HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No. 446 of 2000. Reserved on: 8.5.2008. Decided on: 21.5.2008. Balak Ram and another ………Appellants. Versus State of H.P. ……Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellants: Mr.Neeraj Sharma, Advocate. For the respondent: Mr.J.S. Guleria, Law Officer. V.K. Ahuja, J: This is an appeal filed by the appellants against the judgment passed by the learned Special Judge, Solan, dated 27.7.2000, vide which the appellants were held guilty under Section 13(2) of the Prevention of Corruption Act and were sentenced to undergo RI for two years each. They were also liable to pay fine of Rs.2,000/- each. In default of payment of fine, the appellants were to undergo RI for a further period of two months. Briefly stated the facts of the case are that appellant Balak Ram was posted as Patwari, Badhlla Circle, while Prithvi Chand was posted as Field Kanungo, Ram Shahar. It was alleged that on 27.5.1992, the complainant Ram _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Chand moved an application for demarcation of his land to the concerned Patwari Balak Ram. The said Balak Ram assured him that the demarcation would be effected after spot inspection. The demarcation was not given by the Patwari and by the Field Kanungo, though the complainant approached them several times and thereafter, on 10.6.1996, the complainant contacted appellant Balak Ram for getting the disputed area demarcated. The said Balak Ram assured the complainant that the demarcation would be conducted if the complainant agreed to pay him Rs.500/-. It is further alleged that on 12.6.1996, the complainant approached the Kanungo to enquire about the exact date of demarcation and he told him that it would be conducted on 15.6.1996, as informed by the Patwari. One day prior to that i.e. on 14.6.1996, both the accused persons/appellants landed up in the house of the complainant in the evening and the demarcation was to take place on the next day. Both the accused enquired from the complainant about the arrangement of the money, who told them that he was not in possession of the money at present but he would be arranging it by the next day. Both the accused asked him to make the payment to them for conducting the demarcation and the complainant went to one Shyam Lal’s house and borrowed Rs.300/- from him. The complainant thereafter gave a telephonic call to Dy.S.P., Anti Corruption about the demand made by the accused and trap was arranged. The police party headed by Dy.S.P. Khub Ram came to Village Sumanu, where the complainant handed over 6 notes of the denomination of Rs.50/- each to the Dy.S.P. The Dy.S.P. treated these notes with phinophelene powder and handed over these to the complainant. - 3 - It is the further case of the prosecution that the demonstration of the trap was allegedly made at Village Sumanu in the house of one Shankar Lal. PW-9 demonstrated before laying the actual trap by putting powder in the bottle and washed his hands. The water turned pink in colour. The hand-wash was poured in a nip and got sealed with impression ‘C’. This demonstration was duly drawn into a memorandum Ext.PB. PW-9 explained the manner in which the notes are to be given and signal is to be given to the raiding party. PW-2 Lekh Ram was to keep a watch on the action of the accused from outside. Thereafter, the raiding party proceeded to the house of the complainant where the accused were camping since previous night. The accused Balak Ram told the complainant that he should give money before he proceeded to the spot for demarcation and also suggested that half of the money should be paid to the Kanungo i.e. accused No.2. PW-1 Ram Chand made payment of Rs.150/- each to both the appellants and the accused Balak Ram put the money in the pocket of his shirt, while accused Prithvi Chand placed the money in his bag. The shadow witnesses gave signal to PW-9 Dy.S.P. Khub Ram, who came to the spot and nabbed both the accused persons. One parat was arranged alongwith the water and hand-wash of both the accused was taken, which was poured into a nip. Thereafter, on search of the accused Balak Ram, 3 notes of the denomination of Rs.50/- each were recovered from his pocket while the notes of same denomination were also recovered from accused Prithvi Chand, which he had kept in his bag. A Panchnama was prepared in presence of witnesses and the case was registered. After investigation, the challan was filed before the learned trial Court, who tried the appellants as detailed above leading to their conviction. - 4 - Heard learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellants were that there are many contradictions in the statements of the prosecution witnesses that they cannot be relied upon. The contradictions pointed out were that all the witnesses have not stated that the water became pink in colour. It was also submitted that the J.E. PW-3 Dev Raj has denied that any seal was handed over to him. It was also submitted that PW-3 Dev Raj has nowhere stated that the money was demanded in his presence and he had not watched the proceedings, therefore, his statement does not substantiate the case of the prosecution. It was submitted that the statements of trap witnesses were not such which can be said to be sufficient to prove the guilt of the accused persons. It was also submitted that the prosecution has not examined the person from whom the money was borrowed by the complainant, namely, Shyam Lal and has also not examined two other material witnesses Kishori Lal and Tek Chand. Thus, it was submitted on the strength of these submissions that the findings recorded by the learned trial Court holding the appellants guilty are liable to be set aside. On the other hand, the learned Law Officer for the State had submitted that the contradictions referred to in the testimony of the prosecution witnesses or other infirmities pointed out are not material and these are likely to be there in the case of truthful witnesses, but they do not affect the merits of the case. The learned Law Officer, to substantiate his arguments, has relied upon the following decisions. - 5 - The decision in V. Radhakrishna Reddy v. State of Andhra Pradesh, AIR 2005 Supreme Court 807, shows that in that case an explanation was given that excess amount was paid to the General Manager in advance for two more application, which were yet to be made also was not convincing. It was observed that the fact whether the complainant was a genuine applicant or not was immaterial in judging guilt of accused and therefore, the conviction in that case was affirmed. The decision in Shankerbhai Laljibhai Rot v. State of Gujarat, (2004) 13 Supreme Court Cases 487, shows that it was observed that on facts, minor variance as regards the mode of demand was of no consequence to corrode the credible and cogent evidence of prosecution witnesses. It was held that minor contradictions or inconsistencies are immaterial. The conviction by courts below was held to be proper on appreciation of evidence. On a perusal of the record of the case, it is very much clear that PW-1 Ram Chand (complainant) has clearly stated the facts as mentioned above that he applied for demarcation which was not given for almost four years and then the Patwari asked for the money which was to be paid to him as well as to the Kanungo. He has narrated the whole sequence of events leading to the recovery of the trap money from the possession of the appellants. The above statement of PW-1 Ram Chand has been corroborated by PW-2 Lekh Ram, real brother of the complainant, who stated about the manner in which the money was to be given to the accused persons. He has also stated about the recovery of money from both the appellants and is a witness to the recovery memo Ext.PC in this regard. He has not stated specifically that the - 6 - water became pink, though he has stated that the hand-wash of both the appellants was taken by the police, which was sealed in nips separately. PW-3 Dev Raj was a witness to the demonstration and he had accompanied the police party to the house of the complainant Ram Chand. He has stated that he was standing at the door and Inspector, two constables and others were standing outside in the gallery. He also stated about the recovery of three notes of the denomination of Rs.50/- each from the pocket of the accused Balak Ram, but firstly stated that nothing was recovered from the Kanungo and then stated that three notes were recovered from his bag. He was declared as hostile since he did not corroborate the prosecution story in full. However, his statement does corroborate the statement of the complainant and other witnesses on material points. He has stated that the demonstration was given earlier by the Dy.S.P. The water had turned pink. He also stated that hand-wash of the accused was taken in Parat in which powder was added and the hand- wash was put in nips and this was sealed with seal ‘C’. However, he did not state specifically that the water became pink. He stated that seal ‘C’ was put but that was not with him. In his further cross examination, he stated that the seal was not handed over to him. He has admitted his signatures on the memorandum and other documents and admitted that he had gone through the contents of Ext.PB which was signed by him. He has signed all the papers after going through them. The mere fact that he did not support the prosecution story partly to favour the appellants does not help the case of the appellants since he was an educated person and signed the memos after going through their contents. - 7 - Apart from the above, the prosecution had examined PW-9, the then Dy.S.P., who had conducted the raid and had supported the statement of the complainant in regard to all the facts. He has clearly stated that the seal was handed over after use to witness Dev Raj and there is nothing as to why his statement should not be believed. He has also stated about the hand-wash taken at that time and has not specifically stated about its colour having turned pink or otherwise. Apart from above, the prosecution had also examined PW-4 Suresh Kumar, Naib Tehsildar, who had received the application Ext.PF and made endorsement over it for the demarcation to be given. PW-5 Constable Balbir Singh had taken the samples to FSL, Junga duly sealed with seal ‘C’. PW-6 Niranjan Singh had recorded the FIR Ext.PJ in this case. PW-7 Balram Sharma, Collector, had accorded sanction for prosecution of the accused persons after perusing the whole record. PW-8 Ram Chand has proved the posting and appointment orders of the appellants. On a perusal of the above evidence, it is clear that there are no material contradictions in the statements of the prosecution witnesses as was argued by the learned counsel for the appellants during the course of arguments. The seal after use had been handed over to PW-3 Dev Raj, J.E., but the mere fact that he did not support the prosecution case in this behalf is not sufficient to hold that it affects the merits of the case. The statement of the Incharge of the raiding party, Dy.S.P. Khub Chand, stands duly corroborated from the statement of two trap witnesses, namely, the complainant PW-1 Ram Chand, his brother PW-2 - 8 - Lekh Ram and stands materially corroborated by the testimony of PW-3 Dev Raj, an independent witness who has been associated at that time. Coming to the plea that the prosecution had not examined other witnesses, namely, Shyam Lal from whom the complainant Ram Chand had borrowed the money, his statement cannot be said to be material. The other two witnesses about whose non-examination a plea was raised are Kishori Lal and Tek Chand, who were the Constables and were witnesses to the recovery memo Ext.PB and being official witnesses and from the Department, their examination was not necessary particularly when independent witnesses including the complainant, as mentioned above, had been examined. Therefore, their non-examination does not affect the merits of the case. A perusal of the judgment of the learned trial Court shows that the learned trial Court had discussed the evidence in detail and has separately discussed the evidence in regard to three sequences, namely, trap, raid and recovery of the money. The evidence on all these three counts fully substantiated the prosecution story and the learned trial Court had discussed the evidence in regard to these three stages of the trap which led to apprehend the appellants, who had demanded money to be paid as illegal gratification. The evidence of these witnesses does not suffer from any infirmity and the findings recorded by the learned trial Court are liable to be upheld. I accordingly hold that the findings recorded by the learned trial Court holding the appellants guilty under Section 13(2) of the Prevention of Corruption Act do not call for an interference. In regard to the sentence also, the learned trial Court has already taken pittance upon the appellants and had convicted them to undergo RI for a period of two years each only and to pay a fine of - 9 - Rs.2,000/- each, though the offence is punishable upto 7 years. Therefore, the findings recorded by the learned trial Court do not call for an interference and the sentence imposed upon the appellants does not deserve to be reduced. In view of the above discussion, I hold that there is no merit in the appeal filed by the appellants which is dismissed accordingly. The appellants shall surrender to the learned trial Court who shall take steps to send them to custody and shall intimate this Court also in regard to this fact. The appeal filed by the appellants stands disposed of accordingly. May 21, 2008 (V.K. Ahuja), (TILAK) Judge.