IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 447 of 2003. Decided on: 9th August, 2010. _______________________________________________________ Mehar Singh ….Appellant. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant: Mr. M.S. Guleria, Advocate. For the respondent: Mr. J.S. Rana, Assistant Advocate General. ____________________________________________________ SURINDER SINGH, J (Oral) In the year 1997, the appellant was posted as Patwari in Patwar Circle Garh Jamula, Tehsil Palampur, District Kangra. He was tried and convicted by the learned trial Court for the offences punishable under Sections 7, 13 (2) of the Prevention of Corruption Act and sentenced to undergo imprisonment for a period of one year and to pay a fine of Rs.5,000/-. In default of payment of fine to further undergo simple imprisonment for a period of three months. Feeling aggrieved and dissatisfied by the impugned judgment of conviction and sentence, the present appeal has been filed on law and facts. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. In short the prosecution story can be stated thus. On 28th August, 1997 at about 3.00 PM, PW-1 Raj Kumar complainant alongwith his brother PW-9 Rajinder Kumar approached PW-8 N.D. Sharma, Dy.S.P., Anti Corruption Zone Dharamshala and told him that he had approached the appellant to collect some revenue papers as demanded by his Advocate, but the appellant was demanding Rs.400/- for doing the job. On this, FIR Ext.PW-1/A was lodged. PW-8 aforesaid constituted a raiding party. He included PW-9 Rajinder Kumar besides the complainant as its members. He gave the demonstration with respect to the function the mixture of two components, i.e., sodium carbonate and phenolphthalein powder when the mixture of both were put together it turned pink and the memo Ext.PW-1/B with respect to the demo was prepared. Thereafter, the complainant handed over Rs.400/- currency notes of the denomination of Rs.100/- each, its numbers were noted by preparing a memo Ext.PW-1/C, which were treated with phenolphthalein powder and then handed over to the complainant with the direction to further hand over to the appellant on demand. PW-9 Rajinder Kumar was to act as a shadow witness. He was directed to be present at place near the room of the Patwar-khana and to pass on a signal when the treated currency notes were - 3 - handed over to the appellant. At about 3 p.m., after imparting these instructions the raiding party drove off in official Gypsy towards the Patwar-khana, at some distance they stopped near a turn. The complainant and the shadow witness (PW-9) were sent to the Patwar-khana where the applicant was present and the other members of the raiding party including the Police Officer took the shelter in the Gypsy outside near the Patwar-khana. After sometime the signal was passed on by PW-9 Rajinder Kumar, as directed. Shri N.D. Sharma, Dy.S.P. reached the spot alongwith other police officials. The appellant was caught hold from his wrist by PW H.C. Bali Ram. PW8 N.D. Sharma, Dy. S.P. disclosed his identity. 3. Thereafter a thali (plate) and a water of jug were got arranged through one Vijay Kumar. The plate was washed. Thereafter solution of sodium carbonate was prepared and water was added in it. Its colour did not change. It was shown to the witnesses present there. Thereafter the hands of the appellant were washed with the solution of phenolphthalein powder into the plate. When it got mixed-up with sodium carbonate it turned pink. Hand wash was put into nip Ext. P1. It was sealed on the spot with seal producing the impression of English letters “KS” and taken into possession vide memo Ext.PW- 1/D. - 4 - 4. The complainant informed the Police Officer that the money which was received by the appellant was put by him in the drawer of the table. Chowkidar Kahnu Ram (not examined) took out the currency notes from the drawer and put on the table. The number of the currency notes correspond with the memo Ext.PW-1/C already prepared as aforesaid. The currency notes Ext.P-3 to P-6 were taken into possession and put in sealed envelope Ext.P.2. The Jamabandi form in which the currency notes were kept by the appellant was also taken into possession. The site plan Ext.PW-8/B was also prepared. The appellant was arrested and released by the Court on bail on the same day. The revenue papers Ext.PW-1/E to PW-1/F were taken into possession vide memo Ext.PW-1/H. 5. The posting and appointment orders of the appellant were also taken into possession. The sanction to prosecute the appellant Ext. PW6/A was sought from the Deputy Commissioner, Kangra at Dharamshala. The nip was deposited with PW-4 A.S.I. Bali Ram, Reader-cum- MHC in the office of the Dy.S.P. Vigilance, Dharamshala. It was sent for forensic examination through Constable Kishori Lal on 29th September, 1997. On the receipt of the report Ext.PW-5/A and on the completion of the Challan, it was presented for the trial of the appellant. - 5 - 6. The appellant was charge-sheeted for the offences punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988. He pleaded not guilty and claimed trial. 7. To prove its case the prosecution examined PW-1 complainant Raj Kumar, PW-9 shadow witness his brother Rajinder Kumar, besides examining the other formal and official witnesses. 8. The appellant was also examined under Section 313 of the Code of Criminal Procedure. Precisely his stand was that he had prepared the encroachment case against the father of the complainant and after his death the complainant and Rajindeer Kumar, both brothers, had approached him to hush up the matter, but he refused to oblige them. On account of this enmity he was falsely implicated in this case. From the trend of the cross-examination of the witnesses it is also sought to be brought on record that he did not demand any bribe from the complainant as alleged and on the relevant day the money was put by the complainant on the table. The appellant told him to take it away in the presence of PW-2 Budhi Singh and Kahnu Ram. Budhi Singh aforesaid did not support the case of the prosecution on material particulars whereas Kahnu Ram, as already stated above, was not examined. - 6 - 9. To substantiate his case, the appellant has also examined DW-1 Satish Kumar, Ahlmad from the office of Tehsildar to prove that there has been encroachment case against the father of the complainant and after his death it fell on his sons, i.e., the complainant and PW-9 Rajinder Kumar. 10. The defence raised was disbelieved and while relying upon the prosecution evidence, the appellant was convicted and sentenced as aforesaid. 11. Shri M.S. Guleria, learned Counsel for the appellant vehemently argued that in the instant case the independent witnesses were not secured, though available. The link evidence with respect to hand wash of the appellant till its analysis in the Laboratory is also not complete. It is further ventilated that there has also been material contradiction with respect to the recovery of the currency notes. PW-2 Budhi Singh had turned hostile and another witness Kahnu Ram alleged to have taken currency notes from the drawer was not examined. The adverse inference has to be drawn that had he been examined, he would have supported the case of the appellant. He also ventilated that the learned trial Court did not read the evidence in its right perspective which has caused material prejudice to the appellant. - 7 - 12. Contra, Shri J.S. Rana, learned Assistant Advocate General, vehemently argued that the complainant (PW-1) and PW-9 Rajinder Kumar have fully corroborated the case of the prosecution. PW-2 Budhi Singh afforded the corroboration to their version and no question was put to any of the witnesses that the case has been falsely implicated or the alleged nip was tampered with. The learned Assistant Advocate General argued that the recovery of bribe amount stood proved, the presumption has to be drawn against the appellant as envisaged under Section 20 of the Act. Thus he supported the judgment of impugned conviction and sentence. 13. I have considered the rival contention of the parties and have meticulously and closely examined the evidence on record. 14. FIR Ext.PW-1/A was lodged at the instance of Raj Kumar (PW1) wherein he precisely stated that on 28th August, 1997 mutation of inheritance qua the estate of his father was attested in favour of the legal heirs since he was to take the revenue papers from the appellant, he asked appellant to supply it on 28th August, 1997 itself. On this, the appellant wanted him to settle the account thus he was called on the next day, i.e. 29th August, 1997. It was also mentioned in the FIR that all this had happened in the presence of Pradhan Bhim Sen, resident of village - 8 - Ghander. When examined in the Court he did not make even a passing reference about Bhim Sen nor he was produced and examined in the Court to lend strength to his version. The defence was put to the complainant in the cross-examination, as aforesaid was denied by him. 15. Against the aforesaid background and defence taken Kahnu Ram was a material witness to be examined. His presence was also admitted by the complainant in his cross-examination. His non-examination has to be adversely looked upon. 16. Further, PW-2 Budhi Singh who was allegedly present in the Patwar-khana at the relevant time has also not supported the case of the prosecution on material particulars. He categorically stated that the currency notes were lying on the table. He did not say that these were taken out from the drawer of the table of the appellant by said Shri Kahnu Ram. He even denied that the hands of the appellant were washed with some solution and hand-wash had turned into pink. Further, he stated that Rajinder Kumar shadow witness had not reached the Patwar-khana till the completion of the proceedings by the Police Officer. 17. Though, the said witness has turned hostile to the prosecution, but his testimony cannot be thrown over- board. The prosecution as well as the accused can make - 9 - the use of his statement to the extent it helps them. Needless to say the prosecution has to prove its case beyond reasonable doubt to its hilt, whereas the case of the defence version is required to be proved by preponderance of probabilities. The defence taken in the instant case is probabalized by this witness as also by the defence witness with respect to the pendency of the encroachment case against the father as well as the complainant. 18. Rajinder Kumar (PW-9) is the real brother of the complainant. He also made the similar statement to that of the complainant. But according to him, construction work was going on in the said Patwar-khana, which fact was denied by the complainant. He also went on saying that number of persons were present on the construction site and also that near said place there has been an inhabited area and many shops where lot of persons were present. He also admitted that the appellant had prepared the encroachment case against them and that after the death of their father in the month of September, 1996 their names were included as party in the encroachment case. He stated that they had applied for the regularization of the encroachment under the Scheme issued by the Government. The scrutiny of the above evidence goes to show that complainant and his - 10 - brother (PW9) both are not independent witnesses and their version is discrepant and contradictory. They have a motive to depose against the appellant. Therefore, their statements are not worth inspiring confidence. Further there is no reference in the FIR about the demand of bribe money. The prosecution did not examine the independent witness. The examination of independent and respectable witness is a sine-qua-non to inspire confidence on the prosecution case and to prove charge as held by the apex Court in A. Sabir versus State of Kerala (2009) Scale 585. 19. A word of caution has been sounded by the Apex Court in Raghubir Singh v. State of Punjab, AIR 1976 SC 91 in the following terms: “The Officers functioning in the anti-corruption department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the Court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. They should insist on observing this safeguard for the protection of public servants against whom a trap may have been laid.” 20. In view of the above, the prosecution case cannot be said to have been proved as per law. 21. Further to link the appellant, with hand-wash the report of the Chemical Analyst Ext.PW-5/A has been relied upon. The hand-wash of the appellant is stated to - 11 - have been collected in the nip Ext.P.1. It was deposited with PW-4 ASI Bali Ram. He did not deposit it in the police Malkhana where not only the case property is kept in safe custody, but its movement is also recorded in the Malkhana register. The said witness was immediately under the control of PW-8 the then Dy.S.P. Anti Corruption. The seal which was used for sealing the nip was stated to have been handed over to Shri Rajinder Kumar which was not produced. The sealed nip was handed over to Constable Kishori Lal for its examination to the laboratory on 24th September, 1997. Said Kishori Lal was also not examined. The report Ext.PW-5/A shows that one nip was deposited in the Laboratory on 25th September, 1997. There is absolutely no evidence on the record as to where the nip was kept during the intervening period of 24th/25th September, 1997 before its deposit and also that whether the sample of seal was also sent for its comparison. The road certificate was also not produced. No witness has stated that the sample of seal used on the nip was sent to the Chemical Analyst, alongwith the sample. Although there is a reference in the report that the impression of the seal tallied with the sample of seal used in the sealed material, but in the absence of the aforesaid evidence it cannot be said that it was the same seal which was used on the spot. Therefore, in the absence of the link - 12 - evidence, it cannot be said that hand wash was not tampered with or that it was the same hand-wash of the appellant which was sealed on the spot. Thus this reort does not connect the appellant nor can it be used to corroborate the prosecution case. Therefore, the probity of the prosecution case comes in question. 22. Further, the complainant stated that he handed over the Jamabandis Ext.PW-1/E and PW-1/F issued by the accused, to the police which were taken into possession vide memo Ext.PW-1/H. The perusal of the Jamabandis shows that these were prepared on 2nd September, 1997, whereas the alleged raid was conducted on 29th August, 1997. The Jamabandis were taken into possession on 25th November, 1997 and also these were not issued by the appellant. The perusal of the Jamabandis further shows that there is a cutting on the certificate appended by Patwari. Infact, these were not issued to the complainant but were taken by some official since no charges as prescribed in the rules were taken and there is a reference to “KAAR SARKAR”. The purpose of taking into possession of these revenue papers is not known. Its manipulation also creates a doubt in the authenticity of prosecution case. 23. Thus in the totality of the circumstances there is contradictory evidence with respect to the recovery of - 13 - the currency notes, the legal presumption as envisaged under Section 20 of the Act can also not be drawn. 24. Looked from all the angles, in view of above stated position, in my considered opinion, the conviction and sentence passed against the appellant is not sustainable. As such, it is set aside. Consequently, the appeal is allowed and the appellant is acquitted of the charges framed against him by giving him the benefit of reasonable doubt. 25. The appellant is discharged of the bail bonds entered upon by him during the proceedings of this case. The fine amount, if any, deposited, be refunded to the appellant. August 9th, 2010. (Surinder Singh), J. (rc)