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SUPREME COURT OF INDIA
HARJIT SINGH BEDI, CHANDRAMAULI KR. PRASAD, JJ.
Prabhat Kumar Gupta – Appellant
Versus
State of Jharkhand – Respondent
Crl. Appeal No. 1386 of 2003
Decided On : 07-09-2010
Corruption Act, 1988 - Sections 7 and 13 – Imprisonment – Evidence - Recovery memorandum was prepared incorporating all post trap - When the hands of appellant were washed in solution of sodium carbonate it turned pink so also inner lining of money bag - A recovery memorandum was prepared incorporating all post trap formalities and hand wash and bag wash were sent to Central Forensic Science Laboratory which confirmed that these contained particles of phenolphthalein powder – Held, Amount was not paid to him but was paid to compounder - Even if we assume that currency note was recovered from his possession there is no evidence that he had voluntarily accepted same - In face of it he cannot be held guilty of offence - View which Court have taken finds support from decision of this Court in case - Now referring to decision of this Court in case of relied on by respondent, same is clearly distinguishable - In said case it has been observed that when besides evidence of Police Officers there is circumstantial evidence which is consistent with guilt of accused and not consistent with his innocence conviction can be upheld - Herein present case besides evidence of investigating officials no witness had supported case of prosecution - In present case, all witnesses have been declared hostile and one witness though not declared hostile has not supported case of prosecution - In Subbed prosecution had proved that money was demanded as bribe and same was received by accused and in view of Section 20 of Act it was observed that in such circumstance accused is to establish that amount was not received as bribe. As Court have observed earlier prosecution has not been able to prove that money was received by appellant as bribe and therefore presumption as contemplated under Section 20 of Act would not arise - Having considered rival submission Court find substance in submission o and decision relied on clearly supports his contention - On consideration of evidence of witnesses including the hostile witnesses what emerges is that appellant asked for payment - It is to be noted that appellant was alone in his room for sometime holding currency notes before and other officer entered into house - Appeal allowed
JUDGMENT :
1. Sole appellant, aggrieved by his to as the ‘Act’) and sentence of rigorous conviction under Sections 7 and 13(l) read imprisonment for one year on each count, with Section 13(1)(d) of the Prevention of has preferred this appeal by grant of special Corruption Act, 1988 (hereinafter referred leave.
2. According to the prosecution, Chhavi Majhian (PW-8), a loader in Bhawra Colliery of the Bharat Coaking Coal Ltd. Dhanbad, fractured her hand and her son PW-2, Bhagat Tadu took her to Jiyalgora Central Hospital on 24th August, 1993 for plaster and met Dr. Sahu who had advised them to come on 25th August, 1993. As advised, Bhagat Tadu and Chhavi Majhian went to the Hospital on 25th August, 1993 but did not find Dr. Sahu there, rather Dr. Prabhat Kumar Gupta, the appellant herein was present in the Chamber. He assured to plaster the hand but according to the prosecution he demanded Rs. 100/- as illegal gratification. Bhagat Tadu was not prepared to pay the said amount and he submitted a report dated 25th August, 1993 to the Superintendent of Police, Central Bureau of Investigation, Dhanbad. On the basis of that trap was arranged to apprehend Dr. Gupta red handed while demanding and accepting the illegal gratification. As directed, Bhagat Tadu produced 100/- rupee note, which was treated with phenolphthalein powder and handed over to him with the instruction to give the same to the appellant, only when he makes such a demand. The number of currency note was noted in the preliminary memorandum in which pre-trap formalities were also incorporated. It is the allegation of the prosecution that on 26th August, 1993, the appellant was caught red handed while demanding and accepting the illegal gratification of Rs. 100/- from the informant Bhagat Tadu by the raiding party consisting of the officials of the Central Bureau of Investigation and shadow witnesses namely, Chandra Shckhar Prasad (PW-9) and Parmatma Roy (PW-3). The currency note, according to the prosecution, was recovered from the money bag of the appellant which was in the right hand side back pocket of the trouser. When the hands of the appellant were washed in the solution of the sodium carbonate it turned pink, so also the inner lining of the money bag. A recovery memorandum was prepared incorporating all the post trap formalities and the hand wash and the bag wash were sent to the Central Forensic Science Laboratory which confirmed that these contained the particles of the phenolphthalein powder.
3. After usual investigation the CBI submitted charge-sheet against the appellant and ultimately he was put on trial. The appellant denied to have committed the crime and claimed to be tried.
4. In order to bring home the charge the prosecution altogether examined 14 witnesses besides a large number of documents. Independents witnesses examined are informant Bhagat Tadu (PW-2), his mother Chhavi Majhian (PW-8), shadow witnesses Parmatma Roy (PW-3) and Chandra Shekhar Prasad (PW-9). Another independent witness examined to support the case of the prosecution is PW-7 J.N. Ghosh, an O.T. Assistant. All of them have been declared hostile excepting Chhavi Majhian who though not declared hostile but she also has not supported the case of the prosecution in its entirety. The trial court on appreciation of evidence came to the conclusion that the prosecution has proved its case beyond all reasonable doubt and accordingly convicted and sentenced the appellant as above, which conviction and sentence has been affirmed by the High Court in appeal.
5. PW-2, Bhagat Tadu has stated in his evidence that when he went to the hospital the appellant stated that he had to pay Rs. 100/ - and only then bandage and plaster will be done. He has further stated that he had given Rs. 100/- to the compounder and at that time the appellant was in operation theatre. He was declared hostile by the prosecution and in cross-examination he had clearly stated that he had not paid any money to the appellant and no
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