RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.145 of 2006 (Old No.2179 of 1992) Manohar Singh Chauhan ………….Appellant Versus The State …….. Respondent Dated: July 16, 2009 Sri P.S. Adhikari, Sr. Adv. assisted by Sri Rajeev Sharma, Adv. for appellant Sri U.K. Uniyal, Sr. Adv. assisted by Sri Sandeep Kothari, Adv. for respondent HON. DHARAM VEER, J. This appeal, preferred under Section 374(2) of Code of Criminal Procedure 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 03.12.1992 passed by Special Judge, Anti Corruption/Addl. District Judge, Dehradun, in C.B.I. Case No.9/86, CBI Versus M.S. Chauhan, whereby the learned Special Judge has convicted the appellant-accused under Section 161 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) and also under Section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947) (hereinafter to be referred as the Act). The appellant was sentenced to three months’ R.I. u/s 161 IPC and further three months’ R.I. under section u/s 5(2) of the Act with fine of Rs.100/- and in default of payment of fine, to undergo one month’s S.I. All the sentences were directed to run concurrently. 2 2. I have heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that P.W.1 Babu lodged a report before S.P., CBI, Dehradun on 7.10.1985 stating therein that he is working as Sweeper at Mathura Junction, Central Railway and his son Giridhar was working as a casual sweeper since last three months under the appellant/accused Manohar Singh Chauhan, Health Inspector. After completion of 120 days, a casual sweeper becomes eligible to be employed as a Substitute Sweeper. On 5.10.1985, when the complainant met with the appellant/accused in this context, then appellant/accused demanded Rs.400/- in bribe and he also warned the complainant that if the money would not be paid, then his (complainant’s) son would be out from his service. The complainant requested the appellant/accused that he could not pay the entire money at once then the appellant /accused directed him to pay the money by paying Rs.50/- per month and first installment was directed to be paid on 11.10.1985. It was further averted by the complainant that he did not want to pay bribe, however the appellant/ accused was not interested to do any work without bribe. With the same averments, the FIR Ex.Ka-1 was lodged on 7.10.1985 at 3:00 p.m. by P.W.1 Babu. On the basis of this FIR (Ex.Ka-1), Chik FIR was prepared, i.e. Ex.Ka.21. The investigation of this case was entrusted to P.W.5 H.C. Bisht, Deputy S.P. Thereafter, the memo of Trap was prepared, i.e. Ex.Ka-2 and the trap party and the witnesses also signed on it. Thereafter, the trap was conducted in which two G.C. Notes of denomination Rs.20/- each and one G.C. note of denomination of Rs.10/-, in total three notes amounting to Rs.50/-, were recovered from the shirt of the appellant/accused and 3 Recovery Memo Ex.Ka-3 was prepared. The I.O. also prepared the site plan of the place of occurrence, i.e. Ex.Ka-22. Seizure memo of the articles recovered from the office of appellant/accused was also prepared on 11.10.1985, i.e. Ex.Ka-23. On 16.12.1985, the I.O. also took in his possession some documents and prepared the seizure memo, i.e. Ex.Ka.31. The I.O. also took the sanction from the Addl. Divisional Railway Manager (G) Central Railway, Jhansi for prosecuting the appellant/ accused, i.e. Ex.Ka.30. During investigation, the I.O. recorded the statements of witnesses and on completion of investigation, filed the charge sheet in the court, i.e. Ex.Ka-32. 4. Learned Special Judge, Anti-Corruption, U.P. (East) Dehradun framed the charges against the appellant/accused on 3.11.1987 u/s 161 IPC and also u/s 5(1)(d) r/w Section 5(2) of the Act. The charges were read over and explained to the appellant/accused who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution got examined P.W.1 Babu, complainant, P.W.2 Ram Niwas Parashar, independent witness, P.W.3 Babu Lal, also an independent witness, P.W.4 K.B. Bhatiya, P.W.5 H.C. Bisht, Dy.S.P. CBI, P.W.6 Puran Singh, P.W.7 Krishan Kumar Verma, Addl. Divisional Railway Manager, who granted sanction for prosecution of the appellant/accused and P.W.8 M.C. Joshi, also an I.O. of the case. 6. After that the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form who denied the allegations made against him. In oral evidence he got produced D.W.1 Madan Mohan Sharma 4 and D.W.2 Naval Singh. In documentary evidence, he produced three documents viz. Ex.Kha-1 to Kha-3. 7. After hearing counsel for the parties and appreciating the material on record, learned Special Judge, Anti-Corruption/Addl. Distt. Judge, Dehradun vide judgment and order dated 3.12.1992 convicted and sentenced the appellant/accused as discussed above. Feeling aggrieved, the appellant/accused has come up in appeal. 8. To prove its case the prosecution has examined P.W.1 Babu who stated that appellant/accused was posted as Health Inspector at Mathura Junction Railway Station and all the sweepers working in the station were under the control of Health Inspector. His son Girdhar was working as casual labourer under the appellant/accused. After completion of 120 working days being a casual labourer, then the said labourer becomes regular i.e. substitute and the substitute sweeper gets salary as regular sweeper gets while the casual labourer gets salary on daily basis. Period of more than three months was elapsed by his son while working under the appellant/accused. On 5.10.1985, he met appellant/accused to get his son being employed as permanent employee and he requested the appellant/ accused for the same. For this purpose, appellant/accused demanded Rs.400/- from him. He requested the appellant/accused that he, being a poor man, is not capable to pay the entire money at once. Then the appellant/accused asked him to pay the money in installments of Rs.50/- per month for which he also agreed. The appellant/accused warned him that if the money would not be paid, then his son would be out from service before completion of 120 days. The appellant/ accused asked him to pay Rs.50/- as first installment on 5 11.10.1985. Since he did not want to pay bribe to the appellant, then he came Dehradun and came at the CBI Office and dictated the report, i.e. Ex.Ka-1. Then he gave that report to Dy. S.P. who asked him to meet on 10.10.1985 at Rest House of Mathura Post Office. On 10.10.1985, he met Dy. S.P. CBI at Rest House of Mathura Post Office. He informed Dy. S.P. that the appellant/ accused has gone Jhansi and would come back on 11th. On this, he was directed to come on the next day along with the money demanded from him by the appellant/accused. On the next day he reached at the Rest House where five CBI persons and two witnesses were already been present. He gave two notes of Rs.20/- each and one note of Rs.10/- to Dy S.P., the numbers of which were noted by Dy. S.P. and then in a piece of paper, phenolphthalein powder was applied. The said piece of paper was given to P.W.3 Babu Lal and he proved the same, i.e. Ex.2 and the envelope in which the paper was sealed, i.e. Ex.1. The hand of P.W.3 Babu Lal by which it held the said piece of paper, was got washed, then that mixture became pink and that mixture was sealed in a bottle Ex.3. The same powder was also been applied in notes of Rs.50/- and those notes were given to him with the instructions to give those notes to the appellant/accused on being demanded. He also proved those notes i.e. Ex.4 to Ex.6. Rest of the phenolphthalein powder was also sealed in an envelope, i.e. Ex.7. On the date of incident at about 10:45 P.M. he along with P.W.2 Ram Niwas Parashar went for the office of appellant/accused. On reaching there, appellant/ accused demanded the money from him. Then he gave those notes to appellant/accused which he took in his shirt’s pocket. The time was at about 12:00 p.m. and this incident was being seen by P.W.2 Ram Niwas Parashar. On the signal of P.W2 Ram Niwas Parashar, Sri H.C. Bisht, Dy 6 S.P. and other persons arrived there. After giving his introduction, the Dy. S.P. held both the hands of the appellant/accused tightly from his wrists. Thereafter, in a glass, sodium carbonate mixture was prepared and hands of appellant/ accused were washed, on which the colour of mixture became pink. This mixture was kept into a bottle, that bottle is Ex.8. On the search of the appellant/accused, those three notes viz. Ex.4 to Ex.6 were recovered from the pocket of the appellant/accused. The numbers of those notes were also matched from the numbers noted in the rest house. Those notes were sealed in an envelope i.e. Ex.9. From another soda mixture, the pocket of shirt of appellant/accused was also got washed due to which the colour of pocket also became pink. This mixture too was sealed in a bottle i.e. Ex.10. Shirt was also sealed in a bundle i.e. Ex.11. Some articles and money was also recovered from the personal search of the appellant/accused which too were taken into possession. The entire proceedings were reduced to writing at the room of the appellant/accused at station. He also signed on that paper. He also signed on the articles which were sealed on the spot. Thereafter, he went from there. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 9. The statement of P.W.1 Babu also gets corroborated from the evidence of P.W.2 Ram Niwas Parashar and P.W.3 Babu Lal. 10. P.W.4 is K.B. Bhatiya who stated that in 1985 he was posted as Office Superintendent Grade (2) at Mathura Junction Railway Station and also stated that the appellant/accused was posted in his station as Health Inspector. He proved the signatures of the appellant/ accused on 5th and 11th October, 1985 in the Attendance 7 Register, i.e. Ex.Ka-4. He further stated that Health Inspector gives certificate in respect of those casual labourers who work under him. On completion of 120 days of a casual labourer, the said casual labour becomes eligible to be employed as substitute and that substitute employee would be entitled to get all those facilities which a temporary employee is entitled to get. He has proved some payment orders prepared by the appellant/accused. This witness was also cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 11. P.W.5 is H.C. Bisht, D.S.P. CBI, Dehradun who stated that in October, 1985 he was posted as Dy.S.P. at CBI, Dehradun. He had registered the FIR Paper No.6-A on the basis of which the investigation was entrusted to him. He has proved the entire proceedings of Trap, arrangement of witnesses, demonstration to them, preparation of memos, arresting the appellant/accused while taking notes of bribe, sealing those notes and preparation of recovery memos etc. 12. P.W.6 is Puran Singh who stated that in the year 1985 he was posted as Head Clerk at Mathura Railway Station. He also stated that those casual labourers who work under the Health Inspector, their pay order is prepared only on the basis of the certificate issued by the Health Inspector. He also proved some of the documents prepared under the signatures of the appellant/accused. This witness was also cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is also reliable and believable. 8 13. P.W.7 is Krishan Kumar Verma who stated that in September 1986 he was posted as Addl. Divisional Railway manager (G), Central Railway, Jhansi. The appointing authority and removing authority for the post of Health Inspector, Central Railway is Addl. Divisional Railway Manager. He further stated that he had accorded the sanction for prosecuting the appellant/accused Manohar Singh i.e. Ex.Ka-30. 14. P.W.8 is M.C. Joshi, Dy. S.P., CBI who stated that in the year 1985-86, he was posted as Inspector in CBI, Dehradun. The investigation was transferred to him from Inspector S.P. Gupta on 7.11.1985. During investigation, he recorded the statements of witnesses and also took in his possession some documents from the Mathura Railway Station and prepared seizure memo i.e. Ex.Ka-31. On completion of investigation, he filed the charge sheet against the appellant/accused in the court, i.e. Ex.Ka-32. 15. After that the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form who denied the allegations made against him. In oral evidence he got produced D.W.1 Madan Mohan Sharma and D.W.2 Naval Singh. In documentary evidence, he produced three documents viz. Ex.Kha-1 to Kha-3. Ex.Kha-2 is copy of CPO BB’s letter dated 25.10.1983 for issuing instructions regarding engagement of substitutes and Ex.Kha-3 is Attestation Form of Dhiraj who is son of Babu (P.W.1). 16. D.W.1 Madan Mohan Sharma has stated that the Health Officer was not having any power to employ any casual labour or to substitute them and further he was not 9 entitled to make any recommendation for honorarium. He also produced the personal file of P.W.1 Babu who was posted under him as Sweeper. As per the personal file of Babu, he was given warnings 14-15 times in the past and he also remained suspended for 3-4 times and 2-3 times in custody. For once, his increment was also stopped and his work conduct was not good. He also proved the register Ex.Kha-1 (Paper No.23-A) being maintained in his office. 17. D.W.2 is Naval Singh who has proved the affidavit- dated 19.7.1986 of Dhiraj who is son of Babu (P.W.1) and also produced the record relating to service of Dhiraj and photocopy of Casual Labour No.290524. He stated that as per the records, date of birth of Dhiraj is 25.12.1966. 18. Sri P.S. Adhikari, learned senior counsel for the appellant/accused argued that as per the above said evidence, the prosecution has not been able to prove its case against the appellant/accused beyond reasonable doubt. Per contra, Sri U.K. Uniyal, Senior Advocate for CBI argued that the case against the appellant/accused, as per the evidence discussed above, is clearly made out. I find force in the argument put forth by Mr. U.K. Uniyal, Sr. Adv. for CBI as P.W.1 Babu, who is the complainant of the case, has stated that appellant/accused was posted as Health Inspector at Mathura Junction Railway Station and all the sweepers working in the station were under the control of Health Inspector. His son Girdhar was working as casual labourer under the appellant/accused. After completion of 120 working days being a casual labourer, then the said labourer becomes regular i.e. substitute and the substitute sweeper gets salary as regular sweeper gets while the casual labourer gets salary on daily basis. Period of more than three months was elapsed by his son while 10 working under the appellant/accused. On 5.10.1985, he met appellant/accused to get his son being employed as permanent employee and he requested the appellant/ accused for the same. For this purpose, appellant/accused demanded Rs.400/- from him. He requested the appellant/accused that he, being a poor man, is not capable to pay the entire money at once. Then the appellant/accused asked him to pay the money in installments of Rs.50/- per month for which he also agreed. The appellant/accused warned him that if the money would not be paid, then his son would be out from service before completion of 120 days. The appellant/ accused asked him to pay Rs.50/- as first installment on 11.10.1985. Since he did not want to pay bribe to the appellant, then he came Dehradun and came at the CBI Office and dictated the report, i.e. Ex.Ka-1. Then he gave that report to S.P. CBI. Thereafter, he met with Dy. S.P. who asked him to meet on 10.10.1985 at Rest House of Mathura Post Office. On 10.10.1985, he met Dy. S.P. CBI at Rest House of Mathura Post Office. He informed Dy. S.P. that the appellant/ accused has gone Jhansi and would come back on 11th. On this, he was directed to come on the next day along with the money demanded from him by the appellant/accused. On the next day he reached at the Rest House where five CBI persons and two witnesses were already been present. He gave two notes of Rs.20/- each and one note of Rs.10/- to Dy S.P., the numbers of which were noted by H.C. Bisht, Dy. S.P. and then in a piece of paper, phenolphthalein powder was applied. The said piece of paper was given to P.W.3 Babu Lal and he proved the same, i.e. Ex.2 and the envelope in which the paper was sealed, i.e. Ex.1. The hand of P.W.3 Babu Lal by which it held the said piece of paper, was got washed, then that mixture became pink and that mixture was sealed in a 11 bottle Ex.3. The same powder was also been applied in notes of Rs.50/- and those notes were given to him with the instructions to give those notes to the appellant/ accused on being demanded. He also proved those notes i.e. Ex.4 to Ex.6. Rest of the phenolphthalein powder was also sealed in an envelope, i.e. Ex.7. On the date of incident at about 10:45 P.M. he along with P.W.2 Ram Niwas Parashar went for the office of appellant/accused. On reaching there, appellant/accused demanded the money from him. Then he gave those notes to appellant/ accused which he took in his shirt’s pocket. The time was at about 12:00 p.m. and this incident was being seen by P.W.2 Ram Niwas Parashar. On the signal of P.W2 Ram Niwas Parashar, Sri H.C. Bisht, Dy S.P. and other persons arrived there. After giving his introduction, the Dy. S.P. held both the hands of the appellant/accused tightly from his wrists. Thereafter, in a glass, sodium carbonate mixture was prepared and hands of appellant/accused were washed, on which the colour of mixture became pink. This mixture was kept into a bottle, that bottle is Ex.8. On the search of the appellant/accused, those three notes viz. Ex.4 to Ex.6 were recovered from the pocket of the appellant/accused. The numbers of those notes were also matched from the numbers noted in the rest house. Those notes were sealed in an envelope i.e. Ex.9. From another soda mixture, the pocket of shirt of appellant/accused was also got washed due to which the colour of pocket also became pink. This mixture too was sealed in a bottle i.e. Ex.10. Shirt was also sealed in a bundle i.e. Ex.11. Some articles and money was also recovered from the personal search of the appellant/accused which too were taken into possession. The entire proceedings were reduced to writing at the room of the appellant/accused at station. He also signed on that paper. He also signed on the articles 12 which were sealed on the spot. Thereafter, he went from there. The statement of this witness is reliable and believable and the same gets corroboration from the evidence of P.W.2 Ram Niwas Parashar and P.W.3 Babu Lal as well as from the evidence of P.W.5 H.C. Bisht, Dy. S.P., CBI, Dehradun who also witnessed and proved the entire trap proceedings, arrangement of witnesses, demonstration to them, preparing memos, arresting the appellant/accused while taking bribe, sealing notes from his hand etc. Even the evidence of D.W.1 Madan Mohan Sharma and D.W.2 Naval Singh, examined by the appellant/accused in defence, as well as the documents adduced by him, are at all not helpful for the appellant/ accused because the case against the appellant/accused is clearly proved by the prosecution witnesses. As such, as per the above said discussion, the Court is of the view that the case against the appellant/accused Manohar Singh Chauhan is proved by the prosecution beyond reasonable doubt for the offences punishable under Section 161 IPC and also u/s 5(2) of the Prevention of Corruption Act, 1947. I also find that the court below too was correct in recording the conviction and sentence against the appellant/accused under the above-said sections as discussed above. 19. For the reasons aforesaid, the appeal preferred by the appellant/accused is dismissed. Judgment and order dated 3.12.1992 passed by Special Judge, Anti- Corruption/Addl. District Judge, Dehradun in CBI Case No.9 of 1986, CBI Vs. M.S. Chauhan, convicting and sentencing the appellant/accused as above discussed, is affirmed. 13 20. The appellant/accused is on bail. Let him be taken into custody forthwith to serve out the sentence as imposed against him. 21. A copy of this order be sent to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) July 16, 2009 Rajeev Dang