MUKUT BIHARI Vs STATE OF RAJASTHAN
Bench: B.S. CHAUHAN,DIPAK MISRA
Case number: Crl.A. No.-000870-000870 / 2012
Diary number: 33030 / 2011
Advocates: SHOBHA Vs
IRSHAD AHMAD
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 870 OF 2012
Mukut Bihari & Anr. …Appellants
Versus
State of Rajasthan …Respondent
JUDGMENT
Dr. B.S. CHAUHAN, J.
1. This appeal has been preferred against the judgment and
order dated 12.10.2011 passed by the High Court of Judicature at
Rajasthan (Jaipur Bench) in S.B. Criminal Appeal No.726 of 2001,
by which it has affirmed the judgment and order of the trial Court
dated 7.9.2001 passed by the Special Judge (ACD Cases), Jaipur in
Regular Special Criminal Case No.26 of 1995 (State of Rajasthan v.
Mukut Bihari etc.) whereby the appellant Mukut Bihari stood
convicted for the offences punishable under Sections 7 and 13(1)(d)
read with Section 13(2) of Prevention of Corruption Act, 1988
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(hereinafter called the “Act 1988”) and under Section 120B of Indian
Penal Code, 1860 (hereinafter called ‘IPC’) and has been awarded
the punishment of rigorous imprisonment for a period of 2 years for
each count; whereas appellant Kalyan Mal has been convicted for
the offences punishable under Section 13(1)(d) read with Section
13(2) of the Act 1988 and under Section 120B IPC and he has also
been awarded the punishment of rigorous imprisonment for a period
of 2 years on each count.
2. Facts and circumstances giving rise to this case are that:
A. Rafiq (PW.1) filed a complaint on 16.11.1994 before the
Anti-Corruption Department (hereinafter called “ACD”), Tonk that
his father Deen Mohd. (PW.8) underwent the treatment in Sahadat
Hospital, Tonk for urinary infection from 24.10.1994 to 12.11.1994.
He stood discharged on 12.11.1994, however he was not issued the
discharge ticket and for which Mukut Bihari-accused demanded
Rs.100/- as bribe for issuance of the same. The said demand was
made on 14.11.1994 when the complainant (PW.1) offered Rs.75/-
and 2 Kilogram of Ladoo.
B. In view of the aforesaid complaint, a trap was arranged and
as per plan, the complainant met Mukut Bihari, appellant in the staff
room of the surgical ward of the hospital and had conversation with
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him. Both of them went to the store room wherein the complainant
handed over Rs.100/- to Kalyan Mal, appellant at the instance of
Mukut Bihari, appellant. The trap party arrested both the appellants
immediately and the case was registered against them. After
completing the investigation, charge sheet was filed against both of
them. During the course of trial, a large number of witnesses were
examined and on conclusion of the trial, the court found them guilty
and imposed the punishment as referred to hereinabove vide
judgment and order dated 7.9.2001.
C. Aggrieved, the appellants preferred Criminal Appeal No.726
of 2001 before the Rajasthan High Court which has been dismissed
vide impugned judgment and order dated 12.10.2011.
Hence, this appeal.
3. Ms. Shobha, learned counsel appearing for the appellants,
has submitted that for constituting an offence under the Act 1988,
the prosecution has to prove the demand of illegal gratification.
Recovery of tainted money or mere acceptance thereof is not enough
to fasten the criminal liability as the money could be offered
voluntarily and the accused may furnish a satisfactory explanation
for receipt of the money. The trap case should be supported by an
independent eye-witness. The deposition of an interested witness
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requires corroboration. The conversation between the accused and
the complainant at the time of demand and accepting the money
must be heard/recorded by the Panch witness. If two views are
possible, then the one in favour of the accused should prevail. In the
instant case then the prosecution failed to prove the foundational fact
beyond reasonable doubt. Therefore, the appeal deserves to be
allowed.
4. On the contrary, Shri Kunal Verma, learned counsel for the
State of Rajasthan, has vehemently opposed the appeal contending
that acceptance of tainted money is an ample proof for conviction of
the offences punishable under the Act 1988. It is not necessary in
the trap cases that there must be a shadow witness and conversation
between the complainant and the accused should be recorded or
heard by the independent witness. In absence of the shadow witness,
for any reason, accused cannot insist that demand and acceptance is
required by the statute to be proved by corroboration. In the instant
case, the appellant no.2 has accepted the money at the instance and
in the presence of appellant no.1. There is no reason to disbelieve
the testimony of the complainant nor the recovery of the tainted
money can be doubted. Thus, the appeal lacks merit and is liable to
be dismissed.
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5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
6. There are concurrent finding of facts that appellant Mukut
Bihari asked for bribe as stated by Rafiq (PW.1). It is duly
supported by Keshar Singh, S.H.O. (PW.10), the leader of the trap
party as he deposed that persons sitting there asked for money. The
acceptance had duly been corroborated by R.C. Pareek (PW.3), who
deposed that the money was lying on the table. Zaheer Ahmed,
Constable (PW.7) stated that he saw Kalyan Mal counting the
money. The trap stood proved by the depositions of Rafiq (PW.1),
R.C. Pareek (PW.3), Mohd. Rasheed (PW.6), Zaheer Ahmed (PW.7)
and Keshar Singh (PW.10). All the witnesses narrated fully how the
trap was conducted from the very beginning till the seizure of the
tainted money including the making of seisure memos etc. Dr.
Bavel (PW.5) admitted the practice of donations by patients. Mr.
R.C. Pareek (PW.3) and Mohd. Rasheed (PW.6) have been
independent witnesses.
7. The courts below considered the facts properly and
appreciated the evidence in correct perspective and then reached the
conclusion that the charges stood fully proved against the appellants.
The explanation furnished by the appellants that they had falsely
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been enroped due to enmity could not be proved for the reason that
no evidence could be brought on record indicating any previous
enmity between the complainant and the appellants nor any evidence
was available to show that the complainant was not satisfied with the
treatment given to his father and he could act with some oblique
motive in order to falsely implicate the appellants. Thus, under the
garb of donation, he had offered the tainted money to the appellants
and got them arrested.
8. The law on the issue is well settled that demand of illegal
gratification is sine qua non for constituting an offence under the Act
1988. Mere recovery of tainted money is not sufficient to convict the
accused, when the 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 bribe. Mere receipt of amount by
the accused is not sufficient to fasten the guilt, in the absence of any
evidence with regard to demand and acceptance of the amount as
illegal gratification, but the burden rests on the accused to displace
the statutory presumption raised under Section 20 of the Act 1988,
by bringing on record evidence, either direct or circumstantial, to
establish with reasonable probability, that the money was accepted
by him, other than as a motive or reward as referred to in Section 7
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of the Act, 1988. While invoking the provisions of Section 20 of the
Act, the court is required to consider the explanation offered by the
accused, if any, only on the touchstone of preponderance of
probability and not on the touchstone of proof beyond all reasonable
doubt. However, before the accused is called upon to explain as to
how the amount in question was found in his possession, the
foundational facts must be established by the prosecution. The
complainant is an interested and partisan witness concerned with the
success of the trap and his evidence must be tested in the same way
as that of any other interested witness and in a proper case the court
may look for independent corroboration before convicting the
accused person.
(Vide: Ram Prakash Arora v. The State of Punjab AIR 1973 SC
498; Panalal Damodar Rathi v. State of Maharashtra AIR 1979
SC 1191; Suraj Mal v. The State (Delhi Admn.) AIR 1979 SC
1408; Smt. Meena Balwant Hemke v. State of Maharashtra AIR
2000 SC 3377; T. Subramanian v. The State of T.N., AIR 2006
SC 836; A. Subair v. State of Kerela (2009) 6 SCC 587; State of
Maharashtra v. Dnyaneshwar Laxman Rao Wankhede (2009) 15
SCC 200; C.M. Girish Babu v. CBI, Cochin, High Court of
Kerala, AIR 2009 SC 2022; and State of Kerala and Anr. v. C.P.
Rao (2011) 6 SCC 450)
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9. The case of the appellants has no merit as the case is
squarely covered by the judgment of this Court in C.M. Sharma v.
State of A.P. TH. I.P., AIR 2011 SC 608, wherein a similar issue
had been raised that the complainant alongwith the shadow witness
went to the office of the accused but the accused asked the shadow
witness to go out of the chamber. Shadow witness left the chamber.
However, the complainant brought the shadow witness in the
chamber and explained to the accused that he was his financer.
Despite that the accused again asked the shadow witness to leave the
chamber and thus, he went out. The accused demanded the money
and the complainant paid over the tainted money to him, which he
received from his right hand and kept in right side pocket of the
trouser. A signal was given, whereupon he was trapped by the team
which apprehended the accused and conducted sodium carbonate test
on the fingers of the right hand and right trouser pocket of the
accused, which turned pink. The tainted notes were lying on the
floor of the office, which were recorded.
10. This Court, after considering various judgments of this Court
including Panalal Damodar Rathi (supra) and Smt. Meena
Balwant Hemke (supra) held that acceptance of the submission of
the accused that the complainant’s version required corroboration in
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all circumstances, in abstract would encourage the bribe taker to
receive illegal gratification in privacy and then insist for
corroboration in case of the prosecution. Law cannot countenance
such situation. Thus, it is not necessary that the evidence of a
reliable witness is necessary to be corroborated by another witness,
as such evidence stands corroborated from the other material on
record. The court further distinguished the case of Panalal
Damodar Rathi (supra) on the ground that in that case the Panch
witness had not supported the prosecution case and therefore, the
benefit of doubt was given to the accused. In Smt. Meena Balwant
Hemke (supra) as the evidence was contradictory, the corroboration
was found necessary.
11. Undoubtedly, in Smt. Meena Balwant Hemke (supra), this
Court held that law always favours the presence and importance of a
shadow witness in the trap party not only to facilitate such witness to
see but also overhear what happens and how it happens.
12. This Court in Chief Commercial Manager, South Central
Railway, Secunderabad & Ors. v. G. Ratnam & Ors., AIR 2007
SC 2976, considered the issue as to whether non-observance of the
instructions laid down in para nos. 704-705 of the Railway Vigilance
Manual would vitiate the departmental proceedings. The said manual
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provided for a particular procedure in respect of
desirability/necessity of the shadow witness in a case of trap. This
Court held that these were merely executive instructions and
guidelines and did not have statutory force, therefore, non-
observance thereof would not vitiate the proceedings. Executive
instructions/orders do not confer any legally enforceable rights on
any person and impose no legal obligation on the subordinate
authorities for whose guidance they are issued.
13. In Moni Shankar v. Union of India & Anr., (2008) 3 SCC
484, this Court held that instructions contained in Railway Vigilance
Manual should not be given a complete go-bye as they provide for
the safeguards to avoid false implication of a railway employee.
14. So far as the instant case is concerned, the appellants had
been working under the health department of the State of Rajasthan.
No provision analogous to the paragraphs contained in Railway
Vigilance Manual, applicable in the health department of the State of
Rajasthan at the relevant time had been brought to the notice of the
courts below, nor had been produced before us.
Therefore, it can be held that it is always desirable to have a
shadow witness in the trap party but mere absence of such a witness
would not vitiate the whole trap proceedings.
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15. In the instant case, there is no contradiction in the deposition
of the witnesses. The witnesses have truthfully deposed that they did
not hear the conversation between the accused and the complainant.
Therefore, their version is without any embellishment and
improvement. There could be no reason/motive for Rafiq (PW.1) to
falsely enrope the appellants in the case.
The appeal is devoid of any merit and is, accordingly,
dismissed.
However, considering the fact that the incident occurred
about two decades ago and the appellants suffer from severe
ailments, they have lost their service long ago and suffered the agony
of protracted litigation, the appellant no.1 has been suffering from
acute pancreatitis and both the appellants have served the sentence
for more than six months, in the facts and circumstances of the case,
their sentence is reduced to one year.
..……………………….J. (Dr. B.S. CHAUHAN)
.………………………..J. (DIPAK MISRA)
New Delhi, May 25, 2012
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