HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 152 of 2004 Decided on: 31.8.2010 State of H.P. ……… Appellant. Versus Kamlesh Kumar ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Vikas Rathore, Deputy Advocate General. For the respondent: Ms.Shikha Thakur, Advocate. V.K. Ahuja, J.(Oral): This is an appeal filed by the appellant under Section 378 of the Cr.P.C. against the judgment of the court of learned Special Judge, Sirmour District at Nahan, dated 26.12.2003, vide which the respondent was acquitted of the charge framed against him under Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. 2. Briefly stated the facts of the case are that on 14.9.2001, a complaint was made to the Vigilance Department by one Babu Ram, Forest Contractor, that he had purchased private trees and had obtaining felling order after completing all the formalities. The complainant approached the Range Officer Babu Ram, respondent, for export permit. The complainant paid Rs.6,000/- to the Range Officer earlier and he made a complaint that for getting the export permit for another type of wood, the respondent had demanded a sum ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes - 2 - of Rs.2,000/- from him as illegal gratification. The complaint was registered by the Vigilance Department and Rs.2,000/- given by the complainant were treated with the powder and the demonstration was given to the complainant as to how he has to give the money and give signal after giving the money to the respondent. Two independent witnesses, namely, Rajesh Kumar and Dinesh Kumar were associated at that time. Thereafter, the complainant reached the office of the respondent and PW-2 Dinesh Kumar, an independent witness, was kept standing outside the door and a sum of Rs.2,000/- was paid to the respondent in an envelope. Thereafter, the signal was given to the witness Dinesh Kumar to enter into the room alongwith the police officials. Hand-wash of the respondent was taken which turned pink and the money was taken in possession and the notes were tallied with the notes given by the complainant, which were treated, and the respondent was arrested. On completion of the investigation, sanction was taken from the Principal Chief Conservator of Forest and the challan was filed before the learned Judicial Magistrate, which was committed to the learned trial Court, who tried the respondent leading to his acquittal. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. The main ground taken by the learned trial Court in acquitting the respondent was that there is no evidence on record to show that there was any demand of the money made by the accused/respondent. It was also observed that the complainant has stated that the money was kept in the pocket by the respondent and when the police appeared at - 3 - the spot, he put the envelope containing the notes on the table whereas the Investigating Officer has stated that the envelope was lying on the table of the accused. It was also observed by the learned trial Court that one of the independent witnesses, namely, Dinesh Kumar, associated during the proceedings, cannot be termed as an independent witness, who had been blacklisted by the Forest Department and had been working earlier also as Forest Contractor. Therefore, he cannot be termed as an independent witness. The learned trial Court also observed that there was sufficient opportunity to associate independent witnesses from the nearby area including bank officials, but no independent witness was associated and as such, the prosecution story was not relied upon. The learned trial Court had also observed that the shirt of the accused was not taken in possession and the pocket-wash was also not taken and, therefore, the prosecution story was not relied upon. One another infirmity pointed out was that the accused’s signatures were not taken in regard to the nip containing the hand-wash of the accused by the Investigating Officer and, therefore, also the prosecution story was not relied upon. 5. On appraisal of the evidence led by the prosecution consisting of the statement of PW-1 Babu Ram, complainant, it is clear that earlier a sum of Rs.6,000/- was demanded from him which he had paid and the said sum was, allegedly, paid about 1-1/2 months prior to the demand of Rs.2,000/- made by the respondent. He stated that he cannot tell the date as to when Rs.2,000/- were demanded by the respondent, though the occurrence had taken place only a few days ago. He had not - 4 - stated that he had informed any of his friends, relatives or any other person in regard to such demand made by the respondent and, therefore, there is solitary statement of the complainant that a sum of Rs.2,000/- was demanded by the respondent for which there is no cogent and reliable evidence. 6. Apart from the above, it is clear that there is material contradiction in regard to the fact as to whether the envelope was lying in the pocket of the respondent at the time when the police entered the room, as stated by PW-1 Babu Ram, or it was lying at the table, as admitted by PW-9 Rajinder Singh, the Investigating Officer. This is a material contradiction which cannot be ignored. There is nothing in the statement of PW-1 Babu Ram or in the statement of other witnesses that before keeping the envelope containing the treated notes in his pocket, the respondent had counted the notes and, therefore, his hand-wash turned pink for which there is no evidence. Until and unless the respondent had touched the notes or counted them by opening them from the envelope, it cannot be said that the hand-wash of the respondent was relevant or it had turned pink as per the prosecution story. 7. Apart from the above, it was duly established on record that PW-2 Dinesh Kumar was a Forest Contractor, as observed by the learned trial Court after referring to the defence evidence also, and he admitted that he had been blacklisted by the Forest Department and as such it appears that he had some reason to settle score with the forest officials and cannot be termed as an independent witness. - 5 - His association as an independent witness makes the prosecution story doubtful. Moreover, there is nothing on the record about the second witness, namely, Rajesh Kumar as to whether he was an independent witness and whether he belonged to the area, since he was not produced by the prosecution and was given up as unnecessary. In the present case, when there were two independent witnesses only, the second independent witness could not have been given up as unnecessary since his statement was material and as such adverse inference has to be drawn against the prosecution for withholding a material witness. The prosecution relied upon the testimony of PW-2 Dinesh Kumar and produced him as a witness, who cannot be termed as an independent witness in view of the admission made by him that he was a Forest Contractor and had been blacklisted also. The fact that the envelope containing money was found lying on the table, as admitted by the Investigating Officer, cannot be ignored and in view of the fact that there was no material evidence to show that the accused had ever touched the notes or counted them, the prosecution story cannot be relied upon that the hand-wash of the respondent was taken and it had turned pink. The other independent witness was not examined and, therefore, the case of the prosecution cannot be said to have been proved beyond any reasonable doubt. 8. In view of the above discussion, it follows that the final findings recorded by the learned trial Court holding that there was no proof of demand of money or recovery of money from the possession of the respondent and the prosecution has failed to prove their case beyond - 6 - reasonable doubt cannot be termed as perverse calling for an interference by this Court. 9. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant which is dismissed. The bail bonds furnished by the respondent shall stand discharged. August 31, 2010. (V.K. Ahuja), (TILAK) Judge