30. Let a copy of this Judgment be sent to the learned

court below forthwith

31. In view of the disposal of the appeal, Interlocutory

Applications, if any, is dismissed being infructuous.

(Anil Kumar Choudhary, J.)

High Court of Jharkhand, Ranchi Dated the 10th February, 2023 AFR/ Sonu-Gunjan/-