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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: ZAKAULLAH

DATE OF JUDGMENT:       12/12/1997

BENCH: M.K. MUKHERJEE, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Thomas,).      This is  a Government appeal assailing the acquittal of a  government   servant  from   graft   charge.   Respondent government servant  was convicted  by the  trial count under Section 161   of the Indian Penal Code and also Section 5(2) of the  Prevention of  Corruption Act 1947 and was sentenced to substantive  terms of  imprisonment and  fine but  he was acquitted by a single judge of the Allahabad High Court when he appealed against the conviction and sentence.      Respondent was working as Revenue Inspector (Wasil Baki Nawis) in  a sub-Tehsil  Nainital District.  The nub  of the case against him is that he received Rs. 400/- as bribe from PW5 Satpal  for doing an official act and he was caught red- handed  with   the  bribed  amount  by  the  anti-corruption officials. After  obtaining sanction  from  the  government, respondent was  challaned. In  his defence,  he disputed the entire incident  and contended  that it was a concocted case against him.      More details  about the  case: a  person by name Naubat was in  occupation of  a certain  land situate  in the  sub- Tehsil Kaladhungi  (Nainital district). Since the occupation was illegal  proceedings have  been afoot  for evicting him. PW-5-  Satpal  Singh  purchased  the  right  of  Naubat  and approached the  respondent for  regularisation of occupancy. Initially, respondent  demanded a  sum of Rs.500/- by way of gratification but after some haggling the amount was settled at Rs.400/-, However, PW 5-Satpal Singh, before handing over the money,  secretly met  the officials  of  Anti-Corruption Bureau and  they arranged  a trap.  In accordance with their scheme, currency  notes amounting  to rs.400/-  were  handed over to the respondent on 23.5.1981, but the bribe-taker was soon intercepted  by  the  Anti-Corruption  squad  with  the tainted cash.  The currency  notes were  seized from him and phenolphthalein test conducted showed a positive result.      Apart  from  the  evidence  of  the  complainant,  PW-5 (Satpal Singh)  and PW-4  - Harendra  Singh Sirohi  (DSP  of Anti-Corruption Bureau,  Nainital), Prosecution examined two other witnesses who were present when the delinquent officer was caught  red-handed. They are PW6-Lokesh Pal Singh and PW

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7-Khem Singh  (who was  driver of  the vehicle  in which the Anti-corruption officials travelled). The Special Judge, who tried the case found the evidence of the aforesaid witnesses reliable, but  learned single judge of the High Court took a contrary view.      Following are  the reasons  which learned  singe  judge advanced for  interfering with  the conviction and sentence; (1) PW-5  (Satpal Singh  ) had a motive to falsely implicate the respondent  because papers  have already  been forwarded for eviction  of Naubat  from  the  illegal  occupancy.  (2) Evidence  of   PW5-Satpal  Singh  was  not  corroborated  by independent witnesses.  (3) There  is material contradiction between the evidence of PW4 and PW6 regarding preparation of recovery-memo.  (4)   The  solution   (used  for  conducting phenolphthalein test) collected in a phial after washing the tainted fingers  of the  respondent  was  not  sent  to  the Chemical Examiner.(5)  Nobody over-head  the demand  made by the delinquent officer for bribe. (6) The fact that currency notes were  recovered from  left pocket  of  the  respondent verges  the  story  on  improbability  because  it  was  not suggested anywhere that respondent was a left-handed person.      Complainants evidence was jettisoned on the mere ground that since  he had  a grouse  against the  delinquent public servant he  might falsely have implicated the latter. Such a premise is  fraught with the consequence that no bribe giver can get  away from  such stigma  in any graft case. No doubt PW5 would  have aggrieved  by the conduct of the respondent. The very  fact that  he lodged  a complaint  with the  Anti- Corruption Bureau  is reflective  of his  grievance. Such  a handicap in his evidence may require the court to scrutinise it with  greater care,  but it  does not  call for  outright rejection of  his evidence  at  the  threshold.  A  pedantic approach rejecting  the evidence  of a complainant simply on the premise  that he  was aggrieved against the bribe-taker, would only  help corrupt  officials getting  insulated  from legal consequences.      Evidence of  three defence  witnesses (DW  1 to  DW  3) helped the  respondent to  make out  that termination of the illegal occupancy  was imminent  because on 20.5.1981 itself respondent had  sent up  the proposal  to the  Tehsildar for taking  eviction   proceedings  in   respect   of   Naubat’s occupancy. Assuming  that the  version given  by DW 1 to DW3 was correct,  even so  there was  no bar for PW5 to approach the respondent  for regularising the occupancy. It was PW5’s version that  when the  amount was  paid, respondent himself was  ready   to  prepare   the  application   necessary  for regularisation of the occupation. Occasion for demanding the bribe was  the necessity  of PW5  to move  for averting  the eviction threat. So there is no merit in the contention that PW5 lodged  the  complaint  only  because  of  the  eviction proceedings initiated earlier.      Learned single  judge  concluded  that  evidence  of  P W 5  was not  supported by  independent corroboration. In so concluding he  termed the  two panch witnesses (Pw6 and PW7) as "pocket  witnesses." PW7  is described  as pocket-witness because he  drove the  vehicle of the DSP of Anti-Corruption Bureau and  PW6 was  so termed  because he had appeared as a witness in  one or  two other  cases charge-sheeted  by  the police. Learned  single judge  commented about  PW6 that "he can easily  be tutored  to depose  anything at the behest of the police."      It is  evidence that PW6 was examined as a witness in a case at  Moradabad in  which he  himself was the complainant against a  doctor who  demanded  bribe  from  him.  He  also admitted that  he was a witness in two other cases though he

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was not yet examined in those cases.  Would such antecedents render him  a non-independent  witness? Similarly,  the mere fact that  PW7 was  the driver  of the  vehicle in which the officials went  to the  place, resulted  in his  losing  the status as "Independent witness".      The  necessity   for  "independent  witness"  in  cases involving police  raid or  police search  is incorporated in the statute  not for  the purpose  of helping  the  indicted person to  bypass the  evidence of those panch witnesses who have had  some acquaintance  with  the  police  or  officers conducting the search at some time or the other Acquaintance with the  police  by  itself  would  not  destroy  a  man  s independent outlook.  In a  society where police involvement is a  regular phenomenon  many people  would get  acquainted with the  police. But  as long  as they are not dependent on the police  for their  living or  liberty or  for any  other matter, it  cannot be  said that  those are  not independent persons. Of  the police  in  order  to  carry  out  official duties, have  sought the  help of  any other person he would not forfeit  his independent  character by  giving  help  to police action.  The requirement  to have independent witness to corroborate  the evidence  of the  police is to be viewed from a  realistic angle.  Every citizen  of  India  must  be presumed to be an independent person until it is proved that hew was a dependent of the police or other officials for any purpose whatsoever.(Hazari  Lal vs.  Delhi Administration  : 1980 (2) SCR 1053).      The most  important evidence is that of PW-4 - Harendra Singh Sirohi,  the Superintendent of Police who arranged the trap. We  must mind the fact that he had no interest against the respondent. But the verve shown by him to bring his trap to a success is no ground to think that he had any animosity against the  delinquent officer.  He  made  arrangements  to smear the  phenolphtalein powder  on the  currency notes  in order to satisfy himself that the public servant had in fact received the  bribe and  not that  currency notes  were just thrust into  the pocket of an unwilling officer. Such a test in conducted  for his conscientious satisfaction that he was proceeding against  a real  bribe taker  and that an officer with integrity is not harassed unnecessarily.      The evidence  of such  a witness as PW4 can be acted on even without  the help  of any  corroboration (vide  Prakash Chand vs.  State (Delhi  Administration): 1979  (2) SCR 330; hazari Lal vs. Delhi Administration: 1980 (2) SCR 1053).      The reasoning of the High Court that reliability of the trap was impaired as the solution collected in the phial was not sent to chemical Examiner is too puerile for acceptance. We have  not come across any case where a trap was conducted by the  police in which the phenolphtalein solution was sent to the  Chemical Examiner. We know that the said solution is always used  not because  there is any such direction by the statutory public  servant  would  have  really  handled  the bribed money.  There  is  no  material  discrepancy  in  the evidence regarding  preparation  of  recovery-memo  and  the minor contradiction mentioned by the learned single judge is not worth considering.      The two  remaining reasons  i.e nobody  over-heard  the demand made  by there  respondent for  bribe  and  that  the amount was  found not  in the  right pocket  but only in the left pocket,.  are flippant  grounds which should never have merited consideration.  It is  disquieting that  the learned single judge  has chosen to advance such untenable reasoning to find  fault with  the evidence of PW5 which was supported by witnesses like PW4-DSP.      We have  no doubt  that the  High Court has misdirected

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itself by such patently wrong and tenuous considerations and it resulted  in the  unmerited acquittal  of accused against whom the  prosecution succeeded  in making  out a fool-proof case under  Section 161 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act 1947.      We, therefore, allow the State appeal and set aside the impugned judgment  and restore  the conviction passed by the trial court.  However, due to this distance of time- between the date  of commission  of the offence and now - we are not inclined to  impose a  sentence of rigorous imprisonment for more than  one year  and a fine. Accordingly we sentence the respondent to  undergo rigorous  imprisonment for  one  year each under  the two  counts and  a  fine  of  Rs.5,000/-each (total Rupees  ten thousand)  in default of payment of which he would  undergo imprisonment  for a  further period of one year. The  substantive sentences shall run concurrently. The appeal is thus allowed.