Rajasthan High Court - Jodhpur
Gauri Shanker vs State on 11 April, 2022
Bench: Pushpendra Singh Bhati
(1 of 4) [CRLA-309/1989]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 309/1989
Gauri Shanker
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr. Sudhir Sharma
For Respondent(s) : Mr. M.S. Bhati & Mr. Mukesh Trivedi,
PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
11/04/2022
In wake of instant surge in COVID-19 cases and spread of its
highly infectious Omicron variant, abundant caution is being
maintained, while hearing the matters in Court, for the safety of
all concerned.
The criminal appeal has been preferred claiming the
following relief:-
"It is, therefore, humbly prays that this appeal
may kindly be allowed and the judgment dated 28.7.89
may kindly be set aside and the appellant may kindly
be acquitted of the charges levelled against him."
The matter pertains to an incident which occurred in the year
1983 and the present appeal has been pending since the year
1989.
Learned counsel for the appellant submits that this Criminal
Appeal has been preferred against the impugned judgment dated
28.07.1989 passed by the learned Special Judge, Anti Corruption,
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(2 of 4) [CRLA-309/1989]
Bikkaner in Sessions Case 3/1985 whereby the appellant was
convicted for the offences under Section 161 IPC and Section 5(1)
(d) & 5(2) of Prevention of Corruption Act, 1947 and was
sentenced to undergo 6 months R.I. and a fine of Rs. 500/-
default of payment of which he was ordered to further undergo 3
months R.I. and was sentenced to undergo 1 year R.I. and a fine
of Rs. 500/- default of payment of which he was ordered to further
undergo 3 months R.I. respectively.
Learned counsel for the appellant submits that pursuant to an
application filed on 15.06.1983 by one Shankar Ram, trap
proceedings were launched by the Deputy Superintendent of
Police - Anti Corruption, and Rs.1000/- was recovered through the
said proceedings from the appellant at the bus stand of Suratgarh.
Learned counsel for the appellant has further pointed out
that the evidence of PW-3 Shankar Ram, PW-4 Manohar Lal, PW-2
Balram and PW-5 Budh Singh are to be taken note of conjointly,
which reflects the corollary, drawing the conclusion that the
appellant had participated in the corruption, stands grossly
incomplete.
Learned counsel for the appellant further submits that the
appellant is above 95 years of age. Learned counsel further
submits that the alternate suggestion of the due loan amount
having been repaid has not been dealt with by the learned trial
court convincingly. Learned counsel thereafter, has drawn
attention of this Court to fortify the submission regarding the loan
in question to the statement of DW-1 Sundaram.
Learned counsel for the appellant further submits that the
appellant was however enlarged on bail by this Hon'ble Court, vide
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(3 of 4) [CRLA-309/1989]
order dated 28.05.2008 passed in S.B. Criminal Misc. Bail
application No.568/2008.
Learned counsel for the appellant, however, makes a limited
submission that without making any interference on
merits/conviction, the sentence awarded to the present appellant
may be substituted with the period of sentence already undergone
by him.
Learned Public Prosecutor opposes the appeal.
This Court after hearing learned counsel for the parties as
well as perusing the record of the case finds that, the alternate
suggestion of the loan amount, has not been convincingly dealt
with by the learned trial court. The statement of PW-4 Manohar
Lal apparently has missing links in the allegations made, though
the statement of PW-3 i.e. applicant, Shankar Ram are quite
elaborate. This Court also went to the statement of PW-2 and PW-
5 i.e. Balram and Budh Singh, which have discrepancies, in
comparison to the main statement of Shankar Ram.
This Court on conjoint reading of the record as well as
considering the fact that the age of the appellant is 95 years and
also the fact that he was a public representative, and that the
alleged incident in question occurred in the year 1983 finds that
the evidence rendered is not sufficient to prove the charge beyond
reasonable doubt.
For the aforesaid reasons recorded, this Court is inclined to
invoke Section 5 Sub-section 2 of the Prevention of Corruption
Act, 1947, which was the applicable statute at the time of
occurrence of the alleged incident in question, which reads as
under:-
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(4 of 4) [CRLA-309/1989]
"(2) Any public servant, who commits criminal
misconduct shall be punishable with imprisonment for a
term which shall not be less than one year but which
may extend to seven years and shall also be liable to
fine:
Provided that the court may, for any special
reasons recorded in writing impose a sentence of
imprisonment of less than one year. "
For the aforesaid reasons, the sentence of the imprisonment
as already undergone is substituted with the imprisonment of one
year.
In view of the above, this Court, given the peculiar facts and
circumstances of the case and the direct application of the
aforementioned Section 5 of the Act of 1947 to the present
appeal, the present appeal is partly allowed. Accordingly, while
maintaining the appellant's conviction under Section 161 IPC and
Section 5(1)(d) & 5(2) of Prevention of Corruption Act, 1947 , as
above, the sentence awarded to him is reduced to the period
already undergone by him. The appellant is on bail. He need not
surrender. His bail bonds stand discharged accordingly.
(DR.PUSHPENDRA SINGH BHATI), J.
38-Sudheer/-
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