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Ganga Prasad S/O Manbodh vs State Of U.P.

High Court Of Judicature at Allahabad|30 November, 1995


ORDER B.K. Sharma, J.
1. This is a criminal appeal against the judgment and order dated 14-10-1981 passed by Sri. N. S. Gahlaut, the then Vlth Addl. District & Sessions Judge. Allahabad in Criminal Case No. 3 of 1980, State v. Ganga Prasad, whereby he convicted the accused appellant for the offence under Section 161 C.P.C. and sentenced him to undergo one year's R.I. and further convicted him for the offence under Section 5(2) of the Prevention of Corruption Act and sentenced him to undergo 11/2 years' R. I. Both these sentences were made to run concurrently.
2. I have heard learned counsel for the parties and have also gone through the record. There is no substance in this appeal.
3. Accused-appellant Ganga Prasad was posted as tube-well operator on a government tube-well situated in village Manethu police station Tharwai district Allahabad since 3 and 4 years prior to the date of incident i.e. 17-12-77. The fields of Raja Ram complainant, r/o of that village, are within the command of this tube-well. It was the duty of the., accused-appellant to supply water to the fields within the command of this tube-well including the fields of Raja Ram. The prosecution case was that the accused-appellant used to take bribe from the persons whose plots were outside the command area of the tube-well and used to irrigate their fields. There was potato crop in the agricultural field of the complainant but the same was dried out due to the failure of the accused-appellant to supply water from the tube-well to those fields. On 14-12-77 the complainant met Ganga Prasad accused-appellant at 8.30 a.m. at the house of Ram Autar. where he used to live. Thereupon, the accused-appellant demanded bribe of Rs. 60/- from hi m for supplying water from the tube-well. Since the complainant did not want to give bribe he moved an application (Ex. Ka-1) before the District Magistrate Sri Bhure Lal for ordering trap of the accused-appellant. The then District Magistrate Sri Bhure Lal directed Deputy Superintendent of Police Vigilance for taking necessary action for laying the trap. Raja Ram along with his teacher collogue Raj Narain went to the office of the Vigilance Department on 15-12-77 and handed over the application containing the order of the District Magistrate to Sri Sheo Vijai Singh. Deputy Superintendent of Police Vigilance. The statement of the complainant was recorded by Sri Ayodhya Prasad Tripathi, Inspector, Vigilance, which was Ex. Ka 2. The complainant then showed the currency notes, one of Rs. 50/- and another of Rs. 10/- (Ex. 3 and 4) and gave them to the Deputy Superintendent of Police. The Deputy Superintendent of Police noted the numbers of these currency notes and also made his small signatures on the said currency notes and spriniked phenopthelene powder over them and thereafter handed over the said currency notes to the complainant. The Deputy Superintendent of Police. Vigilance thereafter washed his hands in a solution of sodium carbonate which turned red. He also got washed the hands of Raja Ram complainant with the said solution and it also became red. Both these wash were sealed and kept in two soperale phials and a memo was prepared about the same at the Vigilance office. On 17-12-77 the complainant along with Raj Narain and one Kubrpati reached the office of Deputy Superintendent of Police) Vigilance. Allahabad. Me along with Inspector Sri Ayodhya Prasad Tripalhi. the witness Raj Narain and other police personnels went to the Bus Stand near District Court at about 11 A.M. All of them stood behind the shop of Moti Lal in front of police club across the road at some distance from each other. At about 11.30 A.M. Ganga Prasad accused-appellant came there and met the complainant behind the shop of Moti Lal The accusedappellant asked the complainant to give the bribe money and go. Thereafter the complainant handed over the currency notes (Ex. 3 and 4), which he look by his right hand and kept them in the front pocket of his 'Kurta' on the left side. The complainant asked the accused-appellant while handing over the said currency notes whether he shall now get the water and the accused-appellant replied that now he will be having no difficulty. When the accusedappellant placed the currency notes in his pocket, the Vigilance Inspector Sri Ayodhya Prasad Tripathi and other police personnel who were standing nearby came there and arrested the accused-appellant and on his personal search recovered the currency notes aforesaid from his said pocket, which were sealed on the spot, then recovery memo Ex. Ka 4 was prepared on the spot and the witnesses signed over it. The hands of the accused-appellant were washed with sodium carbonate solution which became red. which was kept in a sealed phial. The pocket of the 'Kurta' aforesaid was also washed with sodium carbonate solution and its colour also turned red. This wash was kept in another phial and sealed. The 'Kurta' was also sealed in a bundle. A recovery memo was prepared by Vigilance Inspector Sri Ayodhya Prasad Tripathi. Then the accused-appellant was taken away alongwith the said case property to the police station Colonelganj and there Sri Ayodhya Prasad Tripathi lodged a formal F.I.R. whereupon the case was registered and investigation started which culminated in the submission of the charge-sheet against the accused-appellant.
4. In this case complainant Raja Ram (PW. 1) narrated the entire prosecution story from beginning to the end. Sri Ayodhya Prasad Tripalhi (P.W.3) has also corroborated the testimony of the complainant. The complainant's testimony is further corroborated by the material contained in the complaint, his statement before the Deputy Superintendent of Police Vigilance and the recover) memo and material Exts. aforesaid. Raj Narain Shukla (PW. 2) has given whole hearted support to his testimony about the occurrence. Sri Ayodhya Prasad Tripathi (PW. 3) has given evidence about the laying of the trap including the arrest and recovery. The Deputy Superintendent of Police Sri Vijai Singh has testified about the part of the prosecution story relating to the proceedings taken at the vigilance office on the complainant's arrival there.
5. The Apex Court has observed in the authority M.O. Sbamudin v. State of Kerala, 1995 SCC (Cri) The person offering a bribe to a public officer is in the nature of an accomplice in the offence of accepting illegal gratification but the nature of corroboration required in such a case should not be subjected to the same rigorous tests which are generally applied to a ease of an approver. Though bribe-givers arc generally treated to be in the nature of accomplices but among them there are various types and gradations. In cases under the prevention of Corruption Act the complainant is the person who gives the bribe in a technical and legal sense because in every trap case wherever the complaint is filed there must be a person who has to give money to the accused which in fact is the bribe money which is demanded and without such a giving the trap cannot succeed. When there is such a demand by the public servant from a person who is unwilling and if to do public good he approaches the authorities and lodges a complaint, then in order that the trap succeeds he has to give the money...Where a bribe has already been demanded from a man and if without giving the bribe he goes to the police or magistrate and brings them to witness the payment it will be a legitimate trap and in such cases at the most he can be treated as an interested witness and whether corroboration is necessary or not will be within the discretion of the court depending upon the facts and circumstances of each case. However, as a rule of prudence the court has to scrutinise the evidence of such interested witness carefully.
6. In this case the complainant was a person who never wanted to give any bribe and was interested only in bringing the dishonesty of the accused-appellant to book and so his testimony does not require that much of corroboration which may be needed in a case of the person who pays the bribe for an advantage and subsequently gives evidence against the public servant. The nature of corroboration needed will depend on the facts of each case. In the present case his testimony is amply corroborated as noted above.
7. Learned counsel for the accused-appellant has led me through the complaint made by the complainant (Ex. ka-l) and pointed out that it only contains the allegations that the accused-appellant was a corrupt officer who lakes bribe and irrigates fields of outside the command area of the tube-well and it does not contain the allegation that the accused-appellant demanded bribe from him for irrigating his field. His contention further is that after the arrest of the accused all the formalities were done and the statement of the complainant (Ex. ka-2) was then recorded in back date 15-12-77 making mention about the demand of the bribe from him by the accused-appellant. It is true that the complaint did not contain any allegation in so many words that a bribe was demanded from him much less at what time and place it was demanded. However the general allegation of irrigating only after taking bribe is contained in the complaint, which docs not run counter to the prosecution case that the accused-appellant demanded bribe from the complainant for irrigating his field. There is no specific form for in which the complaint to the Collector should be couched in cases where an individual was to move him to trap a dishonest public servant who is demanding bribe from him for doing a work which is his official duty. The essential point is brought by the complainant to the Collector which is sufficient. The allegation of demand of the bribe from the complainant is implicitly present in the Complaint because the complainant has stated in the complaint. "NALKOOP CHALANE KO RANGE-HANTH GHOOS LETE GIRAIFTAR KARNK KI ANILAMB VYAWASTHA KARNE KI KRIPA KAREN." Unless there was a specific demand from the complainant for the bribe there could be no occasion for a trap for arresting the corrupt public servant. The complainant has stated in his examination-in-chief in the month of December, 77 the accused-appellant had demanded money from him for giving water to his fields from the tube-well. He further stated in para 11 of his evidence that he had met the accused-appellant on 14-12-77 in the morning. He further stated in para 12 of his statement that they had met on that morning at 8 or 8.30 A.M. at the house of Ram Autar (where he (accused-appellant) used to live). He explained in para 15 of his evidence about the omission in the complaint (Ex. ka-l) aforesaid. He stated that he had made a written complaint that the accused-appellant is demanding bribe from him. He clarified it by saying "...US SAMAY MAINE APANE AALOO BOYA THA AUR YAH FASAL PANI NA MILNE KE KARAN SOOKH GAYEE THI. MAINE MULJIM SE IPAHIEE BHI PANI DENE KO KAHA THA LEKHIN USNE MAIN THA KI PAISA DE DO TAB PANI DENGE." In other words he intended to convey that the bribe had been demanded from him. It is immaterial that the amount of bribe money demanded has not been specified there in. So if the evidence about the actual laying of trap payment of the money arrest and the recovery is to be accepted as it must be it must also be accepted that this related to the demand for that very amount as bribe. No other inference is possible. It may be that the complainant had earlier scribed a complaint against the accused-appellant about his corrupt practices, which was sent to the authorities as he and other villagers were interested that his corrupt practices may be brought to light. He was, therefore, not merely a scribe of the earlier complaint but it does not follow that he was interested in concocting a false case against the accused-appellant. There is no material which could show as to what happened to the earlier complaint. There was no personal enmity between him and the accused-appellant due to which it may be thought that he might have concocted a false case against the accused-appellant. Raj Narain (PW2), of course, is his collegue teacher but there is no reason for him to become a party to a trap intended for his false implication i.e. false implication of the accused-appellant. Not a single word has come against the vigilance inspector, and the Deputy Superintendent of Police, Vigilance, that may cast a doubt over their testimony at the trial. There was no reason for them to become a party to the false implication of the accused-appellant by showing a false arrest and a false recovery for the sake of the complainant. They were not shown to be interested in the complainant and/or inimical towards the accused-appellant.
8. Learned counsel for the accused-appellant has referred me to an admission of the complainant in para 11 of his evidence that on 19-12-77 he had moved an application to the Tube-well Engineer alleging that the tube-well operator (accused-appellant) was absent from 14-12-77, informing that the tube-well was out of order and praying that it should be got repaired. On the basis of the said admission it was argued that when the tube-well was out of order unless it was first repaired there would be no purpose of or occasion for the complainant to have approached the accused-appellant for watering his field from the tube-well and there would be no question of demand of any bribe by the accused-appellant for supplying water from the tube-well and further that if the accused-appellant was away from the village on 14-12-77 a meeting of the complainant with the accused-appellant on that date would be ruled out and consequently it would be impossible for the accused-appellant to make any demand of bribe from the complainant for any purpose.
9-10. I have carefully gone through these statements of the complainant on record and I have come to the conclusion that nothing good could come out of the same in favour of the accused-appellant. If a complaint was made that the accused-appellant had disappeared on 14-12-1977 it did not necessarily mean that he left the village before the morning of 14-12-77. The complainant had categorically stated on oath that he had met the accused-appellant on 14-12-77 in the morning at 8 or 8.30 A.M. at the house of Ram Autar (where the accused-appellant used to live). The accused could have left the village subsequent to his meeting with the complainant. Therefore, the meeting of the complainant with the accused on the morning of 14-12-77 was not necessarily ruled out or rendered improbable by the allegations in the said application. Regarding the tube-well going out of order he has testified that this had happened in the night of 14-12-77 or in the morning of 15-12-77 and that it was equally likely that it went out of order on 17-12-77 or 18-12-77. So this was quite consistent with the demand of bribe by the accused-appellant from the complainant in the morning of 14-12-77 when he (accused-appellant) was at his house and the tube-well was in working order.
11. Now in such a case where spot arrest and recovery are testified to by the prosecution witnesses, the defence version also assumes importance. It is because after all the accused-appellant had been arrested and taken to the police station in connection with the alleged case and so the defence version about the date, time, place and the circumstances of his arrest becomes significant and the prosecution evidence has to be judged in the light of the said plea. If as in this case the accused denied the payment of money to him and the recovery of money from him then if the payment and the recovery are established, the only inference will be that it was nothing but an illegal gratification.
12. In his statement dated 16-7-81 before framing of the charges he was questioned about his presence at the bus stand situated near the District Court, Allahabad. He stated that he was present near the bus stand situated near the District Court, Allahabad, but was away from the said bus stand. He made a simple denial of his arrest and recovery and stated that the recovery was fictitious. He claimed that he was on medical leave on those dates. But at the trial he did not adduce any evidence whatsoever to show that he was on medical leave. He also did not submit any medical certificate to show that he was on medical leave. In his cross-examination the complainant was suggested that the accused-appellant used to come to Allahabad to make complaints about the working of the tube-well and the reply of the complainant was of ignorance. But that was natural. It was suggested further to him that the accused-appellant has been falsely implicated due to enmity and further that Likha-padhi was done at the police station and that no occurrence took place at the spot. However, no categorical suggestion was made to him at that stage as to from where the accused-appellant was arrested and at what time and under what circusmtances. Raj Narain (PW.2) was suggested by the defence that the entire proceedings took place at the policie station. He was further suggested that being a friend of the complainant he was giving false evidence. It was not suggested to him that he had any enmity with the accused-appellant. It was also suggested that he put his signatures on the documents at the police station on the evening of 17-12-1977. But the question is as to why he will go out of his way. The defence also suggested to Sri Ayodhya Prasad Tripathi (PW 3) that he had caught hold of the pocket of the accused-appellant and taken him to Colonelganj poliice station and there fictitious proceedings were taken. It was also suggested that no demand of bride was made, nor it was paid. In his statement under Section 313 Cr.P.C. the accused-appellant claimed that the application given by the complainant to the Collector was a fictitious one and the F.I.R. was lodged belatedly and that all the proceedings were done at the police station, which were fictitious. He denied the arrest and the recovery. In reply to the last question he claimed that witnesses came after the arrest of the accused-appellant but he did not note their names nor obtained their signatures. He denied that the accused appellant neither demanded the bribe nor received it. The accused-appellant claimed that the witnesses gave evidence against him out of enmity. In reply to the question whether he has anything more to say, he replied there was enmity between Raja Ram complainant and him and that before this occurrence the complainant had made several complaints against him but due to defence given by the villagers he could not cause any harm to him and that a false case had been concocted and he was falsely implicated. He further claimed that since long before the occurrence the tube-well was out of order and so he regularly went to the Executive Engineer, Rajapur for getting it repaired and this fact was within the knowledge of many people and that he had come to Allahabad on the date of occurrence for getting his medical leave granted and that when he got down from the bus Ayodhya Prasad Tripathi and the complainant caught hold of the pocket of his shirt and took him to Colonelganj police station. He was allowed to lead defence but he did not led any evidence in defence. There is nothing to show that he had applied for medical leave and that he had given any report to the Executive Engineer about the tube-well being out of order. His coming to Head Quarter was nothing unnatural. In the ordinary course he could be visiting Allahabad and so it was not surprising that if he was agreed to the suggestion of the complainant that the bribe money will be given by the complainant to him at Allahabad at a mutually agreed place. It has been argued by the learned counsel for the accused-appellant that it does not stand to reason that bribe could be demanded and accepted at a public place as claimed by the prosecution. The bus stand or police club situated near the vicinity of the Court may be place where a large number of persons may be present but they will mind their own business. Therefore, there was nothing improbable in the prosecution story about the time and place of the occurrence.
13. On the point of sentence, the offence demands for adequate punishment and the sentence, imposed by the learned Sessions Judge cannot be said to be excessive. However, considering the circumstance that the case related to year 1977 and the conviction order was of the year 1981 and further that this appeal had been pending since the year 1981, during which even though the accused-appellant was on bail but the sword of Democles had been hanging on his head all along and so the justice will be met if the sentence for the offence under Section 5(2) of the Prevention of Corruption Act is reduced from 1 1/2 years R.I. to one year's R.I. and the sentence for the offence under Section 161 I.P.C. is upheld.
14. In view of the above discussion, the appeal fails and is dismissed. The conviction and sentence of the accused-appellant for the offence under Section 161 I.P.C. as awarded by the trial court is upheld. The conviction of the accused-appellant for the offence under Section 5(2) of the Prevention of Corruption Act is also upheld but his sentence under this Section is reduced from 1/2 years .R.I. to one year R.I. The accused-appellant is on bail. His bail is cancelled. Let him be arrested and sent to the District Jail concerned to serve out his sentences according to law.
15. Let a copy of this judgment be certified to the learned Sessions Judge concerned within a week for information and compliance. The compliance report shall be submitted to this Court by the Learned Sessions Judge within a month from today.
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Ganga Prasad S/O Manbodh vs State Of U.P.


High Court Of Judicature at Allahabad

30 November, 1995
  • B Sharma