SRINAGAR: Holding that mere recovery of tainted currency or a positive phenolphthalein test is not sufficient to sustain a conviction unless the demand for illegal gratification is proved beyond a reasonable doubt, the Jammu & Kashmir and Ladakh High Court on Tuesday acquitted a patwari who had been convicted by an Anti-Corruption Court in a bribery case dating back to 1986.
Justice Sanjay Parihar, while allowing the appeal filed by Muhammad Shaban Wani, son of Ghulam Qadir Wani of Kurshoo, Nowgam, Padshahi Bagh, observed that “the law is well settled that mere recovery of tainted currency or a positive phenolphthalein test is not sufficient to sustain a conviction unless the demand for illegal gratification is proved beyond a reasonable doubt.”
The appeal was directed against the judgment of conviction and sentence passed by the Court of Special Judge, Anti-Corruption, Srinagar, in 2004. The appellant had been sentenced to two years of rigorous imprisonment and a fine of ₹20,000 under Section 5(2) of the Prevention of Corruption Act. He was also convicted under Section 161 RPC and sentenced to one year of rigorous imprisonment with a fine of ₹10,000.
An FIR No. 40/1986 had been registered in September 1986 by the Vigilance Organisation Kashmir (VOK) on the basis of a complaint alleging that the patwari demanded a bribe for issuance of a revenue extract required for transfer of 1½ kanals of land. The alleged demand of ₹1,000 was later reduced to ₹800.
Based on the complaint, a trap was laid by the VOK. It was alleged that in the presence of shadow witnesses, the patwari demanded and accepted the bribe amount. During the trap proceedings, ₹700 were recovered from the appellant, while ₹100 were recovered from another patwari, Karan Singh. The appellant was subsequently arrested and prosecuted.
The trial court found the appellant guilty and convicted him. However, the conviction was challenged on the ground that the trial court failed to correctly appreciate the settled legal position, contending that neither the demand of bribe was proved nor was there cogent evidence establishing voluntary acceptance of the money by the appellant.
Allowing the appeal, the High Court held that in the absence of independent corroboration establishing voluntary acceptance of illegal gratification, the benefit of doubt must necessarily go to the accused. The Court observed that once the demand itself becomes doubtful or improbable, the alleged recovery loses its legal significance.
Justice Parihar noted that although it was claimed that tainted money was recovered from the appellant’s shirt pocket, there was no direct evidence proving transfer of money from the complainant to the appellant. Even the shadow witness, the Court observed, failed to clearly depose about the actual act of acceptance.
The Court further held that since the appellant was apprehended with both hands restrained, the possibility of manipulation or planting of recovery could not be ruled out. The explanation offered by the appellant regarding his illness and the deputation of another patwari was found plausible and supported by the prosecution’s evidence.
The Bench also rejected the trial court’s observation that the complainant may have been won over, terming it conjectural and unsupported by evidence.
Concluding that neither the demand nor voluntary acceptance of illegal gratification had been proved beyond a reasonable doubt, the Court held that the prosecution’s case was riddled with inconsistencies and shrouded in suspicion. Accordingly, the conviction and sentence recorded by the trial court were set aside.
