Om Prakash Sinha Vs State of Jharkhand through CBI

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. Appeal (SJ) No.569 of 2012

[Against the Judgment of conviction and order of sentence both dated 09.05. 2012 passed by learned Special Judge-I, CBI/ ACB, Ranchi, in R. C. Case No.13(A)/2004 AHD-R].

Om Prakash Sinha

…. Appellant

Versus

The State of Jharkhand through CBI. ….. Respondent

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P R E S E N T

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HON’BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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….. For the Appellant : Mr. A. K. Kashyap, Sr. Advocate For the CBI : Mr. Anil Kumar, ASGI

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By Court:- Heard learned counsel for the appellant and learned counsel for the CBI.

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1. This Criminal appeal is directed against the Judgment of conviction and order of sentence passed by learned Special Judge-I, CBI/ ACB, Ranchi, in R. C. Case No.13(A)/2004 AHD-R, whereby the appellant has been convicted under Section 7 and 13(2) read with Section 13(1)(d) of the P.C. Act and sentenced to undergo RI for 2 years and to pay a fine of Rs.5,000/- and in default, to undergo SI for two months.

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2. The case of the prosecution is that a complaint was received from one Lalan Chouhan who was posted as Piece Rated Loader, Sirka Argadda Colliery of CCL. The complaint was made to S.P, CBI, Ranchi on 08.11.2004, alleging therein, that he was ill since 03.06.2004 and had undergone treatment in the Hospital of the CCL. After he recovered from his illness, a fitness certificate was required for joining his service. He went to the Central Hospital, CCL, Naya Sarai for getting the fitness certificate on 03.11.2004, In this regard, he made enquiry from one person (identity not disclosed) on 06.11.2004, regarding process for getting the fitness certificate. He informed that since the matter involved long leave, therefore, the fitness certificate will be made available by Om Prakash Sinha [appellant/accused], Legal Inspector serving in the office of General Manager, Kuju Area who was on good terms with the Doctor. It is alleged that on 08.11.2004 in the morning at 8 O’clock when he asked for fitness certificate, an illegal gratification to the tune of Rs.1,000/- was demanded, as told out of said amount, Rs.500/- was to be for the Doctor and rest Rs.500/- for himself. He was asked to come in the evening at 7:00 PM with the said amount.

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3. On the complaint, a preliminary enquiry was conducted by N. K. Jha, Sub Inspector, CBI on the same day and on verification and confirmation of the

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allegation, the FIR being RC 13(A)/ 2004- AHD-R was registered on 08.11.2004 under Section 7 of the P. C. Act.

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4. Thereafter pre-trap memorandum was drawn and in the evening and on the very same day, the trap was laid by Sri N. K Jha, Inspector, CBI. D. Murmoo, Inspector of Police, CBI, AHD, Ranchi and other members of the leading party along with two independent witnesses.

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5. In the said trap, appellant (Om Prakash Sinha) was caught red-handed with cash of Rs.1,000/-. Post trap memorandum was prepared and formalities of seizure-list was completed.

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6. CBI after investigation submitted charge-sheet and after cognizance, the charge was framed against the appellant/accused under Sections 7, 13(2) read with Section 13(1)(d) of the P.C. Act.

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7. Altogether 11 witnesses were examined and Exhibit 1 to Exhibit 12 were adduced into evidence and material exhibits I to V and VI to VI/5 have been proved on behalf of the prosecution.

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8. After the prosecution evidence, the statement of the accused was recorded under Section 313 Cr. P. C. The defence is of denial and false implication because of Trade Union dispute with one Rameshwar Singh Fauzi.

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9. The impugned judgment of conviction and order of sentence has been assailed by the learned Senior counsel for the appellant on the ground that in the manner that on the same day in which the complaint was received, preliminary enquiry was held and the raid was also conducted which itself goes to show that preliminary enquiry was not held as required under Clause 9.1 of the CBI Manual.

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10. It is submitted that different versions have come up regarding the demand of illegal gratification in the complaint and preliminary enquiry report as well as formal FIR. In the complaint, there is a specific averment that Rs.1,000/- was demanded by the appellant, out of which, Rs.500/- had to be paid to the Doctor and Rs.500/- for himself. However, in the subsequent version, the demand of Rs.500/- by the Doctor has been omitted and it has been stated that there was a demand of Rs.1,000/- by this appellant himself.

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11. It is argued that there was no work of the complainant pending with the appellant for which any illegal gratification would have been demanded. In absence of any work to be transacted, there was no occasion for making the said demand. Learned Senior counsel has relied upon the judgment reported on 2015(2) SCC 230 at Paras 9 & 10 wherein it has been held that order of acquittal was passed on this count.

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12. With regard to deposition of PW 5, it is argued that the complainant is silent about Rs.500/- as stated in the complaint to be paid to the doctor. In the complaint, he has stated that he had gone to Naya Sarai Hospital on 06.11.2004 for getting fitness certificate, whereas, in his deposition, in para 1, he has stated that he had gone there on 08.11.2004.

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13. It is further argued that there is contradiction between the statements of witnesses with regard to the place where the said bribe amount was given to the appellant. The complainant says that he had gone with the shadow witness [PW6 Siman Lakra] inside the room at the residence of the appellant, where he received the amount, whereas the Investigating Officer [PW9] has deposed in para 4 that the bribe amount was received by the appellant in the Portico of the house. As per the verification report (Ext.12), Inspector N.K. Jha had gone for verification along with the complainant to the office of the appellant, whereas the complainant [PW5] in para 8 has deposed that he does not know where is the office of Om Prakash Sinha. This falsifies the verification report to be held and it was incumbent on the part of the CBI and Inspector, N.K. Jha has been examined and adverse inference regarding presumption of fact needs to be drawn in this regard under Section 114(g) of the Evidence Act.

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14. As per the deposition of PW5, what transpired between the complainant and the appellant has not been corroborated. It is argued that the testimony of PW.9 that the money was delivered in Portico but PW.11 in cross-examination at para 5, has stated that they were all outside of the boundary wall and he did neither see the transaction nor heard any conversation. PW11 was the Deputy Superintendent of Police of CBI and when he has given a positive statement, they were outside the boundary wall and they have not seen the transaction of the said demand and acceptance is not corroborated in material parts.

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15. It is further argued that specific defence has been taken by the appellant in his statement made under Section 313 Cr.P.C. on account of the dispute of Trade Union and he has been falsely implicated in this case. This part of defence has been duly proved by D.W.1, Hamid Ansari, D.W. 2 -Ram Pravesh Singh and D.W. 3-Md. Gufrat Ahmad. D.W. 1- Hamid Ansari was also the chargesheeted witness of CBI, but he was not examined on behalf of the prosecution.

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16. On the point of sentence, it is submitted that that the appellant has suffered protracted litigation for last twenty years and he has no criminal antecedent. The mitigating as well as aggravating circumstances of offence is to be considered. After the order of conviction, the appellant has been dismissed from service and is now in a miserable financial and health condition. There is

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infirmity in the order of sentence, as the sentence has been awarded under Sections 7 as well as 13(1)(d), 13(2) of the Prevention of Corruption Act.

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17. It is submitted by the learned ASGI that the law is settled unless and until the inconsistencies appearing in the statement of witness and the same goes to the root of the matter and that there are material contradictions, that will not be sufficient for discarding the deposition of a witness. It is also submitted that the incidence took place in the year, 2004 whereas the witnesses have been examined from the year 2008 to 2012 therefore, after lapse of four to eight years, there is every possibility on account minor lapses in memory. Otherwise also the capacity of observation, recollection and reproduction varies from individual to individual.

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18. It is submitted that with regard to inconsistency appearing in the testimony of P.W. 9 viz a viz the testimony of the complainant regarding the place where bribe amount was paid, it is submitted that the testimony of P.W. 9 will not materially affected, the testimony of P.W. 5 and P.W. 6 establishes it. They have consistently stated that they met the appellant and he specifically enquired whether they had come with the money on which the complainant produced bribe amount in an envelope and after taking out the amount, the same was handed over to the appellant.

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19. Learned senior counsel on behalf of the appellant has drawn attention towards certain inconsistencies appearing in the prosecution evidence. In order to appreciate the importance of such inconsistencies, it will be desirable to state the principles which govern the field. In any criminal trial inconsistencies are bound to arise on account of multiple factors. It may depend on the number and quality of witnesses, who deposed to reconstruct the relevant events and facts in a particular case. Some discrepancies in the ocular account of a witness, unless these are vital contradictions cannot per se affect the credibility of a witness. Unless the contradictions or material, they cannot be used to discard the evidence in its entirety. Inconsistencies are material when they go to the heart of the prosecution case.

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20. In the present case the prosecution case is riddled with so many contradictions that it is difficult to reconcile mutually contradictory versions as stated by the witnesses. It is not one or more stray inconsistent statement of a witness, that will go to the root of the matter. But, if every aspect of it is befuddled contradictory statements, then the accused is entitled to benefit of doubt. To put it the other way, it is not one hole that sinks, but multiple hole that makes it difficult to keep the prosecution boat afloat.

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21. The contradiction starts from the very inception regarding what was demanded from the Complainant. As per the complaint (Ext-9) Rs 1000/- was demanded, Rs 500/- for the Appellant himself and Rs 500/- for the Doctor who was to issue the said medical fitness certificate. Complainant (PW-5) in his deposition has maintained silence over the demand of Rs 500 for the Doctor. He states that demand of Rs 1000/- was made.

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22. When was such demand made, has also conflicting versions by the Complainant (PW-5) himself. In the complaint, he has stated that he had gone to Naya Sarai Hospital on 06.11.2004 for getting fitness certificate, whereas, in his deposition, in para 1, he has stated that he had gone there on 08.11.2004.

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23. From where the tainted money was recovered is also not clear. According to the Complainant, he had gone with the shadow witness [PW6 Siman Lakra] inside the room at the residence of the appellant, where he gave the tainted money to the appellant, whereas the Investigating Officer [PW9] has deposed in para 4 that the bribe amount was received by the appellant in the Portico of the house. Another version comes in PW.11 who in cross-examination at para 5, has stated that they were all outside of the boundary wall, and he did neither see the transaction nor heard any conversation. PW11 was the Deputy Superintendent of Police of CBI and obviously he was with the trap team, and when he states that they were outside the boundary wall, then how could deposition of PW-9 be accepted. It is difficult to accede to the argument of learned ASGI, that facts of recovery has been adequately proved by the testimony of PW-5 & 6, because the evidence is to be looked into its entirety. When two mutually contradictory versions are coming from the mouth of the prosecution witnesses, which cannot be reconciled, such contradictions go to root of the matter making the prosecution story suspect.

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24. These material contradictions, apart from the improbabilities in the verification report, where the verify officer says that he had gone with the complainant to the office for verifying the report. As per the verification report (Ext.12), Inspector N.K. Jha had gone for verification along with the complainant to the office of the appellant, whereas the complainant [PW5] in para 8 has deposed that he does not know where is the office of Om Prakash Sinha. This falsifies the legality of the verification report to have been held.

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25. When all these factors are combined with the hovering trade union dispute which has come in the version of the defence witnesses, it will not be safe to affirm the Judgment of conviction and sentence passed by the learned courts below against the Appellant. Appellant is entitled to benefit of doubt,

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the Judgment of conviction and sentence is accordingly set aside. Sureties are discharged from the liabilities of their bail bond.

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Appeal is allowed.

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Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.

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(Gautam Kumar Choudhary, J.)

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Jharkhand High Court, Ranchi Dated 7^th March, 2024

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sandeep/

Om Prakash Sinha v. State of Jharkhand through CBI

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Om Prakash Sinha v. State of Jharkhand through CBI

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