RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 258 of 2001 (Old No. 1518/1991) Ambi Ram S/o Shri Sur Ram, R/o Village Dumana, P.O. Chaumeliya, Patti Kaklashyun, District Almora .…. Appellant/Accused Versus State …………… Respondent May 14, 2009 Mr. Lokendra Dobhal, Advocate for the ap ellant. p Mr. M.A. Khan, Brief Holder for the State. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 5.8.1991 passed by the Special Judge (Sessions Judge), Pithoragarh in Special Trial No. 2 of 1987, State v. Ambi Ram, whereby the learned Special Judge has convicted the appellant/accused Ambi Ram under Section 161 of Indian Penal Code, 1860 (for short, I.P.C.) as well as under Section 5(2) of the Prevention of Corruption Act, 1947 (for short, ‘the Act’) and sentenced him to undergo R.I. for a period of four years along with fine of Rs. 5000/- for the offence punishable u/s 5(2) of the Act and in case of default in payment of fine, one year’s further R.I. was awarded. Appellant/accused was also sentenced for a period of three years’ R.I. for the offence punishable u/s 161 I.P.C. It was ordered that both the sentences shall run concurrently. 2 2. I have heard Mr. Lokendra Dobhal, learned Counsel for the appellant and Mr. M.A. Khan, learned Brief Holder for the State and have carefully perused the entire material available on the record. 3. The prosecution case, in brief, is that Paruli Devi w/o Rami Ram Tamta died an unnatural death on 27.8.1985 in village Baram, Bachkuri. Keshav Datt Pande, Patwari prepared the panchayatnama of the dead body of Paruli Devi. Gopal Singh, Jeet Singh, Bhuwan Chandra, Moti Ram, Pooran Singh and Nandan Singh were Panches in the said panchayatnama. After preparation of panchayatnama, the body of Paruli Devi was handed over by Patwari, Keshav Datt Pande to her family members for cremation. Later on, Fakir Ram, brother of deceased Paruli Devi made a complaint to S.D.M., Didihat that actually his sister Paruli Devi did not commit any suicide, rather she was murdered by her husband Rami Ram. Thereafter a case was registered and investigation of the same was entrusted to the present appellant/accused Ambi Ram, who was then posted as Kanoongo at Didihat. (In rural hilly areas of State of Uttarakhand, the Patwaris and certain revenue officials are vested with police powers vide U.P. Govt. Notification NO. 494/VIII-418-16 dated 7/3/1916). Rami Ram, husband of the deceased Paruli Devi was arrested by the present appellant/accused in that connection. Rami Ram got himself bailed out. While arresting Rami Ram, the appellant/accused threatened to the Panches of the panchayatnama that he would arrest them too and would chargesheet them in that connection. After this complainant Gopal Singh and other Panches got themselves bailed out after surrendering before Munsif Magistrate, Didihat. 3 4. After getting himself bailed out, complainant Gopal Singh, who was also the Pradhan of the aforesaid village at the relevant time, went to meet the appellant/accused Ambi Ram in his office at Didihat. Accused Ambi Ram asked him to pay Rs. 1200/- as illegal gratification. He assured him that in case of such payment to him being made, he would not chargesheet them, otherwise, he would book them for trial. He directed Gopal Singh to pay him the said amount of Rs. 1200/- by the evening of 2.10.1985 in his office. Gopal Singh and other Panches did not want to part with this money illegally demanded by the appellant/accused Ambi Ram. They decided to get him trapped while accepting such bribe. Each of the six Panches including the complainant Gopal Singh contributed Rs. 200/- and in this way, the amount of Rs. 1200/- was collected. 5. On 30.9.1985, Gopal Singh acting on the collective decision of the Panches came to Pithoragarh and met Mr. Nayal, the Deputy Superintendent of Police. He narrated the entire story to Dy.S.P. Mr. Nayal, who advised Gopal Singh to meet S.P. (Vigilance) with an application in PWD Inspection House at Pithoragarh where he was camping having come from Nainital. Thereafter Gopal Singh started for the PWD Inspection House, Pithoragarh. He wrote down a report Ex. Ka-1 addressed to S.P. (Vigilance), Nainital detailing the entire story including the number of 12 currency notes in the denomination of Rs. 100/- each that he had brought for trapping of the appellant/accused Ambi Ram. With this application and the currency notes, he met the S.P. (Vigilance) in PWD Inspection House. He handed over the application Ex. Ka-1 to S.P. (Vigilance) and showed him the 12 currency notes in the denomination of Rs. 100/- each Ex. 3 to 14. Sri D.R. Nagar, S.P. (Vigilance) passed an order Ex. Ka-5 on the 4 application Ex. Ka-1 itself directing Inspector Tara Datt Pant to arrange a trap along with Inspector J.C. Upadhyaya on 2nd October, 1985. 6. S.P. (Vigilance) directed the complainant Gopal Singh to meet Inspector Tara Datt Pant who was also camping in the same Inspection House. Gopal Singh (PW-1) immediately met Inspector Tara Datt Pant and showed him the 12 currency notes which were in the denomination of Rs. 100/- each (Ex. 3 to 14). Inspector Tara Datt Pant compared the same with the numbers given in the complaint Ex. Ka-1 and returned these currency notes to Gopal Singh with direction to meet him on 2.10.1985 at the same place i.e. PWD Inspection House, Pithoragarh at 5 AM along with those currency notes. He accordingly met Inspector Tara Datt Pant on the scheduled date along with those 12 currency notes. 7. Inspector Tara Datt Pant along with complainant Gopal Singh, another Inspector J.C. Upadhyaya, two constables and the driver started from PWD Inspection House, Pithoragarh for Didihat on the jeep and reached Shandeo Inspection House at about 9.30 AM. Two public witnesses, viz., Mahendra Singh and Jodh Singh were procured from near about Shandeo Inspection House by Inspector J.C. Upadhyaya on the instructions of Inspector Tara Datt Pant. Inspector Tara Datt Pant met these two public witnesses at Shandeo Inspection House and made them to understand the purpose for which they had been called, viz., to trap the appellant/accused while accepting bribe of Rs. 1200/- from the complainant Gopal Singh. 8. A demonstration was also held at Shandeo Inspection House. Inspector J.C. Upadhyaya prepared the mixture of sodium carbonate and washed his hands from 5 this mixture. The colour of mixture did not change and it remained white. It was sealed in a phial Ex. 1. Then the 12 currency notes in the denomination of Rs. 100/- each (Ex. 3 to 14), which were meant to be given as bribe to the appellant/accused by the complainant Gopal Singh, were treated with phenolphthalein powder by Inspector J.C. Upadhyaya. Thereafter these notes were returned back to Gopal Singh with the instruction that he would give these very notes to the accused in bribe. After having treated these notes with phenolphthalein powder, Inspector J.C. Upadhyaya washed his hands with the mixture of sodium carbonate. The colour of the mixture turned pink. It was filled in a phial Ex. 2 and was sealed then and there. Gopal Singh and the public witnesses were made to understand the effect that when one washes his hands in the mixture of sodium carbonate after coming into contact with phenolphthalein powder, the mixture turns pink. A fard of this demonstration Ex. Ka-2 was prepared at Shandeo Inspection House. 9. Thereafter the entire party left the Shandeo Inspection House and started for the office of the appellant/accused at Didihat. They left the jeep 2 kms before Didihat under the charge of the driver. Therefrom proceeding a little ahead on foot, the party reached near the Soil Conservation Unit, a little before the office of the appellant/accused. There the party was divided into three groups by Inspector Tara Datt Pant. First party included the complainant Gopal Singh, public witness Mahendra Singh and Constable Manwar Singh in plain clothes. Second party consisted of only Inspector J.C. Upadhyaya. Third party comprised of Inspector Tara Datt Pant himself, Constable Bishan Ram in plain clothes and the public witness Jodh Singh. As was pre-planned, Gopal Singh was to hand over those 12 currency notes Ex. 3 to 14 to the 6 appellant/accused in his room, while the other two parties were to creep around outside the room of the appellant/accused eavesdropping and stealthily watching the happenings inside the room and to pounce upon the appellant/accused while accepting the bribe from the complainant Gopal Singh. 10. As was pre-planned, the first party which included complainant Gopal Singh, Constable Manwar Singh and public witness Mahendra Singh went inside the room of the appellant/accused in his office. The accused was present there, who enquired from Gopal Singh whether he had done the work as was directed by him. Gopal Singh answered in affirmative. At this juncture, Inspector J.C. Upadhyaya entered into the room as per the pre-plan. He posed himself as a decoy and requested the appellant/accused, introducing himself as R.C. Upadhyaya, Asst. Engineer, Haldwani, that he needs a permit to go Dharchula in order to meet his brother. The appellant/accused told him that such a permit shall be issued by the Tehsildar. He asked him to write an application for the purpose for being forwarded by him to the Tehsildar. Inspector Upadhayaya accordingly wrote an application Ex. Ka-6 addressed to the Tehsildar, Didihat. The appellant/accused wrote down his recommendations Ex. Ka-7 on the application Ex. Ka-6. While appellant/accused was dealing with Inspector Upadhyaya, he had beckoned the complainant Gopal Singh to keep quite till that man was disposed of. As soon as Inspector Upadhyaya came out of the room with the application Ex. Ka-6, the appellant/accused asked Gopal Singh to pay him Rs. 1200/- so that his work might be done. Complainant Gopal Singh handed over 12 currency notes of Rs. 100/- each (Ex. 3 to 14), which had earlier been treated with phenolphthalein powder in Shandeo 7 Inspection House, to the appellant/accused and requested him to do the favours in the matter of Paruli Devi’s death. Appellant/accused received those 12 currency notes in his right fist and assured Gopal Singh that his work would be done. At this point of time, Inspector Tara Datt Pant, Inspector J.C. Upadhyaya, Constable Bishan Ram and public witness Jodh Singh entered inside the room. Another public witness Mahendra Singh and constable Manwar Singh were already seated inside the room as they had gone with complainant Gopal Singh. Inspector Tara Datt Pant after giving his introduction nabbed the appellant/accused with those 12 currency notes of Rs. 100/- each, which he was holding in his right fist after having accepted the same as bribe from the complainant Gopal Singh. Those 12 currency notes Ex. 3 to 14 were taken into possession and their numbers were compared with those mentioned in the original complaint of Gopal Singh Ex. Ka-1 and fard of demonstration Ex. Ka-2, which was prepared at Shandeo Inspection House. The numbers tallied. The appellant/accused was made to wash his right fist in the mixture of sodium carbonate. The colour turned pink. It was filled in a phial Ex. 16 and was sealed. The public witnesses were also made to wash their hands in the mixture of sodium carbonate. The colour did not change. It was filled in a phial Ex. 15 and was sealed. The currency notes Ex. 3 to 14 were also sealed then and there. The application Ex. Ka-6 containing the endorsement of the appellant/accused Ex. Ka-7 was also sealed in an envelope. A fard of arrest and recovery Ex. Ka-3 describing the events which took place there was prepared by Inspector Tara Datt Pant which was signed by all the members of the party. Appellant/accused was trapped at about 1 PM on 2.10.1985. A copy of the fard was also given to him, who did not sign on the fard and tore off the copy given to him. Inspector Tara Datt Pant 8 gave the written report Ex. Ka-8 at 4 PM on the same day at P.S. Didihat, on the basis of which chick FIR Ex. Ka-15 was prepared. 11. Thereafter a case u/s 161 I.P.C. and u/s 5(2) of the Act was registered against the appellant/accused. Sri T.N. Aggarwal, the then S.P. (Vigilance) vide his order Ex. Ka- 14 entrusted the investigation of this case to Inspector Chetan Swaroop Singh. The mixture Ex. 1, 2, 15 & 16 were sent for chemical analysis. A report Ex. Ka-11 was received after analysis. The I.O. inspected the place of occurrence and prepared the site plan Ex. Ka-10. During the course of investigation, the I.O. also recorded the statement of the witnesses. Sri O.N. Vedh, the then Commissioner of Kumaon Division, accorded his permission Ex. Ka-12 to prosecute the appellant/accused. After completing the investigation, the I.O. filed the chargesheet Ex. Ka-13 against the appellant/accused. 12. Learned Special Judge (Sessions Judge) framed the charges against the appellant/accused Ambi Ram for the offence punishable u/s 161 I.P.C. and u/s 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. 13. To prove its case, the prosecution has examined PW- 1 Gopal Singh, the complainant; PW-2 Mahendra Singh, an independent public witness who was present at the spot at the time of trapping the appellant/accused; PW-3 Inspector Tara Datt Pant, who had arranged the trap on the instructions of S.P. (Vigilance); PW-4 Shyam Singh Khati; PW-5 Constable Shyam Kumar; PW-6 Inspector Chetan Swaroop Singh, the I.O. of the case and PW-7 Madan Singh. 9 14. Thereafter, the statement of the appellant/accused was recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he has been falsely accused and implicated as he was investigating the death case of Paruli Devi and on the basis of the evidence collected by him, a case u/s 498- A/201 I.P.C. was registered against Rami Ram, husband of Paruli Devi; Keshav Datt Pande, Patwari and the Panches including the complainant Gopal Singh. The appellant/accused alleged that actually it was Keshav Datt Pande, Patwari, who was acting behind the screen and he colluded with the officials of vigilance department and got him falsely implicated in this case on the basis of a fictitious trap. He has also alleged that Inspector Tara Datt Pant and Inspector J.C. Upadhyaya belong to Pithoragarh, wherefrom Keshav Datt, Patwari also hails and colluding with each other, they have imposed a false case on his head. However, in defence, none has been examined by the appellant/accused. But the appellant/accused has filed a copy of the statement of Km. Nandi d/o Mahan Ram made by her before the Munsif Magistrate, Pithoragarh u/s 164 Cr.P.C. in respect of the death of Paruli Devi. That statement is Ex. Kha-1. 15. After hearing learned counsel for the parties and after appreciating the evidence on record, the learned Special Judge (Sessions Judge), Pithoragarh vide his judgment and order dated 5.8.1991 convicted the appellant/accused and sentenced him as discussed above. Against the aforesaid judgment and order dated 5.8.1991, the appellant/accused has preferred the present appeal. 10 16. To prove its case, the prosecution has examined seven witnesses in total. PW-1, the complainant Gopal Singh has narrated the prosecution case in detail. He has stated that Keshav Datt Pande, Patwari had appointed him as one of the six Panches on 28.8.1985 in the panchayatnama of deceased Paruli Devi w/o Rami Ram. He has further stated that the appellant/accused had visited his village during the course of investigation in the matter of death of Paurli Devi and arrested her husband Rami Ram and threatened him as well as the other Panches that they would also be arrested and chargesheeted. Thereafter he got himself bailed out on 18.9.1985 after surrendering before the Munsif Magistrate, Didihat. Other Panches also got the bail next day. Thereafter he went to meet the appellant/accused at his office situated at Didihat where he demanded Rs. 1200/- as illegal gratification and given a threat that in case such payment would not be made to him by 2.10.1985, chargesheet would be submitted against them. They did not want to oblige the appellant/accused with the said money illegally demanded by him and, therefore, after collecting Rs. 200/- from each of the Panches (Rs. 1200/- in total) he met Dy.S.P. Mr. Nayal at Pithoragarh and narrated to him the whole story, who advised him to prepare an application in this regard and meet S.P. (Vigilance), Nainital who, at that time, was camping at PWD Inspection House at Pithoragarh. He accordingly wrote an application Ex. Ka-1 and met S.P. (Vigilance) at PWD Inspection House along with those 12 currency notes of Rs. 100/- each. S.P. (Vigilance) perused his application and passed an order on it and directed him to meet Inspector Tara Datt Pant (PW-3) who was also camping at the same place. He accordingly met Inspector Tara Datt Pant, who tallied the number of the 12 currency notes of Rs. 100/- each with the number given in the application 11 Ex. Ka-1 and thereafter asked him to come with those 12 currency notes in the morning of 2.10.1985 at PWD Inspection House, Pithoragarh. He accordingly arrived at PWD Inspection House on 2.10.1985 at 5 AM and met Inspector Tara Datt Pant. This witness has proved the complaint Ex. Ka-1, fard of demonstration Ex. Ka-2, fard of arrest of the appellant/accused and recovery of currency notes of Rs. 1200/- from him Ex. Ka-3, mixture of sodium carbonate Ex. 1, 2, 15 & 16 and the 12 currency notes in the denomination of Rs. 100/- each Ex. 3 to 14. He has further stated that Inspector Tara Datt Pant (PW-3) was the head of the team arranged for trapping the appellant/accused, who was appointed as such by the order of S.P. (Vigilance), Nainital passed on his complaint Ex. Ka-1 on 30.9.1985, with whom he had met at PWD Inspection House at Pithoragarh. As mentioned above, this witness has narrated the whole incident which took place after his meeting the S.P. (Vigilance) till the appellant/accused was caught red handed while accepting the bribe of Rs. 1200/- from him at Didihat. He has also stated that Mahendra Singh (PW- 2), an independent public witness, was picked up by Inspector J.C. Upadhyaya near Shandeo Inspection House on 2.10.1985. 17. Statement of PW-1 Gopal Singh is corroborated by the deposition of PW-2 Mahendra Singh and PW-3 Inspector Tara Datt Pant. 18. PW-4 Shyam Singh Khati and PW-7 Madan Singh are formal witnesses. PW-4 Shyam Singh Khati was posted as Head Nazir in the Collectorate, Pithoragarh at the relevant time. He has stated that the case property Ex. 1, 2, 15 & 16 were deposited in malkhana on 5.10.1985 by 12 Constable Bhupendra Singh. He made the entry in the malkhana register at serial no. 6 dated 5.10.1985. On 10.1.1986, this mall was taken by Constable Shyam Kumar for analysis and was deposited back in the nazrat on 18.1.1986. On 28.1.1986, the mall was again taken by Constable Shyam Kumar for chemical analysis and was deposited back on 22.8.1986. When the mall was deposited back on 22.8.1986, one phial was leaking from the bottom and he had made entry in this regard in the register which was signed by Constable Shyam Kumar. He has stated that the case property deposited in the malkhana was intact and nobody was allowed to interfere with the same. He has filed the photocopy of the malkhana register Ex. Ka-9. 19. PW-5 Constable Shyam Kumar has stated in his deposition that on 10.1.1986, he had taken the case property from nazrat, Pithoragarh to the laboratory at Lucknow on the orders of CJM, Pithoragarh and that case properties are Ex. 1, 2, 15 & 16. He has further stated that since some objection was made at the Lucknow laboratory, therefore, he came back and deposited the case property back in the nazrat on 18.1.1986. Thereafter on 28.1.1986 he had again taken the aforesaid case property to Lucknow laboratory and after analysis, deposited them back on 22.8.1986 in the nazrat at Collectorate, Pithoragarh. He has admitted that at the time of depositing the case property on 22.8.1986, one phial was leaking. For that entry was made in the register and he had signed on it. He has stated that the case property was handed over to him in the sealed condition from the malkhana, which he carried undamaged and intact to the Lucknow laboratory. 13 20. PW-6 Chetan Swaroop Singh is the I.O. of the case, who has stated that the investigation of this case was entrusted to him. During the course of investigation, he inspected the place of occurrence and prepared the site plan Ex. Ka-10. He recorded the statement of the witnesses and after completing the investigation submitted the chargesheet Ex. Ka-13 against the appellant/accused. Nothing has come on the record which may vitiate the investigation done by this witness and the same has been done in fair manner and as per rules. 21. PW-7 Madan Singh has proved the chick FIR Ex. Ka- 15 and has identified the handwriting of Constable Mohd. Sohrab stating that they were posted and worked together. 22. Learned Counsel for the appellant/accused argued that on the basis of the evidence discussed above, the prosecution has not proved its case against the appellant/accused beyond reasonable doubt. I do not find any substance in the argument of the learned Counsel for the appellant/accused inasmuch as the foregoing discussion of evidence clearly goes to establish that appellant/accused Ambi Ram while investigating the death case of Paruli Devi threatened to implicate the complainant Gopal Singh (PW-1) and other Panches of the panchayatnama in the said case and, therefore, all the six Panches including the complainant had to get themselves bailed out. Thereafter, when the complainant Gopal Singh met the appellant/accused in his office at Didihat, he demanded bribe of Rs. 1200/- and asked to pay the same by 2.10.1985 for submitting the final report against them in the said case and warned that in case of non-fulfillment of his demand of bribe by the said date, all the Panches would be chargesheeted. It is also adequately proved on the basis of the aforesaid evidence that complainant Gopal 14 Singh, in order to trap the appellant/accused while accepting such bribe, met the police officers of the vigilance department on 30.9.1985 along with 12 currency notes (Ex. 3 to 14) of Rs. 100/- each which he had brought for giving the appellant/accused in bribe and made a written complaint Ex. Ka-1 to S.P. (Vigilance), who after verifying the contents of the complaint, passed an order Ex. Ka-5 directing Inspector Tara Datt Pant (PW-3) to arrange a trap on 2.10.1985. After doing the needful, a trap was arranged on 2.10.1985 by the police officers of vigilance department. Inspector Tara Datt Pant along with the complainant Gopal Singh (PW-1), another Inspector J.C. Upadhyaya, two constables and the driver left the PWD Inspection House, Pithoragarh for Didihat by a jeep in the morning of 2.10.1985. They reached at Shandeo Inspection House at 9.30 AM. Two independent public witnesses, viz., Mahendra Singh (PW-2) and Jodh Singh were picked up from the nearby area of Shandeo Inspection House by Inspector J.C. Upadhyaya. Both the public witnesses were made to understand the purpose for which they were procured. Complainant Gopal Singh and the public witnesses were also made to understand the effect that when one washes his hands in the mixture of sodium carbonate after coming into contact with phenolphthalein powder, the mixture turns pink. A demonstration of the same was also held at Shandeo Inspection House and fard of demonstration Ex. Ka-2 was also prepared. After treating those 12 currency notes of Rs. 100/- each (Ex. 3 to 14) with phenolphthalein powder by Inspector