IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 317 of 2002. Judgment reserved on : 23.4.2009. Decided on: April 27th, 2009. _____________________________________________________ State of H.P. ……..Appellant. Versus Kishan Dev. …..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. J.S. Guleria, Assistant Advocate General. For the respondent : Mr. Arvind Sharma, Advocate. ____________________________________________________________ SURINDER SINGH,J : The acquittal of the respondent, passed by the learned Special Judge in Corruption Case No.6 of 2000, decided on 20.9.2001, for the offences punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988, in short “the Act”, has been assailed by the State in this appeal, on the grounds that the learned trial court had appreciated the evidence on record in a slip-shod and perfunctory manner, thus acquitted the respondent on flimsy grounds and further that the trustworthy versions of the prosecution witnesses was discarded on untenable reasons. Whether reporters of the Local papers are allowed to see the judgment? Yes. I have heard the learned counsel for the parties and have carefully gone through the evidence on record. In brief, the prosecution case has been that one Amin Chand had moveable and immoveable properties in his name. He had five sons. He bequeathed Khasra No.561 and 577 in favour of his two sons PW1 Lal Chand and Kewal Ram, whereas the other moveable and immoveable properties were bequeathed in favour of his wife and all the five sons. Amin Chand died in the year 1996. Consequently, the mutation qua his estate was entered, but the revenue officials omitted to mutate Khasra Nos.561 and 577 in the name of Lal Chand and Kewal Ram. Thus, PW1 Lal Chand moved an application Ex.PJ before the Assistant Collector IInd Grade, seeking the review of mutation Ex.PD on 12th November, 1997. When nothing was done on his application, he made another application Ex.PC/1 on 28.1.1999 to the Deputy Commissioner, Una seeking directions to the Assistant Collector IInd Grade, for early decision. On 25.7.1999, PW1 Lal Chand had come from his village Baner to the district headquarters at Una, on account of his some personal work and while returning back by bus, he met PW2 Jagir Singh, who was traveling in the same bus. Finding a vacant seat besides the accused-respondent, he sat there. The respondent at that time was posted as Field Kanungo in Tihra Revenue Circle, therefore, he discussed the matter about the pendency of his mutation with him. The respondent is alleged to have demanded Rs.2,000/- as illegal gratification for getting his work done from the Tehsildar. The complainant told him that he being a poor man was not able to pay the aforesaid amount to him in lump-sum, but assured to pay the same in installments of Rs.1,000/- each which was agreeable to the respondent. The respondent asked Lal Chand to visit Patwar Khana on 28.7.99 at 11 a.m. to get his work done from the Tehsildar, if he could arrange for an amount of Rs.1,000/-, so that he can give half of it to Tehsildar. On 27.7.99, PW1 Lal Chand went to the office of Anti-Corruption Unit, Una along with PW2 Jagir Singh and reported the matter, which culminated into FIR Ex.PB. He handed over his Will Ex.PA to the police, which was taken into possession vide memo Ex.PC. He is alleged to have presented the application Ex.PC/1 and copies of mutation Exts.PD to PH and the application Ex.PJ, which were also taken into possession by the police vide memo Ex.PC. The police asked him to visit their office next day i.e. on 28.7.99 with an amount of Rs.1,000/-. As directed, complainant Lal Chand along with Jagir Singh again visited the office of Anti-Corruption Unit, Una around 7.30 a.m. and handed over one currency note of Rs.500/- denomination and Rs.500/- of Rs.100/- denomination each [Exts.P1 to P6] to the police. The police recorded its serial numbers in the memo Ex.PK and these notes were treated with Phenolphthalein powder and were handed over to PW1 Lal Chand with necessary instructions. Thereafter, the Dy. Superintendent of Police gave the demonstration to the complainant and Jagir Singh that if the aforesaid powder is mixed with the solution of sodium carbonate, it would turn pink. PW1 Lal Chand along with PW2 Jagir Singh were told to visit the respondent in his office and hand over the amount on demand. The shadow witness Jagir Singh was instructed to signal the police when the currency notes are handed over to the respondent. Thereafter, PW1 Lal Chand visited the office of the respondent along with PW2 Jagir Singh and handed over the amount of Rs.1,000/- to the respondent. The respondent put the currency note of Rs.500/- into the pocket of his shirt and five currency notes of Rs.100/- denomination each into the ticket pocket of his Pant. Thereafter the shadow witness signaled to the police. The police officials immediately entered the room of the respondent and caught hold of respondent from his wrist. In the meantime witnesses Pritam Singh and PW3 Tarsem Lal were called. The police directed the accused to take out the money received by him. He took out Rs.500/- from his pocket and threw it on the floor. It was picked up by Tarsem Lal aforesaid and its number was got tallied with the memos Ex.PL and PK prepared earlier, which was found to be the same and the currency notes of Rs.100/- denomination each were produced by the accused from the ticket pocket of his Pant. Their numbers also tallied with the numbers mentioned on the memoes. The hand-wash of the respondent was taken in an utensil and solution of sodium carbonate was mixed with it. It turned pink, it was put into the nip Ex.P7 and taken into possession vide memo Ex.PN. Similarly the pocket wash of the Pant when mixed with sodium carbonate, it also turned pink, which was put in the nips Exs.P8 and P9 and taken into possession along with shirt and pant of the respondent. The police prepared the site plan of the place of incident. The case property was deposited with MHc Siri Kant (PW4)in the Malkhana. He deposited the nips were sent for forensic examination. Police recorded the statements of the witnesses and after receipt of the report Ex.PR, the prosecution sanction was obtained from the Collector, Una and the challan was presented in the court for the trial of the respondent under the aforesaid sections. The respondent was accordingly charge- sheeted. He pleaded not guilty and claimed trial. At the end of trial, the respondent was acquitted on the grounds that the statements of the complainant and his witness Jagir Singh cannot be believed in view of the material contradictions. Further that PW3 Tarsem Lal gave a different story than that of the complainant, thus, the learned trial court finding the unexplained discrepancies in the prosecution case gave the benefit of doubt to the respondent and acquitted him. The prosecution case mainly rests upon the statement of PW1 Lal Chand, PW2 Jagir Singh, PW3 Tarsem Lal and PW7 Kashmir Singh, Deputy Superintendent of Police. PW1 Lal Chand while corroborating the case of the prosecution stated that right from 25.7.99, he (PW1) and PW2 Jagir Singh remained together till the raid was conducted on 28.7.99. Both these witnesses belong to the same village and Jagir Singh is his cousin. The partition application of the Jagir Singh was pending before the Assistant Collector IInd Grade, which was sent for the partition as per the mode of partition to the accused-respondent, as admitted by him in his cross-examination. He also admitted that the area of his land was less and was not complete in the revenue papers, thus, he was being allotted lesser area. This fact is also proved on record by the certified copies Exts.D1 to D4, placed in defence by the respondent. However, he denied that when the respondent did not oblige him, he became inimical to him. Further PW2 Jagir Singh stated that when both of them had contacted the police and lodged the FIR, they stayed with the police during the intervening night of 27th/28th July, 1998 and they were made to sign 3-4 papers by the Dy.S.P. However, this fact has been denied by PW1 Lal Chand and PW7 Kashmir Singh, Dy.S.P. This material contradiction raises the eyebrows that if it was correct why PWs 1 and 7 have denied this fact thus their denial smacks of something fishy and their testimonies are required to be looked into more closely and with caution, more particularly when PW1 and PW2 both are close relations and PW2 also has a motive to fix the respondent. Of course record reveals that PW1 Lal Chand and PW2 Jagir both are interested witness in laying the trap against the respondent. The police also trusted PW2 to become a shadow witness, whereas they could have easily find a disinterested person for that they had ample opportunity with them, but it was not done. Further when the police had entered in the office room of the respondent, the respondent was allegedly caught hold of by the police from the wrist and the respondent allegedly threw Rs.500/- note on the floor and the currency notes of Rs.500/- (Rs.100/- each) were taken out from the pocket by him, but all the prosecution witnesses including the complainant except PW7 (Dy.S.P.) stated that the respondent had thrown all the currency notes on the floor. In fact PW3 Tarsem Lal was not a member of the raiding party. According to the complainant, he was called by Jagir Singh, but PW3 stated he was called by the police driver to whom he knew earlier and PW7 Kashmir Singh Dy.S.P. stated that when the respondent was apprehended, he was called through a constable from his shop, which was at a distance of about 100 meters and he came in police Jeep, which might have taken some time. It is not stated by any of the witnesses that till his arrival what they did and how the time of recovery of money synchronized with his arrival. Further in his cross-examination, PW3 stated that the complainant Lal Chand was the resident of his Panchayat and he has been his supporter. When he had reached the spot, there were only 5/6 police officials in the Patwarkhana, but he did not make any reference with respect to the presence of Jagir Singh. Even Jagir Singh stated that he did not know when the currency notes were handed over by the complainant to the respondent, because he was standing out side of the verandah from where he could see and hear nothing. If that was so, then it is not known how and when he signaled to the police as directed by them. In Meena (SMT) W/o Balwant Hemke v. State of Maharashtra [(2000) 5 SCC 21] the Supreme Court observed: “Law has always favoured the presence and importance of a shadow witness in the trap party, not only to facilitate such witness to see but also overheard what happens and how it happens also.” Thus, his testimony tarnishes the very basis of the prosecution case. Further PW3 stated that Patwari was present in the Patwarkhana, but even he was not associated as a witness. Another witness Pritam Singh cited as a witness like PW3 was not examined. Thus, it is not understood as to why the police associated only the interested witnesses in the case, when as already stated above, they had an opportunity to include and secure some independent and disinterested witnesses. Thus, the prosecution case suffers from the serious infirmity that no independent witness was joined during the course or trap, raid and recovery by the police. The need to include independent, disinterested and reputable persons of the area and locality for evidencing the trap has been pointed out by the Supreme Court in Raghubir Singh v. State of Pun jab [AIR 1976 SC 91] in the following terms: “We must take this opportunity of impressing on the officers functioning in the Anti-Corruption Department to insist on observing this safeguard as zealously and scrupulously as possible for the protection of public servants against whom a trap may have to be laid. They 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”. Further in State of H.P. v. Tej Ram [1989 (2) Shim.L.C. 9] of this court, relied upon by the learned trial court, held: “It is the duty of the prosecution to join independent and disinterested persons in the raiding party…. The prosecution could have easily, while on way to the place of the accused, include independent, disinterested and respectable persons of the area and locality for evidencing the trap” In Ganga Kumar Srivastava vs. State of Bihar [ (2005) 6 SCC 211] in para-20, the apex court held: “We must not forget that in a trap case the duty of the officer to prove the allegations made against a government officer for taking bribe is serious, and therefore, the officers functioning in the Vigilance 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 whether or not any money was paid to the public servant by way of bribe. It is also the duty of the officers in the Vigilance Department to safeguard for the protection of public servants against whom a trap case may have been laid.” In the case in hand, there is total absence of any explanation by the prosecution in not including the independent, disinterested and respectable witnesses in the raiding party, which indicates that the incident as alleged had not taken place, therefore, it throws a doubt on the truthfulness of the whole case. In a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. After introduction of 165- A of the Penal Code making the person who offers bribe guilty of abetment of bribery the complainant cannot be placed on any better footing than that of accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon. The entire evidence on record is very weak and slander to connect the respondent with the commission of an offence for which he was charged. The discrepancies noted hereinabove in the testimony of the prosecution witnesses are not minor or insignificant which could be ignored altogether from consideration. In my opinion, there is no acceptable evidence on the record to show either any demand of illegal gratification by the respondent or its acceptance by him. Thus in view of the facts and law discussed above, the evidence led by the prosecution fell test of reliability and acceptance, which is highly unsafe to convert the acquittal into the conviction, as the grounds of acquittal recorded by the learned trial court are borne out from the record, thus requires no interference, as such, the appeal is dismissed. The respondent is discharged of his bail bonds entered upon by him during the proceedings of the case. Send down the records. (Surinder Singh), Judge. April 27th,2009. Pds)