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Mukut Bihari & Anr Versus State of Rajasthan

2012 (5) TMI 771 - SUPREME COURT

CRL.A. 870 OF 2012 - Dated:- 25-5-2012 - B.S. Chauhan, Dipak Misra, JJ. JUDGMENT 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 ap .....

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ct 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, howe .....

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he complainant handed over ₹ 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 dat .....

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lity 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 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 instan .....

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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 liabl .....

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er 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) .....

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able 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, .....

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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 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 explai .....

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hi 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) 9. The case of the appell .....

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e 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 .....

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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, th .....

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down in para nos. 704-705 of the Railway Vigilance Manual would vitiate the departmental proceedings. The said manual 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 .....

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