JUDGMENT Mukteshwar Prasad, J.
1. Accused Revti Prasad has come up in appeal against the judgment and order dated 27.8.1980 passed by the then Additional Sessions Judge/Special Judge, Agra in Special Case No. 7 of 1979 whereby he convicted the accused under Section 161 of the Penal Code and sentenced him to suffer rigorous imprisonment for a period of one and half years and to pay a fine of Rs. 250/- only. In default, he was directed to undergo rigorous imprisonment for a period of three months. He was further held guilty under Section 5(2) of Prevention of Corruption Act, 1947 and was sentenced to undergo rigorous imprisonment for a period of two years. Both the sentences were directed to run concurrently.
2. Briefly stated, the prosecution case was as under.
3. P.W.2 Gopi Chandra, son of Ved Ram, a farmer, resided in village Burhana, P.S. Tajganj, Agra in the year 1977. He wanted to install a pumping set in his plots for the purpose of irrigation and had applied for loan from the Bank for the same. The Bank officials demanded extracts of Khasra and Khatauni. He accompanied by Sumer Singh contacted the accused, who was posted as Lekhpal of the village and requested for issuing copies of the Revenue records. The accused demanded Rs. 100/- as bribe for issuing the extracts. They made repeated requests for issuing extracts after receiving 0.50 P. fixed by the Government but the accused insisted for payment of Rs. 100/-. Gopi Chandra therefore paid Rs. 70/- to Lekhpal in the third week of January, 1977. However, the Lekhpal insisted for payment of Rs. 30/- also.
4. On 31.1.77, Gopi Chandra decided to make payment of Rs. 30/- also. He therefore moved an application to Superintendent of Police, Vigilance Establishment, Agra requesting for laying a trap.
5. The Superintendent of Police directed Sri Deoki Nandan Sharma, Deputy Superintendent of Police, to take necessary action in the matter.
6. On the same day, Gopi Chandra appeared before Sri D.N. Sharma in the presence of Thakur Sumer Singh, Shambhu Nath and Sri V.P. Singh, Inspector Vigilance, and narrated the entire story. He handed over six currency notes of denomination of Rs. 5/- to Sri D.N. Sharma who made his initials thereon and, on his direction, Inspector V.P. Singh treated the notes with phenolphthalein powder. Thereafter all the six currency notes were returned to Gopi Chandra for giving them to Lekhpal as bribe. The hands of Inspector were washed in the solution of sodium carbonate and the colour of solution became pink. The solution was sealed in a bottle and a sample of seal was prepared. Sri D.N. Sharma, Dy. S.P., prepared a Fard.
7. On 31.1.77 at about 1-30 P.M. Sri D.N. Sharma accompanied by Bhanwar Pal Singh, Shambhu Nath Sharma and Thakur Sumer Singh reached Tehsil compound Agra and were standing in the corner of the courtroom of Nayab Tehsildar. Gopi Chandra contacted the Lekhpal (Reoti Prasad) and demanded the extracts of Khasra and Khatauni. He insisted for payment of Rs. 30/- first whereupon Gopi Chandra took out currency notes and handed over the same to Reoti Prasad. When Reoti Prasad was counting notes, the aforesaid witnesses reached there and saw the transaction. The Dy. S.P. after disclosing his identity, recovered six notes of the denomination of Rs. 5/-from the hands of Reoti Prasad and after checking found that the notes were the same, which were initialled by him and treated with powder. The Lekhpal was formally arrested and the hands of Reoti Prasad and Gopi Chandra were washed with sodium carbonate. The solution was collected in two bottles, which were sealed on the spot and samples of seal were prepared.
8. A Fard recovery was also prepared on the spot, which was signed by Gopi Chandra, Shambhoo Nath Sharma and Sumer Singh. A copy of Fard recovery was furnished to the accused also who refused to sign.
9. Thereafter personal search of the accused was made by the Dy. S.P. and a Fard Supurdiginama was prepared. A wristwatch (H.M.T. Citizen), Rs. 111/- cash and one brass key were found on the person of the accused which were handed over to Sri Dharam Vir Singh Chauhan, Kanungo, as desired by the accused.
10. The accused was taken to police station Shahganj. Sri D.N. Sharma handed over his written report to the police and a case was registered at 3-10 P.M. on the same day at crime No. 71 under Section 161 I.P.C. and Section 5(2) of P.C. Act and entry was made in the G.D. at serial No. 26.
11. On 1.2.1977 Sri Ravi Bhushan Mishra, S.P. Vigilance Establishment, Agra passed orders for conducting investigation of the case by Sri Narayan Shukla, Dy. S.P. The I.O. after receiving orders, started investigation on 2.2.77 and interrogated Head-Moharrir, D.N. Sharma, Gopi Chandra, Shambhoo Nath Sharma and others. After visiting the scene of occurrence on 9.3.77, he prepared a site-plan. All the bottles were sent to Chemical Examiner for analysis. After completing investigation, a charge sheet was submitted against the accused.
12. Smt. Anita Chaterjee, the then S.D.M. Sadar, Agra accorded sanction for prosecution of the accused on 7.3.79.
13. Accused Reoti Prasad was charged under Section 161 I.P.C. and Section 5(2) of P.C. Act on 5.9.79 to which he pleaded not guilty and claimed to be tried.
14. The prosecution in support of its case, examined P.W. 1 Sri D.N. Sharma, the then Dy. S.P., who led the trap and arrested the accused while he was taking bribe from Gopi Chandra, P.W.2 Gopi Chandra from whom illegal gratification was demanded, P.W.3 Shambhu Nath Sharma, an eye witness, P.W.4 Head Constable Radha Kishna Singh who prepared chick report and general diary and P.W.5 Sri Narayan Shukla, Dy. S.P., I.O. of the case.
15. Accused admitted that he was posted as Lekhpal of village Burhana, Tehsil Agra in the month of January, 1977. He further admitted that Gopi Chandra had demanded extracts of Khasra and Khatauni from him which were issued by him on 28.1.77. He totally denied his arrest as well as recovery of currency notes from his possession and he was falsely implicated. The defence version is that Shambhu Nath Sharma and late Sumer Singh, who was a freedom fighter, were annoyed with him. Sumer Singh was elder brother of Ved Ram, father of Gopi Chandra.
16. Accused examined Krishna Kumar Srivastava, who was Nayab Tehsildar, Tehsil Agra on 31.1.77 and D.W.2 Om Prakash, Assistant Registrar Kanungo. D.W. 2 Om Prakash was examined to prove that extracts of Khasra and Khatauni were issued to Gopi Chandra on 28.1.77.
17. After considering the submissions made on behalf of the parties and the entire oral and documentary evidence led by them, learned Judge found the accused guilty of both the charges and convicted and sentenced as mentioned above.
18. I have heard learned Counsel for the appellant and learned Additional Government Advocate. I have gone through the record carefully.
19. Learned Counsel appearing for the appellant has contended vehemently that no independent public witness present in Tehsil compound was examined by the prosecution to prove the prosecution story. No attempt was made to procure independent witnesses by the arresting officer. There was heavy rush of the people within Tehsil compound on account of arrival of a Minister in the afternoon. However, the arresting officer did not take pains to procure independent witnesses. It was also urged that extracts of Khasra and Khatauni were issued to Gopi Chandra by the appellant on 28.1.77 and as such, there was no question of demanding any bribe by the appellant on 31.1.77 and entire case of the prosecution is false and concocted and appellant is entitled to be acquitted.
20. On the other hand, learned A.G.A. has supported the impugned judgment and has submitted that after proper scrutiny of the entire evidence on record, learned Judge found the appellant guilty and he does not deserve any sympathy of this Court. The defence version does not inspire confidence that extracts of Khasra and Khatauni were issued to Gopi Chandra on 28.1.77 itself and as such, there was no occasion for the appellant to demand illegal gratification for issuing extracts of Revenue records.
21. I have considered the submissions made on behalf of the appellant and by State counsel. I have scrutinized the evidence on record led by the parties carefully. I find that the learned Judge committed no illegality in appraisal of the evidence and rightly found the appellant guilty for accepting Rs. 30/- as bribe from Gopi Chandra. The trial Judge has discussed and scrutinized the evidence in great detail in the impugned judgment and rightly concluded that the appellant, being a public servant, committed the offence of criminal misconduct by accepting Rs. 30/- as illegal gratification. In the instant case, the prosecution examined five witnesses in all, including two formal witnesses-P.W.4 Radha Kishan and P.W.5 Narayan Shukla, I.O. of the case.
22. According to prosecution case, P.W.1 D.N. Sharma, the then Dy. S.P., Vigilance, laid a trap on 31.1.77 in Tehsil compound, Agra and arrested the appellant while accepting and counting notes offered by P.W.2 Gopi Chandra as a bribe for issuing extracts of Revenue records. According to Fard recovery, besides arresting officer, Inspector B.P. Singh, Gopi Chandra, Thakur Sumer Singh and Shambhu Nath Sharma were present there and saw the appellant accepting Rs. 30/- from Gopi Chandra. P.W.1 D.N. Sharma, P.W.2 Gopi Chandra and P.W.3 Shambhu Nath Sharma fully supported the prosecution story. Gopi Chandra and Shambhu Nath Sharma corroborated the testimony of arresting officer on all material points. It is noteworthy that Sumer Singh, who was Tau of Gopi Chandra and a freedom fighter, expired during pendency of the case and as such, he was not examined by the prosecution. P.W.3 Shambhu Nath Sharma was posted as a clerk at the Bus station and on the request of Gopi Chandra, he accompanied him and reached the office of S.P. Vigilance and all proceedings as indicated above took place in his presence. P.W.2 Gopi Chandra denied the defence version that extracts of Khasra and Khatauni were issued to him on 28.1.77 itself and entire case was fabricated on account of enmity with late Sumer Singh. He disclosed that the appellant had prepared the extracts but had not given to him and insisted for payment of Rs. 30/- also. To prove the defence version, the appellant examined D.W.2 Om Prakash, Assistant Registrar-Kanungo, who stated in clear words that entries made in Roznamcha did not indicate as to whom the extracts of Khasra and Khatauni were issued. I find myself unable to place reliance on the defence version that extracts were given to Gopi Chandra on 28.1.77. The simple reason is that there was no such enmity between Gopi Chandra and appellant that he even after receiving the extracts of Revenue records approached S.P. Vigilance and requested for laying a trap. He being a simple farmer of village is not expected to go to this extent that he dared to falsely implicate a public servant i.e. Lekhpal of his own village. It will not be out of place to mention that Lekhpals for the villagers hold a very high and important position and no villager would like to incur displeasure of his own Lekhpal. All the three witnesses, including the arresting officer and Gopi Chandra were cross-examined at length on behalf of the appellant but I find nothing in their cross-examination to disbelieve/discard their testimony. In my considered opinion, the court below rightly concluded after scanning of the evidence on record that the appellant accepted Rs. 30/- as bribe from Gopi Chandra.
23. It is true that no witness was picked up by the arresting officer from the spot. No doubt, he could associate, one or two witnesses present in Tehsil compound. However, I find no infirmity in the prosecution case on this score. It is well settled that the quality of the evidence and not the quantity which is material. Our Evidence Act does not insist on plurality of the witnesses. I am also of the opinion that P.W.3 Shambhu Nath Sharma is an independent witness and he was neither interested in Gopi Chandra nor inimical to the appellant.
24. As indicated above, all the three bottles were sent to Chemical Examiner for examination and after analysis phenolphthalein and sodium carbonate were found in the solution. In other words, the report was positive and supported the prosecution story.
25. It is crystal clear from the statement of the appellant recorded under Section 313 Cr.P.C. that Gopi Chandra requested him to issue copies of Khasra and Khatauni which were given to him on 28.1.77 (as per defence version). It means, Gopi Chandra contacted the appellant for issuing extracts. Therefore in view of the entire evidence on record led by the prosecution coupled with the statement of the appellant as indicated above, I have arrived at the conclusion that the court below rightly found the appellant guilty and conviction of the appellant under Section 161 I.P.C. and Section 5(2) of P.C. Act is sustainable.
26. So far as sentence is concerned, it is true that appellant was arrested by the police while accepting bribe on 31.1.77 and he was about 32 years old at that time. Now he is an old man aged about 60-61 years. Learned Counsel for the appellant has submitted that in view of this long period between the date of arrest and decision of this appeal, the appellant deserves full sympathy of this Court and he should not be sent to jail. In support of his contention, he placed reliance on a recent decision of Supreme Court of India in State of Maharashtra v. Rashid Babubhai. Mulani 2006 (1) Supreme 47.
27. I have considered the submissions made on behalf of the appellant regarding sentence. After having considered the date of incident, age of the appellant at that time and the period taken in disposal of the case by the trial Court as well as in this Court and the decision of the Apex Court also, I am inclined to take a lenient view. The appellant is admittedly an old man and is no more in service, I am, therefore, of the view that a fine of Rs. 2000/- and rigorous imprisonment for a period of four months under Section 161 I.P.C. and rigorous imprisonment for a period of four months under Section 5(2) of Prevention of Corruption Act will be appropriate sentence and will meet the ends of justice.
28. The appeal is partly allowed. The conviction of appellant under Section 161 I.P.C. and Section 5(2) of P.C. Act is upheld. He is sentenced to undergo rigorous imprisonment for a period of four months and to pay a fine of Rs. 2000/- under Section 161 I.P.C. He is further sentenced to undergo rigorous imprisonment for a period of four months under Section 5(2) of P.C. Act. In default of payment of fine, the appellant shall further undergo rigorous imprisonment for a period of two months. Both the substantive sentences are directed to run concurrently.
29. The appellant is on bail. His bail is cancelled. He is directed to surrender forthwith to serve out the sentence. In default, Chief Judicial Magistrate, Agra shall ensure that the appellant is arrested and lodged in jail to serve out the sentence.
30. A copy of this judgment along with lower court record shall be sent to the court below/C.J.M., Agra for intimation and necessary compliance. Compliance shall be made by the courts below within a period of six weeks from the date of receipt of the record with an intimation to this Court within a period of two months.