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PETITIONER: A. WATI AO

       Vs.

RESPONDENT: THE STATE OF MANIPUR

DATE OF JUDGMENT13/10/1995

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) AHMADI A.M. (CJ)

CITATION:  1996 AIR  361            1995 SCC  (6) 488  JT 1995 (7)   587        1995 SCALE  (5)700

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T HANSARIA, J.      The appellant  was convicted under s.120-B of the Penal Code read  with s.5(1)  (d) of  the Prevention of Corruption Act, 1947,  by Special Judge, Manipur. He was sentenced to a fine of  Rs.10,000/- and  to imprisonment till the rising of the court.  On appeal  being preferred,  the Imphal Bench of the Gauhati High Court dismissed the same. The learned Judge deciding the  appeal, however, granted, on oral prayer being made, leave,  under Article  134(c) of  the Constitution  to prefer an  appeal to  this Court,  albeit without specifying the question of law involved. 2.   While issuing  notice in  the appeal, the appellant was also asked to show-cause as to why the punishment should not be enhanced. 3.   Dr. Dhavan,  appearing for  the  appellant,  has  first contended that the conviction of the appellant itself is not tenable inasmuch  as the onus of proof, which lies in a case where quilt  is based on circumstantial evidence, as in this case, has  not been  fully  discharged  by  prosecution.  To sustain this  submission, we  have  been  referred  to  S.P. Bhatnagar vs.  State of Maharashtra, 1979(2) SCR 875. As Dr. Dhavan strenuously  contented that  the test regarding proof laid down  in Bhatnagar’s  case has  not been  satisfied, it would be  apposite to find out what was held in that case. A reference to  the judgement  shows that this Court mentioned about the  fundamental rule  relating to  the proof of guilt based on  circumstantial evidence,  which is  that there  is always danger  that conjecture  or suspicion  might take the place  of   legal  proof  inasmuch  as  in  cases  based  on circumstantial evidence  mind is  apt to  take a pleasure in adapting circumstances  to one another and even in straining them a little, if need be to force them to form parts of one connected whole.  It was then stated that in cases where the evidence is of circumstancial nature, the circumstances from

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which the  conclusion of guilt is drawn should, in the first instance, be  fully established  and then  all the  facts so established should be consistent only with the hypothesis of the guilt of the accused. 4.   The  aforesaid   shows  that   this  Court  had  really reiterated the  well known  tests to  be satisfied  when the evidence   in   support   of   the   prosecution   case   is circumstantial in  nature. It  was, of  course,  added  that precaution has  to  be  taken  to  see  that  conjecture  or surmises do not take the place of legal proof. 5.   In the  present case,  however, the  involvement of the appellant in the conspiracy is so apparent that it cannot be said that  there was  any straining  of the  circumstance to connect the  appellant with  the  crime.  We  have  said  so because the  prosecution case  is that  the appellant  was a party to  the conspiracy  in giving the contract in question to A.  Sarat Chandra  Sharma, (whose  earlier firm  had been black listed)  and that too at an extremely exorbitant rate. Though the  appellant sought to deny his knowledge about the fact of  black-listing of the earlier firm of Sarat Chandra, this plea  has no less to stand, because the decision of the Government of  Manipur regarding  the black  listing of  the firm had  been communicated  by the appellant himself to the Chief Engineer by his letter of even number dated 23rd June, 1978, whereas the present contract had been given to another firm of Sarat Chandra in January, 1979, after the processing had  begun   in  November,  1978.  As  to  the  rates  being exorbitant, there  is a  clear finding  of the  trial court, which was  endorsed by  the High  Court. Though,  Dr. Dhavan contended in  this regard that the rates were those at which supplies had been made earlier, this plea has been discarded by the two courts below. This being a question of fact based on material  on  record  we  see  no  reason  to  doubt  its correctness. 6.   The aforesaid shows that there were clinching materials to hold  the  appellant  guilty  under  s.5(1)  (d)  of  the Prevention of  Corruption Act read with s.120-B of the Penal Code. We, therefore, uphold the conviction. 7.   This takes  us to  the  question  of  the  sentence.  A perusal  of  the  trial  court’s  judgment  shows  that  the sentence of  imprisonment  till  rising  of  the  court  was awarded because  of :  (1) the  appellant being a senior IAS Officer and  holding of  different high  posts, which showed that he  is a  very respectable  person; (2)  the  appellant having  a   number  of  dependents;  (3)  the  certainty  of appellant’s losing  his job  and requiring  him  to  earn  a living for  himself and  his family members; (4) the present being first offence committed by him; and (5) the spectre of the incident  hanging on  his head  for about half a decade. According to  us, none of these factors (except the last, to some extent) make out a case for awarding sentence less than the minimum prescribed by the aforesaid Act - the same being imprisonment for  one year. The fact that the appellant is a senior IAS  Officer really  requires a  serious view  of the matter to  be taken,  instead of soft dealing. The fact that he has  a number  of dependents and is going to lose his job are irrelevant  considerations inasmuch  as in  almost every case a  person found  guilty would have dependents and if he be a  public servant,  he would  lose his  job. The  present being the first offence is also an irrelevant consideration. Though the  delay has some relevance, but as in cases of the present nature, investigation itself takes time and then the trial is  prolonged, because  of the  type of evidence to be adduced and  number of  the witnesses  to be examined, we do not think  that the  fact of delay of about five years could

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have been  a ground  to award  the sentence  of imprisonment till rising  of the  court, which  really makes a mockery of the whole  exercise. We,  however, think that the delay does require some  reduction from  the minimum prescribed; and on the facts  of this   case,  ends of  justice would  be  met, according to  us, if  at this  length of  time, pursuant  to notice of  enhancement issued  by this  Court, a sentence of imprisonment for six months is awarded. 8.   In  the   result,  while  dismissing  the  appeal,  the sentence is  enhanced to  imprisonment for  six months.  The appellant shall  surrender to  serve out the sentence; if he would not  do  so,  appropriate  steps  would  be  taken  as permitted by law to incarcerate him.