Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 35 of 2003. Dated of Decision: March 11, 2010. --------------------------------------------------------------------------------------------------- State of H.P. …… Appellant. Versus Virender Kumar. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. A.K. Bansal, Addl. Advocate General. For the Respondent : Mr. R.K. Gautam, Sr. Advocate with Mr. Sandeep Pandey, Advocate. Surinder Singh, J. (oral): Respondent was tried and acquitted for the offences punishable under Section 7 read with Section 13(2) of the Prevention of Corruption Act, in short ‘the Act’, allegedly for having accepted the bribe to the tune of Rs.300/- from Hoshiar Singh (PW2) on 9th November, 1998, in the Patwarkhana, for supplying the copies of the revenue record, to the complainant, to which he required for execution of the sale deed. The acquittal of the respondent has been challenged in this appeal, by the State on law and facts. In short, the prosecution story can be stated thus. On 5.11.1998, the complainant Hoshiar Singh aforesaid approached the respondent to obtain the revenue papers, with respect to his land, but the respondent gave him a copy of the jamabandi and - 2 - charged Rs.100/-. When the complainant demanded the other revenue papers, the respondent raised the demand of Rs.300/- more to which the complainant was not readily having with him, therefore, he was asked to come on 9th November, 1998. Hoshiar Singh complainant narrated the entire incident to his friend PW3 Puran Chand. He also discouraged him not to offer any bribe to the respondent-patwari, but advised him to report the matter to the vigilance wing of the police department. On 9th November, 1998, the complainant along with PW3 Puran Chand left for lodging the report to the police, but suddenly they found the police vehicle coming from the opposite side. It was stopped. Complainant informed about demanding the bribe by the respondent to them and got recorded his statement Ex.PW2/A to PW8 Sarwan Kumar, Inspector (Vigilance), A.C. Zone, Hamirpur, which was also signed by Puran Chand (PW3). Incidentally, the complainant was also having the currency notes of Rs.300/- in the denomination of Rs.100/- each. He produced it to PW8 Inspector Sarwan Kumar. Its serial numbers were noted and a memo was prepared. The said three currency notes were treated with phenolphthalein powder by the said Inspector and straight away handed over the three currency notes to the complainant. After giving a demonstration as to how phenolphthalein powder and solution of sodium carbonate would act to the mixed together and a memo Ex.PW1/B was prepared to this effect. He was directed not to shake hands with the respondent. PW3 Puran Chand was deputed as a shadow witness - 3 - with the direction to pass over a signal to the raiding party by raising his hands on his head when the respondent would accept the currency notes. All of them thereafter went in the said police vehicle nearer to Patwarkhana. The raiding party was headed by PW1 Inspector Krishan Chand. Inspector Sarwan Kumar asked the complainant and shadow witness to enter into Patwarkhana and hand over the treated currency notes to the respondent on demand and give signal to him when accepted. As planned, the signal was passed over by PW3 to the police on allegedly accepting the bribe by the respondent. Simultaneously, the raiding party entered inside the said Patwarkhana. Inspector Krishan Chand (PW1) was first to enter. He found the respondent occupying a chair against his table. The complainant along with shadow witness were inside the Patwarkhana. PW8 Inspector Sarwan Kumar asked the respondent to produce the bribe amount, to which he had received. On this, respondent became perturbed and denied having received any money. On this, his hands were got washed with the solution of the sodium carbonate. His hand wash turned pink. It was collected in the plate and then sealed in a nip, which was taken into possession vide memo Ex.PW1/C. Thereafter the respondent was interrogated. Then he admitted the acceptance of Rs.300/- from the complainant and took out the treated currency notes from the pocket of his shirt. Serial numbers tallied with the details already prepared by the police and mentioned in Ex.PW1/A. These currency notes were - 4 - separately sealed in a packet and taken into possession vide memo Ex.PW1/D. The shirt pocket was also got washed with the solution of the sodium carbonate and it turned pink. It was also taken in a nip and further taken in to possession vide memo Ex.PW1/E. Police prepared the site plan and also recorded the statements of the witnesses under Section 161 of the Code of Criminal Procedure. The papers with respect to the transfer and posting of the respondent were also taken into possession. The hand and pocket wash, both were sent for the forensic examination. As per the report Ex.PA, the traces of phenolphthalein and sodium carbonate were detected. After completing the investigation, the challan was presented against the respondent for his trial in the court, for the aforesaid offences. The respondent was charge-sheeted, to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined the complainant and the shadow witness and also the other members of the raiding party including the Investigating Officer. At the end of the trial, respondent was acquitted on the ground that there are glaring contradictions in the statements of the prosecution witnesses and further that the independent witness in order to inspire confidence to the prosecution case was not associated nor there was any explanation to that effect. Shri A.K. Bansal, learned Additional Advocate General has vehemently argued that the learned trial court did not - 5 - appreciate the evidence of the prosecution in the right perspective, as such came to the wrong conclusion. Contra, Shri R.K. Gautam, learned Senior Advocate, duly assisted by Shri Sandeep Pandey, supported the impugned judgment of acquittal and further ventilated that the independent witness PW3 Puran Chand, who also acted as a shadow witness was close friend of the complainant hatched a conspiracy to foist this case on the respondent and even the perusal of his statement would demonstrate serious infirmities in the prosecution case. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record of the case. PW2 Hoshiar Singh is the complainant. Although, he afforded corroboration to the case of the prosecution and stated that on demand, he had handed over the currency notes to the respondent and he put the same in his pocket, at that time the shadow witness PW3 Puran Chand was also with him, but Puran Chand as PW3 sharply contradicted his version. He has categorically stated in his examination-in-chief that when the raiding party entered in the Patwarkhana, it was the Investigating Officer, who enquired from the respondent as to whether he received the bribe money from the complainant. Respondent replied that he did not receive any money from the complainant and it was thereafter the complainant forcibly put the currency notes in his pocket. This statement of the witness was not disputed by the prosecution, thus it causes a serious dent in the - 6 - prosecution case. It is pertinent to note that PW8 Inspector Sarwan Kumar expressed his ignorance that complainant had forcibly tried to put the currency notes in the pocket of the respondent when he refused to receive the same as against the above fact testified by PW3 Puran Chand. It also stands established on record that PW-2 and PW-3 aforesaid are close friends and no attempt was made by the police to associate independent and uninterested witness, which fact has been admitted in the cross-examination by PW8 Inspector Sarwan Kumar. Against the aforesaid background, it was incumbent upon the police that at least one person from the locality should have been included as independent witness, when they had enough time to do so, so as to inspire confidence in its case. By not doing so, a doubt is cast on the probity of the case, which is tried to be established against the respondent. On culling the evidence of the prosecution, two views are deducible, one is as alleged by the prosecution and another by the shadow witness aforesaid. It is a settled law that view favourable to the accused has to be accepted. Therefore, for the aforesaid reasons, I do not find that the prosecution was able to prove the case against the respondent beyond a reasonable doubt. The findings of acquittal recorded by the learned trial court are borne out from the record, which requires no interference, as such appeal is dismissed. - 7 - The respondent is discharged of the bail bonds entered upon by him at any stage during the produces of the case. The matter stands disposed of. Send down the records. March 11, 2010. (Surinder Singh) (Pds) Judge.