Allowed

Hukam Singh v. State

Rajasthan HC6 Dec 2024CRLA/319/2001

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal and acquitted the accused appellant. The court held that the prosecution failed to prove the demand of illegal gratification and that the voice recording evidence was inadmissible due to lack of voice verification by FSL or witness identification.

What did the court decide?

Impugned judgment of conviction and sentence set aside; accused acquitted; bail bonds discharged; directed to furnish personal and surety bond.

Hukam Singh Vs State — Corruption | Rajasthan HC (2024)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Criminal Appeal No. 319/2001

¶3

Hukam Singh son of Nand Lal, resident of Village Kankra Barod, District Alwar

¶4

(At present he is serving sentence in District Jail, Kota)

¶5

----Accused Appellant

¶6

Versus

¶7

State of Rajasthan through: The P.P.

¶8

----Respondent

¶9

For Appellant(s) : Mr. Pankaj Gupta, with Mr. S.S. Ola Mr. Saurabh Yadav For Respondent(s) : Mr. N.S. Dhakad, PP

¶10

HON'BLE MR. JUSTICE GANESH RAM MEENA

¶11

JUDGMENT

¶12

Date of Reserve	:::	November 27, 2024
Date of Pronouncement	:::	December 06,2024

¶13

By filing instant criminal appeal under section 374 (2) CrPC, the accused appellant has challenged the judgment of conviction and sentence dated 23.05.2001 passed by the Court of learned Special Judge, Sessions Court, Prevention of Corruption Act, Kota (for short ‘the learned trial court’) in Sessions Case No.21/1998, State Vs. Vijay Prakash & Anr, whereby the learned trial court convicted him for the offences punishable under sections 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (For short ‘the Act of 1988’) and sentenced to undergo three years rigorous

¶14

[CRLA-319/2001]

¶15

(2 of 33)

¶16

imprisonment for each offence and also fine of Rs.3,000/- for each.

¶17

The facts of the case in nutshell are that on 24.06.1996, complainant Ajay Madhwani (PW14) submitted a written report before the Superintendent of Police, Anti Corruption Bureau, Kota to this effect that a licence of fire works has been issued on his name by the Collector, Kota which is renewed upto March 1997. His shop of fire works is situated Sripura, Sindhi Chowk. Today in the morning, Mr. Vijay Prakash Ji, who is Halka Dy.S.P of their area called him in the office. Complainant further mentioned that when he went in the office, he (Vijay Prakash) told him that he is ruffian and he does rowdiness and he will get cancel his licence. Upon this he told that he is a poor man and told not to do the same. The complainant further mentioned that he (Vijay Prakash) told him that if he makes payment of Rs.2,000/- to him then he will not get cancel his licence. Then he told that he cannot give Rs.2,000/-. Thereafter, he (Vijay Prakash) told him that he will have to give Rs.1,000/- and only then his licence will be saved from cancelling. The complainant further mentioned that he agreed to give Rs.1,000/-. Mr. Vijay Prakash Ji, Dy.S.P. told him to give Rs.1000/- to his Commando Mr. Hukam Singh and he will give him. Hukam Singh was standing there. The complainant further mentioned that Hukam Singh told him that he will

¶18

(3 of 33) [CRLA-319/2001]

¶19

collect Rs.1,000/- from him and he told him to come in the evening at his shop. The complainant further mentioned that he does not want to give him the bribe and catch him redhanded. The phone conversation of complainant and Vijay Prakash was got recorded.

¶20

Trap proceedings were conducted on 27.06.1996 and from the possession of Hukam Singh Rs.1,000/- were recovered.

¶21

On the basis of aforesaid written report, an FIR No.148/1996 was registered.

¶22

The police after investigation submitted chargesheet against the accused appellant for the aforementioned offences in the Court concerned.

¶23

The learned trial court framed the charges against the accused appellant for the offences under sections 7 and 13(1)(d) read with section 13(2) of the Act of 1988 and sections 120B and 384 IPC, to which he denied and opted for trial.

¶24

From the prosecution side, the statements of 17 witnesses were recorded and certain documents were exhibited.

¶25

The statement of the accused appellant was recorded under section 313 CrPC. The accused appellant in his statement has denied about the allegations levelled

¶26

(4 of 33)

¶27

[CRLA-319/2001]

¶28

against him and deposed that he has been falsely implicated in the instant case

¶29

The learned trial court vide its impugned judgment dated 23.05.2001 convicted and sentenced the accused appellants for the aforesaid offences.

¶30

Mr. Pankaj Gupta, counsel appearing for the accused appellant submitted that the accused appellant was only constable and he was not competent to allow or cancel the sanction for license to the complainant. Thus, no work was pending with the appellant. Counsel further submitted that as per the FIR and prosecution sanction (ExP-1) the demand was raised by Vijay Prakash as he was the Dy.S.P. and as per the allegation, appellant being his Commando was directed to collect the bribe. Thus, in absence of demand no offence under the PC Act is made out.

¶31

Counsel further submitted that the prosecution has to establish that if there is any demand, it has to be for any work pending with the accused. Admittedly, appellant was not the competent person, he was simply a constable, therefore, no work was pending with the appellant.

¶32

Counsel also submitted that the prosecution has not taken the voice of appellant and no comparison of voice with the alleged recording was conducted. Thus, there is no comparison report on the record, therefore, alleged transcript is no evidence in the eye of law.

¶33

(5 of 33)

¶34

[CRLA-319/2001]

¶35

Counsel further submitted that PW1 Devkaran Suman, who was the reader of police station, specifically admits that no work was pending at police station with regard to the license of the complainant.

¶36

Counsel also submitted that PW5 Rajiv Lochan and PW8 Ambika Dutt, were the punch witnesses and they specifically admitted that they have not heard the communication/conversation between the complainant and accused as they were standing on distance. Thus, they did not hear the conversation and not recognized the voice of the appellant. Moreover, there was no forensic report with regard to the comparison of appellant voice with the recorded voice in Article-5.

¶37

Counsel also submitted that PW14 Decoy i.e., Ajay Madhwani has specifically denied the presence of appellant and specifically stated that the present appellant was not the same constable who demanded the money. The above witness specifically stated at page no. 5 that he had seen the appellant first time in the court. Thus, the decoy has not supported the case of prosecution.

¶38

Counsel also submitted that to establish conviction for the offence u/s 7 & 13(1)(D) r/w 13(2) of the Act of 1988, the prosecution has to establish the demand and acceptance of bribe and Handling of tainted money by the accused and

¶39

(6 of 33)

¶40

[CRLA-319/2001]

¶41

work of the complainant must be pending on the date of trap with the accused.

¶42

In the present case neither the demand on the part of appellant is proved nor the work of complainant was pending with the appellant. The two major ingredients are not proved in the present case and mere recovery of tainted money cannot invoke the provision of PC Act mention here before.

¶43

Counsel submitted that the TLO PW-17 Indra Kumar Sharma at page no. 5 specifically admitted that he has not verified the voice recorded in Article-5 from the expert, at page no. 6 he admitted that no work was pending on the date of trap. Similarly, at page no. 7 he admitted that the voice of Hukum Singh was not compared from the FSL. Thus, the entire case of prosecution is misconceived.

¶44

Counsel also submitted that in the entire case of prosecution, the main accused was Dy.S.P. Vijay Prakash and appellant was roped in the case as facilitator of the above main accused. Interestingly, above Vijay Prakash was acquitted by the learned court below and on the same evidence appellant who was only constable, convicted by the learned trial court. The case of appellant is on better footing in comparison to the case of Vijay Prakash, thus, he is liable to be acquitted from all the charges.

¶45

[CRLA-319/2001]

¶46

(7 of 33)

¶47

In support of his submissions, counsel for the accused appellant has placed reliance upon following judgments:-

¶48

Krishan Chander Vs. State of Delhi, reported in (2016) 3 SCC 108;

¶49

N. Sunkanna Vs. State of Andhra Pradesh, reported in (2016) 1 SCC 713;

¶50

C. Sukumaran Vs. State of Kerala, reported in (2015) 11 SCC 314;

¶51

Mahendra Kumar Soni Vs. State of Raj. & Anr., (S.B. Criminal Revision Petition No.281/2023), decided by the Coordinate Bench of the Principal Seat at Jodhpur on 28.8.2024;

¶52

Babu Lal Vs. State of Raj. (S.B. Criminal Appeal No.2556/2023), decided by the Co-ordinate Bench of the Principal Seat at Jodhpur on 16.8.2024;

¶53

Kaushal Verma Vs. State of Chhattisgarh, Criminal Appeal No.843 of 2020 (Arising out of SLP (Crl.) No.7801 of 2015) decided on 8.12.2020;

¶54

Narayanamurthy Vs. State of Karnataka & Anr., reported in (2008) 16 SCC 512; and

¶55

Rajesh Vs. State of Haryana, reported in 2019 AIR (SC) 478.

¶56

Learned Public Prosecutor has opposed the appeal and has submitted that there is no material irregularity or illegality committed by the learned trial court and keeping in view the evidence on record, the accused appellant has been rightly convicted.

¶57

Considered the submissions advanced by the counsel appearing for the accused appellant, learned Public Prosecutor appearing for the State, gone through the

¶58

(8 of 33)

¶59

[CRLA-319/2001]

¶60

impugned judgment and also gone through the record of the case.

¶61

On scrutiny of the record, it is borne out that complainant Ajay Madhwani (PW14) submitted a hand written complaint (Ex.P24) to the Dy.S.P., Anti Corruption Bureau, Kota, stating that on 24.06.1996, Dy.S.P. Vijay Prakash Ji summoned him in his office and said that you are ruffian and creating rowdiness and if you (complainant) does not pay Rs.2,000/- then the licence issued in your favour for fire works will be got cancelled. However, Dy.S.P. agreed for Rs.1,000/- and then Dy.S.P. told him (the complainant) to give Rs.1,000/- to accused appellant Hukam Singh.

¶62

In the Police proceedings recorded on the said complaint, the allegation of demand of bribe was against Dy.S.P. Vijay Prakash. On the basis of the said complaint, the complainant was asked to have the telephonic conversation with Dy.S.P. Vijay Prakash so as to verify the demand of bribe and the said conversation was recorded by the ACB. It is also stated that some telephonic conversation between the complainant and the accused appellant was also recorded and thereafter the trap proceedings were conducted on 27.06.1996 at about 7:20 PM.

¶63

The complainant was examined as PW14 wherein he has stated that he has not applied for licence in the year 1996 and further stated that a Constable met him on the gate

¶64

[CRLA-319/2001]

¶65

(9 of 33)

¶66

of C.O. Office, who said that C.O. is demanding Rs.2,000/-, and if he does not make payment of Rs. 1,000/-, his licence for fire works will be cancelled. He has also stated that he did not meet with the C.O. on that date.

¶67

There seems to be material contradictions in the averments made in the written complaint submitted by complainant (PW14 Ajay Madhwani) and in his statement recorded during examination before the trial court as regards the demand of bribe. In the written complaint he has stated that the demand of bribe was made by the Dy.S.P. Vijay Prakash, whereas before the trial court he has stated that the demand of bribe was made by a Constable Hukam Singh whose voice he recognizes. It is also to be noted that during his examination before the trial court, the accused appellant was present before the Court and when the accused appellant was shown to the complainant he said that he is not that Constable to whom he gave the money. Complainant PW14 Ajay Madhwani also did not identify co-accused Vijay Prakash and turned hostile qua him.

¶68

On perusal of the prosecution sanction (Ex.1) it is found that the Department of Personnel, Government of Rajasthan, issued the prosecution sanction for prosecuting the accused appellant along-with co-accused Vijay Prakash, Dy.S.P. on the allegation of demand of bribe by co-accused Dy.S.P. Vijay Prakash and the accused appellant being the

¶69

[CRLA-319/2001]

¶70

(10 of 33)

¶71

facilitator. However, co-accused Vijay Prakash has been acquitted from the charges and the accused appellant has been convicted as if demand and acceptance of bribe was made by him.

¶72

PW1 Devkaran Suman deposed before the trial court that no any work or application of complainant Ajay Madhwani (PW14) was pending in the Office. The demand and acceptance of bribe for some work is to support by evidence that any work was pending before the Officer/ employee who has made demand and accepted the bribe for performing that particular work. As per the evidence of PW1 Devkaran Suman it is very much clear that no work was pending in the Office of C.O. or before the present accused appellant for which he could make demand of bribe from the complainant.

¶73

The Officer who issued the prosecution sanction for prosecuting both -accused appellant and co-accused Vijay Prakash was examined as PW4 (Jasodanandan Sharma) wherein he has stated that as per the material placed before him the accused appellant was facilitator for co-accused Vijay Prakash in accepting the bribe.

¶74

PW15 Rajeev Lochan who is said to have been present with the complainant while his conversation with the accused appellant was being recorded, stated that he does not know whether the telephonic conversation was recorded

¶75

[CRLA-319/2001]

¶76

(11 of 33)

¶77

or not and he also does not know that what conversation took place between the accused appellant and the complainant when the accused appellant was said to have reached the shop of the complainant for accepting the money.

¶78

Kesar Singh, SHO Police Station Civil Line, Ajmer was examined as PW6 and he was asked to identify the voice in the conversation recorded and he stated that in that casettee the voice of Banwarilal, Constable, Vijay Prakash, Dy.S.P. is with him. He also stated that on 27.06.1996 no any application was pending of the complainant with him as regards the fire works licence.

¶79

PW8 Ambika Dutt, the Land Settlement Officer (the then Tehsildar, Tehsil Ladpura) has also been examined, who is said to have been present on the spot at the place of trap proceedings. He has deposed before the trial court that on the road where the trap proceedings conducted is congested and crowdy. He further stated that he has not seen giving and taking of notes between the complainant and the accused appellant and has also not seen the accused appellant entering into the shop of the complainant. He has further stated that he has not seen the accused appellant throwing notes. Though it is the case of the prosecution that the accused appellant threw the currency notes after the successful trap proceedings.

¶80

[CRLA-319/2001]

¶81

(12 of 33)

¶82

PW13 Abdul Hak, who was also present at the time of trap proceedings, was asked to arrange the independent witnesses, has stated during examination before the trial court that the part of the statements (Ex.D2) “ eq>s irk ugha

¶83

fd ,d gtkj :i;s c.o. lkgc us fdl ckr ds eaxk;s ;s ogh tkus ” is correct.

¶84

PW17 Indra Kumar Sharma, who is the In-charge of the trap proceedings in his statement during examination before the trial court has stated that Ex.P12 is the transcript of the conversation which has been recorded after recording of conversation. He has further stated that he has not got examined the voice of the casettee (Ex. Article 5), though the examination of the voice of the recording was legally required but since no facility was available at FSL Department, Jaipur, he could not get it examined.

¶85

This witness has further stated that on 24.06.1996 no any proceeding/ file as regards the fire works licence of complainant Ajay Madhwani (PW14) was pending in the Office of Vijay Prakash, Dy.S.P. and the complainant was arrested in case of gambling act on 13.06.1996.

¶86

The Hon’ble Apex Court in the case of Krishan Chander (supra) has observed in paras Nos. 14, 15, 25, 35 and 39 as under:-

¶87

“14. It was further contended by him that

¶88

the demand of illegal gratification by the

¶89

(13 of 33)

¶90

[CRLA-319/2001]

¶91

accused is a sine qua non for constitution of an offence under Sections 7 and 13(1) (d) read with Section 13(2) of the PC Act. A mere production of the tainted money recovered from the appellant along with positive result of phenolphthalein test, sans the proof of demand of bribe is not enough to establish the guilt of the charge made against the appellant. In support of the above legal submission, he placed reliance upon the judgments of this Court in B. Jayaraj v. State of A.P. [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] , A. Subai v.State of Kerala [A. Subair v. State of Kerala, (2009) 6 SCC 587 : (2009) 3 SCC (Cri) 85] and State of Kerala v. C.P. Rao [State of Kerala v. C.P. Rao, (2011) 6 SCC 450 : (2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714] , wherein this Court, after interpreting Sections 7 and 13(1)(d) of the PC Act, has held that the demand of bribe money made by the accused in a corruption case is a sine qua non to punish him for the abovesaid offences. The learned Senior Counsel has also placed reliance upon the three-Judge Bench decision of this Court in P. Satyanarayana Murthy v. State of A.P. [P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152 : (2016) 1 SCC (Cri) 11] in which I was one of the companion Judges, wherein this Court, after referring to the aforesaid two-Judge Bench

¶92

(14 of 33)

¶93

[CRLA-319/2001]

¶94

judgments on the question of necessity of demand of bribe money by the accused, has reiterated the view stated supra.

¶95

15. It was further contended by him that the High Court has failed to appreciate the fact that the complainant Jai Bhagwan turned hostile during his examination before the trial court and did not support the prosecution case that the demand of Rs 1000 as illegal gratification was made by the appellant from him for release of Krishna Kumar (PW 2) on bail.

¶96

25. We are of the view that as the complainant Jai Bhagwan in his examination-in-chief before the trial court has categorically stated that it was Ranbir Singh, ASI (PW 11) who demanded Rs 5000 for release of his brother, Krishan Kumar (PW 9) in connection with the offences registered against him in FIR No. 662 of 2004, the trial court has wrongly accepted a part of testimony of the complainant Jai Bhagwan while recording such findings on the charges to convict the appellant when there is nothing on record to show that it is the appellant who had demanded bribe money from the complainant Jai Bhagwan. In his examination-in-chief before the trial court, he categorically stated thus:

¶97

“… One Police Officer who was in civil uniform, who was the IO of that case, met me in the police station

¶98

(15 of 33)

¶99

[CRLA-319/2001]

¶100

told me that I would have to spend Rs 5000 for the bail of my brother … On the directions of that IO, I had given Rs 4000 to accused Krishan on account of duress. That IO asked me that he would send accused Krishan to collect balance amount of Rs 1000 to Najafgarh.”

¶101

During the trial, the said witness did not support the prosecution version and therefore he was declared as hostile witness and thereafter, he was crossexamined by Mr Alok Saxena, the learned Additional Public Prosecutor to the following effect:

¶102

“I did not mention in my complaint that one ASI Ranbir Singh asked Constable Krishan Kumar to release my brother and he himself went for some other work and I requested Constable Krishan Kumar to release my brother and he demanded Rs 5000 from me for releasing my brother (confronted with portion A to A of his complaint Ext. PW 2/A … It is incorrect to suggest that accused Krishan Kumar had demanded Rs 5000 from me and today I am giving a false exception that one IO had demanded Rs 5000 from me in order to save the accused … I did not tell to the police that after receiving signal from the panch witnesses, Raiding

¶103

[CRLA-319/2001]

¶104

(16 of 33)

¶105

Officer came near me and challenged the accused that he had taken Rs 1000 as bribe from me on which accused became perplexed and he took out those treated GC notes from his pocket and threw the same on the ground (confronted with portion B to B of his statement Ext. PW 2/H recorded).”

¶106

He has further stated that:

¶107

“It is wrong to suggest that accused Krishan had accepted bribe from me in his right hand and kept the same in his pocket and after seeing raiding party. It is further wrong to suggest that I am deposing falsely.”

¶108

The High Court has also erroneously appreciated the same and held thus: (Krishan Chander case [Krishan Chander v.State of Delhi, 2014 SCC OnLine Del 2312] , SCC OnLine Del para 23)

¶109

“23. … As regards the demand of bribe of Rs 1000 its conscious acceptance by the appellant, as already noticed, has been proved by PW 6 and fully corroborated by PW 12.”

¶110

35 . It is well-settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The same legal principle has been held by this

¶111

[CRLA-319/2001]

¶112

(17 of 33)

¶113

Court in B. Jayaraj [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] A. Subair [A. Subair v. State of Kerala, (2009) 6 SCC 587 : (2009) 3 SCC (Cri) 85] and P. Satyanarayana Murthy [P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152 : (2016) 1 SCC (Cri) 11] upon which reliance is rightly placed by the learned Senior Counsel on behalf of the appellant.

¶114

39. In view of the aforesaid reasons, the approach of both the trial court and the High Court in the case is erroneous as both the courts have relied upon the evidence of the prosecution on the aspect of demand of illegal gratification from the complainant Jai Bhagwan (PW 2) by the appellant though there is no substantive evidence in this regard and the appellant was erroneously convicted for the charges framed against him. The prosecution has failed to prove the factum of demand of bribe money made by the appellant from the complainant Jai Bhagwan (PW 2), which is the sine qua non for convicting him for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. Thus, the impugned judgment and order [Krishan Chander v. State of Delhi, 2014 SCC OnLine Del 2312] of the High Court is not only erroneous but also suffers from error in law and therefore, liable to be set aside.

¶115

[CRLA-319/2001]

¶116

(18 of 33)

¶117

The Hon’ble Apex Court in the case of N.

¶118

Sunkanna (supra) has observed in para 5 as under:-

¶119

“5. The prosecution examined the other fair price shop dealers in Kurnool as PWs 3, 4 and 6 to prove that the accused was receiving monthly mamools from them. PWs 4 and 6 did not state so and they were declared hostile. PW 3 though in the examination-in-chief stated so, in the crossexamination turned round and stated that the accused never asked for any monthly mamool and he did not pay Rs 50 at any time. The prosecution has not examined any other witness present at the time when the money was demanded by the accused and also when the money was allegedly handed over to the accused by the complainant. The complainant himself had disowned his complaint and has turned hostile and there is no other evidence to prove that the accused had made any demand. In short there is no proof of the demand allegedly made by the accused. The only other material available is the recovery of the tainted currency notes from the possession of the accused. The possession is also admitted by the accused. It is settled law that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7, since demand of illegal gratification is sine qua non to constitute the said offence. The above also will be conclusive insofar as the offence

¶120

(19 of 33)

¶121

[CRLA-319/2001]

¶122

under Section 13(1)(d) is concerned as in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. It is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Unless there is proof of demand of illegal gratification proof of acceptance will not follow. Reference may be made to the two decisions of the three-Judge Bench of this Court in B. Jayaraj v. State of A.P. [(2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] and P. Satyanarayana Murthy v. State of A.P. [(2015) 10 SCC 152 : (2016) 1 SCC (Cri) 11 : (2015) 9 Scale 724]”

¶123

The Hon’ble Apex Court in the case of C. Sukumaran (supra) has observed in para 17 as under:-

¶124

“17. Now, coming to the legality of the conviction of the appellant under Section 13(2) of the Act by the High Court in its judgment, the same cannot be allowed to sustain in law, as the prosecution has failed to prove the demand of illegal gratification made by the appellant from the complainant and acceptance of the bribe money by the appellant. Further, the phenolphthalein test cannot be said to be a conclusive proof against the appellant, as the colour of the solution with regard to

¶125

(20 of 33)

¶126

[CRLA-319/2001]

¶127

the other samples was pink and had remained so throughout. However, the lime solution in which the appellant's hands were dipped in, did not show the same pink colour. The reason assigned by the trial court is that the colour could have faded by the lapse of time. The said explanation of the trial court cannot be accepted by us in view of the fact that the colour of the other samples taken by the investigating officer after the completion of the trap laid against the appellant had continued to retain the pink colour. Moreover, the sample of the shirt worn by the appellant which was produced before the trial court did not show any colour change on the shirt's pocket section, where the bribe money was allegedly kept by him after the complainant had allegedly given him the bribe money.”

¶128

The Coordinate Bench of the Principal Seat at Jodhpur in the case of Mahendra Kumar (supra) has observed in para 9 as under:-

¶129

“9. Evidently, the record reveals that no work of the complainant was pending with the department what to say with the petitoner on the date of making of the complaint and on the date of managing trap, therefore, important ingredient of the offence for which charges have been framed is missing to the extent that any

¶130

(21 of 33)

¶131

[CRLA-319/2001]

¶132

work was pending with the public servant. Recovery of each and every money on trap would not satisfy the requirement of gratification unless the money was being paid for discharge of official duty pending with the accused.”

¶133

When the conversation as regards the demand for bribe has been recorded by the prosecution, it was obligatory upon the prosecution to get the voice examined and compared whether the voice in the conversation is of the accused appellant or not so as to prove the guilt.

¶134

The Coordinate Bench of the Principal Seat at Jodhpur in the case of Babu Lal (supra) has observed in para 11 as under:-

¶135

“11. The prosecution has failed to establish that one of the voice recorded was the voice of the appellant. None of the prosecution witnesses especially PW.1 Baleshwar Ahari and PW.5 Babban Mishra, who were directly involved in recording the conversation have stated that one of the voice in the conversation was of the appellant. More serious lapse is that PW.1 has not stated about any recording of conversation with the appellant on 11.9.2009. It has already been noticed that making of complaint and entire subsequent exercise was done only after the loan amount was transferred to the

¶136

[CRLA-319/2001]

¶137

(22 of 33)

¶138

bank account of the complainant. Regarding proof of conversation recorded in tape-records, in the case of Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors. reported in (1976) 2 SCC 17, the Hon'ble Supreme Court stated as follows:-

¶139

"We think that the High Court was quite right in holding that the tape-records of speeches were "documents", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:

¶140

(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.

¶141

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.

¶142

(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy round in the Evidence Act."

¶143

Again in Ram Singh & Ors. Vs. Col. Ram Singh reported in (1985) Supll. SCC 611, the Hon'ble Supreme Court reiterated the conditions necessary for admissibility of tape- records statement as follows:-

¶144

(23 of 33)

¶145

[CRLA-319/2001]

¶146

"(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.

¶147

(2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.

¶148

(3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.

¶149

(4) The statement must be relevant according to the rules of Evidence Act.

¶150

(5) The recorded cassette must be carefully sealed and kept in safe or official custody. (6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."

¶151

Evidently, the voice of the appellant has not been recognized by any of the prosecution witnesses, especially the prosecution witnesses who were involved in getting the voice recorded. Therefore,

¶152

(24 of 33)

¶153

[CRLA-319/2001]

¶154

only on the basis of Ex.P-3, which is transcript of the tape-records, it cannot be accepted as proof of the fact of recording of conversation.

¶155

Though PW.3 deposed that the complainant (PW.1) had disclosed to him that first sound was of the complainant and second was of the appellant but the complainant does not say that he had said anything to PW.3 or he had identified the sound of the appellant. PW.3 further admitted that at the time of trap, the conversation was recorded in the taperecorder but sound was not very clear, whereas the Investigating Officer said that no such conversation was recorded. PW.4 Rajendra Kumar Gupta deposed that conversation recorded was hazy as sound of crowd was coming from that. PW.6 Ganesh Prasad Verma has also admitted that at the time of trap, the appellant had disclosed that Rs.3,000/- was paid to him against the processing fee charges of the loan. PW.6 Ganesh Prasad Verma had deposed that due to crowd in the bank, the sound recorded was not identifiable. The Investigating Officer PW.11 has also admitted that on the date of trap, the complainant had withdrawn Rs.40,000/- from his bank account. There is no other explanation for the purpose of withdrawal, rather the evidence of the complaint shows that the purpose was to implicate the appellant in false allegation.

¶156

(25 of 33) [CRLA-319/2001]

¶157

PW.12 admits that no conversation was recorded at the time of trap. These inconsistencies are material to consider whether charges of demand and acceptance of bribe is proved or not.”

¶158

The learned trial court in para 43 of the impugned judgment has observed that the allegations against the accused appellant are proved beyond reasonable doubt that the accused appellant being the public servant, has misused the power of post and accepted Rs.1,000/- as a bribe from the complainant which is recovered from his possession, where co-accused Dy.S.P. Vijay Prakash has been acquitted by observing that there is no evidence on record as regards the demand and acceptance of bribe by Vijay Prakash, Dy.S.P. The learned trial court has failed to appreciate the material fact that in a hand written complaint (Ex.P24) submitted by the complainant, he has stated that it is the co-accused Dy.S.P. Vijay Prakash who demanded the money. The learned trial court has also not appreciated the fact that during examination before the trial court the complainant has specifically stated that the accused appellant present in the Court is not that Constable to whom he has given the amount.

¶159

The learned trial court has also failed to appreciate the material fact so as to prove the guilt of the accused appellant beyond reasonable doubt that the alleged

¶160

[CRLA-319/2001]

¶161

(26 of 33)

¶162

conversation with the accused appellant during the verification of demand was not got examined by the FSL Department that voice in the recording is of the accused appellant.

¶163

The Hon’ble Apex Court in the case of Neeraj

¶164

Dutta v. State (Government of NCT of Delhi), reported

¶165

in (2023) 4 SCC 731 in a case related to the Prevention of Corruption Act has summarized the discussion as under:-

¶166

“ 88. What emerges from the aforesaid discussion is summarised as under:

¶167

88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.

¶168

88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.

¶169

88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.

¶170

88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:

¶171

(i) if there is an offer to pay by the bribegiver without there being any demand from

¶172

(27 of 33)

¶173

[CRLA-319/2001]

¶174

the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

¶175

(ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act.

¶176

(iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1) (d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.

¶177

88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and

¶178

(28 of 33)

¶179

[CRLA-319/2001]

¶180

documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

¶181

88.6. (f) In the event the complainant turns “hostile”, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

¶182

88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1) (d)(i) and (ii) of the Act.

¶183

88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.”

¶184

In the present case, in the hand written report (Ex.P24), complainant PW14 Ajay Madhwani has stated that

¶185

[CRLA-319/2001]

¶186

(29 of 33)

¶187

the money was demanded by co-accused Vijay Prakash, Dy.S.P. and accepted by the accused appellant, meaningthereby the accused appellant was the facilitator. The trial court acquitted co-accused Vijay Prakash saying that there is no evidence on record of demand of money by co-accused Vijay Prakash, Dy.S.P. The complainant PW14 Ajay Madhwani in his statement recorded before the trial court has categorically stated that the accused appellant is not that Constable to whom he has given the money and he also denied to identify the accused appellant when he was present in the Court as the person who accepted the money. The voice of the accused appellant alleged to have been recorded for verifying the demand was also not got examined by taking the voice sample of the accused appellant.

¶188

The Hon’ble Apex Court in the case of Narayanamurthy Vs. State of Karnataka & Anr.,

¶189

reported in (2008) 16 SCC 512 has observed in paras 33 and 35 as under:-

¶190

“ 33. Anthony Mary (PW 5), Adhilakshmi (PW 6) and Kumar @ Armugam (PW 10), the other neighbours, examined by the prosecution in support of the allegations of ill-treatment or harassment of the deceased by A-1 or his parents for the demand of dowry, have not supported the prosecution case. The evidence of these witnesses would show that they have denied having made statements before the police that the deceased Jagadeshwari committed suicide

¶191

(30 of 33)

¶192

[CRLA-319/2001]

¶193

because of being maltreated and harassed by A-1 or his parents.

¶194

35. It is also to be noticed that the High Court on the same set of evidence has chosen to acquit A-3 (the mother of A-1), whose case is no better than that of A-1. Even the unproved allegations of illtreatment, harassment and demand for dowry and the evidence led by the prosecution are similar to that led against A-3. We agree with the High Court that the evidence against mother (A-3) is insufficient and inconsistent to convict her and, in our view, it is the same against A-1. This deficiency in the evidence proves fatal to the prosecution case. Even otherwise, mere evidence of cruelty and harassment is not sufficient to bring in application of Section 304-B IPC. It is to be established that “soon before death”, the deceased was subjected to cruelty or harassment by her husband for, or “in connection with demand for dowry”. In the aforementioned situation, the provisions of Section 304-B IPC and Section 113-B of the Evidence Act could not be attracted to hold A-1 guilty of the offence of dowry death and/or cruelty in terms of Section 498-A IPC. The prosecution, therefore, must be held to have failed to establish any case against A- 1 herein.”

¶195

On making the scrutiny of the evidence on record, this Court is of the opinion that the prosecution has failed to prove the alleged guilt of the accused appellant beyond reasonable doubt by adducing credible evidence. The basic principle of the criminal jurisprudence is that so as to convict a person for an offence is that the guilt should have been

¶196

[CRLA-319/2001]

¶197

(31 of 33)

¶198

proved beyond reasonable doubt. If we go by the evidence of the prosecution it seems that there is no credible evidence on record as regards the demand of gratification alleged to have been made by the accused appellant for any work of the complainant pending before him and he is competent authority to perform that work.

¶199

Though section 20 of the Prevention of Corruption Act speaks of presumption against an accused but such presumption can be drawn only if there is some connecting evidence or corroborative evidence to prove such an allegation. In the present case, since there is no categorical evidence as regards the demand of gratification and also the other evidence available on record. So it cannot be said that the prosecution has succeeded in proving the guilt of the accused appellant beyond reasonable doubt so as to convict the accused appellant for the offence under sections 7, 13(1) (d) read with section 13(2) of the Act of 1988.

¶200

In view of the discussion made above, this Court is of the firm opinion that the conviction of the accused appellant for the offence under sections 7, 13(1)(d) read with section 13(2) of the Act of 1988 is unjustified. The findings of the learned trial court are perverse and contrary to the evidence on record and the conviction of the accused appellant is not sustainable and thus, the criminal appeal deserves to be allowed.

¶201

[CRLA-319/2001]

¶202

(32 of 33)

¶203

Accordingly, the criminal appeal filed by the accused appellant is allowed and the impugned judgment of conviction and sentence dated 23.05.2001 passed by the Court of learned Special Judge, Sessions Court, Prevention of Corruption Act, Kota in Sessions Case No.21/1998, State Vs. Vijay Prakash & Anr., is set aside and the accused appellant is acquitted of the charges levelled against him.

¶204

The Hon’ble Apex Court in the case of Kailash

¶205

Chand Vs. State of Rajasthan (Criminal Appeal No(s).

¶206

No. 2072/2011, decided on 27.04.2016 , while acquitting the accused appellant therein, has observed as under:-

¶207

“We, thus, allow these appeals and set aside the conviction of the appellants. The appellants shall be released from jail forthwith, if not required in any other case.

¶208

Since the appellants are Government Servants and are exonerated and acquitted of the charges, it goes without saying that they will be entitled to the service benefits accordingly.”

¶209

Having persuaded by the Hon’ble Apex Court in the

¶210

case of Kailash Chand (supra), this Court in the present case also would like to observe that since the accused appellant has been acquitted from the charges levelled against him, it goes without saying that he will be entitled to the service benefits accordingly.

¶211

[CRLA-319/2001]

¶212

(33 of 33)

¶213

The accused appellant is on bail, he need not to surrender. His bail bonds and surety bonds are accordingly discharged.

¶214

Keeping in view, however, the provisions of Section 437-A of the Code of Criminal Procedure, 1973, the accused appellant is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellant, on receipt of notice therefore, shall appear before the Supreme Court.

¶215

The record be sent back to the trial court forthwith.

¶216

(GANESH RAM MEENA),J

¶217

Sharma NK/Dy. Registrar

Hukam Singh v. State

Case brief

What is this about?

What did the court decide?

Hukam Singh v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Vibrant Academy 1 Pvt. Ltd. Vs State of Rajasthan and Anr.

Bharosilal Son of Parsadi Vs State of Rajasthan

Dhanraj Son of Shivram Vs State of Rajasthan

Shaitan Gurjar S/O Shri Laxman Gurjar Vs State of Rajasthan

Jahul Khan S/O Karim, Vs State of Rajasthan

Shyam Singh S/O Kalu Singh, Vs State of Rajasthan