IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.199 of 2007 Decided on: May 4, 2011 State of H.P. .. Appellant. Versus Jitender Kumar Sharma .. Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent : Mr. R.K. Gautam, Senior Advocate with Mr. Vikrant Chandel, Advocate. Surjit Singh, Judge (oral) This appeal by the State is directed against the judgment, dated 28.3.2007 of learned Special Judge, whereby respondent Jitender Kumar Sharma, a Junior Engineer in Public Works Department, has been acquitted of the charge, under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988. 2. Prosecution case, which led to the charging and trial of the respondent, may be stated. PW-1 Suraj Verma is a transporter by occupation and runs a few buses on a road known as Chamba-Bairagarh route. Transporters are required to pay huge amount of money on account of road tax. It appears, they get some discount in case due to road Whet her report ers of t he l ocal papers may be al l owed t o see t he j udgment ? É2É blockade or bad road condition, they cannot operate buses on the prescribed routes during any part of the period(s) for which tax is payable. 3. PW-1 Suraj Verma wanted a certificate during the year 1994-95. He could not operate his buses on the aforesaid route for certain period, on account of the road condition being not good. On 5.4.2005, he approached the respondent, who was Junior Engineer, Incharge of the road from Chamba to Bairagarh. Respondent allegedly demanded a bribe of `1000/- for issuing the requisite certificate. 4. PW-1 Suraj Verma reported the matter to Dy. S.P. (Vigilance), namely PW-11 Krishan Chand, on 7.4.2005 at a place called Pukhri, where the Dy. S.P. happened to be present on that day. His report was recorded in the form statement, under Section 154 Cr. P.C, which is Ext. PW1/A. The office of the respondent is also at Pukhri. Dy. S.P. required PW-1 Suraj Verma to produce currency notes of `1000/-, upon which two notes of the denomination of `500/- each were produced by him. Those notes were treated with phenolphthalein powder. PW-1 Suraj Verma was directed not to fiddle with those currency notes, until the same were delivered, on demand, to the respondent. It was demonstrated to Suraj Verma as also the shadow witness PW-10 Sushil Kumar, accompanying him, how the solutions É3É of powders of phenolphthalein and sodium carbonate, on being added to each other, turned pink. 5. PW-1 Suraj Verma and the shadow witness PW-10 Sushil Kumar were required to proceed to the office of the respondent. PW-10 Sushil Kumar was directed to give a particular signal to the Dy. S.P. and some other members of the party, formed by him, after the tainted money was paid to the respondent by PW-1 Suraj Verma. Both, PW-1 Suraj Verma and PW-10 Suraj Kumar then went towards the office of the respondent. Shadow witness (PW-10 Sushil Kumar) waited outside. After sometime, he gave the prefixed signal to the Dy. S.P PW-11 Krishan Chand, who accompanied by PW-2 HC Rajesh Kumar, went towards the office of respondent. Respondent was standing by the side of the road. Currency notes were recovered from him and taken into possession. Their numbers tallied with the numbers, which had earlier been noted down in a memo., at the time of their treatment with phenolphthalein powder. Certificate Ext. PW1/F, which the respondent had issued to PW-1 Suraj Verma before accepting the money, was also seized. 6. Respondent was made to wash his hands. Solution of sodium carbonate was added to that hand wash, which turned pink. The same was poured into a nip and the nip was sealed. Nip, containing hand wash, which had turned pink, on addition of sodium carbonate, was sent to Chemical Examiner, who vide report Ext. PW7/A, opined É4É that the contents of the nip had traces of phenolphthalein as also sodium carbonate. 7. On completion of investigation, record was submitted to the Appointing Authority of the respondent, with a request to accord sanction to prosecute him. On receipt of the requisite sanction, report, under Section 173 Cr. P.C. was prepared and submitted in the Court of learned Special Judge, alongwith relevant papers. 8. Learned Special Judge, after complying with the requirement of Section 207 Cr. P.C. and hearing learned Public Prosecutor and learned defence counsel and perusing the record, felt that a prima-face case, under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988, was made out against the respondent. He was charged accordingly. He pleaded not guilty to the charge and was, therefore, put on trial. 9. Prosecution examined 11 witnesses to bring the charge home to the respondent. Respondent denied having demanded or accepted bribe from PW-1 Suraj Verma. 10. Trial Court concluded that the case of the prosecution did not stand established, beyond reasonable doubt, because all the witnesses, except PW-2 HC Rajesh Kumar and PW-11 Krishan Chand, who investigated the case, turned hostile. Consequently, respondent was acquitted, vide judgment under appeal. É5É 11. I have heard learned Assistant Advocate General as also, learned counsel, representing the respondents and perused the record. 12. Shadow witness, namely PW-10 Sushil Kumar turned hostile. He did not support the prosecution version. Complainant (PW1 Suraj Verma) himself also did not testify the version as finds mention in the record of the proceedings, which were conducted on the spot. According to the prosecution, PW-1 Suraj Verma went to the office of respondent and it was there that he paid the bribe to him. However, PW-1 Suraj Verma stated that he went to the office of the respondent and the latter handed over certificate Ext. PW1/F to him and then asked him to accompany him to a nearby shop and it was in that shop that he put the tainted money into one of the pockets of a jacket, which the respondent was wearing. 13. PW-2 Rajesh Kumar, a police Head Constable, who was a member of the party, stated that money had been paid to the respondent by PW-1 Suraj Verma near his office. PW-11 Krishan Chand, Dy. S.P., stated that respondent was present by the side of the road in the company of PW-1 Suraj Verma, when on getting the signal from shadow witness he went towards the office of respondent. 14. PW-1 Suraj Verma stated, very categorically, that money had been put by him in the pocket of the É6É respondent. If it is so, the traces of phenolphthalein were not supposed to be there on the hands of the respondent and the hand wash was not supposed to turn pink, on addition of solution of sodium carbonate. However, as per PW-2 HC Rajesh Kumar and PW11 Dy. S.P. Krishan Chand, the hand wash turned pink. If the hand wash had turned pink that suggests that either there had been some hanky- panky in tainting the respondents hands with phenolphthalein powder or some particles of that powder stuck to his hands, when PW-1 Suraj Verma, per his own deposition, shook hands with the respondent on his going to the office of respondent. 15. PW-1 Suraj Verma did not state that the money was paid to the respondent, on demand. Rather, his testimony is that when he went to the office of respondent, he delivered the certificate to him and then both of them went to a nearby shop, where he put the money into one of the pockets of the jacket, which the respondent was wearing. He does not say whether the respondent was aware that money had been put into his pocket by him. PW-11 Krishan Kumar also does not say that the money had been produced by the respondent from his pocket. He says that it had been recovered from his pocket. In view of the above stated discrepancies and contradictions, case of the prosecution cannot be said to É7É have been proved, beyond reasonable doubt. Hence, the appeal is dismissed. May 4, 2011 (ss) (Surjit Singh), J.