Jharkhand High Court

Anandi Prasad Singh vs State Of Jharkhand Through Central ... on 29 October, 2024

Author: Deepak Roshan

Bench: Deepak Roshan

   IN THE HIGH COURT OF JHARKHAND AT RANCHI
               Cr. Appeal (S.J.) No. 1256 of 2003
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Anandi Prasad Singh, son of Late Badri Prasad Singh, presently resident of Koyla Nagar Township, Qr. No. CII/37, Sector-7, P.O. & P.S-Saraidhela, Dhanbad, District-Dhanbad. ..... Appellant Versus State of Jharkhand through Central Bureau of Investigation ..... Respondent

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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Appellant : Mr. Shailesh, Adv For the Respondent : Mr. Anil Kumar, ASGI

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CAV On 23.07.2024 Pronounced on: 29/10/2024

Heard learned counsel for the parties.

2. This appeal is directed against the Judgement of

conviction and order of sentence, both dated 12-8-2003, passed

by learned Special Judge,-CBI cum 4th Additional Sessions

Judge, Dhanbad in R. C. Case no. 2A/94D; whereby the

appellant has been convicted under Section 7 & 13(2) of the

Prevention of Corruption Act, 1988 and has been sentenced to

undergo R. I. for 2 years and to pay fine of Rs. 500/- under

each section and in default, to undergo S.I. for 2 months and

both the sentences were directed to run concurrently.

3. The brief fact of the case is that on 25-1-1994, Vijay

Kumar, made a complaint before the Superintendent of Police,

Central Bureau of Investigation, Dhanbad alleging therein that

the appellant demanded a sum of Rs.9000/- for payment of bill.

On the basis of such allegation, a case was registered on 26-1-

1994. On 27-1-1994, a team was constituted and they

proceeded to the office of the appellant. On the way to the office,

the complainant met with the appellant and on seeing him, the

complainant alleged to have disclosed that he brought Rs. 500/-

and then the appellant asked the complainant to go towards

Colliery Store and to pay the amount.

Upon such instruction, the complainant alleged to have

taken out the tainted amount of Rs. 500/- and handed over it to

the appellant but the appellant directed the complainant to pay

the amount to another accused Jai Gobind Singh. Jai Gobind

Singh kept the money in his left pocket of the shirt and he was

caught red handed. Preliminary memorandum was prepared in

presence of witnesses.

After investigation, charge-sheet was submitted against

the appellant and Jai Gobind Singh under Sections 7 and 13(2)

and Under Section 13(1) (d) of the Prevention of Corruption Act,

1988 for which appellant pleaded not guilty and claim to be

tried and finally trial court convicted them under the aforesaid

sections.

4. Mr. Shailesh Kumar, learned counsel for the appellant

submits that there are material contradictions and

inconsistencies in the evidence of the P.W.s. He also submits

that it is quite impossible to believe that money was demanded

by the appellant; having been offered by the complainant, but

the amount was not paid to the appellant; rather it was

admittedly paid to Jai Gobind Singh. This fact having not been

noticed by the learned Trial Court, the impugned judgement is

liable to be set aside.

He further submits that even memorandum of evidence or

seizure list does not indicate that it was recovered from the

possession of the appellant and even the tainted money having

not found and recovered from the possession of the appellant,

the offence under Section 7 of the Prevention of Corruption Act

cannot be attracted.

5. Learned counsel further submits that after seizure, the

said money was kept in a sealed envelope which was signed by

the seizure witness and was opened in front of him in at the

time of exhibit from which one small sealed envelope was taken

out which was opened in front of him and it did not bear his

signature and which contained another unsealed envelop inside

of which Rs.500/- was found.

He contended that from the deposition of seizure witness

it can safely be concluded that tainted notes which were

recovered were not sealed at the spot which is a serious

infirmity in the prosecution and casts a doubt on the whole

prosecution story.

6. Mr. Anil Kumar, learned A.S.G.I appearing 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. As such, no

interference is required.

7. Having heard learned counsel for the parties and after

going through L.C.R. and the impugned judgement it transpires

that the demand and acceptance of bribe is not proved in the

instant case, inasmuch as, P.W.2 who is a shadow witness; in

his deposition has deposed at para 4 that the complainant met

with the appellant on the way they talked each other but he did

not hear and also could not hear the demand of bribe from the

appellant.

He further deposed that A.P. Singh did not take the

money in his hand. For better appreciation, para 4 of the

deposition of P.W.2 is extracted herein below.

............"रास्ते में मुदालय ए० पी० स िं ह े भें ट हुई । सिर ए०पी० स िं ह तथा complainant के बीच कुछ बाते हुई आप में सिनको मैंने नहीिं ु ना"........ ...........तब ए० पी० स िं ह बोले सक पै ा िय गोसिन्द स िं ह को दे दो । इ पर सििय कुमार ने िय गोसिन्द स िं ह को पै ा दे सदया । िय गोसिन्द स िं ह ने उ पै ा को अपने दासहना हाथ े सलया दोनोिं हाथो के हारे सगना और तब अपने शटट के बायें तरि के उपर िाले पॉकेट में रख सलया । ए० पी० स िं ह ने उ पै ा को िहािं नहीिं सलया । अपने हाथ में।"

8. By going through the deposition of P.W.2, it can be

inferred that demand has not been proved by the shadow

witness, inasmuch as, he has not heard anything regarding

demand by the appellant and further appellant did not take the

money in his hand; as such acceptance has also not duly

proved. It is necessary to mention here that nowhere he states

that Jai Govind Singh stated that he received money at the

behest of the appellant.

9. Further, as per this witness at para 4 of his deposition,

A.P. Singh (appellant) never touched the tainted money and at

para 10 he deposed that both the hands of the appellant turned

pink and according to P.W.4 at para 9 after the seizure of

money appellant's both hands were dipped into glass of water

wherein right hand turned pink however colour of glass of water

as well his left hand did not change.

From the deposition of these two witnesses, it appears

that either the appellant never touched the money or he took

the money in his hands; both the possibility cannot be true, as

such the witnesses cannot be relied. Further, if the appellant

never touched the money as per the shadow witness, his hands

cannot turn pink and if he took the money his hands will turn

pink and, in this regard, also there are contradictory statements

by the witnesses.

On contradiction of statement between the witnesses, it

would be profitable here to refer the case of Suraj Mal v. State

(Delhi Admn.) reported in (1979) 4 SCC 725 wherein at

paragraph no.2 the Hon'ble Court has held as under :-

"2...It is well-settled that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses...."

10. It is further evident from the deposition of P.W.14 at

Para 25 who is the I.O. of this case, that at the time of trap, the

complainant went to the store and Naresh Mohan Ram (P.W.2)

was at the gate. After the entire transaction was completed, i.e.,

taking money, giving money, accepting money, Naresh Mohan

scratched his head and made a gesture. Only after that gesture,

he and other members of their team came to know that the

transaction was done. He did not see the taking or giving of

money. Except Naresh Mohan and the complainant, other

members of the team took all the positions with us at the time

of transaction. It further transpires from Para 29 of his

deposition that - Whatever conversation took place between the

complainant and the appellant in the storeroom and whatever

transaction took place, was heard and seen only by Naresh

Mohan Ram.

As such, according to this witness the only eye witness

was P.W.2 however, the said witness i.e. P.W.2 has made

contradictory statements in his deposition thereby it casts a

grave doubt on the veracity of the prosecution story.

11. Further, the prosecution has miserably failed to prove

the place of occurrence, inasmuch as, P.W.2 has deposed that

Complainant and the appellant went to the office of appellant

and he remained at the door of the office. Relevant part of

deposition para 4 is quoted herein below.

"..........Complainant तथा ए०पी० स िं ह ऑसि के अिंदर गए और मैं उ ऑसि के दरिािा पर ही रह गया । ए० पी० स िं ह अपनी कु ी पर बै ठ गए । "

Further, from the deposition of p.w.6. at para 4 it transpires

that he also reiterates the place of occurrence as the office of

the A.P.Singh. Relevant part of para 4 is quoted herein below:

"मुझको कहा गया था सक िब भी पहुिं चेगे ए०पी०स िं ह के ऑसि में तब आप भी पहुिं च िाईएगा । नरे श मोहन राम को सििय स िं ह के ाथ रहने के सलए कहा गया।"

Thus, by going through the deposition of P.W.2 & P.W.6,

it appears that the place of occurrence was office of the

appellant-A.P.Singh; whereas as per the case of the prosecution,

the place of occurrence was store room.

12. As stated hereinabove, sealing of money at the spot is

also doubtful, inasmuch as, the seized money when it was

opened in court come out from unsealed envelope; whereas as

per the prosecution case, it was sealed at the spot itself as such

seizure itself becomes doubtful which further cast a doubt in

the prosecution case.

At the cost of repetition, it is evident from the deposition

of P.W.2 at para 6 & 8 that after seizure, the said money was

kept in a sealed envelope on which he had signed which was

opened in front of him from which one small sealed envelope

was taken out and that was opened in front of him it did not

bear his signature and which contained another unsealed

envelop inside of which Rs.500/- was found. Relevant part of

deposition at para 6 & 8 are quoted herein below:

6............"उ रूप्या को एक सलिािा में रखकर ील सकया गया सि पर मैंने भी अपना हस्ताक्षर सकया। "

8........"इ छोटे सलिािा को सि े पहचान के सलए एक्स अिंसकत सकया गया है अभी मेरे ामने खोला गया यह खुला हुआ सलिािा सनकला है सि पर मेरा कोई हस्ताक्षर नहीिं है । इ खुले हुए सलिािा को पहन एक्स / सचन्हित सकया गया। इ खुले हुए सलिािा में े ये पािं च ौ रूप्ये सनकले हैं ।"

It further appears from the deposition of P.W.4 at para 6

that after seizure of bribe money it was sealed and he also put

his signature. Relevant part is quoted herein below: