- 1 - IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.482 of 2004 Decided on: February 21, 2011. Om Parkash …Appellant Versus State of H.P. …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Ajay Kochhar, Advocate. For the respondent Mr. Vikas Rathore, Dy. A.G. and Mr. Ramesh Thakur, Asstt. A.G. Surjit Singh, Judge (oral) Appellant Om Parkash is aggrieved by the judgment dated 1.11.2004, of learned Special Judge, Una, whereby he has been convicted of offences, under Section 13(2) and Section 7 of the Prevention of Corruption Act, 1988, hereinafter referred to as the Act, and sentenced to undergo rigorous imprisonment for two years and to pay a fine of `5,000/-, for offence under Section 13 (2) and rigorous imprisonment for one year and to pay a fine of `1,000/-, for offence under Section 7 of the Act, in default of payment of fine (in both cases) to undergo imprisonment for a further period of two months. 2. Appellant was posted as Junior Engineer, Electricity Board, at a place known as Panjawar, within the Sub Division, Whet her report ers of t he l ocal papers may be al l owed t o see t he j udgment ? - 2 - Gagret, District Una, in the year 2002. PW-10 Kuldip Singh, an Ex-serviceman, had installed a wheat flour mill at Panjawar and applied for electricity connection to run that mill. An application was submitted to the Assistant Engineer, HPSEB, Gagret. Connection was to be installed by the appellant. Application for grant of connection was moved in November, 2001. Money, required to be deposited by the appellant, as per assessment of the SDO on account of connection charges, was paid on 27.5.2002. All other formalities had also been completed. However, connection was not installed. PW-10 Kuldip Singh visited the office of the appellant 3-4 times and requested him to install the connection, but every time he was told by the appellant that file had not been received from the SDO. PW-10 came to know that electricity connections had been installed in favour of 2-3 other persons. When he inquired from those persons how did they get the connections, he was told that they had paid some money to the appellant. So, Kuldip Singh, PW-10 went to the appellant again on 26.6.2002 and requested for installation of his connection. Appellant, allegedly, demanded Rs.1000/- as bribe. PW-10 Kuldip Singh, accompanied by his friend PW-13 Kulwinder Singh, then approached the Dy. S.P. (Vigilance), Una and lodged FIR Ex.PO. Deputy Commissioner was approached to make available the services of some Executive Magistrate. Deputy Commissioner deputed PW-11 Shri S.L.Negi, DRO. 3. In the presence of PW-11 S.L.Negi, PW-10 Kuldip Singh was required by the Vigilance people to produce currency notes of Rs.1000/-. He produced 10 notes of the - 3 - denomination of Rs.100/- each. Currency notes were treated with phenolphthalein powder and placed in the front pocket of the T-shirt of PW-10 Kuldip Singh, which he was wearing. Then it was demonstrated how phenolphthalein powder, when added to the sodium carbonate solution, turned pink. PW-13 Kulvinder Singh was instructed to act as shadow witness. PW- 10 Kuldip Singh was directed to go to the appellant and to hand over the money to him, only if the appellant demanded it. Dy. S.P.(Vigilance), Inspector Rani Devi, S.L.Negi, D.R.O., accompanied PW-10 and PW-13 to Panjawar, where the appellant had his office. Vigilance officials and S.L.Negi alighted from the vehicle at a distance of about 200 meters from the office of the appellant. Kuldip Singh and Kulvinder Singh also alighted from the vehicle and went on foot to the office of the appellant. 4. When PW-10 Kuldip Singh went to the office of the appellant, the latter asked him if he had brought the money. Kuldip Singh told him that he had brought the money and handed over the currency notes to him, which the appellant placed in a file, lying on his table. Shadow witness, PW-13 Kulvinder Singh, who was looking through a window, gave prefixed signal to the waiting vigilance party, upon which vigilance officials and Sh. S.L.Negi, DRO, stormed into the office of the appellant. Dy. S.P. (Vigilance) disclosed his identity to the appellant and told him that he (the appellant) had accepted bribe, which the appellant denied. 5. At that time, a meeting of Panchayat office bearers was going on, in an adjoining room. Janak Dulari, Pradhan - 4 - (PW-4) and Parmod Kumar, Up Pradhan (PW-5) were called from that room. In their presence, hands of the appellant were got washed. Solution of Sodium carbonate was added to the hand wash. It turned pink. It was poured into a bottle and the bottle was sealed. Appellant was then again questioned about the currency notes. He told that the currency notes were placed in a file and produced that file to the police. Police recovered all the 10 currency notes, treated with phenolphthalein powder, from that file. Numbers of currency notes tallied with the numbers, which had been noted down by PW-11 S.L.Negi, in the office of Dy. S.P. (Vigilance) earlier, when they were treated with phenolphthalein powder. 6. Hand wash, in sealed bottle, was sent to the chemical examiner, who vide report Ex.PQ, opined that the contents of the bottle had traces of sodium carbonate and phenolphthalein powder. 7. Appointing authority of the appellant, on being approached by the vigilance people, accorded sanction Ex. PN to prosecute the appellant, on receipt of which, report under Section 173 Cr.P.C. was filed in the Court of Special Judge. 8. After complying with the requirement of Section 207 Cr.P.C. and hearing the Public Prosecutor and the counsel for the appellant, learned Special Judge charged the appellant with offences under Sections 13(2) and 7 of the Act and on his pleading not guilty, tried him for the said offences. 9. Prosecution examined complainant Kuldip Singh, as PW-10, Kulvinder Singh, shadow witness as PW-13, Shri S.L.Negi, DRO as independent witness as PW-11 and the two - 5 - office bearers of Panchayat, namely Janak Dulari, Pradhan and Parmod Kumar, Up Pradhan of the Panchayat as PW4 and PW5, respectively. It also examined the I.O. namely, Rani Devi. Inspector, as PW-14. Dy. S.P. was, however, not examined. 10. Appellant denied having accepted money. He also denied that there were traces of phenolphthalein powder on his hands. While answering the question, during the course of his examination under Section 313 Cr.P.C., if he had anything to say in his defence, he stated that PW-10 Kuldip Singh had visited his office 2/3 times and asked for installation of connection and used harsh and unparliamentary language and threatened to see him. However, while answering a specific question, i.e. question No. 3, that PW-10 Kuldip Singh had visited him 3/4 times, to enquire about the installation of electricity connection, he denied that he ever visited him. 11. I have heard learned counsel for the appellant as also learned Deputy Advocate General and gone through the record, with the help of the counsel, representing the parties. 12. PW-10 Kuldip Singh stated that he visited the office of the appellant 3-4 times and requested him to release connection for his wheat flour mill, but every time he was told that his file had not been received from the SDO and that finally, when he went to him on 26.6.2002, appellant demanded Rs.1000/- from him on the pretext that money was required for wire etc. He stated that he did not want to pay bribe and so, next day, he went to the office of Dy. S.P. (Vigilance) and lodged FIR Ex.PO. He further stated that he produced 10 currency notes of the denomination of Rs.100/- - 6 - each to the Dy. S.P. (Vigilance) on his asking and those notes were treated with some powder, in the presence of Sh. S.L.Negi, DRO, PW-11 and shadow witness, Kulvinder Singh, PW-13, and thereafter the Dy. S.P. prepared solution of phenolphthalein powder, by adding water to the powder and added that solution to the solution of sodium carbonate and water and the same turned pink. He further stated that the currency notes were placed in his pocket by the Dy. S.P. and he was asked not to touch them, till the same were demanded by the appellant. He further stated that PW-13 Kulvinder Singh was instructed to act as shadow witness. He stated that he and Kulvinder Singh, accompanied the Dy. S.P. and his assisting staff as also PW-11 S.L.Negi, DRO went to Panjawar in a vehicle and on reaching Panjawar, they were ordered to alight, from the vehicle at a distance of about 200 meters from where they walked to the office of the appellant. He stated that he went inside the office of the appellant, while Kulvinder Singh stayed in the verandah. He further stated that 2-3 persons were already there in the office of the appellant and that when those persons went out, appellant asked him if he had brought the money and he answered in the affirmative and also handed over the tainted currency notes to the appellant. He stated that before that, he shook hand with the appellant and occupied a chair. 13. PW-13 Kulvinder Singh stated that he acted as a shadow witness and that when he saw PW-10 Kuldip Singh handing over the currency notes to the appellant and the appellant placing the same in a file, he gave prefixed signal to - 7 - the waiting Dy. S.P. and S.L.Negi, DRO, upon which they, along with the supporting staff of the vigilance department, stormed into the office of the appellant and caught hold of him by his wrist and asked if he had accepted the bribe, but the appellant denied. He also stated that Panchayat Pradhan and Up Pradhan were called and in their presence, appellant was required to wash his hands and to that hand wash, solution of sodium carbonate was added and it turned pink. He stated that hand wash was poured into a bottle and the bottle was sealed and taken into possession. He also stated that thereafter, appellant was again questioned by the Dy. S.P. (Vigilance) and the staff, accompanying him and the appellant produced a file and told that currency notes had been placed in that file, by the appellant. He stated that those currency notes were seized and their numbers tallied with the numbers, which had been noted down by PW-11 Sh. S.L.Negi, DRO. 14. Shri S.L.Negi, PW-11 has made a statement, similar to that of PW-13 Kulvinder Singh. He stated that he was deputed by the Deputy Commissioner to assist the Dy. S.P. (Vigilance) as an independent witness, in laying trap. He categorically stated that the appellant was required in his presence to wash his hands and solution of sodium carbonate was added to that hand wash, which turned pink and this was done before the recovery of currency notes. Almost on the same lines is the testimony of PW-14 Rani Devi, Inspector (Vigilance), who was accompanying the Dy. S.P. PW-4 Janaki Dulari and PW-5 Parmod Kumar, however, did not support - 8 - prosecution case and were declared hostile by the prosecution. 15. There is no major contradiction in the testimony of the above named four witnesses and, therefore, there should be no reason for disagreeing with the findings of the learned trial Court, that the appellant had demanded bribe of Rs.1000/- and accepted that bribe from PW-10 Kuldip Singh. 16. Learned counsel for the appellant submits that unless connection had been sanctioned by the SDO, appellant could not have provided the same to the flour mill of PW-10 Kuldip Singh and since the connection had been sanctioned on 29.6.2002, as admitted by the investigating officer, there could not have been any occasion for PW-10 Kuldip Singh to have approached the appellant on 26.6.2002, for providing connection and similarly, for the appellant to demand bribe. It is true that the connection was sanctioned by the SDO, two days after the trap was laid, but the fact remains that the connection on the spot was to be provided by the appellant and, therefore, it cannot be said that there was no occasion for the complainant to have visited the appellant or the latter having demanded bribe from him. As a matter of fact, the file regarding connection, which is Ex.PG, shows that connection had been sanctioned by the Executive Engineer in the month of March, subject to completion of some codal formalities and those formalities were completed by the complainant PW-10 Kuldip Singh on 27.5.2002. Now, only spot remained to be visited by the Assistant Engineer and thereafter, the file was to - 9 - be sent by the Assistant Engineer to the Junior Engineer, for providing the connection. 17. Another submission made on behalf of the appellant is that the money had been placed in the file stealthily by PW-10 Kuldip Singh and it was he, who told the police that the money was there in that file. To support his contention, he has drawn the attention of the Court to that part of the testimony of Kuldip Singh, PW-10, in which he has stated that he had told the police that the money had been placed in a file, when the appellant initially denied having accepted money. PW-11 Shri S.L.Negi, besides PW-13 Kulvinder Singh, shadow witness and investigating officer, namely Rani Devi, PW-14, has, in no uncertain terms, testified that file was produced to the vigilance people by the appellant himself, after he was made to wash his hands and that hand wash turned pink, on addition of solution of sodium carbonate, which indicated that he had handled the currency notes. 18. No suggestion was put to PW-11 Shri S.L.Negi, DRO, who was an independent witness and also an Executive Magistrate at the relevant time, with regard to his testimony that the appellant produced the file containing currency notes only after he was made to wash his hands and the hand wash turned pink, on addition of solution of sodium carbonate. The only suggestion put to him, was that he was not a member of the raiding party, which he denied. PW-10 Kuldip Singh, PW- 13 Kulvinder Singh and PW-14 Rani Devi, very specifically stated that Shri S.L.Negi, PW-11 was with them, when the appellant was made to wash his hands and when the currency - 10 - notes were recovered. No suggestion was put to any of these three witnesses that Shri S.L.Negi was not present or was not accompanying them. Therefore, it cannot be said that Shri S.L.Negi, PW-11 was not there. His testimony, with regard to the aforesaid facts, having remained unchallenged, there should be no reason, not to believe the same. 19. It is also submitted on behalf of the appellant that shadow witness, associated in this case was an interested witness and this fact was known to the vigilance people. He submits that it is the requirement of law that independent witness should be associated as a shadow witness. It is true that shadow witness in this case was a friend of the complainant, which fact he admitted in his cross examination, but the law nowhere says that a relative or a friend of the complainant cannot be a shadow witness. The judgments, relied upon, i.e. State of H.P. v. Kishan Dev, Latest HLJ 2009 (HP) 840 and Ganga Kumar Srivastava v. State of Bihar (2005) 6 SCC 211, speak of association of independent witnesses, at the time of laying trap. In this case, Sh. S.L.Negi, a senior revenue officer, also exercising the powers of Executive Magistrate, had been associated as an independent witness and nothing has surfaced, either in his testimony or in the testimony of other witnesses, suggesting that he had any axe to grind, by falsely implicating the appellant. The aforesaid precedent do not speak of shadow witness particularly. As a matter of fact, role of a shadow witness in this kind of cases is only to enable the trap party to catch the government servant, red handed, with the bribe money and to collect the evidence that he (the - 11 - government servant) had accepted money. Shadow witness’ s testimony is in the nature of link evidence between the evidence of the complainant that he paid the tainted money on demand and the recovery of such money by the trap party. He only gives prefixed signal to the waiting party, after the money is paid. Other members of the party then search the person and the premises of the government servant and if the money is recovered from him and traces of chemical with which the money had been treated are also found on his hands, that becomes and is treated as substantive evidence of acceptance of bribe money. It is at this stage of trap that presence of independent witness is insisted upon. And in this case, Sh. S.L.Negi, PW-11 was an independent witness and his testimony has remained unshattered as demonstrated hereinabove. 20. It is also the contention of the counsel for the appellant that PW-10 Kuldip Singh had shaken hands with the appellant and it is because of this that traces of phenolphthalein powder appeared on appellant’s hands. PW- 10 Kuldip Singh did not handle the tainted currency notes before he took them out from his pocket to hand them over to the appellant. And as per his testimony, he shook hands with the appellant before the money was given to him. Appellant did not say in his examination under Section 313 Cr.P.C. that PW-10 Kuldip Singh shook hands with him after he had taken out the currency notes, nor was any suggestion to this effect put to PW-10 Kuldip Singh, in his cross examination, despite his having categorically stated in the examination in chief that - 12 - he shook hands with the appellant before giving the money to him. 21. As a result of the above discussion, I find no merit in the present appeal. The same is dismissed. February 21, 2011 (PC) ( Surjit Singh ), J.