Allowed

Shakeel Khan v. State of M.P. Now C.G.

Chhattisgarh HC7 Sept 2017CRA/1930/1999

Case brief

AI extract

What is this about?

The High Court allowed an appeal by the legal representative of a convicted forest guard. Finding serious inconsistencies in the prosecution evidence regarding the bribe demand, timing of the trap, and place of recovery of money, the Court held that conviction could not be sustained and granted benefit of doubt.

What did the court decide?

Conviction and order of sentence set aside; the appellant is acquitted on the ground of benefit of doubt.

Shakeel Khan Vs State of M.P. Now C.G. — Corruption | Chhattisgarh HC (2017)

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NAFR

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tUGH COURT OF CHHATTISGARH. BILASPUR CRANo.1930 of 1999

Shakeel Khan

•—Appellant

Versus

• StateOfM.P. ( Now C.G.)

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-—Respondent

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For Appeltant Shri Badruddin Khan, Advocate For R'espondent-State Shri Anupam Dubey, Dy. GA for the State

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Hon 'ble Shri Justice Goutam Bhaduri Qrder On Board

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07/09/2017

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The present appeal is against the order dated 14.07.1999, passed in Special Case No.141/1991 by the Special Judge, Raipur, wherein the /

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accused Rashid Khan was convicted under Section 161 ofthe IPC and has been sentenced to undergo R.l. for one year and with fine of Rs.1000/further in default 8.1. for three months was avi/arded. He was substantially convicted under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act and was sentenced to undergo R.l. for one yearwith fine of Rs.1000/- and in default of payment of fine of Rs.1000/- further S.l. for three months was awarded. <,

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During the penedency of this appeal Rashid Khan breathed his last and name of his son was substituted namely Shakeel Khan vide order dated 22.08.2014, therefore, the finding of the court below is assailed by the son of Rashid Khan, being the legal representative.

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As.per the case of the prosecution, Rashid Khan was working at Kosmi

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Forest Department on the post of Forest Guard. Gada Ram (PW-3), Metu

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Ram (PW-5) and Biranji were resident of the same village. In order to construct their house with the permission of the accused they cut and procured wood from the forest. In order to facilitate it an amount of Rs.500/was given to him. After construction of the house, the accused Rashid Khan and his son extended threat that they have procured wood over and above the permissible limit" from the forest, as such FIR would be filed against them and if they want to./avoid filing of such FIR, they should pay money for the same. Thereby illegal demand was made. (i) Initially all the complainant agreed to pay the amount but subsequently changed their mind and on 22.05.1987 one of the witness Gada Ram (PW-3) came with an amount of Rs.300/- at Raipur, wherein he met Champeshwar Giri Goswami (PW-2), who was a school master, he narrated the entire incldent to him. (ii) Thereafter, Champeshwar Giri Goswami (PW-2) took Gada Ram (PW-3) to the office ofAnte Corruption Bureau and vide Ex.P-5 a complaintwas made. Thereafter, Mr. B.I.R. Naidu (PW-8), who was an officer of the ACB was delegated with the duty to conduct the further act. Two of the independent witnesses thereafter were called by B.I.R. Naidu (PW-8) from the Government department and a trap team was formed. In furtherance of preparation of raid, demonstration was shown as to the effect of mixing phenolphthalein powder and sodium carbonate about changing of colours of solution. The number ofthe denorrflnation oftwo one hundred notes as also € the number of the denomination of two fifty rupees notes, which were being carried by Gada Ram (PW-3), were noted and phenolphthalein powderwas applied on those notes and were kept in the pocket of Gada Ram (PW-3) and he was instructed that when the accused demands the bribe then only he-should touch the notes. (iii) Initially panchnama was prepared vide Ex.P6. Thereaifter, the trap team reached to village Kosmi and the accused Rashid Khan, who was staying in the room at barrier of the forest was

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approached by Gada Ram (PW-3) along with Metu Ram (PW-5) and Biranji. Gada Ram (PW-3) thereafter gave the notes which were having the phenolphthalein powder to the accused and gave signal to the trap team. At that time, before the trap party came into the scene, the son of the accused after taking notes from the accused went inside the house. When the trap team reached and caught hold ,of the accused and his hands were washed in the sodium carbonate solution'/it changed its colour into red. Having enquired the whereabouts of the notes, it was revealed that the son of the accused Wakil Khan had taken the notes inside. Hands of Wakil Khan were also washed in sodium carbonate solution that also changed the colour, thereafter at the instance of his son the seizure of the notes were made and the entire proceedings were recorded by way of Panchnama. The solution which changed colour was also kept in the bottles and was sealed and dehatinalishi (initial report) was prepared. The bottles were sent to FSL for chemical analysis to Sagar and the report was received. Thereafter, after receiving the permission to prosecute, the charge-sheet was filed.

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During the course of trial, Rashid Khan abjured the guilt and stated that at the relevant time he was not at all available in the house and he was at Gariyabandh and when he returned back certain papers were forcefully got signed by him and it was further stated•^' that in order to inculpate in the police case over a previous enmity by' the complainant false allegations were made.

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The prosecution on primary basis examined Gada Ram as PW-3, Metu Ram , brother ofthe complainant as PW-5, B.I.R. Naidu, the 1.0, as PW-8 and Arun Pal, independent witness, as PW-6. The other seizure witness were Nasim Ahmad (PW-1) and Ishwari Kumar Mishra (PW-4). The witness

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•'lshwari Kumar Mishra (PW-4) was seizure witness in respect of the service

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records of the accused. The trial Court after evaluating the entire evidence on record has convicted the accused Rashid Khan as aforesaid. Hence this appeal.

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Learned counsel for the Sppellaht would submit that there has been a serious inconsistency in the report and the demand made. As the prosecution^{itselfwasnotabl^.to} prove^{thatRashidKhanhadmadea} ' 1 demand. He would further submit that in the statement of the complainant Gada Ram (PW-3) and the writer of the complaint Champeshwar Giri Goswami (PW-2) serious inconsistency appeared, which made the case doubtful. He further submits that the place of incident is far away from Raipur, which takes 2 & 1/i hours to reach and on the date of 22.05.1987 Gada Ram (PW-3) reached Raipur at 4 O'clock and his statement would show that the statements were recorded before the incident happened, / which raises a serious doubt. He further submits that statement of Champeshwar Giri Goswami (PW-2) would show that on 22.05.1987 nothing happened and entire incident was passed over to other date, but the same is negated by the date of Panchnama. Consequently, a doubt has been created in the case of prosecution. He further submits that the seizure of the notes were not made in person from the accused Rashid Khan and it was alleged to be at tie instance of the son of the appellant and the place of recovery has variecl, as one has said that it is from the go down and another has said from the joining of the wall and roof, therefore, both are completely inconsistent. He further submits that the demand of Rs.3000/- as has been alleged by the prosecution witness, the same is disowned by the.1.0. He therefore submits that in this case neither the demand has been proved, nor the seizure has actually been proved and the conviction therefore is completely based on immaterial and unacceptable

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evidence, which raises a doubt and requires to be set aside.

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Per contra, learned State counsel supports the case of the prosecution and order of the trial Court and would submit that Rashid Khan was a forest guard, he demanded Rs.3000/- and the explanation of inconsistency of the demand of Rs.3000/- and Rs.300/- has been explained by the witness. In this sense it is stated that Rs.3000/- was demanded, the complainant agreed to pay by installment and out of that certain amount was paid, whereas the remaining amount was to be paid in installment and during payment^{of one} part^{ofthedemandofinstallmentofRs.300/-was} given.^He further submits that the defense has been taken that Rashid Khan was not in the house, but the explanation under Section 313 Cr.P.C. would show that the answer was given by the accused itself that he was present in person at the time of incident. The counsel further relied on the statement / of 1.0. B.I.R. Naidu (PW-8) and would submit that the prosecution was able to prove that there has been a demand coupled with the tender of money for which the accused was caught red handed. Consequently, the conviction was properly made.

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Perused the record of the court below and the respective statements of the witnesses.

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This Court in the case of Ramesh Prasad Ahirwar Vs. State of M.P. (now C.G.)1, has reiterated the principles of C.K. Damodaran Nair Vs. Govt. of India2, and interpreted the word "obtained" as used in Section 5 (1) (d) of the Prevention of Corruption Act, 1988 (for short 'the Act, 1988'), which reads as under:-

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"8. In C.K. Damodaran Nair v.~~Govt. of India the

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. ] (2013) 1CGU 158 F '->2 (199'^)'9SCC477

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Supreme Court had an occasion to consider the word "obtained" used in Section 5(1)(d) of the Prevention of Corruption Act, 1947 [now Section 13(1)(d) of the Act, 1988], and itwas held: (SCC p. 483, para 12)

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"12. The position will, however, be different so far as an offence under Section 5(1 )(d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused 'obtained' the valuable thing or pecuniary advantage- by corrupt or illegal means or by otherwise abysing his position as a public servant and that to6 without the aid of the statutory presumption^{underSection4(1)oftheActasitis} available Qnly in respect of offences under Sections 5(1 )(a) and (b) and not under Sections 5(1)(c), (d) or (e) of the Act. 'Obtain' means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) ofthe Act unlike an offence under Section 161 IPC, which, as noticed above, can be, established by proof of either 'acceptance' or 'obtainment'.

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The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) oftheAct is proofofa demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established."

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Further again in the case of RaghunandanPrasad Pandey Vs. State of

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IVI.P. (Now C.G.)3, this Court in parg 10 reiterated the principles laid down in

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the case of Panalal Damodar'Rathi Vs. State of Maharashtra", which

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reads as under:-

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"10.1n the case of Panalal Damodar Rathi Vs. State of Maharashtra the Supreme Court observed as under:-

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"8. There could be no doubt that the evidence of the complainant should be corroborated in material particulars.^{AfterintroductionofSection165-Aofthe} Indian Penal Code making th®person who offers bribe

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r 201.5(5)C.G.L;J.367 /•^ AIR1979.SC 1191 /\

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guilty of abetment of bribery, the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon.".....

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The status of person offering bribe and the caution required while assessing his evidence implicating a Govt. servant was^-examined by the Supreme Court in its subsequent decision in the case of M.0. Shamsudhin Vs. State ofKerala5 wherein, it was held as under:

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"12. Noyi/ confining ourselves to the case of bribery it is generally accepted that 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 case of an approver. Though bribe-givers are 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 canQot succeed. When there is such a demand by the public servant from a person who is unwilling, and if to do public good approaches the authorities and lodges a complaint, then in order that the trap succeeds he has to give the money. There could be another type of bribe-giver who is always willing to give money in order to get his work done and having got the work done he may send a complaint. Here he is a particeps criminis in respect of the crime committed and thus is an accomplice. Thus there are grades and grades^{ofaccomplicesandthereforeadistinctioncould} as well be drawn between cases where a person offers a bribe to achieve his own purpose and where one is forced to offer babe under a threat of loss or harmthat is to say unde£ 'coercion. A person who falls in this category and' who becomes a party for laying a trap stands on a different footing because he is only a victim of threat or coercion to which he was subjected to. Where such witnesses fall under the category of 'accomplices' by reason of their being bribe-givers, in the first instance, the court has to consider the degree of complicity and then look for corroboration if necessary as a rule of prudence. The extent and nature of corroboration thiat may be needed in a case may vary having regard to the facts and circumstances."

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11.1n the case of Sita Ram Vs. State of Rajasthan6, the Supreme Court

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5- 1995 (3) SCC 351 6 (1975) 2 SCC 227

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principally^{decidedthatthedemandofbribehastobe} proved^bythe prosecution and in absence thereof when the demand itself becomes shaky that the demand was made from the complainant the presumption that the money was accepted it has to be beyond all reasonable doubt.

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Further in case of Jagdish Chandra IVIakhija Vs. State of Madhya Pradesh7, the principle laid down.that in a trap case when initial part of the story of demand and offer is found to be untrustworthy, testimony of the complainant cannot be accepted. Further in case of CM. Girish Babu Vs. CBI, Cochin, High Court of Kerla , it is reiterated that mere recovery of tainted money would not be sufficient to convict the accused when the circumstances do not suggest that when and how it was paid. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of reliable evidence to prove payment of bribe or to ^ show that the accused voluntarily accepted the money knowing it to be bribe.

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This Court also in Shiv Kumar Vs. State of M.P. (now C.G.)9 has laid down the principle that in the absence of cogent evidence regarding bribe and in want of independent corroboration of demand and acceptance become doubtful, conviction cannot be sustained.

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14.Keeping the aforesaid principles in the background, the evidence of the respective witness were examined. The story starts with the date of incident which is sfated to be 22.05.1987. According to Gada Ram (PW-3), the complainant, when a demand was made by the accused Rashid Khan, who was a peon in the forest department, he landed at Raipur from his village

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7 . 1990 MPU 239 8(2009) 3 SCC 779

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Jarkipani. He met one of his known person at Bus stand, thereafter the incident of demand of bribe was disclosed to him. They reached to the Ante Corruption Bureau Office and an application was prepared, which is marked as Ex.P-5. Gada Ram (PW-3) accepts that his thumb impression was placed on such application along with the signature of Champeshwar Giri Goswami (PW-2). A- reading of the complaint would show it gives a background that a room was prepared by the complainant Gada Ram (PW3) along with his brother Metu Ram (PW-5) and Biranji, the neighbour. In order to procure the woodto be used it as a beet they were permitted to get some wood from forest by accused and in lieu thereof had taken Rs.500/. After completion of the house again demand of Rs.100/- was made from each of the complainant, otherwise threat was extended tbat if they do not pay, they will be inculpated in a forest case. The report further says that he never wanted to pay the amount and as such the complaint was made. /

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15.The complainant Gada Ram (PW-3) had deposed that after accepting Rs.500/- another demand of Rs.3000/- was made by the accused. The said quantum of demand is not consistent with the quantum as has been stated in Ex.P-5 the complaint. As the Ex.P-5 only shows that Rs.100/- each was asked further. The witness Champeshwar Giri Goswami (PW-2), who was the writer of the complaint has deposed that as per instructions of Gada ^

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Ram (PW-3) only he had wptten Ex.P-5. Therefore, there is serious inconsistency appears in the statement of Gada Ram (PW-3) and Champeshwar Giri Goswami (PW-2), the writer of the complaint and the complaint Ex.P-5.

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16.The 1.0. is B.I.R. Naidu (PW-8) has affirmed the contents ofthe application Ex.P-5 and further stated that two independent witnesses namely Shri Pal

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., .and Shri Saluja had also signed that application. Arun Pal (PW-6) had

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stated that Gada Ram (PW-3) was holding some complaint and he had placed the signature on fhis. Therefore, Arun Pal (PW-6) was not the primary witness to the complaint. This part of the evidence that how much of the amount was under demand, whether it was Rs.300/- or Rs.100/- each accumulating Rs.300/- or part of Rs.3000/- demand has not been made clear by the prosecution and uncertainty looms large over the actual demand made.

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17.Subsequently to it, the complainant suggests that at ACB office, it was disciosed by him that he is not carrying amount of Rs.3000/-, at that time the officers of Ante Corruption Bureau suggested that in such eventuality how the accused would accept Rs.300/-. The explanation as was given by the complainant that he had made it clear to Rashid Khan, the accused, that the complainant would tender the amount in installment. This inter se conversation between the complainant and the Ante Corruption Bureau Officers would suggest that the complainant was sanguine of the fact that how much amount of money was in demand. In the Court it has been stated fo be of Rs.3000/-. Whereas in the application demand of Rs.100/- each from three persons was written. The 1.0. B.t.R. Naidu (PW-8) has not supported such quantum of demand of Rs.3000/-. The evidence of the complainant would show that he had tried to improve and aggravate the demand before the Cour}. With respect to complaint Ex.P-5 the complainant was confronted with the discrepancy of demand. On such confrontation he had denied to have given such direction to Champeshwar Giri Goswami (PW-2), who had scribed the complaint at his behest. The complainant therefore himself has made a inconsistent statement with respect to demand and has replied the contents of Ex.P-5, wherefrom the journey started. Consequently, it raises a serious doubt about the facts

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involved in this case.

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18.The second part of the incident starts with the fact that the complainant stated to have given two 100 rupee notes and two fifty rupees notes to the ACB Officers and phenolphthalein powder was applied on it and it was kept in the pocket of the complainant. Thereafter this procedure was written in trap panchnama Ex. P-6 and the prosecution went for trap. The date oftrap is stated to be 22.05.1987. At this stage, when the statement of Champeshwar Giri Goswami (PW-2), who has written the complaint, is seen, he has stated that on 22.05.1987 he started from his village Chura at 12 pm and he reached Raipur at about 4 pm to meet someone at Raipur. However, he could not meet the person and stayed at Grass Memorial Lodge and entry was made in the register of the lodge. At para 5 of / deposition he has stated that he wanted to go back to his village, therefore, on the next day in the morning at about 8 am he started back for his village to go back and while on his way back to catch the bus, he met Gada Ram (PW-3), the complainant. Gada Ram (PW-3) in statements stated that he reached Raipur at about 4 'O clock after starting from village Chura and he met Champeshwar Giri Goswami (PW-2). So, according to the statement of Champeshwar Giri Goswami (WV-2) nothing happened on 22.05.1987. f According to him on the next'day i.e. on 23.05.1987 when he was on his way back to the village, he met the complainant. Whereas, the complainant says he met Champeshwar Giri Goswami (PW-2) after reaching Raipur after 4 pm. Therefore, serious inconsistency about the date and time of pre-trap preparation appears, which remained unexplained. B.I.R. Naidu (PW-8) though has stated the date of raid was on 22.05.1987, but the witness has

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. denied the same. So again ambiguity comes out to the fore.

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19.Thereafter,-aecording to the prosecution the trap party started Tbr the village,

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wherein the complainant was directed to handover the notes to the accused Rashid Khan, which were having powder. As per Gada Ram (PW-3) they reached the village Fesaguda at about 7 to 8 pm. He insisted Biranchi to stay back at certain place and after going to accused he gave notes of Rs.300/- to Rashid Khan, who in turn gave these notes to his son. As per the complainant Gada Ram (PW-3) at that time, the police officers came and caught hold ofthe hand ofthe Rashid Khan and when itwas dipped into water, it changed its colour and the said coloured water was sealed. The complainant said his hand was also dipped in the water which also changed the colour. Subsequently, when the police officers insisted the son for the money, his hand was also dipped in the chemical water, which changed its colour and thereafter at the instance of Wakil Khan, the money was taken out from the joint of the ceiling and th6 wall of the hut and the money was also dipped in the chemical water, which changed its colour. In respect to the other persons their hands were also dipped in the chemical water, but it did not change its colour. When the place of recovery of money is seen, it shows that money was not recovered in person from Rashid Khan. The place of recovery of the amount was not disclosed in the statement of complainant underSection 161 Cr.P.C., which was marked as D-1. I-

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20.Perusalof D-1 would show that place of recovery of the money was not disclosed. Further Gada Ram (PW-3) has contended that when the money was recovered, at that time he was out of that hut and the accused and the ACB officers were inside the hut. Arun Pal (PW-6), who was an independent witness went along with the trap team, stated that aft6r money was given by the complainant, the ACB Officers caught hold of the hand of " Rashid Khan, but the accused dined to have money. .Subsequently, it was disclosed that the money was given to the son and the sonwas given a slap

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thereafter the son took the 1.0. B.I.R. Naidu (PW-8) and the independent witness to godown. Wherein under the gunny bags two notes of Rs.100/and two notes of Rs.50/- were lying. Thereafter, the independent witnesses picked up these notes and came to the other room. The statement of independent witness would again show inconsistency of the place of recovery of the notes. Gada Ram (PW-3) stated that the notes were recovered from the joint of ttne ceiling and the wall of the hut and the Independent witness stated that'notes were recovered at the instance of his son from a attached godown and were kept under the gunny bags. Therefore, place of recovery of notes is again remained inconsistent. Arun Pal (PW-6), the independentwitnessthough was a part ofthe trap party, but contended that he has not seen the transaction of the notes. ]n the crossexamination he stated that initially the hands of the son of Rashid Khan were dipped in the chemical water, thereafter hands of Rashid Khan were / dipped and the he further stated that initially the search of the son of Rashid Khan was made, thereafter recovery of notes was made and the said notes were taken out by Arun Pal (PW-6). When the witness was confronted with the police statement recorded under Section 161 ofthe Cr.P.C. vide Ex.P-9, he denied to have given such statement that he had seen that the money was given to Rashid Khan from the window. Therefore, serious contradiction has been made byMhis witness about tendering of money.

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21.Apparently, it appears that the money was not recovered in person from the accused Rashid Khan. It was recovered from other room and the evidence suggests that the son of Rashid Khan was caught hold of and thereafter at his instance, the alleged money was recovered. The independent witness who was part of the trap team i.e. Arun Pal (PW-6) has denied the fact that he has seen the money was tendered to the accused Rashid Khan,

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therefore, if the money was not recovered in person from Rashid Khan and serious omission exists with respect to the place of recovery as the complainant Gada Ram (PW-3) has stated that it was recovered from the joint of the wall and the roof of hut, whereas the independent witness and the 1.0. have stated that the recovery- was made from the adjacent godown under a gunny bag,,therefore two versionson place of recovery raises a serious doubt in the .pase of the prosecution. Further as has been found by the evidence of the complainant Gada Ram (PW-3) the inconsistency of the demand exists. The accused in his statement under Section 313 of the Cr.P.C. had stated that because of the previous enmity the accused has been falsely implicated, and explanation has been offered. Over all scrutiny of evidence and the circumstances of the case as projected by the prosecution becomes highly improbable as the complainant himself has given contradictory statement with respect to demand. It was the duty of the prosecution to prove the case beyond reasonable doubt. Several inconsistency with respect to the demand, timing of raid and the date thereof along with the place of recovery of the money raises serious doubt in the case of the prosecution and consequently benefit of doubt should lean in favour of the accused.

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22.Therefore on entire evaluationtif evidence, 1 am of the opinion that the f accused Rashid Khan was entitled for the benefit of doubt for the inconsistency prima facie existed in the case. In the result, the conviction cannot be sustained on such evidence. Consequently, the judgment of ' conviction and order of sentence passed by the Court below are set aside. The accused Rashid Khan now represented by his son is acquitted of the charges on the ground of benefit of doubt. The appellant

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has already died, therefore, no further order is called for. The appeat stands allowed in terms of aToresaid observation.

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Sd/Goutam Bhaduri Judge

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Ashu