Allowed

Ram Babu Sharma v. State of U.P.

Allahabad HC20 Jan 2023CRLA/1627/2003

Case brief

AI extract

What is this about?

The High Court allowed the appellant's appeal against conviction and sentence under the Prevention of Corruption Act. The court held that the non-production of independent witnesses and significant discrepancies in the site plan created reasonable doubt, leading to the appellant's acquittal.

What did the court decide?

The judgment of the trial court convicting the appellant and sentencing him to two years' imprisonment and a fine is set aside; the appellant is acquitted.

Ram Babu Sharma Vs State of U.P. — Corruption | Allahabad HC (2023)

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Court No. - 23

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Case :- CRIMINAL APPEAL No. - 1627 of 2003

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Appellant :- Ram Babu Sharma Respondent :- State of U.P. Counsel for Appellant :- Arun Sinha Counsel for Respondent :- Govt.Advocate

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Hon'ble Subhash Vidyarthi J.

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Heard Sri Siddharth Sinha, the learned counsel for the appellant and learned Additional Government Advocate for the State and perused the record.

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By means of the instant appeal the appellant has assailed the judgment and order dated 25.09.2003 passed by the Special Judge (P.C. Act) / Additional District and Sessions Judge, Lucknow convicting the appellant for commission of offence in Crime No. 63/2000, under Sections 7 / 13 (i) (d) read with Section 13 (2) of the Prevention of Corruption Act and sentencing him for two years simple imprisonment and to pay Rs. 5,000/- as fine.

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Briefly stated, the prosecution case is that on 01.03.2000, a complaint was given by one Narendra Prasad Dwivedi to the Superintendent of Police, U. P. Vigilance Establishment Kanpur Nagar stating that on 01.03.2000 the appellant, who was working as Junior Engineer in the Kanpur Development Authority, went to an under constructed house owned by the informant’s wife and demanded Rs. 5,000/- bribe for permitting continuance of construction. Upon the aforesaid information a trap was laid and the appellant was arrested as soon as he received Rs. 1,000/- from the informant as bribe.

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The independent witnesses of trap, recovery and preparation of recovery memo, namely, Babu Ram Mistry and Mohd. Rafiq had not been produced by the prosecution and only police witnesses were produced in support of the prosecution case. The submission before the learned trial court was that non production of independent witnesses raises serious doubt against the prosecution case. It was also

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submitted before the trial court that there are serious discrepancies in the statement of the prosecution witnesses.

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The learned trial court, relying upon some precedents of the Hon’ble Supreme Court, held that the number of witnesses produced by the prosecution is not important but the quality of evidence rendered would govern the fate of the trial. If the witness is reliable, conviction can be based on the statement of a single witness. The trial court held that there is no discrepancy in the statements of witnesses. Regarding the discrepancy in the statement given by PW-5 in respect of the site plan prepared by him, the trial court held that some discrepancy occurs in the statement naturally.

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The trial court held that the prosecution has proved other reasonable doubt that the appellant has taken Rs. 1,000/- as bribe from the informant on 02.03.2000 and accordingly he was convicted and sentenced the Appellant.

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In the present case, the informant was a retired Police Inspector and all the witnesses produced by the prosecution, except for the authority who has given sanction for prosecution of the appellant, were police officers. Two independent witnesses are said to have witnessed the trap and recovery but they were not produced before the trial court and an application was given in the trial court stating that both the witnesses had turned towards the appellants side and they would not state correct facts in the court; for this reason the prosecution did not want to produce them and an application was given for their discharge.

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Sri. Siddharth Sinha, the learned Counsel for the Appellant has submitted that non-production of the independent witnesses as also the discrepancies in the statement of the witnesses and the site plan indicate that the entire alleged trap and recovery proceedings, including preparation of the site plan, were carried out inside the Vigilance Office and no trap and recovery was actually carried out.

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Per contra, learned Additional Government Advocate, has submitted that the trial Court has given cogent reasons for arriving at its findings

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and the findings cannot be termed as perverse so as to call for any interference in Appeal.

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I have considered the aforesaid facts and circumstances of the case and submissions made by the learned counsel for the parties.

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PW-1 (the informant) has stated in his statement that he was working as an Inspector in the Police Department and he retired from the said post in the year 1992. In his cross examination, PW-1 stated that he knows the directions. The Investigating Officer had prepared the site plan on his instructions. He had shown the western wall of the drawing room and the door affixed in it, which was the door used for ingress to the drawing room. The southern wall of the drawing room has three windows which had been shown by him to the Investigating Officer. There is no shop in the West of the drawing room and a gallery and a lawn are there in that direction. No latrine or bathroom is constructed in the gallery or in the lawn. In case the Investigating Officer had shown shops towards West, it is wrong. No jet pump is installed towards the West of the drawing room and jet pump and three shops are situated towards the South.

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PW 1 further stated in his cross-examination that he did not remember as to when the hands of the Deputy Superintendent of Police Sanjay Kumar were got washed. He also stated that during search of the appellant, Rs. 6,000/- were found from his pocket but he did not remember from which pocket the amount was recovered. He further stated that the directions shown in the site plan were wrong.

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PW-2 examined by the prosecution was Sanjay Kumar, Additional Superintendent of Police and he stated that during search of the appellant, Rs. 1,000/- recovered from the pocket of the shirt worn by him and apart from this amount Rs. 6,000/- and odd were recovered from the appellant.

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PW-3 Udai Prakash Shukla was working as Constable Clerk in Police Station Panki on the date of the incident, who had prepared the report.

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PW-4 Deep Chandra Kukreti was an Inspector in U.P. Vigilance Establishment and he was also a part of the search team.

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PW-5 Balbeer Singh an Inspector in the Vigilance Establishment, had prepared the site plan. He stated that he was hiding behind a wall of a drawing room constructed in the western side of the house of the informant and the bath room was in the West of the drawing room. In his cross-examination he has stated that he has shown two doors and no window was shown because he did not think that it was necessary. Although it is mentioned in the recovery memo that there is “a grill towards the south in which a window is affixed”, he had shown a grill towards the northwest of the drawing room which falls on the right side/southern while entering the house towards the south. He did not show any door towards the West of the drawing room and he did not remember as to whether any door existed there.

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PW-6 was an Officer of Urban Development Department who had granted sanction for prosecution of the appellant.

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In his statement recorded under Section 313 Cr.P.C., the appellant had denied from all the charges.

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DW-1 M.P. Srivastava had produced a copy of the FIR lodged by the Kanpur Development Authority regarding the illegal construction raised in the house owned by the informant’s wife but the trial court disbelieved his statement because in the cross examination, he admitted that he had submitted the copy of the FIR which had been sent to the police, which did not bear an acknowledgment of its receipt in the police station or the seal of the police station.

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The site plan prepared by PW-5 on the spot is available on record which shows the entrance of the house from its western wall and a bathroom exists towards the East of the drawing room, and the bathroom has its opening towards its East in a gallery and there is no opening shown towards the drawing room. The bathroom has no opening in the verandah covered by a grill in front of the drawing room also. The search party is said to be hiding behind the wall of the bath room which has no opening towards the bathroom or towards the verandah covered by the grill.

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These aspects had been ignored by the trial court while deciding the case and the discrepancy in the statement of the witnesses and the

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directions and situation of the house of informant as evident from the site plan, raise serious doubt about the prosecution case.

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A site plan is said to have been prepared on the spot but the informant – PW 1 stated that the directions shown in the site plan were wrong. PW-5 Balbeer Singh, who had prepared the site plan, stated that he was hiding behind a wall of a drawing room constructed in the western side of the house of the informant and the bath room was in the West of the drawing room, whereas the site plan does not show any bathroom shown in the Western side. PW 5 said that he did not show any door towards the West of the drawing room and he did not remember as to whether any door existed there.

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The aforesaid discrepancies in the statement of the witnesses regarding the situation of the place of the incident and that reflected by the site plan, give rise to a reasonable doubt against the prosecution case.

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It is correct that the outcome of a trial should not be influenced by the number of witnesses produced and conviction can be based on the solitary evidence of a single witness, provided the same appears to be reliable. However, the fact of non-production of the independent witnesses has to be evaluated in the light of Section 114 of the Evidence Act, which provides that “the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case” . Illustration (g) appended to Section 114 states that “a court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it” . Therefore, non production of independent witnesses gives rise to a presumption that had they been produced in the court, their evidence would have favourable to the appellant.

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It was a case where the information was lodged by a retired Police Inspector, the trap was laid by the officials of the police and it is said that the trap party consisted of two independent witnesses. All the witnesses were produced, but for the independent witnesses.

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Therefore, non production of independent witnesses gives rise to a presumption that had they been produced in the court, their evidence would have been favourable to the appellant.

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Therefore, I am of the considered view that the prosecution failed to prove the charges against the appellant beyond reasonable doubt and, therefore, the conviction and sentence awarded by the learned trial Court cannot be sustained and is liable to be set aside.

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In view of the aforesaid discussion, the instant Appeal is Allowed . The judgment and order dated 25.09.2003 passed by the Special Judge (P.C. Act) / Additional District and Sessions Judge, Lucknow convicting the appellant for commission of offence in Crime No. 63/2000, under Sections 7 / 13 (i) (d) read with Section 13 (2) of the Prevention of Corruption Act and sentencing him for two years simple imprisonment and to pay Rs. 5,000/- as fine, is hereby set aside. The appellant is acquitted of the charges in the aforesaid case giving him the benefit of doubt. There will be no order as to costs.

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(Subhash Vidyarthi, J.)

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Order Date :- 20.1.2023 Pradeep/-

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Digitally signed by :- PRADEEP SINGH High Court of Judicature at Allahabad, Lucknow Bench

Ram Babu Sharma v. State of U.P.

Case brief

What is this about?

What did the court decide?

Ram Babu Sharma v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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