IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.577 of 2002 Decided on : 25th June, 2009 Lal Chand …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the appellant : Mr. Ashwani Sharma, Advocate. For the respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge( Oral ) Appellant is aggrieved by the judgment dated 22nd August, 2002 of learned Special Judge, Kangra at Dharamshala, whereby he has been convicted of offence, under Section 13(2) of the Prevention of Corruption Act and sentenced to undergo imprisonment for one year and to pay a fine of Rs.1000/-; in default of payment of fine, to undergo imprisonment for a further period of two months. 2. Case of the prosecution, which has led to the conviction and sentencing of the appellant, may be summed up thus. Appellant was working as Patwari in Patwar Circle, Chowli, in the year 1988. PW-1 Sukh Dev wanted to file a suit challenging the Will of his father and, so, he obtained copies of revenue papers from the appellant. Appellant charged Rs.1100/- from him, but did not give any receipt nor did he make any entry on the copies of the revenue papers about having charged any amount of money by way of copying fee. PW-1 Whether reporters of the local papers may be allowed to see the judgment? …2… Sukh Dev wanted to present those copies with his plaint, but the same were not accepted by the Court, because there was no mention thereon, regarding payment of copying fee. 3. PW-1 Sukh Dev then approached the appellant, sometime in the month of June, 1998, for making an entry regarding charging of fee on the copies. Appellant allegedly demanded a sum of Rs.1000/- for obliging him. PW-1 Sukh Dev brought this fact to the notice of his brother PW-2 Desh Raj, who advised him to lodge report with Anti Corruption people. 4. On 22.6.1998, the two brothers approached PW-6 Dy. S.P. N.D. Sharma, in his office at Dharamshala. PW-1 Sukh Dev lodged FIR Ext.PW1/A. He also produced 10 currency notes of the denomination of Rs.100/- each, on which phenolphthalein powder was applied. PW-6 Dy. S.P. N.D. Sharma, then demonstrated to PW-1 Sukh Devi and his brother PW-2 Desh Raj, how an object, treated with phenolphthalein powder, when washed in solution of sodium carbonate, turns the solution pink. Thereafter, PW-6 Dy. S.P. N.D. Sharma, accompanied by some police officials and the two brothers, proceeded to village Chowli. Appellant was not there in the Patwarkhana that day. He had gone to Tehsil Office in village Rakkar. PW-1 Sukh Dev went to Rakkar and asked for the copies of revenue papers. Appellant told him that copies could be supplied to him on the next following day, in his office. So, it was arranged by PW-6 Dy. S.P. N.D. Sharma that they would be meeting PW-1 Sukh Dev and his brother PW-2 Desh Raj on the next following day, around 10 A.M., in village Chowli. The two brothers reached village Chowli on the next day, around 9. 30 AM. PW-6 Dy. S.P. N.D. Sharma, accompanied by police officials, also reached the village, before 10 A.M. PW-1 Sukh …3… Dev went to Patwarkhana, accompanied by PW-2 Desh Raj, who was a shadow witness. Around 2.30 PM, shadow witness gave already fixed signal to the police party, which was hiding nearby. Police party headed by PW-6 Dy. S.P. N. D. Sharma went to a raised platform, around a tree, where appellant had allegedly been paid bribe money. Appellant was made to wash his hands in solution of sodium carbonate. The solution turned pink. Appellant had put currency notes in one of the side pockets of his pants, which he was wearing. Currency notes were recovered from the said pocket. Their numbers tallied with the numbers noted down in the Panchnama. Appellant was required to change his pants. Pocket of his pants, from which currency notes were recovered, was also washed in solution of sodium carbonate. That too turned pink. That was sealed in a bottle which is Ext.P-13. Copies of revenue papers, Ext. P-16 to Ext.P-50, which the appellant had issued, allegedly after taking bribe, were also taken into possession. Hand-wash of the appellant and the pocket wash of his pants were sent to Chemical Examiner, who vide report Ext.PW6/B, opined that they had the traces of phenolphthalein powder and sodium carbonate. Appellant was challaned in the Court of Special Judge. 5. Learned Special Judge charged the appellant with the offences, under Sections 7 and 13(2) of the Prevention of Corruption Act, and on his pleading not guilty, put him on trial. 6. Prosecution mainly relied upon the testimony of PW-1 Sukh Dev, his brother PW-3 Desh Raj and Investigating Officer PW-6 Dy. S.P. N.D.Sharma, who laid the trap. 7. Appellant took the plea that he had reported to the Kanungo about encroachment on Shamlat land, made by PW-1 Sukh Dev, and that he (the appellant) had also refused to issue a certificate …4… in said Sukhdev’s favour, which he required for obtaining electricity connection and also refused to enter mutation of succession of his father, ignoring the Will, which he had executed in favour of his elder brother. 8. Trial Court did not accept the defence plea and held that the evidence adduced by the prosecution proved demand and acceptance of bribe, beyond reasonable doubt, and consequently convicted and sentenced the appellant, under Section 13(2) of the Prevention of Corruption Act, as aforesaid. 9. I have heard the learned counsel for the appellant as also the learned Assistant Advocate General and gone through the record. 10. It has come in evidence that two independent witnesses, namely Kuldip Kumar and Yudbir Singh were present on the spot, when the appellant allegedly accepted bribe from PW-1 Sukh Dev. Prosecution, however, did not examine either of these two local independent witnesses. 11. Testimony of PW-1 Sukh Dev does not inspire confidence. The witness did not state as to on which date he went to the appellant to get the entry, regarding payment of copying fee, made on the copies already issued and the appellant having demanded bribe of Rs.1000/- for making such entry. Even in the FIR he did not get recorded as to when did he approach the appellant for making such an entry. 12. Evidence regarding acceptance of bribe by the appellant is also shaky. Testimony of PW-1 Sukh Dev gives the impression that bribe money was accepted by the appellant as soon as he went to him and, as per his own testimony as also the testimony of PW-6 Dy. S.P. N.D. Sharma, he went to the appellant at 10.00 A.M. PW-1 Sukh Dev, in his examination-in-chief, stated that when he went to Patwarkhana, …5… accompanied by his brother PW-2 Desh Raj, the appellant was sitting on a platform near the Patwarkhana. He stated that he told the appellant that he had brought money and asked him to give the papers and then he gave the money to the appellant and the latter gave him the papers. In the cross-examination, he stated that he went to Patwarkhana at 10.00 A.M. and had been pleading with the appellant upto 12.30 PM, to give the copies to him, but he demanded money. This statement is not only in conflict with what he stated in the examination-in-chief, as noticed earlier, but also makes the entire prosecution version highly doubtful. Now, when report had already been lodged with the Anti Corruption Dy. S.P. on the previous day and preparation had been made for laying trap, why should have PW-1 Sukh Dev pleaded with the appellant for 2½ hours (from 10 A.M. to 12.30 PM) for supply of copies, without taking bribe. The statement also renders the prosecution version, regarding demand of bribe on the previous day, highly doubtful. 13. PW-6 Dy. S.P. N.D. Sharma stated that he was given signal about acceptance of bribe at 2.30 PM. At the same time, he stated that PW-1 Sukh Dev, accompanied by his brother PW-2 Desh Raj, went to the Patwarkhana at 10.00 AM. Now, when PW-1 Sukh Dev and his brother PW-2 Desh Raj had reached the Patwarkhana at 10.00 A.M, prepared to pay bribe to the appellant, it should not have taken them 4½ hours to pay the bribe and to signal to the police party that bribe had been accepted by the appellant. PW-2 Desh Raj noticed this flaw in the prosecution case and, so, he came out with an explanation that Patwari was not in his office, when he and his brother went there, initially at 10.00 A.M. as he had gone to give demarcation …6… and that he returned around 11.30 A.M. This statement is in conflict with the above referred to statement of PW-1 Sukh Dev. 14. Appellant has stated that he had gone to Tiala (a platform), where bribe had allegedly been accepted by him, to take bath at a nearby Bauri (water source) and he had kept his clothes on the platform, while taking bath and it appeared that currency notes had been put in a pocket of his pants, when it was lying on the platform. His plea that he went to Tiala to take bath is probabilised by prosecution’s own evidence. It has been stated by PW-6 Dy. S.P. N.D. Sharma that PW-1 Sukh Dev remained with the appellant in his office from 10. A.M. to 2.30 P.M. Office of the Patwari is at a distance of 100 metres from Tiala, where bribe had allegedly been paid. It is not believable that a public servant would not accept bribe within the four walls of his office room, despite the fact that the bribe giver offers it to him in his office and remains with him in the office for 4½ hours, but would go to an open place, like Tiala, by the side of the road, to accept the same. 15. In view of the above stated position, I am of the considered view that the case of the prosecution does not stand proved beyond reasonable doubt. Hence, the appeal is accepted. Judgment of the trial Court, convicting and sentencing the appellant, is set aside and the appellant is acquitted. Appeal stands disposed of accordingly. June 25, 2009(ss) ( Surjit Singh ), J