IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 31 of 2006 Ganga Ram Petwal S/o Nathi Lal Petwal R/o Village Pachri Patti Dharmandal P.S. Tehri District – Tehri Garhwal …Appellant Versus State of U.P. … Respondent Mr. Rajendra Kotiyal, Advocate for the appellant. Mr. Amit Bhatt, Addl. G.A. for the respondent/State. Judgment Hon’ble J.C.S. Rawat, J. This appeal has been directed against the judgment and order dated 06.03.2006 passed by learned Special Judge, (Prevention of Corruption Act) 2nd F.T.C., Nainital in Special Criminal Case No.06/2002, whereby the accused/appellant was convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/- under Section 7 of Prevention of Corruption Act. It was further directed that in default of payment of fine, the accused/appellant would further undergo simple imprisonment for a period of one month. The appellant was also convicted & sentenced to undergo rigorous imprisonment for two years and to a fine of Rs.5,000/- under Section 13 (2) of the Prevention of Corruption Act, 1988. Both the sentences would run concurrently. 2. Brief facts of the case as emerges from the record are that an F.I.R.(Ex.ka.1) was submitted by the complainant Uday Singh Tadiyal on 08.04.1995 to the Superintendent of Police, Vigilance Deptt., U.P., Dehradun alleging therein that he has 2 some land at Salamkhet Tok where he had a house. It was alleged that his father and some family members were residing there and they used to work in their agricultural land. It was further alleged that from the nearby place, some of the pipe- lines were fixed towards Rani Chaura out of which, a few pipes were stolen. Ganga Prasad Patwal-appellant, who was the Patwari at Rani-Chauri Chen, got recovered one water-pipe from their field at Salamkhet Tok. Thereafter, the patwari took his father to police chowki. This incident was witnessed by some of the people. Later on when the informant came to know this fact, he went to the Patwari Chowki and met Patwari. The Patwari asked the informant to give him illegal gratification of Rs.5,000/-, if he does not want his father challaned in this matter. But later on at the request of the informant, the Patwari agreed to take illegal gratification of Rs.3,000/-. It was further alleged that the informant brought Rs. 1,000/- from his house and assured Patwari that he would make arrangement of Rs.2,000/- later on. Thereafter, the informant took his father home. Since then, the Patwari was putting regular pressure on him to pay illegal gratification for Rs.2,000/-. It was further alleged that the complainant does not want to give the bribe to Patwari but want him to be caught red handed. The complainant has mentioned twenty currency notes of Rs.100/- each amounting to Rs.2,000/- which he was to hand over to the accused/appellant as illegal gratification. The Superintendent of Police, Vigilance, U.P., Dehradun forwarded complaint to Deputy Superintendent of Police, Shri B.S. Panwar and directed him to lead a trap with a party. Thereafter, they conducted pre-trap proceedings at one room of Veterinary Hospital, Chamba on 10/11/1995 in presence of panch witnesses namely Ranveer Singh Khati, employee of Vikas Khand Chamba and Gajendra Notiyal, Gram Panchayat Adhikari, Chamba. Mr. B.S. 3 Panwar, leader of the trap party also talked with the complainant in the presence of the witnesses. The complainant, Udai Singh corroborated the fact of the tehrir. Mr. B.S. Panwar instructed him that the currency notes mentioned in the Tehrir would be given by him to the accused/appellant as bribe. The numbers of the currency notes were ascertained and thereafter Mr. B.S. Panwar made his initial on the currency notes. After conducting the pre trap proceedings, the trap party before proceeding to Patwari Chowki, Badsahithol. Shri B.S. Panwar smeared phenolphthalein powder on these currency notes. Thereafter, he took a glass of water and added sodium carbonate powder in it. He took a sample of this mixture in a separate phial (Ex.Ka-2) and told the complainant to hand over the said notes to the accused/appellant. Thereafter, the trap party alongwith the complainant proceeded towards the Patwari Chowki in a Gypsi. The trap party followed the complainant. When the complainant handed over the illegal gratification to the accused/appellant, the trap party was also witnessing the entire incident. When the trap party came to know that the illegal gratification has been taken by the accused/appellant, they arrested the accused/appellant. After completing the necessary formalities, the police submitted the chargesheet u/s 7/13(1) (d) and 13 (1) (2) of Prevention of Corruption Act, 1988 against the accused/appellant. 3. After submission of chargesheet, the trial court framed charges against the accused/appellant. The accused/appellant denied the charges levelled against him and claimed to be tried. 4. The prosecution in support of its case examined PW1 Udai Singh, complainant; PW2 Ranveer Singh Khati, panch witness; PW3 Vijendra Singh Panwar, leader of the trap party; PW4 4 Surendra Pal Singh, Investigating Officer; PW5 Constable Bhupendra Singh; and PW6 Constable Manwar Singh. 5. The learned Special Judge on appreciation of the evidence held accused/appellant guilty to the offences charged against him and convicted & sentenced him as mentioned above. 6. I have heard Mr. Rajendra Kotiyal, Advocate for the accused/appellant; Mr. Amit Bhatt, learned Addl. G.A. for the respondent/State; and perused the record. 7. The prosecution in support of its case examined PW1 Udai Singh Tadiyal. He has stated that his father and some family members were residing at Salamkhet Tok and they used to work in their agricultural land. It was further alleged that from the nearby place, some of the pipe-lines were fixed towards Rani Chaura out of which, a few pipes were stolen. The accused/appellant Ganga Prasad Patwal, who was the Patwari at Rani-Chauri Chen, got recovered one water-pipe from their field at Salamkhet Tok. Thereafter, the patwari took his father to police chowki. Later on when the informant came to know this fact, he went to the Patwari Chowki and met Patwari. The Patwari demanded a sum of Rs.5,000/- as illegal gratification to avoid challan in the case. But later on at the request of the informant, the Patwari agreed to take illegal gratification of Rs.3,000/-. He has further stated that he took Rs. 1,000/- to which he brought it from his house and assured Patwari that he would make arrangement for the rest amount later on. He has further stated that since then the Patwari was putting regular pressure on him to pay the remaining Rs.2,000/-. 5 8. PW2 Ranveer Singh Khati is the Panch witness and ex- employee of Vikas Khand, Chamba, Tehri Garhwal. He has stated that on 10/11/1995, the D.M. has called Gajendra Dutt Notiyal and him in the office. PW3 Vijendra Singh Panwar was already sitting there. The D.M. told them that a trap is to be conducted for which they have to help PW3 Vijendra Singh Panwar. Thereafter, PW3 Vijendra Singh Panwar took them to Block Office, Veternary Hospital, Chamba where complainant, one inspector and three constable of Vigilance Deptt., were sitting. Thereafter, they went to Badshahithol in a Gypsi. They stopped there and the complainant went to patwari chowki. They followed the complainant. When they reached inside the Chowki, they saw that the constables were holding the hands of the accused/appellant and the currency notes which were given to the accused/appellant were lying on the ground. He has not stated anywhere in his evidence that he had heard the conversation in between the complainant and the accused about paying of Rs.2,000/- on the demand of the appellant. Thereafter, PW3 Vijendra Singh Panwar introduced himself to the accused/appellant and told him that he has been caught taking bribe. Thereafter PW3 Vijendra Singh Panwar picked up the notes lying on the ground and compared them and found them that these are the same notes mentioned in the tehrrir by the complainant Udai Singh. 9. PW3 Vijendra Singh Panwar is the leader of the trap party. He was ordered by the Superintendent of Police to organize the trap on 08/11/1995. The trap party was consists of Inspector Rajendra Prakash Gaur, Rajkiran Singh, Manwar Singh, Mangat Singh and Bhupendra Singh. After getting an order from the Superintendent of Police, he met the District Magistrate, Tehri on 10/11/1995. The D.M. provided him two independent 6 witnesses, namely Ranveer Singh Khati PW2 and Gajendra Notiyal. Thereafter he read the complaint of Udai Singh before the trap party & the witnesses in a room of Veterinary Hospital. He has also corroborated the evidence of PW2 Ranveer Singh Khati. PW4 Surendra Pal Singh, PW5 Bhupendra Singh and PW6 Manwar Singh have also corroborated the evidence of PW2 Ranveer Singh Khati and PW3 Vijendra Singh Panwar. 10. Learned counsel for the accused/appellant contended that the evidence of trap is not reliable and the conviction cannot be based on such evidence of the accused/appellant. Learned counsel for the accused/appellant contended that there is no evidence on record to establish the date, time and place for giving and taking the bribe. Learned counsel for the accused/appellant contended that there is no evidence on record to establish the date, time and place for giving and taking of the bribe and there is nothing on record to indicate availability of the accused/appellant at the place of occurrence on the date when the trap was organized. The learned Addl. G.A. could not demonstrate me any such evidence is available on record. Perusal of the record reveals that the application which was submitted by the complainant Udai Singh Tadiyal to the Superintendent of Police, Vigilance did not indicate that when the said bribe is to be given and when the complainant would go in the office of the accused/appellant to give him the remaining illegal gratification of Rs.2,000/-. The evidence did not indicate there was certainty for the availability of the accused/appellant at the place and date fixed in between the complainant and the accused/appellant. In absence of such evidence, it cannot be said that the trap which was to be conducted would be successful. The raiding party must have satisfied that the secrecy of the trap should be maintained and 7 the trap party or the Superintendent of Police should be satisfied that the illegal gratification has been demanded by the accused/appellant. Nothing could be disclosed from the evidence about the date and time of the trap. Certain guidelines have been issued u/s 3 of U.P. Vigilance Establishment Act, 1965 by the State of U.P. which is applicable to the State of Uttarakhand in view of the U.P. Reorganization Act, 2000. The guideline reads as under:- “rRi’pkr~ lhy eksgj djus dk lkjk lkeku tSls yk[k] eksecRrh] ekfpl] lqbZ&/kkxk] duMk 'khf’k;kW ,oa viuh eksgj dks ,d= dj ysA rnksijkUr VSªi vk;ksftr djus okys vf/kd`r vf/kdkjh dks f’kdk;rdrkZ ls okrkZyki djds mRdksp fy;s tkus dk fnukad] le; o LFkku ds iwoZ mls fdlh LFkku ij feyus ds fy, r; dj ysuk pkfg, rFkk f’kdk;rdrkZ dks ;g Hkh funsZ’k fn;k tkuk pkfg, fd mRdksp ds :i esa fn;s tkus okys :i;ksa dks Hkh ;g mius lkFk ysdj fu;r txg ij feysA” 11. The above stated extract clearly indicates that the officers should be satisfied with the time, place and date of giving the illegal gratification to the accused/appellant. In the case of Abdul Rashid Ansari Vs. State of U.P., ACC 1993, (30) p/162, the Hon’ble Court has held in para 7 as under :- “The complainant Mohd. Sarik Husain had not the accused Abdul Rashid Ansari on 24th July, 1981 in his office. He gave an application on 29th July, 1981, to Shiv Raj Singh, Dy. Superintendent of Police, Anti Corruption, Moradabad. That application is Ext. Ka- II. The Dy. Superintendent of Police, Anti Corruption, Shri Shiv Raj Singh took down the statement of the complainant Mohd. Sarik Husain on 29th July, 1981 itself. Shiv Raj Singh lodged an oral report Ex. Ka-7 at the police station Sambhal, District Moradabad. There is nothing in any of these documents to show 8 the date, time or place for the giving and taking of the bribe nor is there anything in any of these documents or in any other evidence on record to indicate that Shiv Raj Singh had ascertained even orally from Mohd. Sarik Husain about the date, time and place for the giving and taking of the bribe. Further more there is nothing on the record to indicate that Abdul Rashid Ansari had told Mohd. Sarik Husain on 14th July, 1981 or even subsequently before 29th July, 1981 that he would be available in his office on 29th July, 1981 at 3 p.m. for the aforesaid purpose in particular. Therefore, there was no certainty for the availability of the accused Abdul Rashid Ansari, in his office, on the aforesaid date particularly at 3 p.m. And yet, Shiv Raj Singh organized the trap even in such a state of uncertainty about the presence or otherwise of Abdul Rashid Ansari in his office. This is something strange and caste suspicion as to the act and conduct of both Shiv Raj Singh and Mohd. Sarik Husain.” 12. Thus, I am completely in agreement with the findings recorded by Allahabad High Court (Supra) and I find that this is one of the circumstances which casts a doubt on the evidence of the prosecution. This fact clearly indicates that the C.O. who conducted the raid was uncertain or even the complainant about the date, time and place for giving bribe. I am completely in agreement with the contention raised by the learned counsel for the accused/appellant. 13. Learned counsel for the accused/appellant further contended that Ram Singh Tadiyal, father of the complainant 9 was not produced before the Court. Ram Singh Tadiyal, father of the complainant was said to have been apprehended by the accused/appellant and a demand of Rs.5,000/- was made to set him at liberty. But the matter was settled at Rs.3,000/- and he paid a sum of Rs.1,000/- to the accused/appellant whereas the remaining amount of Rs.2,000/- was to be paid to the accused/appellant by the complainant on some future dates. Instead of paying the said amount, the complainant contacted the Vigilance Department and raid was conducted. Learned counsel for the accused/appellant further contended that the accused/appellant has nothing to do on his part as he has already released the father of the complainant. The accused/appellant would have demanded the entire amount before releasing the father of the complainant. In the case of State of U.P. Vs. Jagdish, 2003 SCC p/1008, the accused/appellant was charged u/s 5/13 of the Prevention of Corruption Act and u/s 161 I.P.C. It was alleged that the R.I. Technical demanded a sum of Rs.11,000/- for issue of fitness certificate of commercial vehicle. The fitness was carried out prior to the time of trap. Thereupon the road tax was paid by the complainant and that road tax was assessed by the R.T.O. and it was deposited in between 1:30 to 2:00 P.M. and the raid was conducted at 2:00 p.m. alleging that the R.I. was demanding a sum of RS. 1000/- for giving the fitness certificate. The Apex Court held that the evidence of trap could not be believed as the act for which the illegal gratification was demanded had already been done by the R.I. 14. In the case in hand the father of the complainant has already been released on prior date and there was nothing on the part of the accused/appellant to be carried out for the release of the father of the complainant. This case is squarely 10 covered by the aforesaid pronouncement made by the Hon’ble Apex Court. 15. It is also the case of the prosecution that the prosecution has led the evidence that the said demand of remaining Rs.2,000/- was made through Peon of the accused/appellant and the Peon was not produced before the Court. It is also pertinent to mention here that the father of the complainant who was said to have been apprehended by the accused/appellant was not produced before the Court. As a matter of fact, they should have been produced before the Court and Ram Singh Tadiyal could have stated this fact that he was apprehended and later on he was released by fulfilling the part of the demand made by the accused/appellant. Non- production of corroborative piece of evidence also falsifies the veracity of the prosecution evidence. 16. Learned counsel for the accused/appellant further contended that there were two independent witnesses of the trap, namely Ranveev Singh Khati PW2 and Gajendra Notiyal. Out of these two witnesses, only one witness Ranveer Singh Khati was produced as PW2 before the Court. Learned counsel for the accused/appellant further contended that the independent witnesses neither had seen nor heard about the transaction in between the complainant and the accused/appellant. Ranveer Singh Khati PW2 has stated in his examination-in-chief as under:- “blds i'pkr ge lHkh yksx dejs ls ckgj vk;s rFkk ftIlh esa cSBdj ckn’kgh rksd x, tgkW ij ftIlh :d x;h ogk ge yksx mrj x, blds i'pkr f’kdk;r drkZ mn; flag ikoMj yxs :i;s ysdj iVokjh dh pksdh x;kA mlds ihNs&ihNs nks flikgh x;sA muds ihNs fMIVh lkgc mlds ihNs xtsUnz uksfV;ky o 11 bUlisDVj Hkh x,A tc ge pksdh ds vUnj igqWps rks ns[kk fd nksuks flikfg;ksa us iVokjh ds gkFk idM+ j[kk FkkA uksV iVokjh ds isjksa ds ikl tehu ij iMs+ FksA” 17. Vijendra Singh Panwar PW3 has stated in his examination- in-chief as under:- “mn; flag us viuh tsc es nks gtkj :i;s ds uksV xaxkjke isVoky dks fn;s ftUgsa gkFkksa esa ysrs gq, fd iwjs gS ;k ugha fxuus yxsA ge lHkh yksxksa dks iw.kZ fo’okl gksus ij fd xaxk jke }kjk fj’or esa nks gtkj :i;s ys fy;s x, ,d ne dejs ij ?kqls vksj esaus viuk ifjp; nsrs gq,s crk;k fd lrdZrk izfr"Bku ds vf/kdkjh gSa vkSj dkfu euoj flag o nwljs dkfu us xaxkjke ds gkFk idM+ fy;sA ;g dgus ij fd vkius fj’or yh gS Fkh xaxkjke isVoky us vius gkFk ls ,dne uksV mBk fy;s rFkk xaxkjke ls mudk iwjk uke irk iwNkA” 18. Thus, it is evident from the evidence of PW2 Ranveer Singh Khati that they were standing outside the door of the room and after handing over the money, the police raiding party entered into the room and the independent witnesses reached thereafter. Then, they could not have heard the conversation in between the complainant and the accused/appellant. There is no iota of evidence that the conversation was heard by the raiding party and the witnesses about the demand of illegal gratification. In absence of such evidence, the entire evidence of trap becomes unbelievable. The Allahabad High Court in the case of Ram Dubar Yadeo Vs. State of U.P., 2000 CrLJ p/899 decided on 06/09/1999 has held in para 32 as under :- “32. Satya Pal Baliyan (P.W.2) did testify to the giving of the currency notes of Rs. 50/- by the complainant to the accused-appellant and also stated that this payment was made so that the reading of the meter gets reduced and that at that very time, 12 the vigilance inspector caught hold of the hand of the accused-appellant. He also testified to the personal search of the accused-appellant and the recovery of Rs.50/- from him. But the points of importance are several. One is that he did not testify to the hearing by him of any conversation between the accused- appellant and complainant in his presence. In fact, he did not even say that any conversation was made between them at the time. He did not also say that there was some conversation between them but he could not hear the same……” 19. Thus, the prosecution evidence did not testify to the hearing by them of any conversation in between the accused/appellant and the complainant in their presence. The prosecution had not produced independent witness, namely Gajendra Notiyal reasons best known to the prosecution. These facts also make the evidence of the prosecution unreliable an unbelievable. 20. PW3 Vijendra Singh Panwar has stated in his evidence that after getting an order from the Superintendent of Police, he proceeded to the District Magistrate, Tehri on 09/11/1995 and he went to the D.M. but he could not met him. Thereafter, on 10/11/1995, he met the D.M. He submitted him the letter given by the S.P. Thereafter two independent witnesses were made available to him, namely, Ranveer Singh Khati and Gajendra Notiyal who proceeded with them to the spot. He has stated in his cross examination that the letter which was given to the D.M. by S.P., copy of the said letter is not on record. He is not aware as to whether D.M. has passed any order in writing or oral to provide the independent witnesses to him. Thus, 13 there is no document on record which could reveal that permission was taken and the permission was granted by the D.M. and the witnesses were made available to him by the D.M. It leads to take inference that no prior permission was taken from the appointing authority to trap the accused/appellant. It has been held in Surendra Sahai and others Vs. State of U.P., ACC 1997 (34) p/134 in para 8 as under :- “8. It is important to note here that prior to conducting the raid in question and arrest of the accused-appellant Surendra Sahai, Reader, Inspector Chandra Bhushan Tripathi did not obtain any permission from the Consolidation Officer. The circumstance that the police officers did not care to take Consolidation Officer, or the Settlement Officer Consolidation into confidence before conducting raid in question, casts a doubt upon the bonafides of the evidence of Ram Prasad Pathak P.W.1, Vijai Shankar P.W.4 and Inspector Chandra Bhushant Pripathi P.W.2…….” Thus, this fact also leads to take inference that the evidence of the prosecution is not believable. 21. It is also pertinent to mention that the PW2 Ranveer Singh Khati has stated that the village of complainant falls within the police station and not within the patwari circle. If any offence was committed, it was the police who have to investigate the matter and it is not being investigated by the Revenue Police, i.e. Patwari. The Investigating Officer PW4 Surendra Pal Singh has stated that he has not made any inquiry as to whether the area falls within the patwari circle or it falls within the police 14 station. He has also shown his ignorance as to whether any report was lodged at the police station or not. Thus, this fact is also relevant. If the report is to be lodged at the police station and the matter pertains to the police station as to why, the Revenue Police would apprehend the accused/appellant and he could not have implicated him in that case. As such, the story as narrated by the complainant becomes totally improbable. 22. It is also pertinent to mention that PW1 Udai Singh Tadiyal has stated in his cross examination that if the accused/appellant would not have demanded remaining sum of Rs.2,000/- and would not have developed the pressure, even then he would have complaint against the accused/appellant about taking Rs.1,000/- from him. The Hon’ble Apex Court in the case of Shantilal Kashibhai Patel Vs. State of Gujrat, Crimes 1993 (3) SC p/438 has held as under :- “8………It is clear that it is not a case merely of a complainant from whom bribe was demanded and he was forced to pay the same but the complainant had thought of teaching a lesson to accused No.2 for harassing the businessman selling Pan Masalas and, therefore, it could not be said that the complainant was not interested in successed or otherwise of the raid. In fact the High Court acquitted accused No.3, though the evidence against him was the same as it was against accused No.2. When the High court could not find it safe to rely on the uncorroborated statement of the complainant while upholding the acquittal of accused No.3, we also find it unsafe to rely on the