Jharkhand High Court
Arun Kumar vs The State Of Jharkhand on 10 May, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Against the common judgment of conviction dated 11.09.2018 and order of
sentence dated 15.09.2018 passed by learned Special Judge, ACB,-West
Singhbhum at Chaibasa in (Spl.) Case No. 16 of 2003)
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Cr. Appeal (S.J.) No. 1374 of 2018
Arun Kumar ... .... Appellant
Versus
The State of Jharkhand, through the Vigilance ... .... Respondent
With
Cr. Appeal (S.J.) No. 1434 of 2018
Ram Janam Sharma ... .... Appellant
Versus
The State of Jharkhand, through the ACB ... .... Respondent
PRESENT
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellant : Mr. B. M. Tripathi, Sr. Advocate
Mr. Krishanu Ray, Advocate
For the ACB : Mrs. Priya Shrestha, SPP
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C.A.V. Dated : 18.04.2024 PRONOUNCED ON 10.05.2024
By Court:
Heard the parties.
1. Both the aforesaid appeals are directed against the common judgment of
conviction and sentence passed in connection with Vigilance (Spl.) Case No. 16
of 2003, whereby and whereunder, appellants have been convicted for the
offence punishable under Sections 7 and 13(2) read with Section 13(1)(d) of the
Prevention of Corruption Act.
2. Complainant is Sunil Kumar Munda, who had been awarded a work contract of
Rs. 69,800/- under Gram Shamridhi Yojana in Chandil Block in the year 2002
for laying of bricks in village Balidih of District Saraikella, Kharsawan. After
the completion of the work he received payment of Rs. 50,000/- by different
cheques and also got wheat and rice of worth Rs. 9,000/-. It is alleged that for
clearing the bill for release of balance amount, Assistant Engineer-Arun Kumar
and Junior Engineer-Ram Janam Sharma demanded Rs.3,500/- each i.e. 5%-5%
commission on the said amount.
3. On receipt of the complaint, the Superintendent of Police, Vigilance Bureau,
Ranchi deputed police inspector i.e., Diwa Shankar Prasad to verify the
complaint and submit his report. He accordingly verified the matter and found
the allegation true and submitted his report to the Superintendent of Police,
Vigilance Bureau, Ranchi. Thereafter, on the direction of the Superintendent of
Police, Vigilance, Ranchi, Vigilance P.S. Case No. 14 of 2003 was lodged and
the Dy. S.P., namely, R.K. Dhan was appointed as I.O. of the case.
4. A trap team was constituted, and on 07.05.2003, after completing the pre-trap
formalities, trap was laid on 08.05.2003 in the quarters of both the appellants
situated in Chandil Block. The trap was first laid in the official quarter of
Ramjanam Sharma, Junior Engineer and then in the house Arun Kumar,
Assistant Engineer. Both of them were apprehended red handed while accepting
the bribe amount of Rs3,500 each tendered by the appellant in the presence of
shadow witness.
5. After investigation, charge sheet was submitted for the offence punishable under
Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption
Act against the appellants and they were put on trial under these sections.
6. Altogether nine witnesses were examined on behalf of the prosecution and the
relevant documents were adduced into evidence, marked as exhibits Nos. 1-10
and X as well as material exhibits have also been proved.
7. After prosecution evidence, statement of the appellants was recorded under
Section 313 of the Cr.P.C. Defense is of innocence and false implication.
8. It is argued by the learned counsel on behalf of the appellants that there are
serious infirmities in the prosecution case which renders the judgment of
conviction unsustainable. Complainant has not been examined, and the
complaint has been proved formally proved by a witness who was not the author
of the document. It is argued that in the absence of proof of demand by the
complainant, the evidence of proof of demand by other witnesses is not
sufficient to prove the charges under Section 7 and 13(2) of the P.C Act. Prove
of demand by the shadow witness or the I.O will not be sufficient. Reliance is
placed on A. Subair v. State of Kerala, (2009) 6 SCC 587 wherein it has been
held,
17. Pertinently, Manaf (the complainant) has not been tendered in
evidence by the prosecution. PW 12 (IO) in his entire deposition has not
stated a word as to why Manaf was not examined or why it was not
possible to tender him in evidence. In the absence of examination of the
complainant, there is no substantive evidence to prove the factum of
demand.
As far as the impact of non-examination of the complainant, law has now
been settled that mere non-examination of a complainant will not be fatal to
the prosecution, if demand and acceptance is proved by other evidences on
record. Hon'ble Supreme Court held in Neeraj Dutta v. State (NCT of
Delhi), (2023) 4 SCC 731
90. Accordingly, the question referred for consideration of this Constitution
Bench is answered as under:
In the absence of evidence of the complainant (direct/primary,
oral/documentary evidence) it is permissible to draw an inferential
deduction of culpability/guilt of a public servant under Section 7 and
Section 13(1)(d) read with Section 13(2) of the Act based on other
evidence adduced by the prosecution.
9. There was infirmity in the verification report. The verifying officer (PW-4) did
not verify the work allotted to the appellants.
10. Independent witness PW-7 Ghansyam has deposed that no recovery was made
in his presence and he could not say from where the G.C notes came in the hand
of the appellants.
11.It is further argued that, it is highly improbable that trap having been laid in the
same colony, did not draw the attention of the people when appellant Arun
Kumar was also living in the same colony. Logically once the trap was laid, it
should have put Arun Kumar on alert to prevent him from being trapped.
12. Learned APP has defended the impugned Judgment and sentence. It is
submitted that the colony in which the trap was laid in the two quarters, stand at
a distance of about 150 meters, to allow visibility. There is no evidence to
buttress the argument that they were so close that raid in one could have drawn
attention to those in another quarter.
13.Before entering into appreciation of evidence it will be desirable to restate the
law regarding demand or obtainment, acceptance and recovery of bribe money
in a case as laid down in Neeraj Dutta case (supra)
Underlying principles may be summarized as under:
(i) If there is an offer to pay by the bribe-giver without there being any demand
from the public servant and the later simply accepts the offer and receives
the illegal gratification, it is a case of acceptance as per Section 7 of the Act.
In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe-giver
accepts the demand and tenders the demanded gratification which in turn is
received by the public servant, it is a case of obtainment. In the case of
obtainment, the prior demand for illegal gratification emanates from the
public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the
Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the
demand by the public servant respectively have to be proved by the
prosecution as a fact in issue. In other words, mere acceptance or receipt of
an illegal gratification without anything more would not make it an offence
under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act.
Therefore, under Section 7 of the Act, in order to bring home the offence,
there must be an offer which emanates from the bribe-giver which is
accepted by the public servant which would make it an offence. Similarly, a
prior demand by the public servant when accepted by the bribe-giver and in
turn there is a payment made which is received by the public servant, would
be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.
(iv) Insofar as Section 7 of the Act is concerned, on the proof of the facts in
issue, Section 20 mandates the court to raise a presumption that the illegal
gratification was for the purpose of a motive or reward as mentioned in the
said Section. The said presumption has to be raised by the court as a legal
presumption or a presumption in law. Of course, the said presumption is also
subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii)
of the Act. We clarify that the presumption in law under Section 20 of the
Act is distinct from presumption of fact referred to above in sub-para
88.5(e), above, as the former is a mandatory presumption while the latter is
discretionary in nature.
(v) In the event the complainant turns "hostile", or has died or is unavailable to
let in his evidence during trial, demand of illegal gratification can be proved
by letting in the evidence of any other witness who can again let in evidence,
either orally or by documentary evidence or the prosecution can prove the
case by circumstantial evidence. The trial does not abate nor does it result in
an order of acquittal of the accused public servant.
14. From the above stated position of law it will be apparent that non-examination
of complainant in a Case is not necessarily fatal to the prosecution, if the fact in
issue is proved by other oral and/or circumstantial evidence. The principles of
appreciation of evidence in Corruption cases does not fundamentally differ from
that in cases of other Criminal trials. There is however provision of presumption
of law to be drawn under sections 20 of P.C Act that where, in any trial of an
offence punishable under Section 7 or under Section 11, it is proved that a public
servant accused of an offence has accepted or obtained or attempted to obtain
for himself, or for any other person, any undue advantage from any person, that
he accepted or obtained or attempted to obtain that undue advantage, as a motive
or reward under Section 7 for performing or to cause performance of a public
duty improperly or dishonestly either by himself or by another public servant.
15. On the point of demand, PW-4 is the officer who verified the complaint and
was also member of trap team. He has deposed in para 11 that on the said date
(08.05.03) he first reached the official residence of Ramjanam Sharma, Junior
Engineer along with the Complainant, Devendranath Upadhyay constable, and
Dinesh Kumar Singh followed him. On seeing Complainant, accused made
demand of the bribe money from him, on which he tendered him Rs 3500/-
which was accepted by him. The accused took the bribe amount in his hand and
the trap team apprehended him on spot. Seizure was made in the presence of two
independent witnesses, Ghanshyam and Kapoor Bagi.
It has also been deposed by this witness that fingers of both the hands of
accused Ram Janam Sharma were dipped in the solution sodium bicarbonate one
by one which turn into pink colour. He has identified the signature of the
witnesses on the seizure list of currency notes. The pink colour solution was
sealed in two phials and they were tested with label. Signature of witnesses were
put on label.
16. Trap team then proceeded to conduct the raid in the house of Arun Kumar. In
his examination in chief PW-4, has deposed that on the demand having been
made Rs.3500/- was given to him which he kept in his hand when he was
nabbed by the trap team. Post trap formalities were completed with regard to
making of seizure list. In his cross examination, he has admitted that in his
verification of the complaint he had not made enquiry about the pending bill of
the accused.
17. Testimony of PW 4 is corroborated PW 5-Sunil Kumar who was also member
of trap team. PW 6-Kapoor Bagi is an independent witness and has stated that
the incidence took place in May, 2003 at 8.00 a.m. in the morning. He heard that
vigilance team was present at the residence of Junior Engineer- Ram Janama
Sharma and out of curiosity he also went there and saw that cash was in the hand
of Ram Janam Sharma to the tune of Rs.3500/-. The notes were tallied with GC
note memorandum and were found to be the same. He has proved the signatures
on seizure list on the phials of solution, GC note memorandum. He has also
deposed that the vigilance team also recovered Rs.3500/- from the possession of
accused Arun Kumar. In his cross examination, he has deposed that no money
was recovered in his presence and that he had not read the documents on which
he has put the signature.
18. PW 7 Ghanshyam is also an independent witness, who has proved the signature
on the seizure list and has deposed that cash was found in the hand of the
accused persons. He has conceded that he was not the witness to demand and
acceptance of the cash.
19. PW 8 Vidya Kant Pathak was a Special Magistrate posted at Special Vigilance
Bureau. He was also member of the trap team. It has been deposed by him on
08.05.2023 in the morning at 5 O' Clock the trap team proceeded for Chandil
Block office. The raid was conducted in which Rs.3500/- in cash each was
seized from both the accused persons from their official residence at around 8 O'
Clock. It has been deposed by him in para 14, he had not personally seen the
accused persons receiving the amount from the complainant. From his
testimony, it appears that he also arrived at the place immediately after the
amount was tendered and received by the accused persons.
20. From the combined reading of testimony of these witnesses, the factum of
demand and acceptance have been deposed to by PW 4. Diwa Shankar Prasad
who was posted as Police Inspector, Vigilance at the relevant time. The
complainant in this case has not been examined, but this by itself will not be a
factor to disbelieve the deposition of other witnesses examined on behalf of the
prosecution. Deposition of PW 4 has remained undemolished during cross
examination and the questions that were put on behalf of the accused, were
largely regarding verification of the complaint made by this Officer. Another
clinching evidence to prove the fact in issue is, PW.2 Dinesh Kumar Singh
regarding whom it was deposed by PW 4 that he was also with the trap team. In
para 4, he has deposed that on being signaled, he apprehended the accused Ram
Janam Sharma. In para 11, he has deposed that after being signaled, he
apprehended Arun Kumar.
21. On demand, PW 4 is the only eye witness, but other witnesses who
immediately came after the arrest, have deposed that they were witness to the
appellants being caught with currency notes. The oral evidence of PW-4 is therefore
duly corroborated by the testimony of the other witnesses who came immediately after
the demand and acceptance and are relevant under Section 7 of the Evidence Act as
facts which are the occasion cause or effect of the fact-in-issue immediate or
otherwise. While considering the charge against an accused of demand and acceptance
of illegal gratification, the contextual circumstances, which precede and follow the
actual demand and acceptance, are equally relevant that corroborate or contradict
evidence on the said demand. As held in Neeraj Dutta case (supra), these facts can be
proved by direct or circumstantial evidence. There is nothing in the cross examination
or in the plea of defence to raise doubt on the veracity of account of PW-4. On these
evidences, this Court is of the view that the factum of demand and acceptance has
been duly proved, on the basis of which a presumption can be raised under Section 20
of the PC Act.
22. With regard to the argument, that houses where, the raid were conducted was in
close proximity, and so it was not plausible that the second raid was conducted after
only some time without putting the accused Arun Kumar on alert. The arguments
that are raised in appeal should have some grounding and evidence on record. It
was open to the counsel on behalf of the appellants to have raised question on this
aspect from the investigating officer, to get the physical distance between the two
quarters, and whether they were at a visible distance, or were obstructed by densely
constructed buildings. No questions were put on these aspects, therefore the
argument raised on this point fails.
Under the circumstance, this Court is of the view that appeal fails and the
Judgment of conviction is accordingly affirmed.
Both the appellants are sentenced to undergo RI for one year and fine of
Rs.5,000/- each and in default of the same, they will undergo SI for one month
under Sections 7 & 13(2) of the P.C. Act.
Bail of the appellants stand cancelled and they are directed to surrender
before the learned Court below so as to serve remaining part of the sentence.
Both the aforesaid Criminal Appeals stand dismissed.
I.A., if any, stands disposed of.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 10th May, 2024
AFR / Sandeep/Pawan
