IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A No. 304 of 2002. Date of Decision: 22.4.2009. State of H.P. …..Appellant. Versus Suresh Chand .….Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, J.. Whether approved for reporting?1Yes For the Appellant: Mr. J.S. Guleria, Assistant Advocate General. For the Respondent: Mr. M.S. Guleria, Advocate. Surinder Singh, J (Oral). The respondent was put on trial in case FIR No. 5 of 1997 dated 12.6.1997, registered under Section 7 & 13 (2) of the Prevention of Corruption Act, 1988, in corruption case No. 3 of 2000, in A.C. Zone, Una, H.P. wherein he was acquitted and the State has challenged his acquittal on the ground that the learned trial court appreciated the evidence on record in a slip-shod and perfunctory manner on the flimsy grounds and 1 Whether Reporters of Local Papers may be allowed to see the judgment? - 2 - discarded the testimony of the prosecution witnesses on untenable reasons. I have heard learned counsel for the parties and have carefully examined the evidence on record. In short, the case of the prosecution has been that PW Meet Singh, a resident of village Pubowal (had two brothers). Both had died leaving behind their widows. His land was allegedly entered in the name of his one of his sister-in- law Smt. Rattan Kaur, wrongly by the revenue officials. Thus, he filed an application before the Director of Consolidation of Holdings for correcting revenue entries. Vide order dated 17.11.1995 (Ext. P-M) his prayer was allowed. Therefore, the complainant Meet Singh moved an application Ext. PG/1 to the Tehsildar (Settlement Una), duly supported by the affidavit Ext. PG/2 in the month of March, 1997, contending therein that the said orders passed by the Director Consolidation were not implemented and requested for necessary action in the matter. This application was marked by the Tehsildar to the accused-respondent who was posted Field Kanungo (Settlement). But the respondent is alleged to have not implemented the said orders. It is further alleged that accused-respondent was demanding bribe from the complainant to get his work done. Therefore, on 11.6.1997 at about 4.50 - 3 - p.m., complainant along with PW-2 Chanan Singh met D.S.P. R.R. Bhatia of the Anti Corruption Zone, Una and lodged the FIR Ext. P-A disclosing the above facts and also stated that on 10.6.1997 complainant had gone to the respondent at his residence and requested him to get the work done but he demanded Rs. 300/- as bribe to be paid to him on 12.6.1997 as the Tehsildar was to come to that area on that date thus mutation of rectification was to be entered and attested. After lodging the FIR PW-11 R.R. Bhatia, D.S.P took Rs. 300/- (three currency denomination each) Ext. P-3 to Ext. P-5 from the complainant and treated them with phenolphethalein powder and gave demonstration in presence of PW-2 Chanan Singh that if solution of sodium carbonate powder is mixed with phenolphthalein solution, it would turn pink and handed over the treated currency notes aforesaid to the complainant with necessary instructions. PW-2 Chanan Singh was asked to become a shadow witness and he was directed to give a signal to the police party when the treated currency notes are handed over to the accused/respondent. With respect to the whole proceedings, memo Ext. PB was prepared. On 12.6.2001 at about 8 a.m., police formed the raiding party headed by Shri R.R. Bhatia D.S.P. and took complainant Chanan Singh - 4 - with them. The complainant and the shadow witness Channan Singh were asked to go to the residence of the respondent whereas the other members of the Raiding Party hid themselves at a distance. The respondent is alleged to have demanded Rs. 300/- from the complainant as a reward for doing his work. The complainant handed over the said treated currency notes to him. He kept them under the pillow of his bed. Thereafter, Chanan Singh PW-2 gave the signal to the police party. The police reached the spot and accused was caught hold by D.S.P. from his wrist. The hand wash of the accused was taken in a Thali. Its colour remained natural but when mixed with mixture of sodium carbonate, its colour turned pink, which was collected in the nip Ext.P-1 and sealed with seal impression ‘N’. It was taken into possession vide memo Ext. P-C. Thereafter the respondent was asked to produce the currency note, to which he took out from beneath the pillow and handed over to the Dy.S.P. which were sealed in the envelop Ext. P-2 and these proceedings were recorded in Ext. P-D. Thereafter the pillow cover Ext. P-8 was washed in a separate plate and when processed with sodium carbonate, its mixture also turned pink which was also collected in a nip Ext. P-6 and sealed with same seal and it was taken into possession vide Ext. P-E. Similarly, the bed sheet - 5 - was also collected in a nip Ext. P-7 and taken into possession vide memo Ext. P-F. The accused was arrested, site plan was prepared and the police during the investigation took into possession vide memo Ext. P-H the revenue case file whereby the application Ext. P- G/1 was marked to the respondent. The case property was deposited with MHC in the Malkhana. Thereafter all the nips were sent for the opinion of the forensic Laboratory. The sanction Ext. P-O to prosecute the respondent was taken from the Settlement Officer, Kangra Division. The police recorded the statement of the witnesses and on receipt of the report of the Laboratory Ext. P-N, challan was presented against the respondent in the court for his trial. The respondent was charge-sheeted for the aforesaid offences to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined 11 witnesses and the respondent was also examined under Section 313 of the Code of Criminal Procedure. The circumstances, which were found attendant upon the respondent, were put to him to which he denied. He pleaded his innocence and his defense was that he was working as Settlement Field Kanungo at Kuthar Beat. During the - 6 - measurement, some portion of the government land was found encroached upon by complainant Meet Singh. He asked him to vacate the encroached area but he insisted upon him to show it in his land holding to which he refused. By not doing this, the complainant got offended. Further Meet Singh, complainant had also asked him to implement the orders of Consolidation Officer but in turn he told him that he was a Kanungo in Settlement Department and it is the Consolidation Department who would implement the said orders. With this note, he sent the application of the complainant back to the Niab-Tehsildar and also sought guidelines from him. Again, Niab-Tehsildar returned the said papers to him with the note. Thereafter, he sent the file to the Patwari for implementation. Ultimately, mutation of Meet Singh was sanctioned by the Consolidation Department. According to him he never demanded or accepted bribe nor it was recovered from him and he was falsely implicated in this case by the complainant. The respondent did not lead any defense evidence. At the end of the trial, the learned trial court acquitted the respondent and the state has assailed his acquittal in the present appeal. On the reappraisal of the evidence on record, I find certain material contradictions in - 7 - the statement of the prosecution witnesses which renders the case of the prosecution highly doubtful. Although, as PW-1, the complainant has supported his case, yet in the cross-examination, he has admitted that respondent had measured the land of his village during the settlement operation and he was found having encroached upon the government land by constructing a house. The background of the complainant was that he was an accused in a murder case and also having many other cases against him which fact stands admitted by him. He further admitted that qua his land, the mutation Ext. DD was sanctioned by the Consolidation Staff in the month of January, 1998. It is pertinent to note that respondent at the relevant time was a Field Kanungo in the Settlement Department and his objection was that the order of the Consolidation Officer would be implemented by the Consolidation staff itself and this version finds corroboration from the statement of PW-8 Naib-Tehsildar. Further, In cross-examination PW-2 Channan Singh stated that he did not know what talk had taken place between the respondent and the complainant. He was categorical in his statement saying that the respondent did not demand any amount from complainant Meet Singh in his presence. Thus, his statement is contradictory to the statement of - 8 - the complainant with respect to the demand of the bribe money. PW-3 Hansa Singh has stated that he reached the spot when the police was preparing the documents. He was declared hostile and then he supported the case of the prosecution but in cross-examination he stated that at that time, he was residing in Jallandhar and he had come to village Pubowal on that day to pursue his application for partition of land which was filed before the Tehsildar. He further stated that he reached the residence of the respondent at 9.30 a.m. Police was already present there and were preparing documents and the sealing process was going on. Thus he was a chance witness and not secured by the police. In cross-examination PW-8 Niab Tehsildar who had examined application Ext. PG-1 bsides admitting that the Revenue Department, Settlement Department and Consolidation Department are separate and independent Departments from each other also stated that the respondent had sought the guidelines vide his endorsement Ext. D-B on the application as to whether the order Ext. P-M, passed by the Consolidation Officer could be implemented by him. In the instant case to lend strength to the case of the complainant, the police, during the investigation did not join independent and dis-interested witnesses in the Raiding Party - 9 - despite the fact that they were present in numbers as stated by PW-2 and there were ample opportunity with them to include them. On the scrutiny of evidence, it transpires that the complainant had a motive to falsely implicate the respondent in this case because admittedly, he had encroached upon the land and it was the respondent who reported the matter against him for his ejectment. Further, his involvement in many criminal cases itself speaks of his antecedents. In so far as PW-2 Chanan Singh is concerned, he was said to be present with the complainant on 11.6.1997 but there is nothing on record to show that on 12.6.1997 when the police had formed the Raiding Party who had called him there, which simply means that his association was because of his intimacy with the complainant. The entire prosecution story rests on the statement of these witnesses, who are interested witnesses and the complainant was further concerned in laying the trap against the respondent. As noted above, PW-2 did not say that bribe money was demanded by the respondent on the previous day when he was present with the complainant. Thus, learned trial court rightly placed the reliance upon the judgment of this court passed in Ved Parkash versus State of H.P. 1998 (1) Sim. L.C. 392, to discard the statements of both these witnesses. It is also noticeable - 10 - that aforesaid witnesses as well as PW-11 R.R. Bhatia have deposed that the pillow cover wash Ext. P-8 was collected in a plate and when mixture of sodium carbonate was mixed with it, it turned pink. But on the examination of report of the Forensic Laboratory, I did not find so. There were only the contents of sodium carbonate with no traces of phenolphethalein powder, therefore, pillow wash could not have turned into pink. Thus, on the basis of aforesaid facts and circumstances, the prosecution case lacks probity. The defense taken by the respondent stands probablized from the material on record. Therefore, to my mind, prosecution has failed to prove the case against the respondent beyond a shadow of doubt and he was rightly acquitted by the learned trial court on the material borne out from the record. As such the appeal sans merits and is accordingly dismissed. Send down the records. April 22, 2009. (Surinder Singh), (cm) Judge.