IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 102 of 2009 Judgment reserved on: 31.8.2011. Date of Decision: 6.9.2011 Gangbir Singh …Appellant Versus. State of H.P. .. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Appellant(s): Mr. Satyen Vaidya, Advocate For the Respondent(s): Mr.Vivek Singh Thakur, Addl.A.G. Deepak Gupta, J. 1. This appeal has been filed by the accused who has been convicted by the learned trial Court of having committed offences punishable under Sections 7 and 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 and has been sentenced to undergo rigorous imprisonment of two years and to pay fine of Rs.5000/- and in default of payment of fine to undergo further simple imprisonment for six months. 2. The prosecution story, in brief, is that the complainant Aashik Ali and his family members had some dispute with their neighbour Abdul Hamid. It was alleged that Abdul Hamid used - 2 - to cause nuisance by diverting dirty water towards the house of the complainant and his family. On 21.6.2005 Abdul Hamid again diverted the dirty water towards their house. Smt.Farida Begum, wife of the brother of the complainant, objected to this and on this she was beaten up by the family members of Abdul Hamid. Thereafter, the complainant took Farida Begum to the Police Post, Majra to lodge a report. The Munshi who was present in the Police Post demanded money for lodging the report. One Head Constable (accused) was sitting there who also demanded money. No money was paid but the report was lodged. Thereafter, the complainant and Farida Begum came back to their house. 3. Next day on 22.6.2005, the accused came to the house of the complainant at 7 p.m. in uniform and demanded Rs.5000/- for doing the investigation in favour of the complainant who informed the accused that both the parties were entering into a compromise and no further action was required on their report. On this, the accused threatened that the matter could not be compromised and he would not accept the compromise and would take strict action against the complainant. The same day, at about 8 p.m., a compromise was entered into between the complainant and Abdul Hamid and his family and reduced in writing in presence of the accused. A copy of the compromise was given to him but he again demanded Rs.5000/-. The - 3 - complainant stated that he could not pay this huge amount and requested the accused to reduce the demand and the deal was finally struck at Rs.3000/-. The accused asked the complainant to meet him in the evening of 23.6.2005 near Majra Chowk at Paonta Sahib otherwise he threatened to arrest him. 4. The complainant thereafter, in the company of Sanjeev Kumar, PW-12, lodged a report with the Anti Corruption Zone, Nahan and on the basis of this report FIR No.5 of 2005 was lodged. The Dy.S.P. gave a demonstration of the use of phenolphthalein powder to the complainant Aashiq Ali and Sanjeev Sharma. Thereafter, Aashiq Ali gave six currency notes of the denomination of Rs.500/- each to the Dy.S.P. who treated the same with phenolphthalein powder and handed over the same to the complainant. The complainant was directed to give the same to the accused on demand. Memos in this behalf were prepared and a raiding party was constituted by the police which consisted of Inspector Ram Rattan, Inspector Dilshad Mohd. and Constable Ved Parkash. The police alongwith the complainant and Sanjeev Sharma went in a Maruti van driven by Mukesh Kumar to Majra Chowk at Paonta Sahib. At about 8.45 p.m. when they reached near a bridge, where there was a hotel and tea stall of Ishwar Chand, Aashiq Ali was dropped and asked to stay there and conceal itself. Sanjeev Sharma also concealed himself. After the complainant gave money to the - 4 - accused Sanjeev Sharma gave a signal to the police party which immediately caught hold of the accused and recovered the amount of Rs.3000/- from him. The hands of the accused were washed and when the sodium carbonate mixture was added to the hand wash the same turned pink. The same was sealed. They also produced six currency notes of Rs.500/- each, the numbers of which tallied with the notes given by the complainant to the police. On this basis the accused was challaned and charged with having committed offences as aforesaid. The learned trial Court convicted the accused and sentenced him, as aforesaid. Hence, the present appeal. 5. I have heard Sh.Satyen Vaidya, learned counsel for the accused and Sh.Vivek Thakur, learned Additional Advocate General for the State. 6. The complainant appeared as PW-11. He supported the prosecution case. However, there are certain aspects of his statement which need to be referred to. According to the complainant after the currency notes were treated by the Dy.S.P. they were put in an envelope and the police officials asked him to hand over the envelope to the accused on demand. Further in his examination-in-chief he makes no reference to the shadow witness Sanjeev Sharma. According to him, he handed over the envelope containing the currency notes to the accused and when he made a signal the police officials came to - 5 - the spot and the envelope containing the currency notes was recovered from him and thereafter hand wash of the accused was taken. In cross examination, he admits that Ashraf Ali had lodged a complaint against him in police post Majra 3-4 months earlier and the proceedings under Section 107 Cr.P.C. were pending against him. He also admits that these proceedings were filed by the accused. 7. According to the complainant, a compromise was arrived at on 22.6.2005 and the accused had come to their village of his own accord. Though initially this is not stated, in cross examination he stated that the accused had called him to Majra Chowk at 8 p.m. In cross examination, he stated that when they reached Majra Chowk he made a telephonic call to the accused from his Mobile and thereafter 10 minutes later the accused reached Majra Chowk on his motorcycle. His version is that it was he (complainant) who gave signal to the police. In cross examination he states that after the accused was caught hold by the police officials a boy who used to work in the tea stall searched the accused and took out the envelop from the pocket of the accused and handed over the same to Dy.S.P. 8. The version given by PW-12 Sanjeev Sharma is different. According to him, on 23.6.2005 the complainant met him and stated that the accused had demanded a bribe. Thereafter, he and the complainant went to the Anti Corruption Department at - 6 - Nahan and reported the matter. He supports the prosecution on material particulars but his version is that after treatment by Phenolphthalein powder the currency notes were handed over by the police to the complainant. He makes no mention of the currency notes being put in an envelope. Whereas, the complainant stated that he alone had gone towards tea stall, this witness states that he had accompanied the complainant towards the tea stall. Whereas the complainant stated that the accused was called on a mobile phone and came on his motorcycle 10 minutes later, Sanjeev Sharma states that accused was already present in front of the road opposite the tea stall. According to him, on demand of the accused the complainant handed over the notes to the accused and thereafter he passed the signal to the vigilance party who caught hold of the accused. This is contrary to the version of the complainant who had stated that it was he who given signal to the police officials. This witness categorically states that the currency notes were not in envelope. 9. Interestingly, this witness states that Aashiq Ali had come to him two days prior to incident i.e. on 21.6.2005 and told him that he wanted to lay a trap on the accused. This totally belies the version of the complainant. 10. PW-1, Inspector Ram Rattan, was a member of the raiding party. According to this witness, the police officials and the - 7 - complainant Sanjeev Kumar had gone to Majra Chowk in a private car which was driven by its driver. This is different to the stand of the complainant and Sanjeev Sharma who have clearly stated that they were travelling in a Van and not in a car. This witness did not even know where the Dy.S.P. and the other police officials had concealed themselves. This is totally contrary to the statement of the complainant and the shadow witness that the members of the police party had concealed themselves at one place. This witness does not even know where the accused was apprehended by the police. He denies knowledge of various very important factors and therefore his statement cannot be relied upon. 11. PW-1 Pawan Kumar who was the witness to the recovery of the notes turned hostile. 12. From the evidence detailed hereinabove, it is apparent that there are various contradictions in the statements of the witnesses. These can be summed up as follows: A) There is contradiction as to whether currency notes were in an envelope or not. B) There is a contradiction with regard to the presence of Sanjeev Sharma accompanying the complainant till the hotel. - 8 - C) There is contradiction with regard to the fact as to whether the accused was already present there or was called by the complainant. D) In case the notes were in an envelope then there was no question of the hand wash of the accused turning pink. E) The other factors which stand established are that even without payment of money the report had been lodged. No doubt, according to the complainant, money was demanded by the Munshi and the accused, but no complaint was lodged against the Munshi and despite non payment of money the report was lodged by the accused at the instance of the complainant. F) The compromise was effected on 22.6.2005 and therefore how could the complainant had told PW-12 Sanjeev Sharma on 21.6.2005 that he wanted to trap the accused. G) The answer obviously lies in the enmity of the complainant with the accused since admittedly the accused had filed proceedings under Section 107 Cr.P.C. against the complainant. 13. The learned trial Court has merely glossed over these material contradictions. The statement of Aashiq Ali, complainant, could not be accepted at its face value especially when there were material contradictions between the statement of Aashiq Ali and the main witness Sanjeev Sharma. Another important - 9 - factor is that the shadow witness does not say that in his presence the accused demanded bribe from the complainant. 14. This evidence has to be appreciated in the light of the law laid down by the Apex Court and this Court. The Apex Court in R.C.Mehta vs. The State of Punjab, AIR 1971 SC 1420 held that the burden of proving his innocence can never be shifted on the accused. In Ram Prakash Arora vs. The State of Punjab, AIR 1973 SC 498 the Apex Court held that evidence of interested and partisan witnesses who are concerned in the success of the trap must be tested in the same way as that of any other interested witness. Therefore, there should be independent corroboration before a person can be convicted. 15. In Panalal Damodar Rathi vs. State of Maharashtra (1979) 4 SCC 526 the Apex Court held that the statement of the complainant cannot be placed on a better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime must be insisted upon. 16. In State of Kerala and another vs. C.P.Rao, (2011) 6 SCC 450, the Apex Court again reiterated that the testimony of the complainant regarding demand of bribe by the accused must be corroborated and only the statement of the complainant cannot be relied upon. The Apex Court held as follows:- “12. Those observations quoted above are clearly applicable in this case. In the context of those observations, this Court in SCC para 28 of A.Subair made - 10 - it clear that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is proved to the contrary by proper proof of demand and acceptance of illegal gratification, which is the vital ingredient to secure the conviction in a bribery case. In view of the aforesaid settled principles of law, we find it difficult to take a view different from the one taken by the High Court.” 17. Applying these principles to the present case, it is apparent that even in corruption cases the burden to prove the case does not shift upon the accused. When a public servant demands or accepts or agrees to accept gratification other than the legal remuneration due to him for work which he has to do it is a demand for bribe. It is necessary for the prosecution to prove that there has been a demand and further that pursuant to such demand accused has been paid something which was not legally due to him. If the prosecution proves that the accused person accepted or obtained or agreed to accept any gratification other than legal remuneration a presumption would arise under Section 20 of the Prevention of Corruption Act that this gratification was such as is mentioned in Section 7. It is thus obvious that the burden is on the prosecution to prove that a demand of bribe was made and subsequently the bribe was paid. 18. In the present case, in view of the contradictions and the fact that there is no corroboration to the testimony of the - 11 - complainant with regard to the demand of bribe and especially in view of the fact that without the bribe the report had been entered on 21.6.2000 and also keeping in view the fact that the complainant had a motive to falsely implicate the accused, I am of the considered opinion that the learned trial Court gravely erred in convicting the accused. 19. In view of the above discussion, the appeal is allowed and the judgment of the learned Court below convicting and sentencing the accused is set-aside. The accused is acquitted. Bail bonds, if any, furnished by the accused are ordered to be discharged. September 6, 2011 ( Deepak Gupta), PV Judge