IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 112 of 2004 Date of Decision: 23rd December, 2010 __________________________________________________________ Varinder Kumar ….Appellant. Versus State of H.P. ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ___________________________________________________________ For the Appellant: Mr. K.D. Sood, Advocate with Mr. Sanjeev Sood, Advocate. For Respondent: Ms. Shubh Mahajan, Deputy Advocate General. ___________________________________________________________ Dev Darshan Sud, J (oral). The appellant challenges his conviction under Section 7 and 13 (ii) of the Prevention of Corruption Act, 1988 for demanding and accepting illegal gratification of Rs. 800/- from PW1 complainantn Hoshiar Singh for purportedly supply some copies of revenue record. The case of the prosectuion as narrated in FIR Ext.PA is that complainant Hoshiar Singh who was Up Pardhan of Gram Panchayat, Ripoh Misran and villagers had donated 15/16 Kanals of land for establishing Primary/Senior Secondary School. A path was being constructed by Kandi Project 1 Whether Reporters of Local Papers may be allowed to see the judgment?. 2 leading to the house of one Deep Chand and most of the villagers were objecting to this construction of this path on the ground that the land (Khasra No. 506, 508 and 509) which had been donated specifically for the school building is being used/utilised for the purpose of this path which was unwarranted. The villagers suspected the involvement of the Head Master of the school and asked the complainant Hoshiar Singh PW1 to collect the jamabandis of this land. The prosecution case is that complainant Hoshiar Singh visited the office of the accused Virender Kumar who at the relevant time was Patwari of Patwar Circle Ripoh Muchlian on 21.8.2001 for this purpose. He was asked by the accused to come the next day at his office i.e. on 22.8.2001. But on that day, he was not in office and the complainant visited the house of the accused at around 8 P.M. at Thathal and asked him for the revenue record as promised. The accused thereupon told him to come to the Patwar Circle on 23.8.2001 on which date according to the complainant he had gone to his shop and he had been asked to come to the Patwar Circle at around 10 AM and that time Jagdish Ram son of Mool Raj PW2 was also present. The accused informed him that the documents are voluminous and demanded ` 1200/- for supplying them. The tranaction was settled for ` 800/- out of which ` 200/- were paid at that time to the accused who assured that the revenue records would be prepared and delivered on 24.8.2001 at around 10 AM. Payment of balance of ` 600/- would be made at that time. A complaint on these facts was accordingly registered and a trap was set. A raiding party consisting of PW10 Prem Singh who telephonically informed the Deputy 3 Commissioner to depute some responsible officer to join the party and accordingly PW9 Shiv Krishan Prashar, Tehsildar, Una was deputed to be a member of the raiding party. The complainant was handed over ` 600/- consisting of currency notes of 100 each serial number of each currency note was noted down by the police and taken into possession vide memo Ext.PB. These were treated with Phenol Phetheline powder and demonstration was given by the police as to how the colour of hand wash of phenol phetheline powder would turn pink in case it is mixed with a solution of sodium carbonate. The complainant was also informed that he should not shake hand with any person nor hand over the currency notes to the accused unless the same is demaded by him. PW2 Jagdish Ram was joined as a shadow witness. 2. On 24.8.2001 PW1 Hoshiar Singh travelled in a jeep upto Chururu and thereafter on a scooter. PW2 Jagdish Ram witness left the police party and followed the complainant to the office of the accused. The complainant asked for the copies of jamabandies from the accused who after some time brought the copies and demanded ` 600/-. The complainant complied. The accused is alleged to have placed this amount in the back pocket of his pant. The complainant thereafter gave the predetermined signal to PW2 Jagdish Ram who in turn signalled the police party which immediately rushed to the office of the accused and caught hold of him from his arms. His hands were washed in a plate and the colour of the water did not change. Thereafter the police added solution of sodium carbonate to this water which turned pink. Currency notes Ext.P1 to Ext.P6 were taken in 4 possession vide memo Ext.PC. The numbers of these notes were tallied by PW9 Shiv Krishan Prashar in the presence of the witnesses and they were found to be the same as noted before the raid. These currency notes were put in an envelope and sealed with seal impression ‘T’. The solution of the hand wash was also sealed in a bottle. 3. The appellant was charged for offences under Sections 7 and 13(2) of the Prevention of Corruption Act (hereinafter referred to as the Act). The prosecution examined 10 witnesses in all. I will consider their evidence in the course of the judgment. The defence evidence produced was DW1 Harmesh and documents Ext.DX and Ext.DY. The learned trial Court on the evidence convicted the appellant herein. While doing so, it considered the evidence of the prosectuion in detail but paid little attention to the defence evidence including the documents proved on record. 4. I have learned counsel appearing for the appellant as also the learned Deputy Advocate General. Learned counsel appearing for the appellant submits that the prosecution has not been able to prove its case beyond reasonable doubt. For this, learned counsel submits that even if the evidence of the prosecution is taken as it is, there are clear infirmities which cannot be reconciled. He submits that PW9 Shiv Krishan Prashar who was a member of the raiding party demolishes that entire prosecution case. The evidence of PW2 Jagdish Ram as a shadow witness cannot be accepted in view of the spot map Ext.PK produced and proved on record by the prosecution itself. He then submits that even Hoshiar Singh complainant PW1 has been 5 contradicted on material and important aspect by PW3 Ishay Kumar, Pardhan Gram Panchayat. 5. Adverting to the evidence of PW1 complainant, he corroborated his evidence as given in the First Information Report. He then says that he alongwith PW2 Jagdish Ram went to the office of the accused and requested him to supply the copies of jamabandi of the land belonging to the school, which was donated by the village community. For this purpose, an advance of ` 200/- as alleged in FIR had already been received by the accused and the remaining amount of ` 600/- was agreed to be paid on the next day. He went to the office of the Vigilance Department at Una and his statement Ext.PA as well as that of Jagdish Ram PW2 was recorded. The Inspector Vigilance called Shiv Krishan Prashar Tehsildar PW9 and prepared a memo and ` 600/- were handed over to the Inspector. He says that he reached the office of the accused at around 11 AM and Jagdish Ram PW2 left the police party near the Patwarkhana and he came to his shop. Thereafter, they proceeded to the Patwarkhana and Jagdish Ram followed him. When he demanded the copies of jamabandis from the accused, he was asked to wait for a while. Thereafter the accused brought the revenue record and handed it over to him and demanded ` 600/- from him as settled. This amount was given to him and he put it in the back pocket of his pant. He was sitting near the accused and Jagdish Ram PW2 had already seen him accepting the money and putting the same in the back pocket; he then gave signal to the police party which rushed to the spot and caught hold of the accused from his arms. Thereafter PW3 Ishay Kumar Panchayat 6 Ripoh Misran also came there. The money was recovered from the accused. His hands were washed, solution added whereupon the water turned pink. He identified the currency notes. 6. In cross examination,he admits that he was not authorised by the Gram Panchayat to collect the jamabandies. PW3 Ishay Kumar is Pardhan of Gram Panchayat from his village . The land for which he had gone to collect the revenue papers is owned by the villagers, though the same is in possession of the school. He then says that house of the accused was at a distance of 11 K.m. from his village and he had gone to the house of Patwari on the day when he had met him in the flour mill of his brother. At the time of the raid, one Chowkidar was also present in the room who was engaged in cleaning the floor. He admits that he has taken the jamabandis mentioned in memo Ext.PF from the accused and police had taken them from him. In memo Ext.PF there is a recital that jamabandis were handed over to the police and not by this witness. He denied that a false case has been lodged against the accused. 7. PW2 Jagdish Ram is a shadow witness. He says that PW1 complainant is known to him. On 21.8.2001 he went alongwith the complainant to collect the copies of jamabandies of the school land. On account of rush of work he was not in a position to supply the documents and asked the complainant to visit the office on 24.8.2001. A demand of ` 1200/- was made but the matter was settled for ` 800/-, out of which ` 200/- were paid on 21.8.2001. On 24.8.2001 he accompanied Hoshiar Singh to the office of Vigilance Una and formal report was made, whereafter the currency notes etc. were arranged and handed 7 over to the complainant. He accompanied the raiding party, but left it near the Patwarkhana and went to the office of accused with the complainant. When the complainant asked for the copies of jamabandis, the accused handed over the same to the complainant and demanded payment for ` 1200/-. Complainant thereafter paid ` 600/- to the accused and on this, he gave the pre-arranged signal and the police party rushed to Patwarkhana, caught hold of the accused, followed, reocvered the money, washed the hands of the accused and added sodium carbonate solution to the water which was collected. He admits in cross examination that he had accompanied the complainant only twice namely on 21st and 24th August, 2001. He denied the presence of the Chowkidar, which was admitted by the complainant PW1. He also denied that the police party was not visible from the room where the accused was sitting. 8. PW3 Ishay Kumar admits in his cross examination that Chowkidar was present in the room at the time of the incident. In fact, he says that he was called by the Chowkidar to come to the Patwarkhana. He says that he had not authorised Hoshiar Singh complainant PW1 to collect the copies of the jamabandis on behalf of the Gram Panchayat and there was no dispute pending with the Gram Panchayat regarding the land donated for the school building. He admits that a complainant was filed by one Rasila Ram against the complainant, which was pending before the Gram Panchayat Mairi. PW9 Shiv Krishan Prashar Tehsildar was also joined as a member of the raiding party. He corroborates the prosecution evidence with respect to the currency being recovered. However, his cross examination is 8 important. He admits that the door of the office where the accused was present (Patwarkhana) is not visible from the place where he was standing. His cross examination reads: “It is also correct that the door of the patwar office is not visible from the place where we were standing. I have not seen the trap witness or any other official giving signal to the raiding party. We were standing near the mango tree. When I entered the partwar office the accused was standing with raise hands. No other persons except the members of the raiding party at that time was present.” He further admits:- “It is correct that the accused had told me there that he is innocent and is being falsely implicated by the complainant because of an inquiry against the complainant. It is also correct that he had shown some photocopies of allegdly such complaint. It is correct that the police officials of the raiding party entered the room prior to my entry in that room. It is correct that Hoshiar Singh had told that the money is in the back pocket of the accused. It is also correct that accused was saying that he is innocent and Hoshiar Singh had forcibly put the money in his pocket.” His cross examination would assume significance considering the fact that it supports the case of the accused in defence. 9. PW 10 Pritam Singh Inspector headed the raiding party. His cross examination assumes primary importantce. He states: “……It is correct that the door of the office of the accused is not visible from the place i.e. point D as shown in site plan Ext.PK where the raiding party was standing. It is also correct that there is no direct 9 approach to the office of the accused from point D and one has to go from either side of the building so as to enter the office of the accused. I have sent HHC Ashwani Kumarto call loal Pradhan. It is incorrect that I have sent Chowkidar to call Pradhan. The Pradhan came there after 20 minutes. I cannot tell the distance of the house of the Pradhan from the Patwar office. So long as Pradhan did ot come in the office, I did not do any thing in the office of the accused. Q. Whether you noticed the shadow witness giving signal with his hand on his head? Ans. I alongwith members of the raiding party saw the shadow witness Jagidsh Ram giving signal with his hand. Q. Where the shadow witness Jagdish Ram was standing when he gave signal? Ans. He was standing at point C as shown in site plan Ext.PK. C.Q. Where Jagdish Ram shadow witness was standing when the money was handed over by Hoshiar Singh accused? Ans. It has come in my investigation the shadow witness was standing at the door of the Patwar Office.” He says that about 15-20 persons were standing outside the office of Patwarkhana at the time of raiding. His statement is in direct conflict with that of PW3 Ishay Kumar who says that no signal was given by any witness to the raiding party. The site plan Ext.PK shows the factual position. ‘A’ is the room in which the accused was sitting. ‘B’ is the chair on which he was seated when the raiding party rushed in. ‘E’ is another table and chair on which the accused was supposed to have been sitting. ‘C’ was 10 the point where PW2 Jagdish Ram was standing. ‘H’ is another room adjoining the room of accused. The plan also shows that there were two other rooms ‘G’ and ‘F’. There are thus four rooms adjoining each other. The building is in the form of a square divided into four rooms. Rooms ‘A’ and ‘H’ are adjacent and adjoining, so are rooms ‘F’ and ‘G’ and the whole complex forms one compact block. It is undisputed that the trap witness PW2 Jagdish Ram was standing at point ‘C’ behind the wall of room ‘H’ adjoining room ‘A’. From the plan, it is clear that room ‘A’ where the accused was sitting is not visible from point ‘C’ as there are two walls in between. In order to signal the witness at point ‘C’, a person has to walk out of room ‘A’ and then turn a corner to be visible. The accused according to the site plan was sitting in the room. In this fact situation a person had to come out of the room walk for some distance round a corner and then signal the police party. 10 . In defence, the accused produced DW1 Harmesh Chand, who proved on record Ext.DX and Ext.DY. Ext.DX is a complaint filed against the complainant, Rattan Chand, Gurdev Singh, Krishna Devi, Joginder Pal and Tarsem Lal complaining about encroachment having been made by them on the land as described in the complaint by the accused and other persons. This complaint was lodged on 28.4.2001. Ext.DY is the complaint made by the accused to the Deputy Commissioner stating therein that he had been directed by a letter dated 15.6.2001 to inquire into the complaint Ext.DX and that the accused was not cooperating with him. On 20.8.2001 he again asked the accused to clarify his stand upon which he was asked 11 by the complainant to tear up the complaint and when the accused refused to do so, he was threatened with dire consequences that in case he took any action in furtherance to Ext.DX, the complainant would teach him a lesson which he would remember throughout his life. He then asked for appropriate action to be taken against the accused. The exact narration in the complaint is “usne mujhe kaha ki yah darkhasat phar do, maine kaha yah mumkin nahi. Is par mujhe dhamki dee ki darkhasat par koi karyavahi kee to aisa sabak sikhaunga ki taa jindgi yaad rakhoge.” (Translated: “he told me to tear up the complaint. I told him that this would not be possible. Upon this, he threatened me that in case any action is taken, he would teach me a lesson which I would remember throughout my life.”) Thereupon, the accused states that the complainant who is an extemely cunning person is likely to do anything and that he (accused) be provided appropriate protection. There is also an endorsement of the Field Kanungo dated 22.8.2001 recommending appropriate action be taken. 11. It is in the entirety of these circumstances that the case of the prosecution has to be considered. Adverting to the first submission made by the learned counsel appearing for the appellant that the accused himself complained to the Deputy Commissioner with respect to the behaviour/attitude of the complainant stating that he was threatening him with dire consequences if any action was taken on the complaint made on 28.4.2001. He submits that knowing fully well that if he had been threatened with dire consequences by the complainant PW1, the 12 accused could not have made a demand for money under any circumstance. 12. Learned counsel then submits that the evidence with respect to the method and mode in which the raid was conducted is not beyond suspicion and only proves the case of the accused that he had been falsely implicated by complainant PW1. The evidence of PW1 Hoshiar Singh and PW2 Jagdish Ram is also contradictory. He submits that complainant Hoshiar Singh PW1 is categoric when he says that he was accompanied by PW2 Jagdish Ram on 23.8.2001, whereas Jagdish Ram says that he never accompanied him on that day when the illegal gratification was settled at ` 800/- scaled down from the original demand of `1200/- and ` 200/- were paid to the accused. On the other aspect of the evidence, this witness Jagdish Ram PW2 admits that there was one Chowkidar Roshan Lal present in the room at the time when the bribe was offered, whereas complainant denied this. Learned counsel then urges that it is also proved on record that the story as narrated by the complainant that he had visited the house of Patwari on the previous night to the raid is negatived by the complainant himself when he says that he met him on the way. 13. The next aspect of the case adverted to by the learned counsel for the appellant is that PW3 Ishay Kumar, Pradhan of Gram Panchayat also does not prove the case of the prosecution. Though this witness had tried to support the prosecution version in his examination in chief, but in cross examination, he admits that there was no need for the jamabandis as he never authorised the complainant to collect 13 them nor was there any dispute pending about this land with anyone. He denied that any seal with which the case property was sealed was handed over to him. Most of all it is the evidence of PW9 Shiv Krishan Prashar which assumes significance. His cross examination has been extracted by me above. He admits that the door of Patwar office is not visible from where he was standing. He did not see any witness giving any signal to the raiding party etc., the accused had informed him that he had been falsely implicated and the currency notes had been forcibly thrust in his pocket. PW4 Onkar Nath says that he knows the complainant and during the meeting of Parents Teachers Association, an altercation took place between the complainant and Principal of the School regarding the path which was being constructed and encroached upon. He was a donor of the land along with one Tarsem Lal. But in the cross examination, he did not support the case of prosecution. He says that on 23.8.2001, he had gone all alone to the accused to procure the copies of jamabandis of the school land but at the time, he was told by the accused that such copies would be supplied later on. Later on the complainant also reached there and he told the complainant to collect the jamabandis. Thereafter, some discussion regarding some report took place between the accused and the complainant, but he did not know the nature of the allegations made in that complaint. PW10 Inspector Pritam Singh proved on record the site plan Ext.PK and if it is accepted as authentic and there is no circumstance to doubt its veracity, there is no reason as to why the defence taken by the accused should not be cosidered. What I find from the plan is the physical impossibility 14 of the witness PW2 Jagdish Ram to testify in the manner he has done as the entire incident could not be witnessed from the place where he was supposed to be standing. In the plan Ext.PK, point ‘D’ which is the point where the raiding party was standing, the door of the office of the accused is not visible from this point. Taking into consideration the entire narration and sequence of events, I find from the evidence (a) that the demand for illegal gratification does not stand proved on record as both the complainant and Jagdish Ram PW2 have come up with different versions with respect to the manner in which the demand was made and settled and the raid was conducted; (b) The prosectuion witnesses themselves prove that no signal was given to the raiding party at the time when the raid was conducted. Jagdish Ram PW2 again contradicts the evidence by saying that he never accompanied the complainant at the time when the demand was finalised; (c) Most of all the evidence of defence has been given a complete go by by the learned trial Court which holds that since the recovery of the money has been proved from the person of the accused, the burden would shift on him to show as to how he came in possession of that money. The trial Court was silent on the defence taken by the accused that the money was forcibly thrust in his pocket; (d) The threats held out by the complainant to the accused proved on the record have been ignored; (e) It is not proved on record as to whether any application etc. had been moved for the supply of revenue record/jamabandis. PW4 Onkar Nath then says that he also visited the accused on 23.8.2001 to procure