IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 251 of 2002. Decided on: May 15, 2009. _____________________________________________________ State of H.P. ……..Appellant. Versus Devi Dass and another. …..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. J.S. Guleria, Assistant Advocate General. For the respondents : Mr. Rajiv Jiwan, Advocate. ____________________________________________________________ SURINDER SINGH, J (oral): Respondent Devi Dass was tried for the offences punishable under Sections 7 and 13 (2) of the Prevention of Corruption Act,1988, whereas wife-respondent Aruna Devi was tried for the offence punishable under Sections 201 of the Indian Penal Code, in Corruption Case No.7 of 1999. Both the respondents were acquitted by the learned Special Judge, vide a detailed judgment passed on 29.11.2001 and their acquittal has been challenged in this appeal. In short, the facts giving rise to the present appeal are that PW1 Ram Kishan was a Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - tenant along with his brother over the land in village Bhaira, district Una, as depicted in Khatauni Ex.PA/1. The mutation of proprietary rights under the H.P. Tenancy and Land Reforms Act, 1972 was to be sanctioned in his favour for which Ghanshyam Dass, Field Kanungo vide Ex.PN appointed Devi Dass Patwari, to do the needful, but the complainant failed to get his grievance redressed, thus on 22.2.1996, the complainant along with his brother PW2 Piare Lal, went to the Field Kanungo Ghanshyam Dass, where the Patwari Devi Dass was also present. The Field Kanungo along with the Patwari aforesaid demanded the illegal gratification of Rs.5,000/-. On the next day i.e. on 23.2.1996, PW1 Ram Kishan along with PW2 Piare Lal approached the respondent-Patwari. He again demanded Rs.5,000/-, but the complainant assured to pay the amount of Rs.2,000/-, then Devi Dass told him to come in the evening at 6 p.m. with the money. Thereafter the complainant lodged FIR Ex.PD in Anti Corruption Zone, Una. PW8 R.R. Bhatia, Dy. S.P. requested the Naib Tehsildar to come to his office. The complainant Ram Kishan gave forty currency notes of Rs.50/- each to PW8, the numbers of which were entered in the memo Ex.PB. The currency notes were treated with - 3 - phenolphthalein powder in the presence of the complainant as well as PW2 Piare Lal. Thereafter treated currency notes were put into the pocket of Ram Kishan complainant with the instruction not to touch it before handing over to the accused-respondent on his demand. PW2 Piare Lal was made a shadow witness and he was required to pass on a signal to the police party when the complainant would hand over the amount to the respondent Patwari Devi Dass. PW8 R.R. Bhatia, Dy.S.P. also gave the demonstration of the working of the phenolphthalein and sodium carbonate mixture to the witnesses present. As per the case of the prosecution, the hands of the members of the raiding party were got washed. Thereafter, the police party along with PW1 Ram Kishan and PW2 Piare Lal duly accompanied by PW3 Lachhman Dass went to village Baduhi in a police Gypsy vehicle. The complainant and Piare Lal aforesaid deboarded from the said vehicle at few distance away from the house of the accused-respondents and from there they went on foot to the residence of the respondents. It is the case of the prosecution that on reaching the complainant at the residence the respondent-Devi Dass demanded Rs.5,000/- to do - 4 - the work, but the complainant told him that he had only brought Rs.2,000/-. Thus, he handed over the treated notes of Rs.50/- Exts.P5 to P44, to the respondent-accused and after counting, he kept it on the table. Thereafter respondent Patwari washed his hands on a tub from the tap water, but his wife respondent Aruna Devi threw out the currency notes in the field. It was then PW2 Piare Lal signaled to the police party. They arrived in the house of the respondent, through the main gate. Respondent No.2 is also alleged to have cleaned her hands with the kneaded wheat flour. Kashmir Singh, Pradhan of Gram Panchayat Bhaira along with Kishan Chand were also called by the police to the house of respondent and arranged for two glass tumblers, a steel plate and water jug. The hands of respondent Devi Dass were got washed by the police, but the hand wash remained natural. Thereafter the police prepared solution of sodium carbonate in a glass tumbler and when the hand wash and the mixtures were put together, its colour remained the natural. It was collected in a nip Ex.P1 and sealed with seal impression “Y” and the said nip was taken into possession vide memo Ex.PF. - 5 - Thereafter, the hand wash of respondent Devi Dass was collected from the tub, it was mixed with solution of sodium carbonate mixture, its colour also remained natural. The police collected in another nip Ex.P2 and sealed with the same seal impression “Y” and taken into possession vide memo Ex.PG. The remaining left over water in the tub was collected and was put into a bottle Ex.P46, which was taken into possession vide memo Ex.PG. The police also took into possession the wash of kneaded wheat flour. When it was mixed with solution of sodium carbonate, its colour turned pink. The pink mixture was taken in a nip Ex.P3, it was sealed with the same seal impression “Y” and taken into possession vide memo Ex.PH. Thereafter, Inspector Rani Devi, who was stated to be with the police party also took the hand wash of respondent Aruna Devi, which was mixed with the solution of sodium carbonate, but its colour remained natural. The said mixture was collected in nip Ex.P4, sealed with seal impression “Y” and also taken into possession vide memo Ex.PJ. Further as per the case of the prosecution, PW4 Kashmir Singh had collected the currency - 6 - notes Ex.P5 to P44 from the field nearby and their serial numbers were got tallied with the memo Ex.PB, prepared earlier and were sealed in an envelope Ex.P45, which were taken into possession vide memo Ex.PC. The site plan Ex.PM of the place of incident was also prepared. Thereafter the nips Ex.P1 to P4 along with other case property was deposited with PW6 MHC Shrikant on 22.4.1996. On 27.4.1996, the said nips were sent for the forensic examination. After receipt of the report Ex.PL, the sanction was obtained to prosecute the respondent No.1, which was accorded and on completing the investigation, the challan was presented in the court for the trial of the accused for the aforesaid offences. Accordingly, the respondents were charge-sheeted. The accused-respondents pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and both the respondents were also examined under Section 313 of the Code of Criminal Procedure. They denied the prosecution case in toto and alleged false implication in the case. According to respondent No.1, he had never demanded nor accepted any money as bribe, however the complainant asked him to attest the mutation, for which he told him to - 7 - get an order from the Naib Tehsildar, on an application, vide which the complainant got annoyed as he refused to enter his mutation without the order of the Superior Officer and he further explained that at the time of the alleged incident he was in toilet and everything happened between his wife and the complainant. The case was planted by the police. Aruna Devi his wife has also stated that her husband was in toilet and complainant came to her and tried to keep the money on the table, to which she resisted and thereafter she threw it outside as she smelt foul. The respondents did not lead any evidence in defence and at the end of trial, the learned Special Judge acquitted them on the following grounds:- (i) That in view of the judgment of this court in Ved Parkash versus State of H.P. [1998(1) Shim.L.C. 392 and State of H.P. vs. Tej Ram [1989 (2) Shim.L.C.9], PW1 and PW2 both being real brothers and were not independent and disinterested witnesses, thus testimony could not be relied upon without any corroboration. - 8 - (ii) PW3 Lachhman Dass Naib Tehsildar, who was a member of the raiding party, stated that no money was passed to the respondent Patwari in his presence, because he was hiding with the police party at a some distance and when he reached, the residence of respondents, he did not find any bribe money having been recovered from the respondent Devi Dass, but in turn alleged bribe money was found scattered in the field outside their house which according to him was collected by the complainant and the police officials in his presence. (iii) There was no demand from the respondent-Patwari and acceptance of the bribe or illegal gratification. From the statement of the complainant, it is revealed that it was Field Kanungo Ghanshyam Dass, who asked for the bribe and directed them to approach the respondent- - 9 - Patwari to hand over the money to him. (iv) There was no evidence that the respondent Devi Dass had received and accepted the bribe amount in view of contradictions in the statements of PW1 and PW2. (v) The colour of the hand wash of the respondents was taken by the police did not turn pink and mixed with the solution of sodium carbonate remained natural. So was the water found in Tub beneath the tap, which should otherwise turn pink. (vi) The evidence of the prosecution witnesses on material aspect was impregnated with the discrepancies as PW2 Piare Lal has given the different date of visit in the house of the Kanungo and further PW2 stated that it was raining when the currency notes were recovered from the field and it was soiled with the earth whereas, this fact has been contradicted by PW8 R.R. Bhatia. - 10 - (vii) PW4 Kashmir Singh stated that the complainant informed him that he had handed over the money to the respondent Devi Dass, but his wife Aruna Devi threw them out that they would not accept the money which shows that respondent Devi Dass did not ask for the bribe. (viii) The number of two recovered currency notes did not tally with the numbers given in the memo Ex.PB, which fact remained unexplained. (ix) The Patwari was not competent to sanction the mutation as it could have only been done by the Assistant Collector, but no application was either pending with the respondent-Patwari nor there was any evidence that it was in fact moved to the officer superior, thus there was no occasion for the respondent- Patwari to have asked for illegal gratification. - 11 - (x) The respondent Aruna Devi had thrown out the currency notes aforesaid in the field stating that they will not accepting the money in question, which does not tantamount destroying the evidence or causing the evidence to disappear with the intention of screening the offender. Heard and re-appraised the evidence on record. On a careful examination of the evidence of the prosecution, I also find that the above points on the basis of which the learned trial court passed the order of acquittal are borne out from the record. Admittedly, PW1 Ram Kishan and PW2 Piare Lal are the real brothers. In his cross- examination, PW1 Ram Kishan has stated that on 22.2.1996, he had approached Kanungo Ghanshyam Dass. He told him to give money to the accused Devi Dass and thereafter he would do his work. He did not say if Patwari was also present with Ghanshyam Dass Kanungo. It was at his behest that he went to the accused-respondent Devi Dass and asked him to take money as directed by Ghanshyam Dass, aforesaid. He admitted that the - 12 - application is submitted to the Naib Tehsildar for entering the mutation, but he did not know whether any of them had ever moved any application for entering the mutation. He denied that he was annoyed with the respondent Devi Dass as his work was not being done. PW2 Piare Lal stated that he had gone along with PW1 Ram Kishan to the Field Kanungo Ghanshayam Dass on 21.2.1996, but he did not say both of them had visited on 22.2.1996, as stated by PW1. Further as noticed above, PW1 did not state about the presence of Devi Dass Patwari with the Kanungo aforesaid, but according to PW2 Devi Dass was present with him as he also stated that when both of them requested to mutate the land then Patwari Devi Dass told that then land is of lacs of rupees and it was required Rs.5,000/- for entering the mutation and on 22.2.1996 both of them went to the residence of Devi Dass Patwari and he took Rs.2,000/- from his brother during the night hours. His statement is quite contrary to the statement of PW1 because PW1. He (PW2) further stated that the currency notes were also collected from the field by the police officials and the Pradhan and they handed over the currency notes to the Deputy - 13 - Superintendent of Police. He also stated that the currency notes were scattered in the house and it was rainy at that time and it got soiled with earth to some extent, which was wiped off and thereafter its numbers were tallied, whereas, PW4 Kashmir Singh stated that when he reached the spot, PW1 Ram Kishan was present there along with Piare Lal and it was Ram Kishan, who told him that he had given the money of Rs.5,000/-to the Patwari, which is contrary to the prosecution case. The witness was allowed to be cross-examined by the learned Prosecutor (reasons not mentioned) but even then he did not support the case of the prosecution to the effect that he had entered along with the raiding party in the house of the accused persons and the accused was found sitting in the verandah and further that the hand wash of respondent Devi Dass was collected in the nips Exts.P1 and P2. However, he admitted that PW2 Piare Lal had asked that it was the field Kanungo who had asked to make the payment to respondent Patwari and said Patwari did not accept any money, so he kept the same on the table, which were thrown by his wife respondent Aruna Devi. - 14 - PW3 Lachhman Dass Naib-Tehsildar stated that the currency notes were collected from the field by the complainant and police officials and taken in possession vide memo Ex.PC. They were sealed in envelope Ex.P-45. He identified the Currency notes Exts.P5 to P44 during the trial of the case. He further stated that was not raining when they reached the house of the respondent around 6.30 p.m., nor he could say it had already rained earlier. He also stated that the police officials were searching for the currency notes in his presence. The currency notes were found scattered in the field which were not soiled with the earth and were dry and the numbers of the currency notes were tallied except one with the memo prepared earlier. This version is contrary to the version of PW4. Further his statement and the statement of PW2 Piare Lal stood contradicted by PW8 R.R. Bhatia. He stated that the currency notes were collected by Kashmir Singh Pradhan and Naib Tehsildar which were taken into possession vide memo Ex.PC and sealed in envelope Ex.P45. He did not say about comparing the numbers with the earlier memo Ex.PB. However, PW8 Dy.S.P. stated in his cross-examination that Ram Kishan and Piare Lal had entered in the house of accused and after - 15 - about 10 minutes PW2 came back to them which fact was not disclosed by any of the other witness including Piare Lal. He also stated that the currency notes were dry and it was not rainy at that time. The currency notes were scattered and collected from the field. He denied that the complainant Ram Kishan was pressing upon the Kanungo to enter the mutation, but it was not being entered by the Kanungo and he asked him to move an application to the Naib-Tehsildar. It is also relevant to point out here that the police had taken into possession the kneaded flour from the house of the respondents, which according to the prosecution was kneaded by respondent Aruna Devi after throwing out the currency notes and when the sodium carbonate was mixed, it turned pink and that mixture was put in the nip and sent for forensic examination, but its result was not placed on record, thus, an adverse inference has to be drawn against the prosecution that it did not favour the prosecution. Further a perusal of the report of forensic science shows that all the nips Ex.P1 to P4 were having the traces of phenolphthalein and sodium carbonate, but if both these solutions were mixed together then it is not understood why - 16 - this mixture taken from the hand wash and tub did not turn pink. Thus, on the re-appreciation of the evidence aforesaid, I find that the recovery of the currency notes as alleged is dicey; the respondent Patwari did not raise the demand for bribe. It was not received by him and his wife threw it out in the field even before the arrival of police and the statements of PWs 1 and 2 are quite contradictory. They were interested witnesses. Their testimony stands not corroborated. The reasoning given for the acquittal of the respondents, by the learned trial court is borne out from the record, which requires no interference, as such, appeal sans merit and as such, dismissed. The respondents are discharged of their bail bonds entered upon by them during the proceedings of the case. Send down the records. (Surinder Singh), Judge. May 15, 2009. Pds)