# Smt. Nirmala Devi (On Interim Bail) v. State of U.P

- **Citation:** (2021) 7 ILRA 156
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-18
- **Case number:** Criminal Appeal No. 2929 of 1981
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-nirmala-devi-on-interim-bail-v-state-of-u-p-47069
- **Pages:** 6

## Headnote

Law-
Code
of
Criminal
Procedure, 1973-Section 374(2) & Indian
Penal
Code,
1860-Section
161
&
Prevention
of
Corruption
Act,
1988Section
5(2)-challenge
to-convictionreduction of substantive sentence-accused
a lady doctor who is now 70 year old took
bribe while serving in the government
hospital-accused suffering from old age
ailments and mental incarceration for
about 41 years-hence, it would certainly
be special reasons for reducing the
substantive sentence but enhancing the
fine,
while
maintaining
the
conviction.(Para 1 to 26)

The appeal is partly allowed. (E-5)

List of Cases cited:

## Text

156 INDIAN LAW REPORTS ALLAHABAD SERIES
corroborated by the medical evidence. The
accused had come with hand grenade and
in prosecution of the common object
murdered Smt. Ramdevi and caused
injuries to the injured. They succeeded in
executing their plan successfully. They
were rightly found guilty of offences by the
Trial Court. There is no mitigating
circumstance or evidence for taking a
different
view
on
the
quantum
of
punishment. The appeal is devoid of merit
and
is
dismissed.
If
the
surviving
appellants are on bail, they shall be taken in
custody forthwith to serve out their
sentence.

42. Let a copy of this judgment be
sent to the trial court concerned.
----------
(2021)07ILR A156
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.02.2021

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 2929 of 1981

Smt. Nirmala Devi
 ...Appellant (On Interim Bail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri B.P. Gupta, Sri A.N. Mulla, Sri Atul
Pandey, Sri I.N. Mulla, Sri Jitendra Pal
Singh, Sri R.P. Tiwari, Sri Rahul Mishra, Sri
S.P. Tiwari

Counsel for the Respondent:
A.G.A.

A.
Criminal
Law-
Code
of
Criminal
Procedure, 1973-Section 374(2) & Indian
Penal
Code,
1860-Section
161
&
Prevention
of
Corruption
Act,
1988Section
5(2)-challenge
to-convictionreduction of substantive sentence-accused
a lady doctor who is now 70 year old took
bribe while serving in the government
hospital-accused suffering from old age
ailments and mental incarceration for
about 41 years-hence, it would certainly
be special reasons for reducing the
substantive sentence but enhancing the
fine,
while
maintaining
the
conviction.(Para 1 to 26)

The appeal is partly allowed. (E-5)

List of Cases cited:

1. Ashok Kumar Vs St. (Delhi Administration)
(1980) 2 SCC 282

2. Sharvan Kumar Vs St. of U.P.(1985) 3 SCC
658

3. Ajab & ors .Vs St. of Mah. (1989) Supp. 1
SCC 601

4. V.K. Verma Vs CBI, (2014) CRLA No. 404

(Delivered by Hon'ble Ajit Singh, J.

1. Heard the learned counsel for
appellant and Sri Rajesh Mishra, learned
AGA appearing for the State and perused
the record of this case.

2. This criminal appeal has been
preferred against the judgment and order
dated 19.11.1981 passed by IInd Additional
Sessions Judge (Special Judge), Moradabad
in Sessions Trial No. 460 of 1979
convicting the appellant under Section 161
of I.P.C. and sentencing her to one month's
Rigorous
Imprisonment
and
further
convicting and sentencing her under
Section
5(2)
of
the
Prevention
of
Corruption Act to one month's Rigorous
Imprisonment
(under
the
impugned
judgment and order). Both the above
sentences
were
directed
to
run
concurrently.
7 All. Smt. Nirmala Devi Vs. State of U.P.
157

3. The prosecution story of this case
in brief is that in the month of June 1979,
the accused appellant was posted as
Medical Officer in District Board's Janana
Hospital in Raja-Ka-Sahaspur. It is next
alleged that one Lokesh Pal Singh took his
mother Smt. Shanti Devi to the said
hospital and presented her before the
accused appellant for treatment. It has been
further alleged that the said ailing woman
was medically examined by the accused
appellant and after examining her, the
appellant made a demand of Rs. 50/- as an
illegal gratification for her treatment, at
which Lokesh Pal Singh (son of the ailing
woman) urged that there is no question of
gratification in the Government hospitals as
all the treatments there are available free of
cost. Then, he was told that without
charging money, the appellant never treated
the patients. It was also told that even in
big hospitals no treatment is done without
charging the extra money. The complainant
Lokesh Pal Singh was not having any
money at that time. He showed his inability
to fulfill the demand of the accused
appellant and desired some time to arrange
money to fulfill the illegal demand of the
accused appellant and returned back.

4. It was also stated by the
prosecution that the accused appellant did
show her willingness to accept even Rs.
40/- for doing the treatment. Thereafter, a
complaint was moved by Lokesh Pal Singh
against the accused appellant in writing
(Ext.
Ka-1)
before
the
Deputy
Superintendent of Police, Anti-Corruption
Department, Moradabad and in the said
complaint, it was mentioned that the
accused appellant was habitual of accepting
bribes from the attendants of the patients
who came to her for treatment.

5. Further prosecution case is that
since the complainant wanted to get the
accused appellant arrested red-handed, he
was required by the Dy. S.P. To meet Ram
Autar Tyagi, Inspector (Anti-Corruption),
who
recorded
the
statement
of
the
complainant on 6.6.1979. The complainant
was not having the amount to be offered to
the lady doctor (appellant), he promised to
come back with money on 07.06.1979 and
the said Inspector along with other officials
as well as the complainant with his mother
Smt. Shanti reached at 9:00 A.M. at Octroi
Post,
Kundarki
and
at
that
place
complainant Lokesh Pal Singh produced
two currency notes of Rs. 20/- each which
were treated with phenolphthalein powder
by the driver Khem Singh and Lokesh Pal
Singh was directed to pay those very notes
to the lady doctor on demand. The number
of the currency notes meant for being
offered to the lady doctor (appellant) were
noted in the Fard and the entire police
party proceeded to the Janana Hospital,
Raja Ka Sahaspur under PS Bilari, District
- Moradabad. The jeep was parked a
furlong before the Hospital. The party
consisted of Inspector Ram Autar Tyagi,
H.C. Km. Praveen Siddiqi and the two
public witnesses and the other employees.
It is further alleged that the accused was
present in the room and as a matter of
precaution Constable Km. Praveen Siddiqi
was shown to the accused (lady doctor) for
certain ailment though she was not
suffering from any disease. Her name was
entered by the accused in the outdoor
register of the Hospital and was given some
tablets and a prescription by the accused.
Thereafter, it is alleged that after seeing
Lokesh Pal Singh, the accused enquired
from him if he had brought the money and
his reply was in affirmative.
158 INDIAN LAW REPORTS ALLAHABAD SERIES

6. It is further alleged by the
prosecution that immediately on demand,
the two currency notes of Rs. 20/- each
were handed over by complainant to the
accused and she kept them in her left palm.
Thereafter, the Inspector Shri R.A. Tyagi
gave his introduction and in presence of the
witnesses, got the two currency notes
recovered from the left 'Fist/Mutthi' of the
accused through H.C. Km. Praveen Siddiqi.
The numbers of the said notes were
compared with the numbers of the notes
noted down in the memo earlier and were
sealed in an envelope and wash of the
accused's hand was taken in presence of the
witnesses with the solution of sodium
corbonate. Its colour turned pink (gulabi)
and the same was filled in a bottle and then
sealed. The First Information Report was
lodged against the accused appellant at
11:30 A.M. by the said Ram Autar Tyagi,
Inspector giving all the details.

7. A case was registered against the
accused and after the investigation, charge
sheet was submitted against her on
27.08.1979 with due permission for her
prosecution. The accused pleaded not
guilty and claimed to be tried.

8. After the completion of the trial
proceedings, the accused appellant was
found guilty of the charges levelled upon
her and accordingly, she was convicted and
sentenced by the impugned judgment and
order as noted above.

9. Hence, the present appeal.

10. The learned counsel for the
appellant submits that the incident is of the
year 1979. The appellant is a lady and now
she is aged about more than 70 years and is
suffering from age related ailments. For the
last 41 years, the sword of punishment had
been hanging over her head. It is also
submitted by the learned counsel that the
appellant had suffered mental incarceration
since the very inception of this incident.
Learned counsel has further submitted that he
does not want to press this appeal on merits
but wants to argue only on the quantum of
sentence.

11. However, the learned counsel for
appellant has submitted that in 1982 Raj Cri
C 120 (12), 1980 Raj Cri C 9(10), a
sentence of imprisonment under Section 161
was set aside by the High Court as the
accused was above 60 years of age, had
retired and the bribe amount was only Rs. 5/-
and a sentence of fine was imposed.

12. The learned counsel for appellant
has also argued that the question of sentence
must in each case depend upon a variety of
considerations and is a matter primarily in the
discretion of the Court which passes a
sentence and in support of his this argument,
the learned counsel cites the decision of the
Apex Court reported in 1979 CriLR (SC)
182 (183).

13. The learned A.G.A. has strongly
opposed the submission made by the learned
counsel for appellant and he submits that the
impugned judgment and order of the learned
Trial Court is liable to be confirmed and the
appeal deserves to be dismissed.

14. After having gone through the
judgment and order assailed by this appeal
and
having
perused
the
facts
and
circumstances of this case, it would not be
out of context to have a glance on Section 5
of the Prevention of Corruption Act, 1947
which deals with criminal misconduct.

15.

Section
5(2)
deals
with
punishment, which reads as under:-
7 All. Smt. Nirmala Devi Vs. State of U.P.
159

"5. Criminal misconduct.

(2) Any public servant who
commits criminal misconduct shall be
punishable with imprisonment for a term
which shall not be less than one year but
which may extend to seven years and shall
also be liable to fine :

Provided that the court may, for
any special reasons recorded in writing,
impose a sentence of imprisonment of less
than one year."

16. Section 161 of IPC was omitted
by the introduction of the Prevention of
Corruption Act, 1988. The pre-amended
proviso dealt with the offence of public
servant taking gratification other than legal
remuneration in respect of an official act.
The punishment was:

"... .....imprisonment of either
description for a term which may extend to
three years, or with fine or with both."

17. Thus, as far as punishment under
the old Section 161 of IPC is concerned,
there
is
no
mandatory
minimum
punishment. The question is whether the
sentence could be reduced for any special
reason. Under the old Prevention of
Corruption Act, 1947, there is a mandatory
minimum punishment of one year. It may
extend to seven years. However, under the
proviso, the court may, for special reasons,
impose a sentence of imprisonment of less
than one year.

18. In imposition of punishment, the
concern of the court is with respect to the
nature of the act viewed as a crime or
breach of the law. The maximum sentence
or fine provided in law is an indicator of
the gravity of the act. Having regard to the
nature and mode of commission of an
offence by a person and the mitigating
factors, if any, the court has to take a
decision
as
to
whether
the
charge
established falls short of the maximum
gravity indicated in the statute, and if so, to
what extent.

19. The long delay before the courts
in taking a final decision with regard to the
guilt or otherwise of the accused is one of
the mitigating factors for the superior
courts to take into consideration while
arriving at a decision on the quantum of
sentence to be imposed. As we have noted
above, the F.I.R. was registered by the
police in the year 1979 and the appellant
has suffered physical and mental agony of
criminal trial and conviction for more than
41 years in the trap-case involving a petty
amount of Rs. 40/-.

20. In Ashok Kumar Vs. State
(Delhi Administration), 1980 (2) SCC
282, the commission of offence of theft
was in 1971 and the judgment of the Court
was delivered in 1980. The conviction was
under Section 411 of I.P.C. The Hon'ble
Apex Court having regard to the purpose of
punishment and "the long protracted
litigation", reduced the sentence to the
period already undergone by the convict.

21. In Sharvan Kumar Vs. State of
Uttar Pradesh, (1985) 3 SCC 658, the
commission of offence had taken place in
1968 and the judgment was delivered in
1985. The conviction was under Section
467 and 471 of IPC. In that case also, the
long delay in the litigation process was one
of the factors taken into consideration by
the Court in reducing the sentence to the
period already undergone.
160 INDIAN LAW REPORTS ALLAHABAD SERIES

22. In Ajab and others Vs. State of
Maharashtra, (1989) Supp. (1) SCC 601
also, the Hon'ble Apex Court had an occasion
to examine a similar situation. The offence
was committed in 1972 and the Court
delivered the Judgment in 1989. The
conviction was under Section 224 read with
Section 395 of IPC. In that case also, passage
of time was reckoned as a factor for reducing
the sentence to the period already undergone.
The Hon'ble Apex Court in that case, while
reducing the substantive sentence, increased
the fine holding that the same would meet the
ends of justice.

23. In Criminal Appeal No.404 OF
2014: V.K. Verma Vs. CBI, decided on
14th February, 2014, the Hon'ble Apex
Court has held in paragraphs - 15 and 16
thus:

"The appellant is now aged 76.
We are informed that he is otherwise not
keeping in good health, having had also
cardio vascular problems. The offence is of
the year 1984. It is almost three decades
now. The accused has already undergone
physical incarceration for three months
and mental incarceration for about thirty
years. Whether at this age and stage, it
would not be economically wasteful, and a
liability to the State to keep the appellant in
prison, is the question we have to address.
Having given thoughtful consideration to
all the aspects of the matter, we are of the
view that the facts mentioned above would
certainly be special reasons for reducing
the substantive sentence but enhancing the
fine, while maintaining the conviction.

Accordingly, the appeal is partly
allowed. The substantive sentence of
imprisonment is reduced to the period
already undergone. However, an amount of
Rs.50,000/- is imposed as fine. The
appellant shall deposit the fine within three
months and, if not, he shall undergo
imprisonment for a period of six months.
On payment of fine, his bail bond will stand
cancelled".(emphasis supplied)

24. In the present case, this Court finds
that the appellant is a lady, who is now a
senior citizen aged about more than 70 years.
This Court has also been informed that she is
not keeping good health and is suffering from
age related ailments. The offence pertain to
the year 1979 and since she has been
suffering mental incarceration for about more
than 40 years. After conviction, she was on
interim bail and thereafter, she was directed
to be released on bail pending this appeal,
vide order dated 14.12.1981 of this Court.

25. Looking to the facts and
circumstances of this case and also taking
into consideration the ratio of the law laid
down by the Hon'ble Apex Court as
discussed above, this Court is of the firm
view that certainly a case is made out for
reducing
the
substantive
sentence
by
enhancing the fine. However, no case is made
out to interfere with the conviction of the
accused appellant.

26. In the result, the appeal is partly
allowed. The substantive sentence of
imprisonment is reduced to the period
already undergone. However, an amount of
Rs. 5,000/- is imposed as fine. The
appellant shall deposit the fine within six
months from the date of this judgment and
in case of default in depositing the fine, she
shall undergo imprisonment for a period of
one month. On payment of the fine of
Rs.5,000/-, her bail bonds will stand
cancelled.

27. Let a copy of this judgment and
order be sent to the learned District Judge,
Moradabad for compliance.
7 All. Jagdish Vs. State of U.P.
161

28. The record of the lower court be
transmitted immediately to the lower court.
----------
(2021)07ILR A161
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.07.2021

BEFORE

THE HON'BLE BACHCHOO LAL, J.
THE HON'BLE SANJAY KUMAR PACHORI, J.

Criminal Appeal No. 3271 of 2011
with
Criminal Appeal No. 3210 of 2011

Jagdish ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Rajul Bhargava, Sri A.C. Tiwari, Sri
Indra Jit Singh, Sri Manoj Kumar Rajpal, Sri
Rajeev Kumar Singh, Sri Yogesh Srivastava,
Sri Noor Muhammad, Sri O.P. Singh

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law- Code of Criminal
Procedure, 1973 - Section 374(2) -
Indian Penal Code, 1860-Section 302/34
- Arms Act, 1959- Section 25-challenge
to-conviction-when the deceased was
returning
home
after
defecation,
appellants
having
unlicensed
gun
surrounded the deceased and shot firePW-1 and PW-2 seen the incident and
reached the spot immediately and FIR
lodged
by
PW-1
within
1
hour
5
minutes- ocular testimony of PW-1 and
PW-2 fully corroborated by medical
evidence-Presence of PW-3 on the spot
also proved -finding of the trial court is
based on proper appreciation of the
evidence.(Para 1 to 132)

B. The maxim 'falsus in uno falsus in
omnibus' is not a sound rule to apply in
the
conditions
in
this
country,
and
therefore, it is the duty of the court in
cases where a witness has been found to
have given unreliable evidence in regard
to certain particulars, to scrutinise the
rest of his evidence with care and caution.
omission on the part of the investigation
cannot go against the prosecution case if
it is otherwise supported by reliable and
credible evidence.(Para 122 to 128)

C. Evidentiary value of medical evidence is
only corroborative and not conclusive and
hence, in case of a conflict between oral
evidence
and
medical
evidence,
the
former is to be preferred unless the
medical evidence completely rules out the
oral evidence.(Para 120,121)

D. It is well settled position of law that
non-examination
of
independent
witnesses by itself may not give rise to an
adverse inference against the prosecution,
but when the evidence of the alleged
eyewitnesses raises serious doubts on the
point of their presence at the time of
actual
occurrence,
the
unexplained
omission to examine the independent
witnesses would assume significance. it is
also well settled that it is the quality of
the evidence and not the quantity of the
evidence which is required to be judged
by the court to place credence on the
statement,(Para 116)

The appeal is dismissed. (E-5)

List of Cases cited:

1. Nagappan Vs St. by Inspr. of Police,
T.N.(2013) 15 SCC 252

2. Yogesh Singh Vs Mahaveer Singh & ors.
(2017) 11 C 195

3. Ganga Bhawani Vs Rayapati Venkat Reddy &
ors. (2013) 15 SCC 298