Point of Law : The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification.

JUDGMENT :

Vikas Budhwar, J.

1. This appeal under Section 378 (3) of Criminal Procedure Code (in short 'Cr.P.C.'), at the behest of the State, has been preferred against the judgment and order dated 21.8.2001, passed by learned IIIrd Additional Sessions Judge, Banda, in Criminal Session Trial No.520 of 1995 arising out of Case Crime No.135 of 1992 under Sections 364/34, 323/34, 336/34 and 376 of Indian Penal Code (in short 'IPC'), Police Kotwali Dehat, District-Banda, whereby the learned trial-court acquitted the accused-respondents.

2. The brief facts of this case are that prosecutrix W/o Sadla Yadav R/o village Chhehraon, under precincts of P.S. Kotwali Dehat, district Banda was sleeping in her house on 30.7.92 in the night. All the accused persons came to her house at about 11 P.M. Accused Subedar Singh jumped into the house of prosecurtrix woke up, the accused entered in her room in the mean time, the house was locked from outside. The accused Subedar Singh caught hold of prosecutrix and dragged her in the courtyard. He was armed with gun (country made). Prosecutrix started crying and became much frightened. The accused asked her to hand over the keys. She was thrown away outside the house when she refused to handover the key. Accused Jageshwar, Munna and Rajju were present outside the house. These persons tied up prosecutrix and accused Subedar Singh also came out of the house. The accused persons had ligated the rope around the neck of prosecutrix and dragged her upto the bank of river Jamuna. Thereafter accused Subedar Singh, Munna Singh and Rajju committed rape upon her at the bank of Jamuna. Accused Jageshwar had assisted the accused persons at the house of prosecutrix but had not come to the bank of Jamuna while the rape was committed by the aforesaid three accused. All the accused were under the influence of liquor and committed rape one by one. Thereafter accused Subedar Singh hit prosecutrix at the point of left eye with butt of the gun. Thereafter she was stripped, by stripping her petticoat and sari. The petticoat was torn away and thrown. The sari was torn into pieces and her hands and legs were tied up with pieces of Sari and she was put in a boat. The boat was rowed in the middle of the river by the accused persons and the tied body of prosecutrix was thrown into the river. She was drowned and she started suffocating and thereafter she succeeded in releasing her hands and legs from the tying position and was pushed to the bank of river by heavy flow of water at the distance of 1 km. from the place she was thrown. Her left eye was not working due to injury. She remained sit at the bank of river the whole night and a person came there at about 4A.M. and made inquiry from her when prosecutrix narrated her story, the gentlemen provided her a lungi which she put on her body. She was brought to Kotwali Dehat on 31.7.92 and was medically examined. It is noteworthy that the matter of her kidnapping was reported by the Chaukidar of the village on 31.7.1992 at about 2.30 P.M. on the basis of which an unnamed F.I.R. was lodged U/s 364 I.P.C. and the police has already came into action after the registration of the F.I.R. prosecutrix was brought to District Hospital, Banda where she was medically examined.

3. On the basis of this report, Case Crime bearing No.135 of 1992 was registered against all the accused-respondents under Sections under Sections 364/34, 323/34, 336/34 and 376 of Indian Penal Code (in short 'IPC'), Police Kotwali Dehat, District-Banda,

4. Investigation started by SI-M.P. Pal, who recorded statement of witnesses under Section 161 Cr.P.C., visited the spot, prepared site-plan and after completing the investigation, submitted charge-sheet against all the respondents. The case being exclusively triable by court of session was committed for trial to the court of session by competent Magistrate.

5. Accused