Teerath Ram Rathore v. State

..^.^^ CF0000060617 ^lr^ t^\ ^^

IN THE HIGH COUBT._OF_J;t8ICaTUHE,_^T_JABAPlM

"\ / Criroinal Appeal No.l^^/1996 tt^l V.

APPELLANT/ACCUSED Teerath Ram Rathore son of SAri Dadu Ram Rathorey.aged 47 years^ Occupation - Patoari, resident of village - Sukli, Tahsil Janggir, Distt. Bilaspur ,(M*P.) k •ii V/s DEFENDANT -State of M«P, Through Special_ Police Establishment, Likayu^t_^ Bilaspur Division Bilaspur (M<»^j) 7'./ CRIMINAL APPEAL UNDEB SECTION 374 of CODE OF CHIMINAL PBOCEDURE, ^ ^ n-ci-^-.

•^ HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1652 of 1996 Teerath Ram Rathore Appellant

VERSUS

State of Madhya Pradesh (now Chhattisgarh) Respondent Post for pronouncement of judgment on .^-^...

day of December, 2014.

n sijg •«-..„ sd/- 'if^ffs Goutam Bhaduri lilNr|ry p, ^ , judge FJJI .J.f^ ^qi^uTOT'r^-

HIGH COURT OF CHHATTISGARH AT BILASPUR Crimjnal Appeal No. 1652 of 1996 Teerath Ram Rathore Appellant

VERSUS

State of Madhya Pradesh (now Chhattisgarh) Respondent Criminal Appeal U/s. 374 ofthe Criminal Procedure Code SB: Hon'ble Shri Goutam Bhaduri. J.

Present:

Shri V.C. Ottalwar, counsel for the appellant. Shri §arji:©e||g| |,pLj||!t|e.State.

JUDGEM'EWVy'

(Delivered on ^^of December,&2Q-l|| th %is is an appe^|;:g^^|||^||^ judgment and 8fS||l|ated 11t A'C September, 1996<-pa||ed:|W%pecialCase No. 03/88 bythe court of Special Judge^jB|KI|^r|Svhereby the appellant has been convicted under S|g|ii|R|l) (D) and 5 (2) of Prevention of Corruption Act, p^Z i€ci|Nas:l)|enawarded sentence of R.l. for 1 year and fine ^yR^IQ^ Further the appellant has been convicted under Section of IPC and has been awarded sentence of R.l. for 1 year and fine of Rs.100/-. Brief facts of the prosecution case was that complainant Ram 2.

Sharan Kewat was staying along with his brother Ram Bhagat @ Bhagat Ram at Pandhi. It was further case ofthe prosecution that in the year 1985 both brothers had purchased different lands by different sale deeds. Therefore, both of them i.e. Ram Sharan and Ram Bhagat wanted to get the name recorded in the revenue record.

Pursuant to such process they approached

appellant Teerath Ram Rathore, who was patwari and requested to get name mutated in the revenue records. It was case of the prosecution that appellant on such request, demanded an amount of Rs.1370/-. The complainant thereafter requested to reduce the amount and consider the same.

However such request was not acceded to by Teerath Ram so the complainant approached to one Jageshwar Prasad PW-2, who was Sarpanch of the village.

The complainant disclosed that an amount Rs.1370/- wasj)ei|yg,aske£lwliich was very high. It was case of the |iro|ei|j|pn^at vJagesliwarPNIII^o^/ent to the appellant JaWstated that Rs.1370/- was too much ancli||||l|sted to settle amount for Rs.8®|^yl3||j^||/^ppellantdid not~ilc|cle to it. Subsequently pei^i-^j|i(N|Jliomplainant had paid an initial amount of Rs.800/-"|:ftl%igpS|llant for mutation and correction of the revenue recorcla|g||^|j|tpne Mohan Puri and agreed to pay rest of the amour^ afier tMe^OT^ is done i.e. after mutation of ^e names. According 1®^R^^%fecution, subsequently on 25/10/85 the Patwari/appellant told them that their work has been done and asked for remaining amount and therefore complainant Ram Sharan PW-1 arranged the remaining amount of Rs.570/- and simultaneously made a complaint by Ex.P-1 to the Vigilance Office to catch the appellant/accused under the trap. Subsequently in presence of Naib Tehsildar, R.N. Singh PW-7 3.

the complainant was explained about such preparation of raid including use of phenolphthalein and sodium carbonate powder and other Panch witnesses were also explained about the

process. Thereafter the notes which were to be handed over to the accused/appellant phenolphthalein powder was applied to it and was kept in the pocket of the complainant and other solution so prepared were kept sealed.

The entire proceeding was recorded in Panchnama Ex.P-2.

Thereafter the complainant along with the trap party reached to village and after reaching house of appellant gave the amount of Rs.570/- to him. After giving the amount the appellant was caught red handed and his hands were washech&ia Bsodjum carbonate powder solution whgggir|, lyigp^^W pink due to llWhdlphthalein.

Notes when dipped in s|B|^ there also changed its colcy ;t||fe|i1I^|t<"(e panchnama wer6i!pr|pared by "'s?.l-I&i 't'. t'el?

Ex.P-1.

The notg^|»|g||||jzed by Ex.P-17 and the other documents were s@i|etf;itlyflEx.P-18. The said seized articles were sent to FSL a|||||||N@|^ report was received vide Ex.P-25 as positive. The lrepor|3^s|m|£leof said proceeding by Dehati Nalashi Vide Ex.P%®^3nirai^lR was registered vide Ex.P-23. ^ Subsequently, after recording statement of the witnesses the charge sheet was filed in this case.

During the course of trial the appellant/accused abjured his guilt. 4.

Primary witness on behalf of the prosecution Ram Sharan complainant was examined as PW-1 , Jageshwar Prasad as PW2, Ramfal who prepared the map of the spot by Ex.P-16 was examined as PW-3, Premchand Tiwari, Constable 1.0.

was examined as PW-5 and N.K. Pandey was examined as PW-6.

^.

Naib Tehsildar before whom entire proceeding was carried out who prepared raid was examined as PW-7 R.N. Singh. Learned court below after evaluating the entire evidence on record has convicted the appellant under aforesaid sections, hence this appeal.

Learned counsel for the appellant would submit that in this case the recovery of the amount was not in person from the appellant and was from a place said to be kothi which was in the house of !the ap|:)e:|gg|.||||||l||||^ ^ai^|f|||a|r|it that evidence to this r^gai-1 i^completely absent as to how tffe a||Q|int reached to that ^part in kothi.

He farthegsjybmi'ts that in this casKillfence is on record to show ttla||Mt:i||jg|ivant time when alle^ed amount was said to be hart^ig|gi<©|i(||heappellant, the complainant had wwyw asked for glass of ^Aiar||^y<ii ji/vhen appellant had went to fetch a glass of water, atl^hatttjrffieNHei, amount was implanted by the complainant at partuo1@«3f]iiL^h4e further stated that a previous 1rqi'^Tq^1 enmity was existing with complainant since the appellant being the Patwari has complained of the encroachment made by the complainant over the village land. He further contended that in this case the evidence is also absent as to who had taken out the amount from the kothi.

received the amount. Therefore prays to set aside the judgement and order of conviction.

Per contra, learned Statecounsel opposes the appeal and would submit that in this case the appellant who was discharging the job of Patwari in order to make mutation of the name has received the amount for illegal gratification. He therefore submits that complainant himself has categorically stated that appellant had himself demanded the amount and on such demand the amount was handed^Q|tr i|| ||| ||pe||||v||la|ch he kept in the house at cfert||n lliySffFierefore recoverySftfi311aig|81ir|tfrom the house JIgKelf and the fact th^tyy(iands were when W|g||g^in sodium carbonate solutiQ|p|||ii!^®|^|^^olourcompletes the tfllain of the events which pro\^(g|K|||®lanthas committed the crime. He :?:1 II 'N1 would submit that ar|i|| 1y)|^ed by learned court below is well merited which do,j^ic^ti^iuan^ interference.

!i(l"^IS:Vf"l"ifl|.

8.

I have heard leamec|Ec®in|el for the parties at length and ^?!?1 k»* perused the documents and the evidence on record. Statement of complainant Ram Sharan PW-1 would reveal that he has stated that in the year 1985 accused was a Patwari in his village. Further witness had stated that he had purchased land from one Radheshyam Gupta, Hamid Khan, Jamuna Bai and Sunderi Bai and he had also purchased land in the name of his brother RamBhagat from Ram Prasad, Nanbai and Ram Singh. He had further stated that thereafter along with sale deed he went to the accused/appellant so as to get the name recorded in the revenue record. On such request being made the appellant

Teerath Ram Rathore had demanded an amount of Rs.1370/- as otherwise refused to do the job. Witness has further stated that he requested to reduce the amount but it was not acceded to. Further the witness has stated that he along with Sarpanch Jageshwar Prasad who is examined as PW-2 in this case went to the appellant and request was made to do the job for Rs.700/- but it was again refused and the appellant stated that he will do the job only on receipt of Rs.1370/-. This fact is also corroborated by PW-2 Jagesh||/a|s|F|asa(|. gAgain witness stated that on 26/Q8/1i|8||plWgainweritwiffl%M Goswami who is II^Xamined as PW-4 with a request to do thej|||P|ff|?request was also made tor;?q^UG^|||ir::amount demandeUltout the '%!IXlWISlllffc|>'

<ir appellant/accusecTtilliijBilSScede to such demand. 10.

The evidence is on ry|^d|y^t an amount of Rs.800/- was paid to the appellant in ^wf^'yfMWWtfun. The witness PW-4 had also corroborated the faillSlirilfter on 25/10/1985, P.W.-1 had L»?

stated that while he was doing his job in badi then appellant/accused came and informed that his work has been done, so advised him to take the document after payment of remaining money. The witness had stated that he arranged for the remaining amount of Rs.570/- and went to the Vigilance Office and gave an application by Ex.P-1. Reading of Ex.P-1 shows that it is also in the same line which the PW-1 had stated. Further it was stated that he was introduced with head clerk Bhoi and other persons Pandey and Tiwari and subsequently Mr. Singh Naib Tehsildar who is PW-7 in this case also came and the

witness was also introduced with them. Premchand Tiwari PW-5, N.K.

Pandey PW-6, Naib Tehsildar R.N.

Singh PW-7 and Radheshyam Bhoi PW-8 have also corroborated each others statement as also statement of PW-1 that every body was introduced to the complainant PW-1. Thereafter personal search was made and two powders were examined before him. The statement of PW-5, PW-6, PW-7 and PW-8 would reveal that after the search was made of each other, the PW-1 was explained use gf sQdM.i^qirbQriate powder and phenolphthalein pow|e1wndjgiWWesolution^AWrA|r|||re€ljnseparateglasses Ifil,.. 11 ggn|sthe plain paper when were placed in TOgitf||llum carbonate solution it did not^bitff(|a^i|^feur but the other papervvhich was having phenolphti]j|(^||4tfi|(||r when was dipped into sodium carbonate solution J|(|i?|r||ij1|ts colour into pink. Both the bottles one containing whit|^g]gy|s8sl other pink was sealed. 11.

Thereafter amounfwfi|||r|i;-ipnote of Rs.570/- which were to be given to the appellant, the phenolphthalein powder was applied and which were 5 notes of 100, one note of 50 and one note of 20 were kept in the upper pocket of the complainant. It was also advised that the witness should not shake hand with the appellant. Thereafter initially panchnama was prepared by Ex.P2. Reading of Ex.P-2 also corroborates the same. The number of notes were also written which was also recorded in the initial panchnama Ex.P-2. Subsequent to it the complainant along with trap party started for village Pandhi and reached there at 7'0

?A clock. After reaching the house of the appellant, the trap party scattered in the area.

12.

The complainant thereafter went to the house of accused and there after the Rin-pustika were handed over by the appellant to Ram Sharan and Ram Sharan had handed over the amount of Rs.570/- to the appellant. Thereafter according to the PW-1, the accused took the amount and kept it in the kothi of the house which was seen by this witness. Subsequently witness has stated that accordl|Qpltotg|g3|t|J|ti(||||)|;|arted he gave the signal and theiliaF|p&rfy came inside the hdu§efflnclrisked the appellant ,|,||telTere he has kept th^CTpunt. On personal s8^!t|iiothing was recovered from |it'|p^||i^tGused. Then compiallant PW-1 told that accused/li|^!j^||§8|nount inside the house in kothi. Thereafter kothi ofljfce/Wyie was searched and amount of Rs.570/- was rec0^gt-^cl,K^f^rsiirecovery of the notes, number of the notes were ta1®|g|||(|s(fi!

werefound to be correct and the ^R??^9^T?t notes on being dipped into sodium carbonate solution colour of the notes changed into pink. The hand of the Teerath Ram was also washed in the solution and hand also changed its colour into pink. Witness has stated that the revenue documents which were seized were subsequently received in supurdnama.

The documents were marked as Ex.P-4, Ex.P-5, Ex.P-6, Ex.P-7, Ex.P-8, Ex.P-9, Ex.P-10 and Ex.P-11 and rin pustika which were given bythe Patwari/appellant were marked as Ex.P-12, Ex.P-13, Ex. P-14 and Ex. P-15. So the reasons were chain of facts were established.

13.

The appellant/accused has contended that recovery of the amount was found in the kothi and not from the person of the appellant.

It is further contended that the witness was in the house of the appellanVaccused and when complainant had asked for glass of water and when the appellant went to fetch the glass of water at that time complainant has implanted notes in the kothi. Therefore it is not a case that money was recovered in person from the accused/appellant. It is further stated that there L is no evidence orT,re<|p@d@to .prpye that by whom money was take^^iyt |i-ggiatl'Tie Rottii: liwafsuilaffiltid that inference can be my ^V y^^, |Mr|wn that money which was kept in the kotiyia^ taken out at ^fv^ the instance and/;p^syr|j^tN^trap party itself by-fcwppellant and therefore aftei&^1|i|gjg|j|noney from the kothi when hands were washed in the'St;!

ESiJjt turned colour. Now in this context if we look to the e^i^|g|lig@W-1. He has stated in para 9 that after money wasig(ve||to^ll||jappellant of Rs.570/-, appellant went inside and ke^P^Pthffiothi of the room which was seen by him.

14.

Map of the place of incident is proved by PW-3 Ramfal. Map is marked as Ex.P-16. Perusal of the map would show that at spot No.1 parchi ofTeerath Ram is shown. It is stated that initially the complainant was standing in the parchi of the Teerath Ram at spot No.1.

Spot No. 2 was the place wherein Ram Sharan was shown to be standing i.e. the complainant. The spot No. 3 is the place wherefrom it is stated that rupees was recovered i.e. kothi. The kothi is shown in the rasoi ghar i.e. kitchen. The koti is

,^'

^\ &c shown to be storage for the cow dung. If map is further surveyed it would reflect that bed room and the office along with kitchen are adjacent to each other which is attached by the door and from the place where the complainant was standing and place of recovery of money is shown 24 feets away in another room connected by the door. Complainant in his statement has stated that when raid team came they were standing in the parchi place no.1 and 2 shown in the map Ex.P-16. Now if evidence of N.K. Pandey PW-6 js see^atepiaraZof the statement it is stated that when?8|lE|plfslgolWesJgrfi:Hl|^^ ii^ide the house and _&||spd appellant/accused where money is Re||l|tf|j when it was P ||? not answered th^y@imglaift|jhhad disclosed thafSSfesed has s3:;Afffi:':%%M(Si/:i kept the amount ii|i^i®$|tig|ffi|ysein kothi.

Thereafter search in person of the app|1|rNfT\|is made but the amount was not recovered and sub|^|B|j|l||I|gthi was searched and money was recovered. The ^|iict^||iyfi|||A/as taken out by S.N. Dubey. Therefore accordin^^itiil^ent of this witness PW-6 and this ^ fact is not been refuted that money was taken out by S.N. Dubey in front of this witness who was also party to the raid. 15.

Now the question arises as to whether the money was implanted in the kothi by complainant or was kept by appellant himself. In this respect, N.K.

Pandey (P.W.-6) has stated that after the money was recovered by the post trap proceeding, the hands of the appellant were dipped in the sodium carbonate solution which turned into light pink colour. It was kept and sealed in bottle. The witness had further stated that after recovery of notes they were

also dipped in the sodium carbonate solution, which changed its colour. Simultaneously the hand of the complainant Ramsharan was also dipped in sodium carbonate solution which also change the colour. The witness has further stated that the room in which the trap party was sitting adjacent to it, kitchen was situated and the Kothi was in the kitchen. The entire incident was also recorded in the panchnama Ex.P/19. Therefore, the appellant has failed to substantiate this fact as to how thecolour of his hands were changed w|ieg,it^as dipped in the sodium carbonate L l6^»|||B|Bcomplainant Ram^^an had stated thats8f^ig|(jng note of li,| 570 it was kept |^jf|^g|^|aM5|;in the kothi, which^|iRaseen by him. Map Ex.P/1^Jg|^^^I which is situated in the kitchen, .jftlt'

M. J¥l.:fl 1 which is a another<|iftQrrt}AQ|)mplainant has not stated that he went to the othe|yg-IW|iiffl?%lBar statement is made that the accused appellaht|^®g|sjitophe kothi and kept the amount. Therefore, no plausibTeex'pfanation has come on record by the appellant that how the colour of his hands were changed. So the facts explains a natural behaviour of accused that after taking the money when he went to the other room i.e. the kitchen where in the kothi is situated, to fetch drinking water and kept the amount at such point of time. There is no evidence has come on record even in cross-examination that complainant had crossed the parchhi and went to the kitchen. So by necessary implication it was proved that appellant was the carrier of notes to the kothi.

17.

So if the entire evidence is analyzed it reveals that there had been a demand by the appellant for illegal gratification which is sine qua non for constituting an offence under the Act. It is also trite law that mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe.

18.

The Hon'ble Supreme Court in case of Mukut Bihari and another Vs,^S|^N|pn|i|5f||u jDorfecf (2012) 11 SCC 642 '!1 '"m#iy ,d!i::l has!itl|elc|ii,^fc:!pgra-11 as under:- "11. The laworrtjl§^s^!jeis welt settled tttt|^gmaind 1,1 of illegal g|a|i|^|o^,f^|^ipe qua non for corislWufing '^..X(K-WXS^ _ _ - "

an offence ^n|^||||||j|988 Act. Mere recovery of tainted mone^tt®yi|||ficiento convict the accused, when thesu|)^^nfl|Ntevidence in the case is not '^iSSSBSSi^ reliable, unl^s§Atft^1;tzl>^jdenceto prove payment of bribe or to s|ow|lTayjM was taken voluntarily as bribe. M^eq^^^pf 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 1988 Act, 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 of the Act.

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 theprosecution. 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 accusiec|iReift)B U Altfs ^.

19.

In, tli| f|pfsW fhe present case, ttWIWe|ce Igad on behalf of iflftie prosecution, it is evidant that the appellanyii||K®dedmoney --<aiNl iVC>^ '

ll!B:i'^|ft, from the complam||tl;;lii-^|tiyis;ation of name in"t|i revenue records. The posit%|{j|||ig||yrbonate solution test vis a vis the finger ofthe appellahfSafiy^ notes also corroborates the same with the illegal derrt|TO%Fgr|Mication and voluntarily acceptance thereof was prov©dsgg||igt|||ig||@tA6ynotes have been proved to be i-- ^ic?r^ci T^y^ handled by the " appellant, which was mixed by the phenolphthalein powder and when the hand of the accused was washed in a water bowel, the colour ofthe water turned into pink. 20.

The FSL report Ex.P/25 also confirmed such fact that solution which was sent for chemical analysis was containing phenolphthalein and the positive report was given that it contained phenolphthalein and sodium carbonate, which were prepared afterwashing ofhand ofappellant.

21.

So after careful scrutiny and after survey of the entire evidence and the documents, I am of the opinion that the finding arrived at

by the learned Court below can not be faulted with. The appeal has no merit and accordingly is dismissed. The appellant is on bail, his bail bonds are cancelled and he is directed to surrender to serve out the remainder of the sentence.

Sd/- Goutam Bhaduri Judge Gauri/Balram