Srinagar: The High Court today Thursday set aside the sentence of conviction against a Patwari facing “charges of corruption” saying the prosecution has not succeeded in proving the essential ingredients of demand of illegal gratification by the accused.
Brief facts of the case are that on October 10, 2006, a written complaint was lodged by the one Khursheed Ahmad of Ponipora Sagipora Sopore before Vigilance Organization Kashmir. He alleged that he had purchased 14 marlas of land at Ponipora and obtained ‘agreement to sell’ in this regard.
He also alleged that he approached the concerned Patwari Ghulam Mohammad Kumar for making necessary entries in the revenue record, who demanded ₹ 5000 as bribe. An amount of ₹ 2500 as bribe was settled to be paid on October 10, 2006.
A trap team was constituted. The currency notes produced by the complainant were noted in presence of one Mushtaq Ahmad Hakeem, Sr. Assistant in the office of Director Health Services Kashmir, who was associated in the proceedings as independent witness.
‘Fardi waqa’ was prepared on the spot in the presence of witnesses. Before proceeding on spot, a demonstration was conducted to show the effect of phenolphthalein powder dusted on the currency notes.
The demonstration memo was prepared on spot in presence of independent and other witnesses.
After completing the pre-trap proceedings, the trap team accompanied by the complainant and the independent witness proceeded to the spot, the Bomai Patwar Khana.
The complainant and shadow witness police constable Mushtaq Ahmad (No. 111/SVO) entered the office of Patwari Halqa Sagipora and contacted Patwari Ghulam Mohammad Kumar. On seeing Khursheed, Kumar came out of the office, handed over to him the agreement to sell (Iqrar Nama).
Kumar, the Patwari demanded and accepted the bribe money of ₹ 2500 from the complainant and kept it in the left pocket of his shirt. The trap team immediately rushed to the spot on being signalled by the shadow witness, and recovered the tainted money from the left shirt pocket of the accused Patwari. Accordingly a seizure memo was also prepared on the spot.
After investigation of the matter, the commission of offences punishable under Section 5(1)(d) read with Section 5(2) PC Act 2006 and Section 161 RPC, were prima facie made out against the accused. Sanction for prosecution was accorded by the competent authority.
After investigation, it was concluded that the accused had committed offences punishable under Section 5(1)(d) read with Section 5(2) PC Act 2006 and Section 161 RPC, and he was chargesheeted before the trial court.
The trial court after hearing the prosecution and the defense came to the conclusion that the charges against the accused Patwari were proved. Accordingly it held the appellant-accused guilty for the offences of corruption.
The accused Patwari appealed against the trial court judgment.
Justice Mohammad Akram Chowdhray after hearing the parties concluded “it is well settled that in absence of the evidence regarding demand of bribe, the appellant-accused cannot be held guilty on the basis of the evidence, unworthy of acceptance”.
He said “after going through the entire evidence, I am of the view that there is no acceptable evidence to prove demand and acceptance of the bribe money within the meaning of Section 161 RPC. Under these circumstances, the findings of the trial court that the prosecution has established the charge of demand and acceptance of bribe with ultimate recovery of tainted money from the accused-appellant, cannot be accepted and agreed.”
He held that in the peculiar circumstances of the case, “it cannot be held that the prosecution has succeeded in proving the essential ingredients of demand of illegal gratification, made by the accused-appellant, from the complainant for doing an official act.
“Though a vain attempt seems to have been made by the prosecution to bring the factum of demand relying upon these witnesses, but their evidence does not support the complainant in material particulars to bring home, beyond reasonable doubt that a demand of ₹ 2500 as bribe was made by the accused appellant for doing an official work while acting as a public servant.”
Having regard to the aforesaid factual background and the law laid down on the subject, Justice Chowdry held that the trial court has not appreciated the evidence properly and thus reached a wrong conclusion to hold appellant accused guilty of the offences of which he was charged.
The conviction recorded against the accused Patwari was set aside, and so were the conviction and sentences awarded to him.
