Court No. - 11
Case :- CRIMINAL APPEAL No. - 2455 of 2006 Appellant :- Prabhu Narain Singh Respondent :- State Of U.P.
Counsel for Appellant :- Syed Wajid Ali Counsel for Respondent :- Govt Advocate
Hon'ble Om Prakash-VII,J.
This Criminal Appeal has been preferred by appellant Prabhu Narain Singh against the judgment and order dated 20.04.2006 passed by Special Judge, Prevention of Corruption Act, Gorakhpur in Sessions Trial No.95 of 1997 (State Versus Prabhu Narain Singh) convicting and sentencing the appellant Prabhu Narain Singh for the offence under Section 161 IPC to undergo 3 months R.I. and a fine of Rs.500/- and for the offence under Section 5 (2) Prevention of Corruption Act to undergo 1 year R.I. and a fine of Rs.1000/-. In default of payment of fine, appellant has to further undergo 1 and 2 months additional R.I. respectively. Both sentences were directed to run concurrently.
Prosecution story, in brief, is that on 27.8.1983, one Laxmi Prasad sent complaint to the then Chief Minister, State of U.P. against the accused-appellant mentioning in written report (Ex.Ka.-1) that accused-appellant was posted as Sub Inspector at the police station concerned and he was habitual in taking bribe. It was also stated that on several occasions accused-appellant has taken bribe from several persons to extend benefit to them in criminal cases. It also appears that on the complaint made here- in-above, inquiry was made. Investigation started on the basis of said inquiry. Allegation against the accused-appellant in the present matter is that he took Rs.500/- at the police station concerned from the complainant Niranjan Maurya for exonerating him in a criminal case lodged at crime no.470 of 1983 for theft.
On the basis of written report (Ex.Ka.-1), Chik F.I.R. (Ex.Ka.2) was registered at police station concerned on 07.02.1984 at 10:30 hours against the accused-appellant for the offence under Section 342, 161 IPC and Section 5 (2) Prevention of Corruption Act at Crime No.18. G.D. entry was also made on the same day, which is Ex.Ka.-3.
Investigation commenced. Investigating officer interrogated the witnesses and also visiting the place of occurrence prepared the Site Plan, which is Ex.Ka.-12. It also appears that charge-sheet in the matter was submitted as Ex.Ka.-
17 by the investigating officer after fulfilling the entire formalities and obtaining sanction Ex.Ka.-15 and Ex.Ka.-16.
Since matter was related to the Prevention of Corruption Act, hence the court below framed charge on 21.2.1995 against accused Nathey and Jagpat (acquitted) for the offence under Sections 342 read with 120-B IPC, Section 161 read with 120-B IPC and Section 5 (2) Prevention of Corruption Act read with 120-B IPC. On the same day, charge was also framed against present accused-appellant for the offence under Sections 161, 342 IPC and Section 5 (2) Prevention of Corruption Act.
Charges were read over to the accused-appellant to which he denied and pleading not guilty claimed his trial.
In order to prove its case, prosecution examined P.W.1 Niranjan Maurya, the complainant, who has supported prosecution case in the examination-in-chief, but during cross- examination, resiled from the version made in the examination- in-chief. It also appears that prosecution declaring hostile cross- examined him on the basis of permission granted by the trial court; P.W.2 Lallan Prasad, P.W.3 Laxmi Prasad, P.W.4 Dulari and P.W.5 Firtu they all were declared hostile, as they did not support the prosecution case. Similarly, P.W.6 Nagendra Mishra and P.W.7 Dal Singar have also not supported the prosecution case and were declared hostile; P.W.9 Chandradev is also the witness of fact, who also did not support the prosecution case and was declared hostile by the prosecution; P.W.8 Aniruddh Singh is the chik writer; P.W.10 R.A. Yadav is the investigating officer of the case; P.W.11 Digvijay Singh is also one of the investigating officers; P.W.12 Bharat Prasad Singh, who has accorded sanction to prosecute accused-appellant; P.W.13 Kanhaiya Lal, who was posted as District Magistrate, has also accorded sanction against the co-accused for prosecution and P.W.14 Aftab Ahmad Khan, who also investigated this matter, has applied for sanction to prosecute the accused-appellant and co-accused.
After closure of prosecution evidence, statement of accused-appellant under section 313 Cr.P.C. was recorded in which accused-appellant has admitted his posting as Sub Inspector at police station concerned at the relevant time and also the investigation started by the concerned police against him, but facts mentioned in the written report was denied by him. He has specifically stated that he never demanded the said amount from the complainant nor any amount was paid to him on the date, time and place mentioned in the chik report and in the charge framed against him. He also showed ignorance about the complaint made by the then M.L.A. Dal Singar Yadav and he also stated that prosecution was started on the basis of false facts and also admitted the registration of criminal case against the complainant at the police station concerned prior to this incident. It was also stated by the accused-appellant that charge-sheet was submitted in the matter without collecting the evidence. Witnesses examined in this case on behalf of the prosecution have deposed falsely against the accused-appellant. Sanction was accorded without perusing the record and applying judicial mind. It was further stated that prosecution was started due to political pressure. Although he expressed his intention to adduce prosecution case, but neither documentary nor oral evidence was adduced.
Trail court after hearing the parties and appreciating the prosecution evidence, vide impugned judgment and order convicted and sentenced the accused-appellant for the offence under Section 161 IPC and Section 5 (2) Prevention of Corruption Act as above.
Feeling aggrieved with the said judgment, present appeal has been filed by the accused-appellant.
I have heard Sri Syed Wazid Ali, learned counsel for the appellant, Sri J.K. Sisodia, learned A.G.A. for the State and perused the entire record.
Submission of learned counsel for the appellant is that prosecution has failed to establish the date, time and place of occurrence. None of the prosecution witnesses examined in the matter have supported the prosecution case. Sanction said to have been obtained in the matter was accorded by the competent authority without applying judicial mind. Referring to the findings recorded by the trial court, it is further submitted that all the findings are based on conjecture and surmises. At this stage, learned counsel for the appellant has also referred to the date of offence mentioned in the chik report as well as in charge framed against the accused-appellant and stated that P.W.1 has also not clarified the date and time of offence in the examination-in-chief before the Court. Finding of the trial court on this point is also based on incorrect appreciation of fact and evidence. Learned counsel for the appellant has referred to the impugned judgment and order and argued that trial court finding that offence was committed on 15.11.1983 at 2:00 P.M. is based on assumption. Nothing is on record to support the finding of the trial court on this issue. Thus it is submitted that appeal be allowed and impugned judgment and order be set-aside.
Per contra, learned A.G.A. argued that although P.W.1, in the cross-examination, has resiled from the version made in the examination-in-chief, but in his examination-in-chief, he has clearly and consistently supported the prosecution case. Findings of the trial court are based on correct appreciation of fact and evidence. P.W.1 was involved in a criminal case and due to that reason, specific demand was made by the accused-appellant as bribe to exonerate him, which was paid to the accused-appellant by P.W.1 at police station concerned. Referring to the finding of the trial court, it is also submitted that there is no illegality, infirmity or perversity in the impugned judgment and order. No interference is required by this Court.
I have considered the rival contentions advanced by learned counsel for the parties.
In this matter, as is evident from record, initially one complaint was made by one Laxmi Prasad on 27.8.1983 to the Chief Minister of Uttar Pradesh levelling allegations against the present appellant and other persons for taking bribe of Rs.500/- to exonerate P.W.1 from a criminal case. On the basis of preliminary inquiry made in the complaint, case was registered, as mentioned above, against the appellant. During investigation, co-accused, acquitted in the matter, were also added and charge- sheet was submitted against the present appellant and co-accused (acquitted). As is apparent, P.W.1 Niranjan Maurya has supported the prosecution case in examination-in-chief, but during cross-examination, he resiled from his statement. Other fact witnesses have not supported the prosecution case and were declared hostile. Prosecution has proved the sanction accorded by P.W.12 and P.W.13 to prosecute the accused-appellant. Trial court while passing the impugned judgment and order was of the view that prosecution case is proved from the statement of P.W.1 and all the legal requirements have been fulfilled.
Thus on the basis of above factual background, submissions raised at Bar have to be re-analyzed.
Without entering into the question of lodging of the F.I.R., this Court directly proceeds to analyze the prosecution evidence to assail the finding of trial court on the date, time and place of occurrence.
In the written report, it has been mentioned that accused- appellant took Rs.500/- outside the campus of police station. Relevant excerpts of chik F.I.R. are as under.
“िफिर उप िनिरीक्षक पी एनि िसिंह को िरश्वत के 500/- रूपए थानिे के बाहर चबतरे पर िदिनि के २ बजे िदिनिांक 15.11.83 सिे लगभग दिो ढाई माह पूवर िदिया था उसिके बादि उसिको थानिे सिे छोड़ िदिया गया"
In the charge framed against the accused-appellant, date of offence is disclosed as 29.7.1983 at 2:00 PM. When P.W.1 was examined before the Court, he did not specify the date and time of the offence, although on several dates, cross-examination has been made, but he resiled from the version made by him in the examination-in-chief, therefore, he was declared hostile and was cross-examined by the prosecution. Other fact witnesses i.e.
P.W.1 to P.W.7 and P.W.9 have not supported the prosecution case. If the statement of P.W.1 regarding the date and time of offence, along with the facts mentioned in the F.I.R. as well as statement of the investigating officer are taken into consideration cumulatively in its entirety, in my considered view, prosecution has failed to establish the date and time of incident. Nothing has been mentioned in the written report (Ex.Ka.-1) to support the date of offence as 29.7.1983. Apart to this, if the observations recorded by Trial Court in the impugned judgment and order are taken into consideration, the whole judgment is based on the assumption that offence was committed on 15.11.1983. It appears that Trial Court while passing the impugned judgment and order has not applied judicial mind. If judicial mind was applied by the Trial Court, impugned judgment and order could not be based on assumption assuming the date of offence as 15.11.1983. Trial Court has also observed that although P.W.1 was declared hostile by the prosecution, but statement made by him in the examination-in-chief are sufficient to prove the facts mentioned in the written report (Ex.Ka.-1). If the finding recorded by the Trial Court on this issue is analyzed with the evidence available on record and also in consonance with the settled legal position, I am of the view that Trial Court has committed illegality in holding guilty to the appellant for committing the aforesaid offence. Since prosecution has failed to establish the date and time of offence from its evidence, thus I do not find any necessity to discuss other issues, as prosecution has to prove its case on its own leg. Basic foundation of the case has not been laid by the prosecution by firm and cogent evidence. Resultantly sanction accorded by competent authority also appears to have been accorded without applying judicial mind.
In totality of facts and circumstances of the case as appear from prosecution evidence, it cannot be said that the prosecution has succeeded to prove the guilt of accused-appellant beyond reasonable doubt and hence the charges levelled against the appellant cannot be sustained against him. Thus, in my considered view, impugned judgment and order passed by the Trial Court is based on incorrect appreciation of facts and evidence and needs interference by this Court.
Accordingly, the appeal is allowed. The impugned judgment and order dated 20.04.2006 passed by Special Judge, Prevention of Corruption Act, Gorakhpur in Sessions Trial No.95 of 1997 (State Versus Prabhu Narain Singh) is set aside. Appellant Prabhu Narain Singh is acquitted of the offences punishable under Section 161 IPC and Section 5 (2) of the Prevention of Corruption Act. Appellant is on bail. His bail bond is cancelled and sureties are discharged. He need not surrender.
Keeping in view provisions of Section 437-A Cr.P.C., appellant Prabhu Narain Singh is directed to forthwith furnish a personal bond of the sum of Rs. fifty thousand and two reliable sureties each in the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court.
Office is directed to certify the judgment to the learned trial court forthwith along with lower court record.
Order date :- 28.11.2018. ss