Surinder Singh, J.@mdashThe appellant has assailed his conviction passed by the learned Special Judge (Forest), u/s 12 of the Prevention of Corruption Act, 1988, in short as "The Act" for abetting the offence punishable u/s 7 of the Act: whereby the appellant was sentenced to undergo rigorous imprisonment for a period of 6 months and to pay a fine of Rs. 500/-.
2. In brief, the facts giving rise to the instant appeal are that one Smt. Sudesh Kumari had filed a civil suit against the present appellant, titled Sudesh Kumari v. Gardara Singh, which was pending for disposal in the Court of Shri D.K. Sharma, the then Sub Judge 1st Class, Court No. 3, Shimla. On 25.8.1994, during the course of the day just before the lunch, when Shri D.K. Sharma, retired to his chamber, around 12.45 p.m., Shri Chander Singh, Assistant Public Prosecutor also came to his chamber, in connection with some official work, Shri D.K. Sharma (PW 9) found an envelope lying on his table, which was addressed to him allegedly by one Bhagat Ram Sharma, Headmaster, Government High School, Boileauganj with red endorsement "Top Secret". Shri Sharma opened the envelope in the presence of Chander Singh (PW 7) and found a copy of the interim injunction order passed in case titled Sudesh Kumar v. Gardara Singh, enclosed with a currency note of the denomination of Rs. 500/-. Shri D.K. Sharma enquired about the envelope from his staff. Shri Vir Singh (PW 1), Peon of his Court informed him that one Sikh gentleman with spectacles had handed over the same to him for its delivery to Sh. D.K. Sharma. He also told him that he had been seeing the Sikh gentleman in the vicinity of Boileauganj.
3. Thereafter, Shri D.K. Sharma, went to the then District & Sessions Judge, on his advice sent a complaint to the Superintendent of Police, Shimla, on the basis of which FIR was registered in Police Station, Sadar, Shimla. Next day, i.e. on 26.8.1994, the appellant appeared in the Court and filed an application Ex. P3 in the Court of Shri D.K. Sharma, confessing his guilt and tendered an apology. The police took into possession the envelope Ex.Pl, copy of the stay order Ex.P2, currency note of Rs. 500/- Ex.P4 and the application Ex.P3 and recorded the statements of the witnesses.
4. On the completion of the challan, it was presented in the Court for trial of the appellant, under the aforesaid Sections.
5. Finding a prima-facie case against the appellant, he was charge-sheeted by the learned Special Judge, Shimla for the offences aforesaid. The appellant pleaded not guilty and claimed trial.
6. To prove its case, the prosecution examined its witnesses and the appellant was also examined u/s 313 of the Code of Criminal Procedure. He had denied the circumstances put to him and took up the defence u/s 84 of the Penal Code that he was under the treatment for mental problem in I.G.M.C, Shimla w.e.f. 1994 under the treatment of Dr. Ravi Chand Sharma, Psychiatrist, for depression. In defence, he examined said Shri Ravi Chand Sharma.
7. After appreciating the evidence on record, the learned Special Judge, relied upon the prosecution evidence and dis-believed the plea raised by the appellant regarding his mental ailment as alleged on the day of the alleged offence. Thus, he was convicted, but taking the lenient view, he was awarded the minimum sentence prescribed under the law, which has been challenged on the following grounds:
(i) That no identification parade of the appellant was held;
(ii) There were contradictions in the statements of PWs 1 and 2, which makes the case of the prosecution highly doubtful;
(iii) Shri D.K. Sharma, did not put any signatures on the currency note of the denomination of Rs. 500/-;
(iv) The manner in which the specimen handwritings of the appellant were taken was not interceded in law.
8. I have heard Shri Rakesh Jaswal, learned Counsel for the appellant and Shri R.M. Bisht, learned Deputy Advocate General for the State and have carefully gone through the evidence on record.
9. It is an admitted fact that Sudesh Kumari had filed a civil suit titled as Suedesh Kumar v. Gardara Singh, which was fixed for hearing on 26.8.1994, in the Court of Shri D.K. Sharma, the then Sub Judge, Court No. 3, Shimla. On 25.8.1994, Vir Singh (PW1) was a Peon in Court No. 3. According to him, the appellant was wearing a pink coloured Patka, he met him outside the door of Court No. 3 at 12.45 p.m. and enquired whether he was a Peon and called the cases. On giving the answer in affirmative, the appellant handed over an envelope with the direction to deliver the same to Shri D.K. Sharma and told him that it was sent by Masterji. He saw the envelope. On the top of it, it was written "Top Secret" in red-ink and it contained the address of Shri D.K. Sharma, Sub Judge 1st Class, Court No. 3 and on the right side, Bhagat Ram, Headmaster, Government High School, Boileauganj was written. He kept the envelope on the table of Shri D.K. Sharma in the chamber and came out. When Shri D.K. Sharma came to his chamber and gave the bell, he came in his Chamber. Shri Chander Singh (PW 7) was also sitting there. Shri Sharma told him to prepare the tea and opened the envelope, which contained a copy of the stay order, currency note of Rs. 500/- and enquired from him as to who had given it to him. He disclosed the entire facts to him. Thereafter, he went to the learned Sessions Judge, alongwith him and narrated the entire incident to him, who in turn advised Shri Sharma to lodge the FIR. Next day, i.e. on 26th August, 1994, the appellant came to the Court and saw the appellant sitting outside. He informed Shri D.K. Sharma. On the instructions of Shri D.K. Sharma, he enquired about name of the appellant and he disclosed his name. His case Sudesh Kumar v. Gardara Singh, was listed on that day in that Court. When his case was called, the appellant appeared in the Court room. Thereafter the appellant met him again outside the Court and told him that he wanted to move an application to the Court, but he took him to the Criminal Ahlmad Som Kumar (PW 8), where, he handed over the application Ex.P3, which was taken into possession by the police vide memo Ex.PW1/A in his presence. He identified the envelope Ex.P1, copy of the stay order Ex.P2, but could not identify the currency note.
10. In his cross-examination, he has stated that he had seen the appellant earlier to 25.8.1994 in the Court as well as in the area of Boileauganj. He further stated that he alongwith the Presiding Officer had gone to the chamber of learned Sessions Judge, at about 1.30 p.m., but at that time, Chander Singh, Assistant Public Prosecutor did not accompany them. The complaint was prepared immediately and then it was dispatched to the Superintendent of Police. He further stated that he saw the appellant 2-3 times in the Court between 25.8.1994 to 26.8.1994. The appellant had tried to contact him, but he avoided to meet him.
11. Shri D.K. Sharma, PW 9 has substantiated his complaint. According to him, when he retired to his chamber around 12.45 p.m., Chander Singh, Assistant Public Prosecutor was also in the chamber with him. On inquiry, he found from the office that the said envelope was kept on his table, by Shri Vir Singh, Peon (PW 1). On being asked, PW1 disclosed that it was delivered to him by a tall Sikh gentleman wearing spectacles who he had seen him, in the area of Boileauganj. Thereafter the appellant had moved an application Ex.P3 before him, tendering apology for his act of offering bribe. Said application was forwarded to the police. He identified his complaint Ex.PW9/A and aforesaid contents of the envelope.
12. In his cross-examination, he stated that he did not remember that the civil suit Sudesh Kumar v. Gardara Singh, was pending in his Court. He had called the Peon immediately and after opening the envelope asked him to trace/call the person from whom the envelope was delivered to him, but it was informed that the appellant had already left. Though he admitted that he had gone to the learned Sessions Judge and informed the incident all alone, but according to him, the complaint was dictated and forwarded there and then to the Superintendent of Police. He stated that the application Ex.P3 was placed before him by the Reader on 26.8.1994. Since the application did not pertain to his Court, therefore, no endorsement was made by the Reader there upon. When he took up this application, the appellant was standing in the Court and he made a prayer in the light of the contents of the applicant tendering apology.
13. Chander Singh (PW 7), Assistant Public Prosecutor has corroborated his version and PW-8 Som Kumar, Criminal Ahlmad of the Court of Judicial Magistrate 1st Class, Court No. 3, Shimla has testified that the appellant came in the Court alongwith application Ex.P3. Since the Reader was on leave, he was working as a Reader. The appellant gave the application Ex.P3 to him, which was placed before the Presiding Officer, later it was taken into possession by the Investigation Officer vide memo Ex.PW1/A.
14. The specimen writings of the appellant Exts.PW6/A-l to PW6/A-9 were taken before the Executive Magistrate Shri Vinod Goel (PW 10) and according to PW 6 Shri M.L. Sharma, Deputy Government Examiner of Questions Document, the disputed writings tallied with the admitted and the specimen writings of the appellant. He proved on record his opinion supported by his reasons and the details of the examination.
15. Shri N.S. Pal, Deputy Superintendent of Police (PW 11) had investigated the matter. In his cross-examination, he has stated that though appellant was suffering from some disease, but he did not have any knowledge whether he was suffering from "schizophrenia".
16. In his statement u/s 313 of the Code of Criminal Procedure, as discussed above, the appellant has admitted that Shri D.K. Sharma was posted as Sub Judge in Court No. 3, but denied other circumstances put to him. According to him, he was under treatment of Dr. Ravi Chand Sharma, at the time of the alleged incident.
17. But according to Dr. Ravi Chand Sharma (DW 1), Psychiatrist, he was working in the department of Psychiatry w.e.f. October, 1987. The appellant was his patient only w.e.f. 9.10.1995. He was suffering from severe reactive "depression" and illness is characterized by sadness, weeping spells, absent mindedness, confusion, lethargy, lack of interest in self and surroundings. During the period when the patient has active features of depression, he forgets things and remains interwoven in his thoughts and can commit mistakes. He diagnosed the illness or depression of the appellant on the basis of the historical findings and his examination. The appellant had given the history of the recent death of his wife which precipitated depressive symptoms. He stated that his age might have complicated his symptoms. The appellant had low volume of speech and decreased psychomotor activities. According to the Doctor, if the patient of depression is put to pressure, such as by the police or other agencies, his depression is likely to be aggravated. He tendered his history record in evidence (Marked DB to DD). In cross-examination, he has specifically stated that he did not see and examine the appellant in April, 1994; therefore, he cannot tell whether he was suffering from ailment of "depression" in the year 1994. He admitted that if the trauma of undergoing through a criminal case is quite severe than one can develop the features of "depression".
18. Confronted with the above situation, learned Counsel for the appellant has argued that there are contradictions in the statement of witnesses and the identification of the appellant could not be proved by leading a reliable evidence, which make the case of the prosecution improbable.
19. On re-appraising, the evidence on record, I do not find that there has been any material discrepancy or contradictions in the statements of the prosecution witnesses as far as the identification of the appellant is concerned, rather, all the witnesses have given the vivid count of incident aforesaid in clear terms and the appellant stands properly identified. His identification has not been assailed in the cross-examination of the witnesses nor there is any ambiguity to this effect. Further the appellant has submitted his apology vide his application Ex.P3 and presented it in the Court of Additional Chief Judicial Magistrate, i.e. Shri D.K. Sharma, complainant who was the then Sub Judge in Court No. 3. It stands proved that it was the appellant and appellant alone, who had handed over the envelope Ex.P1 containing the currency note of Rs. 500/- and copy of the stay order to Vir Singh, Peon to the Court of Shri D.K. Sharma, for its delivery to him to get a favour in his case.
20. The appellant is an ex-military personnel and had retired as an Hawaldar from the police department. He was fully aware of the acts he was doing and also knew its consequences. The intention of the appellant in making attempt to bribe the Presiding Officer of the Court is writ large. The police had also taken into possession the admitted writings in the complaint Ex.PW2/A dated 9.11.1994 in the presence of PW 3 Prithi Singh vide memo Ex.PW2/A. PW 3 has testified it on oath in the Court, but this fact has not been challenged in his cross-examination. The specimen signatures and writings those taken before the Executive Magistrate (PW 10), were compared with the questioned documents. The expert has given the detailed opinion about its authorship which corroborates the prosecution case.
21. Further the police did not exert any pressure on the appellant and to submit apology Ex.P3 nor there is anything on record that he was persuaded by the complainant or his staff to move such an application.
22. On the legal sanity of the evidence on record, I find that the appellant has failed to prove that at the time of committing alleged offence, he was suffering from any mental illness. Rather according to Dr. Ravi Chand Sharma, the appellant was suffering from depression w.e.f. 9.10.1995 when he approached him for his treatment. In fact the legal burden to prove Section 84 of the Indian Penal Code is on the person who takes the plea and it is only the "legal insanity" which furnishes the ground for exemption from criminal liability.
23. It has been held in
24. The circumstances on record show that the appellant was capable of knowing the nature of the act and that what he was doing was wrong and also contrary to law. He is not proved that he was at such a state of mind as to be entitled to Section 84 of the Penal Code. The overall circumstances appearing in the evidence on record which had preceded, attended and followed the crime are important to be noted that immediately when he realized his mistake, the very next day, he moved an application Ex.PS, admitted his fault and tendered the apology. His post-offence conduct is material which determines that there was no insanity at the time of commission of the offence. Thus the subsequent events leading upto to the trial make it abundantly clear that the plea of insanity was a belated afterthought and palpably false.
25. From the evidence aforesaid, the appellant is found to have committed an offence charged and the learned trial Court had rightly convicted him.
As far as the sentence part is concerned, the learned trial Court had already taken a lenient view and it could not have awarded the sentence less than the minimum prescribed under the law, which otherwise also cannot be further reduced in appeal.
26. Thus, approached from every angle, I do not find any infirmity in the impugned judgment of the conviction and sentence passed by the learned trial Court, the appeal sans merit, accordingly, it is dismissed. The appellant shall surrender before the learned Special Judge (Forest), Shimla on or before 30th May, 2008 to serve out the sentence. In case, the appellant does not appear, the learned trial Court shall issue the non-bailable warrants for his presence and commit the appellant to prison, to serve out the sentence as ordered.
Send down the records.
