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TMI Blog2007 (8) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... d ordered him to undergo simple imprisonment for four months and to pay fine of ₹ 200/- for the offence under Section 161, IPC. No separate sentence, however, was awarded to him for offence under the Prevention of Corruption Act. 2. Shortly stated, the facts are that the appellant (Girja Prasad) was working as Lower Division Clerk (LDC) in the Office of Divisional Ayurved Chikitsa Adhikari, Jabalpur Division, Jabalpur. It was the case of the prosecution that on September 20, 1983, Ramanarain Rajoria, Divisional Ayurved Chikitsa Adhikari, Jabalpur Division, Jabalpur (PW 4) paid surprise visit to Ayurvedic Chikitsalaya, Dindori, District Mandla and found that several members of the staff were absent including the Ayurvedic Chikitsak himself. Consequently, he locked the Ayurvedic Chikitsalaya and returned to Jabalpur. Ramnarain Rajoria was accompanied by the accused Girja Prasad Gupta. On September 27, 1983, the complainant Anup Kumar (PW 1) came to Jabalpur and informed to the Divisional Ayurvedic Chikitsa Adhikari that he was on casual leave from September 7, 1983 to September 11, 1983. He also stated that he had submitted an application for extension of leave upto Septembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty reached near the accused and asked him where the money was. The accused told them that the money was in the pocket of his shirt. The hands of the accused were washed in the solution of the sodium carbonate and liquid became matmaila . The pocket of the shirt of the accused was separately washed in the solution of the sodium carbonate and the liquid again became matmaila . A panchnama of the proceedings was drawn. Another panch was Jawahar Soni (PW 6). Liquid of the hand-wash and pocket-wash of the accused was separately sealed in two bottles and was sent to the Forensic Science Laboratory. On analysis, it was found by the Chemical Examiner that the pocket- wash of the shirt of the accused was having traces of phenolphthalein powder. Sanction for prosecution of the accused was granted by the State Government. Charge sheet was submitted before the Special Judge. Investigation was conducted and the accused was charged for offences punishable under Section 161, IPC and Sections 5(1)(d) and 5(2) of the Act. 4. The prosecution, in order to prove the case against the accused, inter alia examined PW1-Anup Kumar- Complainant, PW 4-Ramnarain Rajoria, PW 6- Jawahar Soni-Panch II, PW 8-J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be released on bail. The matter was thereafter placed for final hearing. 10. On August 1, 2007, when the matter was placed before us for final hearing, it was stated that during the pendency of the appeal, Girja Prasad (original appellant-accused) died. It was stated that Smt. Munni Bai, widow of deceased Girja Prasad had filed an application under proviso to sub-section (2) of Section 394 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code ) to allow her to continue the appeal by seeking leave of this Court. The said provision confers right on near relatives of the accused who is convicted and sentenced to imprisonment and who dies during the pendency of the appeal to continue the appeal in certain cases by applying to the Court within thirty days of the death of the appellant. Such application was filed by Munni Bai. The Registry of this Court, however, raised an objection that there was delay of 149 days in filing the application. After hearing learned counsel for the parties, we condoned delay, granted the prayer of applicant-Munni Bai and allowed her to continue the appeal. We, thereafter, heard learned counsel for the parties. 11. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Trial Court was legally wrong in discarding the evidence of PW 1-Anup Kumar- Complainant and PW 10-S.K. Tiwari-Inspector, characterizing them as interested witnesses. It was, therefore, submitted that the appeal deserves to be dismissed. 16. Having anxiously considered the rival contentions of the parties and having gone through the record of the case meticulously, we are of the view that the High Court was wholly justified in setting aside acquittal of the accused and in recording an order of conviction against him. From what is stated above, it is clear that the Trial Court also believed the case of the prosecution that the amount of ₹ 200/- was paid by PW1-Anup Kumar-Complainant to accused Girja Prasad which is clear form the following finding recorded in para 46 of the judgment; Thus from the above evidence from Anup Kumar, it becomes clear that Anup Kumar entrusted ₹ 200/- to the accused so that accused Girja Prasad may give it to Shri Rajoria . 17. The Court then proceeded to state;Clearly the acceptance of ₹ 200/- currency notes by accused Girja Prasad, he was only innocent scarifying goat in the hands of Mr. Rajoria 18. The Trial Court als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Prevention of Corruption Act, 1988) and Section 5(1)(d) of the Prevention of Corruption Act, 1947 (before the said Act was repealed by the Prevention of Corruption Act, 1988). 161. Public servant taking gratification other than legal remuneration in respect of an official act. Whoever, being or expecting to be a public servant, accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, with the Central or any State Government or Parliament or the Legislature of any State, or with any local authority, corporation or Government company referred to in section 21, or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. (emphasis supplied) 5(1). Criminal misconduct. (1) A public servant is sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w which lays down that no conviction can be recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence. 25. It is not necessary to refer to various decisions on the point. We may, however, state that before more than half-a-century, in the leading case of Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217, Venkatarama Ayyar, J. stated: The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration . (emphasis supplied) 26. In Tahir v. State (Delhi), (1996) 3 SCC 338, dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated: Where the evidence of the police officials, after careful scrutiny, inspires confidence an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent . In short, our jurisprudential enthusiasm far presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. (emphasis supplied) 29. Recently, in Chandrappa v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our opinion, therefore, Section 4 of the Act got attracted and presumption came into play against the accused. There was no rebuttal by the accused by leading any evidence whatsoever. The defence was of total denial and of false implication. Hence, the doctrine of preponderance of probability also had no application. The Trial Court was, therefore, wrong in not invoking Section 4 and raising presumption. The Trial Court was also wrong in discarding the evidence of PW 1-Anup Kumar- Complainant and PW 10-S.K. Tiwari-Inspector observing that they were interested witnesses and their testimony could not be relied upon. If it is so, in our judgment, the High Court was justified in setting aside the order of acquittal and in convicting the accused for the offences with which he was charged. 31. We appreciate the anxiety of the learned counsel for the appellant that if the conviction of the deceased is upheld by this Court, the deceased may not be held entitled to pensionary and other benefits. We are, however, helpless. Once we are satisfied that the acquittal recorded by the Trial Court was not in consonance with law and the High Court was right in setting aside it and in convicting t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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