IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.80 of 2008 Decided on: 5.4.2011 State of H.P …..Appellant. VERSUS Bal Krishan Sharma …..Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No For the Appellant: Mr.Vivek Singh Thakur, Additional Advocate General with Mr.Rajesh Mandhotra, Dy.Advocate General. For the Respondent: Mr.Anup Chitkara, Advocate. Deepak Gupta,Judge (Oral) This appeal by the State is directed against the judgement dated 11.10.2007 delivered by the Learned Special Judge, Solan in Corruption Case No.2-S/7 of 2007 whereby he acquitted the accused of having committed offences punishable under Sections 7 and 13(1)(d)(2) of the Prevention of 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… Corruption Act, 1988 (hereinafter referred to as the ‘Act’). 2. Briefly stated the facts of the case are that the respondent-accused at the relevant time was working as Senior Accounts Officer in the Bharat Sanchar Nigam Limited (BSNL), Solan. PW/1 Sanjeev Kumar, complainant was running a PCO in Chowk Bazar, Solan. According to the prosecution, the complainant had defaulted in the payment of his bills and he approached the accused for grant of some extra time to pay the amount due. On this, the accused demanded a bribe of Rs.1000/- from the complainant. Thereafter, the complainant alongwith PW/2 Basu Dev approached the vigilance authorities who decided to set up a trap to entrap the accused. The police officials especially PW/9, Anant Ram, Investigating Officer allegedly gave a demonstration to PW/1 and PW/2 about the manner and use of phenolphthalein powder. They gave a demonstration of this powder by putting this powder in one glass and sodium carbonate in another glass. Water was put in each of the two glasses to make a solution. When the solutions of both the glasses were mixed then the colour changed to pink. The accused was also informed that if …3… the currency notes are treated with phenolphthalein powder and someone touches the same, the powder on the notes will stick to the hands and thereafter if his hands are washed with a solution containing sodium carbonate powder then the hands of the said person would also turned pink. The police officials also asked the complainant to telephone the accused to meet him at a particular place. 3. According to the prosecution, thereafter, the accused met the complainant who was accompanied by Basu Dev near the Telephone Exchange, Solan where he was handed a bribe of Rs.1000/- in the form of two notes of Rs.500/- treated with phenolphthalein powder and whose numbers had been noted down by the Investigating Officer. The accused kept these notes in a notebook and he was apprehended. After he was apprehended, his hands were washed with the solution of sodium carbonate and they were turned pink. On the basis of this material, challan was filed and the accused was charged with having committed the offences detailed here-in-above. The accused pleaded not guilty to the charges levelled against him and claimed trial. …4… After trial, the accused was acquitted. Hence the present appeal by the State. Before going into the other aspects, I shall deal with the most important aspect of the matter as to whether the prosecution has proved that the accused received a bribe of Rs.1000/- or not. PW/1 Sanjeev Kumar is the complainant. According to this witness, after he had complained to the police and demonstration was given to him, he on the asking of the police telephoned the accused who asked the complainant to meet him near the office of the Telephone District Manager (TDM), Saproon at about 4.00 p.m. The complainant alongwith PW/2 Basu Dev went on a scooter to the TDM office where the accused met them. According to the complainant, the accused refused to accept the amount at that place but told them to accompany him somewhere else. Then the complainant alongwith the complainant and Basu Dev came on the same scooter to the Central Library where the accused purchased a notebook from Jain Book Depot. Then they all sat on the scooter and went below the Telephone Exchange, Solan where …5… the complainant took out two currency notes from the envelope and gave them to the accused who put them in the notebook. Thereafter, the vigilance team following the complainant went after the accused who run up the stairs. The accused threw away the notebook but one Sh.Om Parkash who was part of the vigilance party apprehended the accused and also collected the notebook which had been thrown in the courtyard of the Telephone Exchange. This witness was declared hostile with regard to the last part of his statement. He was then cross-examined. In cross-examination, he stated that he had given a statement to the police that the accused had asked the police to produce the currency notes and then the accused had taken out the two currency notes from the note book. He first stated that the currency notes were then got washed and again stated that they were not washed. He also stated that the hands of the accused were got washed and the water turned pink. PW/2 Basu Dev on this aspect of the matter gives a different version. He in fact has not supported the prosecution story and turned hostile. …6… Even his deposition with regard to the manner in which the demonstration was given does not tally with that of the complainant or the Investigating Officer. Be that as it may, according to this witness, Sanjeev Kumar telephoned the accused who said that he would come at 2.00 p.m. whereas the complainant had said that the meeting was fixed for 4.00 p.m. Then according to this witness, he and Sanjeev Kumar came on a scooter to the TDM office office and met the accused and thereafter, the accused said that they should go somewhere else. Whereas the complainant had stated that they all went on the same scooter, this witness states that the accused was driving his own scooter and went ahead on his scooter and Sanjeev Kumar followed him and he (Basu Dev) was sitting as a pillion rider on the scooter of the complainant. According to this witness, the accused stopped his scooter near a book shop near Patiala Bank and purchased a notebook from there and then the accused and the complainant went on the stairs leading to the Telephone Exchange. This witness stated that he does not know what happened thereafter. He …7… admitted that he made a statement to the police and FIR Ext.PW1/A bears his signatures. He was confronted with portion ‘A’ to ‘A’ but denied that anything like that had happened in his presence. PW/3 Babu Ram Verma is one of the witnesses to the recovery of the notebook as well as the currency notes. According to the prosecution, it was in his presence that the accused had taken out two notes of Rs.500/- each. This witness while appearing in the witness box does not support the prosecution and according to him, when he was called by the investigating officer and reached the reception, one notebook and two currency notes of Rs.500/- each were lying on the table. Though this witness was declared hostile and was cross examined by the prosecution, nothing material has been extracted which was favourable to the prosecution. PW/5 Arun Kumar Jain is the person from whose shop the accused allegedly purchased the notebook on that date. He denied that he sold a notebook to the accused. He was also declared hostile and cross examined but nothing material has been extracted in his cross-examination. …8… Om Parkash was not examined. The only other relevant statement is the statement of PW/9 Anant Ram who obviously supported the prosecution version. According to him, he asked the complainant Sanjeev Kumar to contact the accused. Then the accused met the complainant. Thereafter, the complainant, accused and Basu Dev went on a scooter No.HP-14-2798 towards Solan Bazar. The scooter was stopped near the shop of Arun Kumar, PW/5 where the accused purchased one notebook and then they all went towards the Telephone Exchange. The police party followed them on foot till the Telephone Exchange. Sanjeev Kumar paid the bribe money to the accused who took the same in the notebook and thereafter, the police party apprehended the accused alongwith the note book. Then PW/3 was called and recovery was effected in his presence. There are various discrepancies in the statements of the witnesses. As pointed out above, the first discrepancy is with regard to the time. The …9… version of the complainant is that this act took place by about 4.00 p.m. whereas according to Basu Dev, it took place at 2.00 p.m. It has also come in evidence that the complainant and Basu Dev were on a scooter. According to the complainant, accused sat on the same scooter and they all proceeded towards Solan Bazar whereas according to Basu Dev, the accused was on his own scooter. The version of the police officials is that they followed the accused. There is nothing on record to show on what vehicle were they following the accused. In fact, the Investigating Officer with regard to that portion of the chase which took place after the accused allegedly purchased the notebook specifically stated that the police party followed them on foot. This means that no vehicle was being used. It would not be possible for the police officials to follow the accused, complainant and Basu Dev who were on a scooter while they were on foot. Another discrepancy in the prosecution case is that according to the complainant, the accused when he was offered the bribe near the TDM office refused to accept the same and said that …10… they should go to some other place. Thereafter, he allegedly purchased a notebook from PW/5. Obviously the intention of the accused was to place the bribe in the notebook. If that was the intention then he would not have handled the currency notes at all and the question of his hands turning pink when washed with Sodium Carbonate would not arise. There is another glaring discrepancy in the prosecution version. According to the complainant, when the accused run up the stairs, he threw away the note book. If he had thrown away the notebook and Om Parkash had picked it up, it was necessary for the prosecution to have examined Om Parkash to contradict the version of the complainant. However, the prosecution has not given any explanation as to why it did not examine Om Parkash who is allegedly a member of the police force. This also casts a doubt on the prosecution story. 4. Even the recovery has not been proved. PW/3 has not at all supported the prosecution and according to him, the notebook and the two currency notes were lying on a table and they were not produced by the accused in his presence. …11… Taking into consideration all these discrepancies, the learned Trial Court was fully justified in acquitting the accused. In view of the above discussion, I am of the considered view that the prosecution has miserably failed to prove its case. I find no reason to interfere in the well reasoned judgement passed by the learned Trial Court. The appeal being without merit is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. 5th April, 2011 ( Deepak Gupta ) (m) Judge.