IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 279 of 2006. Decided on: March 1, 2011. Bhup Singh …Appellant Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the appellant : Mr. Lovnesh Kanwar, Advocate. For the respondent Mr. Vikas Rathore, Dy. AG, with Mr. Ramesh Thakur, Asstt. AG. Surjit Singh, Judge (oral) Appellant, Bhup Singh, a government servant, has, in this appeal, assailed the judgment, dated 29.8.2006, of learned Special Judge, whereby he has been convicted of offences, under Sections 7 and 13(2) read with 13(1) (d) of the Prevention of Corruption Act, 1947 (hereinafter referred to as Act), and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.3000/- for offence, under Section 7 of the Act and simple imprisonment for one year and fine of Rs.5000/-, for offence under Section 13(2) of the Act. 2. Appellant had been working as Veterinary Officer in the Veterinary Hospital at Mandi, in December, Whet her report ers of t he l ocal papers may be al l owed t o see t he j udgment ? - 2 - 1997. On the night of 29.12.1997, a Jersy cow of PW-4 Santi Devi, died. That cow was insured. To raise claim, for the loss of cow, from the Insurance Company, post mortem report by a Veterinary Officer of some government institution, was required. So, PW-4 Santi Devi, through her son PW-1 Tej Ram, who was working as Langri in the Police Department, approached the appellant to conduct post mortem on the dead cow. Appellant went to the village of PW-1 Tej Ram and conducted post mortem of the cow and told him that he could collect the post mortem report from his office. On 31.12.1997, PW-1 Tej Ram went to the office of the appellant to collect the post mortem report. Appellant, allegedly, demanded a bribe of Rs.300/-. 3. PW-1 Tej Ram then, accompanied by his father PW-3 Netar Singh, reported the matter to the Dy. S.P., Anti Corruption, Sh. Yog Raj, PW-11. FIR Ex.PW-1/A was registered. PW-1 Tej Ram was required to produce currency notes of Rs.300/-. He produced two currency notes of the denomination of Rs.100/- and two currency notes of the denomination of Rs.50/- each. Those currency notes were treated with phenolphthalein powder. A memo was prepared in which numbers of currency notes were mentioned. Currency notes were handed over to PW-1 Tej Ram, with the instructions not to fiddle with them and to give the same to the appellant. PW-3 Netar Singh was directed to act as a shadow witness. Tej Ram and Netar Singh then went to the office of the appellant. PW-11 Yog - 3 - Raj, Dy. S.P. associated with him PW-2 Partap Singh, Tehsildar and some officials, namely PW-9 Iqbal Singh, Inspector, PW-8 MHC Inder Singh, and PW-7 Krishan Chand, as members of the raiding party and followed Tej Ram and Netar Singh. 4. When PW-1 Tej Ram went to the office of the appellant, the latter asked if he had brought the money, upon which Tej Ram passed on the currency notes to him. PW-3 Netar Singh, who was acting as shadow witness, gave the prefixed signal to PW-11 Yog Raj, Dy. S.P. and his party. Yog Raj immediately went to the office room of the appellant and overpowered him. He disclosed his identity to him and required him to produce the currency notes. Appellant took out the currency notes from one of the side pockets of his pants, which he was wearing. He was made to wash his hands in plain water. Then solution of sodium carbonate in water was added to the hand wash, which turned pink. Pocket of the pants of the appellant was also washed and to that wash also, solution of sodium carbonate was added and that too turned pink. Samples of the hand wash and the pants’ pocket wash were taken into two separate nips. Currency notes were taken into possession and seizure memo was prepared. Samples of hand wash and pants’ pocket wash were sent to the Chemical Excaminer, who reported that the hand wash and pants’ pocket wash contained traces of phenolphthalein powder and sodium carbonate. - 4 - 5. Appellant’s appointing authority was approached to accord sanction to prosecute him. On receipt of such sanction, appellant was challaned. 6. Learned Special Judge, after complying with the provisions of Section 207 Cr.P.C. and on finding that a prima facie case was made out, charged the appellant with the aforesaid two offences, to which he pleaded not guilty. Therefore, the appellant was tried. Prosecution examined 11 witnesses, including PW-1 Tej Ram, complainant, PW-3 Netar Singh, shadow witness, PW-2 Partap Singh, Executive Magistrate, independent witness, PW-6 Gurdev Singh, working as Pharmacist with the appellant and PW-7 Krishan Chand, PW-8 Inder Singh and PW-9 Iqbal Singh, official witness associated in the raid and PW-11 Yog Raj, Dy. S.P, who headed the raiding party. 7. Appellant’s plea, as per suggestions put to the prosecution witnesses, is that he had gone to the village of PW-1 Tej Ram by a taxi, because by the time he left his office, no bus service was available and Tej Ram had promised to pay the taxi charges. According to this plea, a sum of Rs.300/- had been paid as taxi fare and so, the appellant demanded the said amount of money from Tej Ram, before post mortem report was made available to him. However, in his statement, under Section 313 Cr.P.C., such a plea was not raised. Tej Ram admitted such suggestions to be correct. Gurdev Singh, PW-6 also stated that the appellant had told that the money belonged to him. - 5 - Similarly, PW-2 Partap Singh, Executive Magistrate, stated that when the appellant produced the currency notes to PW- 11 Yog Raj, on demand by him, he (appellant) told that the money had been paid to him by PW-1 Tej Ram, on account of taxi fare, which he (appellant) paid for visiting Tej Ram’s village, at an odd hour. 8. Learned trial Court disbelieved the defence plea and convicted the appellant of both the offences and sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs.3000/-, in default of payment of fine to undergo simple imprisonment for one month, under Section 7 and simple imprisonment for one year and to pay a fine of Rs.5000/-, in default of payment of fine, to undergo simple imprisonment for two months, under Section 13(2) of the Act. 9. I have heard learned counsel for the appellant and the learned Deputy Advocate General and gone through the record. 10. Learned counsel, representing the appellant, submits that in view of the testimony of PW-1 Tej Ram, as also PW-2 Partap Singh and PW-6 Gurdev Singh, there cannot be any escape from the finding that the money, which had been accepted by the appellant from Tej Ram PW-1, was not on account of bribe, but on account of money, which Tej Ram owed to the appellant, on account of his having assured him that in case he (appellant) traveled - 6 - by taxi, he would meet the expenses incurred by way of taxi fare. 11. PW-1 Tej Ram, very categorically, stated that the money had been demanded by the appellant on account of taxi fare. He admitted that the appellant had traveled by taxi, on assurance given by him, that he would pay him the taxi charges, as bus service was not available, on account of it being an odd hour, when journey in connection with the post mortem of the cow was performed. It could have been only through the testimony of the complainant Tej Ram, that the charge of acceptance of bribe could have been proved, as he was the only person, from whom the money had been demanded, allegedly on account of bribe. He, having testified that the money was demanded, not on account of bribe but on account of taxi fare which the appellant had paid for visiting his village and there being no other evidence suggesting that money was demanded and paid on account of bribe, neither of the two offences could be said to have been committed by the appellant. 12. In this case, it is not only Tej Ram PW-1, the alleged bribe giver, who says that money was not demanded on account of bribe, but on account of money due to the appellant from him, but PW-2 Partap Singh, Tehsildar-cum-Executive Magistrate, who was a member of the raiding party, also testified that appellant had told PW- 11 Yog Raj at the time of production of currency notes, that money had been paid to him by PW-1 Tej Ram, on account - 7 - of taxi fare and so, it belonged to him. Prosecution very much relies upon the testimony of PW-2 Partap Singh. It did not choose to cross examine him. Similarly, PW-6 Gurdev Singh stated that accused told the police people at the time of recovery of money that it belonged to him. This witness was also not cross examined. 13. There being no evidence of demand of bribe or acceptance of the money as bribe, trial Court was not justified in convicting the appellant, simply on the basis of evidence of PW-11 Yog Raj, Dy. S.P., PW-9 Iqbal Singh, Inspector, PW-8 MHC Inder Singh, also a police official working under PW-11 Yog Raj, Dy. S.P. and PW-7 Krishan Chand, Head Constable, working with PW-11 Yog Raj, Dy. S.P., as they were not supposed to be the witnesses of demand and acceptance of the money, as bribe. 14. Also, it appears from the prosecution’s own evidence, that the story of currency notes, having been treated with phenolphthalein powder, before being handed over to the appellant may not be true. Firstly, PW-1 Tej Ram and PW-3 Netar Singh, do not speak of the currency notes, having been treated with phenolphthalein powder. Then, PW-2 Partap Singh, who was present at the time of alleged treatment of the currency notes with the said powder, per testimony of PW-11 Yog Raj, Dy. S.P., also does not testify this fact. 15. In view of the above discussion, I am of the considered view that the case of the prosecution does not - 8 - stand established. Hence, appeal is accepted, judgment of the trial Court, convicting and sentencing the appellant of offences, under Sections 7 and 13 (I) (d) of the Act, is set aside and the appellant is acquitted. March 1, 2011 (PC) ( Surjit Singh ), J.