M.K. Hanjura ORDER
M.K. Hanjura, J.
1. The Superintendent of Police, Central Bureau of Investigation, Anti-Corruption Bureau, Jammu, has filed this appeal against the judgment of acquittal dated 22.11.2004 passed by the learned Special Judge, Anti Corruption, Jammu, whereby the respondent/accused has been acquitted of the charges levelled against him by the prosecution. The appellant seeks the reversal of the judgment by convicting the respondent/accused for the offences with which he has been charged.
2. The prosecution case in nutshell is that a written complaint dated 12.09.2000 was lodged by the complainant Sh. Vinod Uppal S/o. Sh. J.C. Uppal R/o Quarter No. 30, Resham Garh Colony, Jammu (PW-1) before the authorities of CBI stating therein that the accused-T.K. Koul, Telecom Transmission Assistant, BSNL and G.L. Bhat, JTO, Shakti Nagar, Exchange, demanded an illegal gratification of Rs. 1000/- from him in connection with an already installed STD/PCO in his name at Resham Garh Colony, Jammu. PW-1 further stated that in the event of not complying with the demand of the payment of bribe money to the accused and G.L. Bhat, he was told that the STD/PCO would be disconnected.
3. After the verification of the facts by Sh. Rajbir Singh, Inspector (PW-2), a case bearing FIR No. RC8(A)/2000/Jammu, was registered on 12.09.2000 under section 161 RPC with which the investigation commenced. A team was constituted to lay a trap on the accused persons. Sh. Gurdeep Singh Bali, AAO, New India Insurance Co. Limited Jammu (PW-3) and Sh. R.S. Salaria, Assistant Branch United India Co. Limited (PW-4) were associated with the trap team in the capacity of the independent witnesses. After introducing the members of the team to the complainant and holding of the demonstration proceedings for the use of phenolphthalein powder and its reaction with Sodium Carbonate solution, 10 G.C. notes of the denomination of Rs. 100/- each were tainted with phenolphthalein powder. The serial numbers of G.C. notes were noted down. These notes were put in the upper left pocket of the shirt of PW-1 by PW-3 with the direction to hand over these to the accused on demand. PW-4 was planted as shadow witness. Combing of the hair with hand was anchored to indicate the completion of the bribe transaction. After the completion of the requisite formalities, the team members alongwith the complainant proceeded towards the telephone exchange, Shakti Nagar, Jammu, in their official vehicles. PW-1 accompanied by the shadow witness, PW-4 entered into the exchange building. After this, PW-1 entered into the chamber of the respondent/accused- T.K. Koul. The shadow witness stood at the door. On the demand of the money by the accused, PW-1 handed over the tainted currency notes to the accused. The accused accepted the bribe money. He put the same in the left pocket of his pant. On this, the shadow witness received a signal from PW-1 who in-turn forwarded the same to the trap team. The trap team raided the telephone exchange. They caught hold of the accused. They took his hand wash. PW-3 recovered the tainted G. C. notes from the accused. The numbers of the G. C. notes were tallied with the ones mentioned/incorporated in the pre-trap memo. They were found to be the same which had been handed over to PW-1 for being passed on to the accused on demand. The G. C. notes were seized and sealed in an envelope. The left side pocket wash of the pant of the accused was taken and the other legal formalities were also completed. After examining the witnesses and the preparation of the memo by which the relevant documents were seized, the accused was found involved with the commission of offences under section 161 RPC and Sections 5(2) r/w 5(1)(d) of the Prevention of Corruption Act. On the accord of sanction to the prosecution of the accused by the Competent Authority, a charge-sheet in terms of Section 173 Cr. P. C was laid against the accused/respondent only before the Court of Special Judge, Anti-Corruption, Jammu. The charge-sheet stated that criminal liability could not be fastened onto the accused namely Sh. G.L. Bhat mentioned in the FIR. The accused/respondent was charged with the commission of offences under Section 161 RPC and Section 5(2) of the J&K Prevention of Corruption Act. The accused/respondent pleaded not guilty to the charge. Accordingly, the trial Court directed the prosecution to produce the evidence at the trial in support of its case. Prosecution examined as many as 13 witnesses in support of its case where-after the prosecution evidence was closed. After closing the evidence of the prosecution, the accused/respondent was examined in terms of the provisions incorporated under Section 342 of the Code of Criminal Procedure. The accused/respondent denied the allegations levelled against him by the prosecution. He pleaded his innocence and did not offer to produce any evidence in defence. The case ended with the acquittal of the accused by judgment dated 22.11.2004 of the trial Court which has been assailed in the instant appeal on the grounds detailed in the memo of appeal.
4. I have heard the arguments advanced at the bar and the material on record has also been perused by me.
5. The core issue that arises for consideration here in this appeal is whether, while recording the judgment of conviction and sentence, the prosecution evidence has been appreciated and scanned in the right perspective. The trial Court has recorded the entire evidence in its breadth and length in the impugned judgment and the same does not require to be repeated here. The trial Court, as is clear from the impugned judgment, has, after taking into consideration the entire evidence adduced by the prosecution, come to the conclusion that the prosecution has failed to rebut the presumption of the innocence of the accused. The evidence tendered by the prosecution at the trial fails to corroborate the testimony of PW-1 on the material particulars of the alleged occurrence and the prosecution evidence is mutually exclusive and inconsistent regarding such particulars. The prosecution case merits dismissal and is accordingly dismissed for want of cogent, reliable and credible proof.
6. It needs to be understood at the first blush that it is well settled in law that the Court while hearing an acquittal appeal has the powers to re-appreciate the evidence. However, the Court cannot interfere with the order of acquittal, if the view taken by the trial Court is a reasonable one deduced from the evidence on record and the findings recorded by the trial Court are not manifestly erroneous, contrary to the evidence on record or perverse. This position of law has been enunciated by the Supreme Court in the cases of Ram Swaroop and ors. v. State of Rajasthan (MANU/RH/0232/2002 : 2002 (13) SCC 134), Vijay Kumar v. State (MANU/SC/0627/2009 : 2009 (12)SCC 629) and Upindra Pradhan v. State of Orissa (MANU/SC/0501/2015 : 2015 (11) SCC 124).
7. Looking at the instant case from the above perspective what requires to be seen is whether the judgment rendered by the trial Court is manifestly erroneous or contrary to the evidence on record or is perverse. The answer to this is an emphatic "No" for the reason that the judgment of the trial Court is lucid and luminous. The trial Court has gone into the minutest details of the case. It has scanned the entire prosecution evidence meticulously and in the proper perspective. It does not call for any interference. It is based on the proper appreciation of the facts and the law.
8. Before adverting to the evidence adduced by the prosecution and appreciated by the learned trial Court, it will be pertinent to state that the basic and necessary ingredients of the offences within the fold of which the case of the accused has been wrapped, the prosecution has to establish that there was a demand from the accused for the payment of bribe; the accused accepted it and it was recovered from the possession of the accused. All these three ingredients have to be established by the prosecution and the mere recovery of money from the accused cannot and shall not mean that the accused has demanded and accepted the bribe. This position has been explained and elucidated in the law laid down by this Court in 1963 K.L.J. 1 para "26" of which is germane in the context of decision of the instant case. To this it added the observation made in the law laid down in 2000 Cr. L. J. 1882 wherein it has been held that it is for the prosecution to prove that there was a demand of money which was not legal. In other words, it means that the public servant was demanding illegal gratification in respect of an official act and he in fact received or obtained the money as illegal gratification, by corrupt means or by abusing the official position as a public servant. The judgment further directs that the recovery of the money dehors of the demand would not be sufficient to convict the accused.
9. Testing the instant case from the perspective of the legal position evolved above, the prosecution has to establish the factum of the demand and acceptance of illegal gratification on the part of the accused by substantive evidence. The statement of PW-1 (who is the complainant in the instant case) being the bribe-giver requires to be scanned with utmost caution and corroboration thereof has to be insisted upon. The position of a bribe-giver who consciously offers bribe to the accused in a trap case is that of an accomplice notwithstanding the fact that his intention was only to book the culprit from whom the demand of illegal gratification emanated. Therefore, the testimony of the complainant has to be analysed on these aspects with corroboration on material particulars. The Apex Court in AIR 1954 Supreme Court 322 held that the evidence of a witness who offers bribe unwillingly with the sole purpose of trapping the accused cannot be treated as evidence of accomplice but his evidence is nevertheless the evidence of partisan witness who cannot be relied upon for implicating the accused without independent corroboration. It is in the above back drop that the prosecution evidence has to be appreciated.
10. The trial Court after giving a resume of the statement of PW 1 has opined that the material facts regarding the factum of demand and acceptance of bribe money on the part of accused and its recovery by the CBI team constitute the sheet anchor of the case and it is for the prosecution to establish the essential ingredients of the offence under section 161 RPC and 5(1) read with Section 5(2) of Prevention of Corruption Act by corroboration from the independent witnesses. The trial Court has further stated that the star witness to corroborate the testimony of PW-1 on the material particulars of the case is the shadow witness, Mr. R.S. Salaria (PW-4) who has deposed that while posted as Assistant Branch Manager of United Indian Insurance Company at Gangyal, he was called by an officer of the CBI to his office. He was associated with the trap proceedings. This witness (PW-4) has also stated that he stood inside the telephone exchange at Bakshi Nagar, Jammu. PW-1 met the accused. He shook hands with him. There was some conversation between PW-1 and the accused. PW-1 took the money out of his pocket and gave the same to the accused. The accused accepted the tainted money and held the G. C. notes in his right hand. He has further stated that some other person also stood at the side of the accused. When the accused held the tainted money in his hand, there was some conversation between the two as a consequence of which the G. C. notes fell on the ground. The witness has claimed to have given the prefixed signal to the trap team. He has stated that the trap team stormed in and the G. C. notes scattered on the ground were lifted by the members of the trap team, which on comparison were found to be bearing the same serial numbers as had been noticed in the pre-trap memo. In his cross examination, PW-3 has turned the prosecution case topse turvy by portraying the accused to be an innocent man. He has stated that PW-1 forcibly put the tainted money in the hand of the accused. The accused declined to accept the same. PW-1 insisted him to accept the tainted money and the struggle between the two culminated in the dashing of the tainted money onto the ground. He has also stated that the accused suborned the offer of bribe money and pushed back the tainted money held by PW 1 in his hand maintaining that he was not in the habit of taking bribe.
11. PW-4 on the face of what he has stated in his statement has knocked the bottom out of the prosecution case by stating that the accused refused to accept the bribe from PW-1 although he forced and coerced him to accept the same and in this process the C. G. notes fell on the ground and these got scattered here and there and were gathered from the floor. It is also in the statement of PW-4 that the other members of the trap team were standing on the rear side of the telephone exchange building, where as the office of the accused is situated on the front side of the building facing ground. He has stated it emphatically that the members of the trap team could neither watch the transaction between PW-1 and the accused nor could they hear the conversation between the two. Therefore, PW-4 has not only refused to corroborate the statement of PW-1 in the material particulars of the case, i.e., demand and acceptance of the bribe money by the accused from PW-1 but he has also denied the culpability of the accused in the acts of the omission and commission attributed to him by the prosecution in the matter of the demand and acceptance of the bribe and to cap it all he has excluded the possibility of the presence of the other witnesses at the place where PW-1 is alleged to have paid the bribe money to the accused.
12. The judgment of the Court below details all these aspects of the case threadbare. It is noteworthy and the relevant extracts thereof that assume significance here in this case are reproduced below:
"Thus, PW-4 has not only refused to corroborate the version of PW-1 on the material particulars of demand and acceptance of bribe by accused PW-1 but categorically denied the role of accused in an act of commission qua demand and acceptance of bribe. Ld. PP has submitted that PW-1 has supported the prosecution version in his examination-in-chief and his attempt to wriggle out of his testimonial effect can be attributed to various influences that are at work at the trial stage of the case. However, he maintained, the witness is not totally unreliable and his testimony can be relied upon so far it corroborates the testimony of PW-1. There can be no dispute with this proposition of law. The testimony of a hostile witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that it is found to be dependable on careful scrutiny. This proposition of law laid down by the Hon'ble Apex Court in Khujji v. State of M.P reported in MANU/SC/0418/1991 : 1991 Cr. L. J 2653 is attracted in cases where prosecution chooses to treat its witness as hostile and cross-examines him. The testimony of such witness cannot be rejected in toto. In the instant case PW-4 has not been declared hostile to prosecution despite the fact that he did not choose to support the prosecution version regarding material particulars of the transaction between PW-1 and the accused. Prosecution has to bear brunt of his testimony and credit is to be attached to the testimony of PW-4 on its merit and intrinsic value. The testimony of bribe-giver is considered to be testimony of a partisan witness and it is open to a Court to convict an accused person solely on the basis of evidence tendered by a partisan witness, if it is satisfied that such evidence is reliable but it may in appropriate case look for corroboration. (Refer 1968 Cr.L.J. 1505 (Para 7) (S.C.). In the instant case the shadow witness has turned a volte-face by resiling from prosecution case and categorically denied and acceptance of the tainted money by accused. In fact he went a step further by maintaining that the accused spurned the offer of bribe by PW-1 and contemptuously pushed back the money holding hand of PW-1 which resulted in scattering of the tainted money on the floor. Prosecution has not assailed this version of PW-4 by declaring him hostile and seeking leave to cross-examine him. Therefore, the version of PW-4, which runs counter to the prosecution theory regarding demand and acceptance of graft by the accused, is deemed to be another version of prosecution emanating from the mouth of shadow witness which is mutually exclusive and inconsistent with basic version of prosecution disclosed in the testimony of PW-1. Before adverting to the legal consequences of two inconsistent versions emanating from prosecution witnesses, it would be apt to consider whether testimony of PW-1 is worthy of credit and whether there is any evidence to corroborate the same. Ld. Defence counsel has pointed out some glaring features of the case emerging from the testimony of PW-1 to buttress his point that PW-1 is unworthy of credit and no reliance can be placed on his testimony. It transpires that PW-1 filed a written complaint alleging demand of illegal gratification to the tune of Rs. 1000/- against the accused and one Mr. Bhat threatening him that in the event of non-payment of bribe money, his STD/PCO shall be disconnected. PW-2 Rajbir Singh Inspector ACB(CBI) has been examined at the trial to prove that he was deputed by Sp Sh. S.R. Aggarwal to verify the allegations in the complaint. The witness has deposed that he verified the allegations and submitted his report to SP in the morning of 12.09.2000. The witness has also deposed about reiteration of allegation of PW-1 in presence of Dy. SP and the trap team as also the compliance of procedural requirements in respect of smearing of the G. C. notes of Rs. 1000/- produced by PW-1, preparation of pre-trap memo in his hand writing. This witness claimed that he was also a member of the trap team stormed the office of the accused. The witness claimed that PW-1 and PW-4 had given the pre-fixed signal and the accused had thrown off the tainted money on the floor the moment he noticed S.I. Balbir Sharma and P.S. Jamwal entering his room. This witness claims to have been standing at the door and watching the event. The witness has also spoken of an extra judicial confession made by the accused before Dy. SP which is inadmissible in evidence and hit by the provisions of Section 25 of Evidence Act. According to him, the left hand wash of accused as also the pocket wash of his pant had turned pink in solution of sodium carbonate. The witness stated that it was on the bidding of Dy. SP that another witness collected the tainted money from the floor of the room and its serial numbers were tallied with those recorded in pre-trap memo and found to be same. From his cross-examination, it transpires that the witness was assisting I.O and he prepared material documents before and after the trap, on behalf of I.O. The witness admitted that he is a trained trap witness having participated in similar traps earlier. It is elicited from his that extra judicial confession of accused before independent witness Mr. Bali and PW-4 Mr. Salaria was not recorded. The witness has expressed ignorance regarding conversation held between the accused and PW-1. Confronted with his previous statement under section 161 Cr.P.C, the witness denied having stated before police that he had heard the conversation between the accused and PW-1. The witness claims to have derived knowledge about such conversation from PW-4 has not supported the prosecution case as noticed elsewhere. The witness admitted that neither demand of graft was made in his presence nor was the bribe money accepted by the accused in his presence. Since PW-4 has turned hostile to prosecution and refused to corroborate prosecution version regarding demand and acceptance as also recovery of tainted money from accused coupled with the fact that he claims to have heard the accused telling PW-1 that he does not accept bribe and pushed his hand holding the tainted money, the testimony of PW-2, who claims to have deprived knowledge about the conversation between the accused and PW-1 about the demand of graft money from PW-4 cannot be accepted as corroboration of testimony of PW-1 on material particulars. It is apt to notice that this witness had candidly admitted that he had no personal knowledge about demand and acceptance of graft money by accused and he has not over-heard the conversation between the accused and PW-1 regarding the transaction.
There is yet another aspect which cannot be ignored. PW-2 has also deposed that PW-1 talked to accused, who has posted at Shakti Nagar, Exchange, on telephone. The call was made from the office of PW-2. However, he deposed that despite being provided with facilities for tape-recording of telephonic conversation, he did not record conversation between PW-1 and the accused. It is in the testimony of PW-1 that CBI had recorded his conversation with the accused. Prosecution has failed to produce the Audio Cassette of such taped conversation and PW-2 has denied existence of such Audio Cassette. The testimony of PW-2 contradicts the testimony of PW-1 on this aspect of the case and the same cannot be relied upon. Superadded to it is the fact that PW-2 has failed to prove the verification report which has been withheld by prosecution. Since the complaint alleged demand of graft against one Mr. Bhat in addition to accused and in light of testimony of PW-2 to the effect that only accused was found to have made demand of graft to PW-1, the proof of verification report assumed significance. This Mr. Bhat has been examined as PW-9 C.L. Bhat who claimed that has was posted as JTO art New Plot Exchange and STD/PCO booth of PW-1 located at Resham Garh fell within his jurisdiction. It transpires from his deposition that the accused was working under him and the accused had carried out the feasibility survey of the STD connection in question. The witness claims to have been on leave between 11 to 22 September, 2000 when the alleged occurrence took place and the accused was trapped. The witness denied any connection with the alleged occurrence and denied having made any demand for illegal gratification to PW-1. Prosecution has not brought on record evidence to establish as to what action was contemplated against PW-1 for making a false charge of graft against PW-9. The verification report prepared by PW-2 has been withheld but PW-2 admitted that the allegations against Mr. Bhat were not substantiated during verification. The contents of the verification report not placed on record of the case cannot be permitted to be admitted in evidence when the primary evidence has been with held. The oral evidence to prove the contents of such report is inadmissible in evidence. PW-9 was arraigned as an accused by PW-1 who imputed allegations of demand of graft against him as well as the accused. Despite being an accomplice, prosecution relied upon his testimony to testimony to establish complicity of accused in the alleged demand and acceptance of graft from PW-1. However, PW-9 has dashed the very substratum of prosecution story to the ground by stating that STD/PCO booth of PW-1 was not parented to Shakti Nagar Exchange at the relevant time and accused could not have disconnected STD both of PW-1. The testimony of PW-9 is contradicted by PW-8 Vijay Kumar Aima posted as SDPO-II Jammu at the relevant time who deposed that on the relevant date accused was working as TTA at Shakti Nagar and the STD booth of PW-1 was parented to Shakti Nagar Exchange. Both PW-8 and PW-9 are officers of Telecom Department and there is no love lost between the two on this material aspect of the case. From the testimony of PW-2 it is established that the accused was posted at Shakti Nagar Exchange and the trap was laid there. He too has contradicted PW-9 by maintaining that STD booth of PW-1 was parented to Shakti Nagar Exchange and not Kacchi Chawni Exchange. However, it is intriguing that despite claim of PW-8 that the accused was posted at Shakti Nagar as TTA and STD booth of PW-1 fell under his jurisdiction, he has maintained that the accused had no control over the STD connection of PW-1 and he could not have disconnected the same. The testimony of this witness on material particulars of parenting of STD Booth of PW-1, suffers from self contradiction and is irreconcilable. Perhaps it was worst on his part to have admitted that previously the accused was working under PW-9 who came forward with the version that he had deputed the accused to prepare the feasibility report. Be that as it may, the version put forward by these witnesses definitely renders arm twisting of PW-1 at the hands of accused for extracting illegal gratification in connection with his STD booth connection improbable.
Now adverting to legal consequence of two inconsistent versions emanating from prosecution witnesses, it be seen that version disclosed by shadow witness. R.S. Salaria runs counter to the prosecution theory regarding demand and acceptance of tainted money by the accused. The two versions are mutually exclusive and inconsistence regarding the material particulars of alleged crime. The testimony of PW-4 is inconsistent with hypothesis of guilt attributed to accused. PW-4 has advanced the theory of refusal of tainted money by accused with his overt act of resisting planting of graft money by PW-1 in his pocket. This version is consistent with the innocence of accused. It is well settled that where the prosecution evidence comprised of two sets of witnesses which are mutually hostile and inconsistent and one of the sets of witnesses tenders evidence favourable to accused such prosecution evidence cannot be relied upon to base conviction of the accused on the charges preferred. Thus, on the evaluation of evidence tendered by prosecution at the trial and the proposition of law noticed herein above, I am of the considered opinion that prosecution has failed to rebut presumption of innocence of accused. The evidence tendered by prosecution at the trial fails to corroborate the testimony of PW-1 on material particulars of alleged occurrence and the prosecution evidence is mutually exclusive and inconsistent regarding such particulars. The prosecution case is accordingly dismissed for want of cogent, reliable and credible report. The benefit of doubt is accorded to accused and he is acquitted of the charges framed against him."
13. The judgment of the trial Court illustrates and elucidates each and every aspect of the case. The trial Court has on the basis of the facts and the law applied to the case rightly concluded that the evidence of PW-4 who has shaken the very substratum and the foundation of the prosecution case is credit worthy both on its merit and intrinsic value. It is correct to state that the statement of PW-4 is neither in line nor in tune to the prosecution version in the matter of the demand, acceptance and the recovery of the bribe money. The trial Court has meticulously analysed and appreciated the statement of PW-1 and has rightly viewed that his statement is not free from blemish. The trial Court has explained in the expositive judgment as to how and why it is so. The trial Court on an analysis of the other evidence on record has rightly opined that the prosecution has failed to corroborate the testimony of PW-1 in the material particulars of the case. The judgment of the trial Court is descriptive. It touches all the aspects of the case and nothing further requires to be added to it. It cannot be called in question on any of the grounds be that the application of law or the appreciation of the evidence. It is well written and complete in all the details as a corollary to which this appeal entails dismissal and accordingly, the same is dismissed and the judgment of the trial court is upheld.
14. Before parting it needs to be said in an apparent digression that while leafing through the file, I was sadly reminded of Sarmad's commit when he was sent to the gallows, of which I offer a tame translation:
"Long years since Mansur's voice was heard, Which now has grown faint;
I must revive it now with the help of The headman's binding ropes And block of wood."
I am anguished that while we speak of, and about, improvement for in house renovation of our Judicial system, the outer world of social, ethical, political, philosophically and even mythological opinion is throwing challenges to our very fundamentals- so many so much that even self evident theories along with the legal system are now in peril of their life from such attacks. This case started on its odyssey some when in September, 2000. The accused was acquitted in November, 2004. The case has wended its course, by now for more than 17 years, the accused tottering and doddering his way to register his presence in the Court alone and forlorn. The appeal remained pending in the High Court for about 13 years during the tardy and doubtful course of this long delay. God's delay may not be denials but the delay of, and, in Courts are certainly so. Reasons are numerous and endless. The bulk of cases, the volume of cases with which each Judge has to deal day in and day out, the paucity of Judges and so on and so forth but in the ultimate analysis the litigant becomes a casualty.
This judgment is pronounced by me in terms of Rule 138(3) of the Jammu and Kashmir High Court Rules, 1999.
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