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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.