IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 230 of 2001. Reserved on: 24.07.2008. Decided on: 1.8.2008. State of Himachal Pradesh. … … Appellant. Versus Krishan Lal. … … Accused/Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellant: Mr. Rajinder Dogra, Additional Advocate General. For the Accused/Respondent: Mr. O.P. Sharma, Advocate. Rajiv Sharma, Judge: The respondent was prosecuted in corruption Case No.5-S/7 of 1997 in the Court of Special Judge (Forests), Shimla under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988. He was acquitted by the learned Special Judge (Forests) on 24.11.2000. This appeal has been preferred by the State against the judgment of acquittal dated 24.11.2000. The brief facts necessary for the adjudication of this appeal are that in the year 1996 accused was posted as Patwari in Patwar Circle, Ghanahatti, District Shimla, Himachal Pradesh. The complainant Shri Harish Chander Chauhan (PW-1) had purchased four biswas of land Whether reporters of local papers may be allowed to see the judgment? No. - 2 - from one Shri Piare Lal Thakur in village Ghanahatti for the purpose of constructing a house. He wanted a copy of tatima and jamabandi of the said land. It is alleged that he visited the accused on 14.3.1996 and requested for the supply of the documents, but the accused demanded Rs.500/- for the supply of tatima and jamabandi. The accused also assured him to prepare the tatima and jamabandi during the night and asked the complainant to obtain the documents on the following day after payment of Rs.500/-. The complainant visited the police station, Anti Corruption Zone on 15.3.1996 and reported the facts to the police by making a written complaint on the basis of which F.I.R. No.1/96 was registered at Police Station, Anti Corruption Zone, Shimla. Thereafter the Deputy Superintendent of Police, Shri Sunder Lal (PW-6) accompanied by other police officials and complainant proceeded in police vehicle to Ghanahatti. Shri Roshan Lal Thakur and Kirpa Ram were associated as independent witnesses in the raiding party. The complainant Harish Chander handed over currency notes of Rs.300/- of the denomination of Rs.50/-. These currency notes were treated with powder phenolphthalein. The solution of Sodium Carbonate was prepared and it was put in a nip and the nip was placed in the cloth and the cloth was sealed with seal ‘K’. The seal was handed over to Shri Roshan Lal. The notes smeared with phenolphthalein powder were handed over to Harish Chander Chauhan with the direction to hand over those notes to accused on demand only. Shri Kirpa Ram was deputed as a shadow witness. The numbers of the currency notes were written down on a memo in the presence of witnesses and the memo was got signed from the witnesses. The raiding party thereafter proceeded towards Patwar khana at Ghanahatti. The complainant entered Patwar-khana and the shadow witness took his position on the pre-fixed place. Shri Kirpa Ram - 3 - witness gave signal upon which Deputy Superintendent of Police accompanied by Sub Inspector Shri Abhinash, Head Constable Sadhu Ram and Constable Rajiv Pant proceeded and entered Patwar khana. The accused was caught hold by Abhinash and Head Constable Sadhu Ram from his hands. The Deputy Superintendent of Police washed his hands and the accused was also made to wash his hands. The colour of hand wash of accused remained clean and unchanged and the said hand wash of the accused was put in a glass. Another glass was taken in which the solution of sodium carbonate was prepared. The hand wash of accused was put in sodium carbonate solution, upon which the colour of the solution became light pink. The same was put in a nip and it was sealed. Thereafter the currency notes which were handed over by the accused from the pocket of his pant, the numbers of the currency notes were compared with the numbers noted in the memo which was prepared at the time of demonstration and those were found the same. These currency notes were taken into possession and put up in the brown envelope. Thereafter again the hands of accused were got washed. The hand wash of the accused was put in the solution of sodium carbonate upon which the colour of the solution turned light pink. The pant of the accused was taken in to possession. The left pocket of the pant was washed and the pant wash of left pocket was put in glass. The pocket wash was then put in the sodium carbonate solution and the same became light pink. It was put in the nip. The police also took into possession other documents like jamabandi and tatima. The investigation was completed and the challan was put up in the Court. The prosecution in order to prove its case has examined seven witnesses in all. The accused was examined under Section 313 Cr.P.C. The accused was acquitted by the trial Court on 24.11.2000. - 4 - The learned Additional Advocate General had strenuously argued that the prosecution had proved the case against the respondent beyond reasonable doubt and the judgment of the Special Judge (Forests), Shimla dated 24.11.2000 is not sustainable in the eyes of law. Shri O.P. Sharma had supported the judgment dated 24.11.2000. I have heard the learned counsel for the parties and perused the record carefully. PW-1 is the complainant Shri Harish Chander Chauhan. PW-2, Shri Kirpa Ram is the shadow witness. PW-3 Shri Roshan Lal is the then Up-Pradhan and PW-6 Shri Sunder Lal is the Investigating Officer. PW-1 had deposed that on 14.3.1996 he had visited the accused in the Patwar khana at Ghanahatti. He was told that the documents will be delivered on the next day on payment of Rs.500/-. PW-1 in his cross- examination has admitted that PW-3 Shri Roshan Lal is his first cousin. He also admitted that there is a bazar at Ghanahatti and Roshan Lal met him at the bus stand and Kirpa Ram was called from the hotel. He further admitted that this PW-2 was working in the hotel of Shri Desh Raj. Shri Desh Raj is the real brother of PW-3. PW-2, Shri Kirpa Ram has deposed that he is working in the hotel of Thakur Desh Raj at Ghanahatti. He has also admitted that Desh Raj owner of dhaba and PW-3, Shri Roshan Lal are real brothers. PW-3, Shri Roshan Lal is in fact the elder brother of Shri Desh Raj. He has admitted that there are 20-25 houses around the Patwar khana and the houses of retired Block Development Officer and Lamberdar are in the vicinity. It is thus evident that PW-3 is the son of sister of PW-1’s and PW- 2 is the servant of brother of PW-3 i.e. Roshan Lal. The Investigating Officer has deposed in his cross-examination that after reaching Ghanahatti, he had asked the complainant to bring two independent witnesses to be associated in the raiding party and he himself proceeded - 5 - towards the rest house. PW-1 on the basis of instructions imparted by the Investigating Officer (PW-6) has brought PW-2 and PW-3 as witnesses. PW-3 is closely related to him. PW-2 is the servant of younger brother of PW-3. PW-3 was in position to dominate PW-2 to depose against the accused. It is thus evident that the prosecution has failed to associate independent witnesses. The independent witnesses were available in the vicinity of Patwar khana. The houses of Block Development Officer and Lamberdar were in close proximity to the patwar khana. There are number of shops and houses in village Ghanahatti. The prosecution has not explained why the independent witnesses from the locality were not associated at the time of raid. Now the Court has to take into consideration the manner in which the currency notes were seized from the accused and the hand wash of the accused and pocket of his pants was undertaken. It is clear from the close scrutiny of the statements of PW-1 and PW-6 that there are material contradictions in their statements. PW-1 has deposed that the hand wash has taken place of the accused once. However, from the statement of PW-6 it is evident that the hand wash has taken place twice. There are also material contradictions the manner in which the currency notes were recovered from the accused. The learned trial court has rightly discarded the version of the prosecution the manner in which the hand wash of the accused and his pant has taken place and the manner in which the currency notes were seized from the accused. The prosecution has further projected that the tainted currency notes were handed over to PW-1 and he kept the notes in his pocket. His hands were not got washed. Thus, possibility cannot be ruled out of his shaking hands with the accused when he entered the room. The shirt of PW-1 ought to have been taken into possession and the pocket of the shirt was to be washed with sodium carbonate solution in order to - 6 - show that the tainted currency notes were kept in the pocket of shirt by PW-1 before the same were handed over to the accused. Thus cumulatively, it is held that the prosecution has not associated independent witnesses though available. There are material contradictions in the manner in which the trap was laid and the process in which the hand wash was undertaken by the prosecution. Accordingly, there is no merit in this appeal and the same is dismissed. The bail bonds furnished by the respondent-accused are discharged. August 1, 2008. (Rajiv Sharma), (sck) Judge.