IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.698 of 2002 Decided on : July 16, 2009 State of H.P. ..Appellant. Versus Dev Raj …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. Anand Sharma, Advocate. Surjit Singh, J. (Oral) State has appealed against the judgment, dated 15th July, 2002, of learned Special Judge, whereby respondent Dev Raj, who was charged with and tried for offences, under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988, has been acquitted. 2. Case of the prosecution may be stated thus. Respondent Dev Raj was working as Kanoongo (a Revenue official) at Bhater in Bilaspur District, in the year 1997. PW-2 Rakesh Kumar, who was registered as a Forest Contractor for the years 1996, 1997 and 1998, applied to the Divisional Forest Officer for marking of Cheel (pine) trees, on private lands of residents of five villages, as he had purchased the rights from the owners of such land entitling him to extract resin. Divisional Forest Officer marked that application to the revenue Whether reporters of the local papers may be allowed to see the judgment? - 2 - officials and field staff of Forest Department. Respondent, being Kanoongo, was required to carry out demarcation. On the land, demarcated by him, field staff of the Forest Department, including PW-5 Salig Ram, Block Officer, was to mark the trees. Demarcation started on 22nd April, 1997 and continued upto 8th or 9th May, 1997. Trees were marked and their lists prepared, on day-to-day basis, as the demarcation progressed. Lists were sent by the forest officials to the respondent, in his capacity as Kanoongo, as the demarcating revenue official, for his signature. He kept those lists, Ex. PB-2 to Ex. PB-57, with him for about a week or so. 3. PW-2 Rakesh Kumar is, in fact, a shopkeeper and it is his brother PW-12 Vijay Kumar, who takes care of the business of resin extraction. This PW-12 Vijay Kumar was earlier a registered forest contractor, but he had been black- listed and, therefore, he started working through his brother PW-2 Rakesh Kumar. PW-12 went to the Office of the respondent on 17th May, 1997, with the request to sign the lists. Respondent demanded Rs.5,000/- as bribe for signing the lists. PW-12 Vijay Kumar again went to the respondent, in the evening at his residence, accompanied by PW-3 Dalel Singh. Respondent again demanded Rs.5,000/-. PW-12 Vijay Kumar requested him to reduce the amount. Respondent brought it down to Rs.4,200/-. PW-12 Vijay Kumar was having only Rs.1,700/-, at that time. He paid that money to the respondent and promised to pay the remaining amount, in a - 3 - day or two. On return to his place, PW-12 Vijay Kumar informed his brother-in-law, PW-15 Onkar Chand about the demand for gratification made by the respondent. The two then planned to lodge a report with the Vigilance Department. 4. On 19th May, 1997, they went to Bilaspur to lodge report. At Bilaspur, PW-16 Krishan Chand, Inspector, Anti Corruption Zone, Hamirpur, met them. PW-12 Vijay Kumar made a report to him, which was reduced into writing, in the form of his statement, under Section 154 of the Code of Criminal Procedure. The same which is Ex. PH. On the basis of this report, case was formally registered at Anti Corruption Zone, Bilaspur, vide FIR Ex. PJ. PW-16 Krishan Chand asked PW-12 Vijay Kumar to produce currency notes of Rs.2,500/-, which were to be paid to the respondent as bribe money. He produced two currency notes of the denomination of Rs.500/- each and fifteen currency notes of the denomination of Rs.100/- each. The currency notes were treated with phenolphthalein powder and returned to PW-12 Vijay Kumar, with a direction not to touch them, except at the time of handing over the same to the respondent. It was demonstrated to PW-12 Vijay Kumar and PW-15 Onkar Chand, how an object treated with phenolphthalein, when washed with plain water turns the wash pink, on addition of solution of sodium carbonate. PW-15 Onkar Chand was required to act as shadow witness. PW-2 Rakesh Kumar, brother of PW-12 Vijay Kumar was also associated. PW-12 Vijay Kumar went to the - 4 - Office of the respondent. Shadow witness remained outside, at a point from where he could see PW-12 Vijay Kumar passing over the money to the respondent. PW-16 Krishan Chand and other officials of Vigilance Department ambushed themselves near the Office and waited for the prefixed signal. PW-12 Vijay Kumar paid the currency notes to the respondent. He accepted the same and put them in the side pocket of the pants, which he was wearing. Shadow witness noticed this all and gave the signal to the hiding Vigilance officials. They accompanied by the shadow witness and the brother of PW-12 Vijay Kumar, namely PW-2 Rakesh Kumar, went to the office of the respondent. PW-16 Krishan Chand disclosed his identity. Respondent was overpowered and was made to wash his hands with plain water. Solution of sodium carbonate was added to the hand-wash and it turned pink. Respondent produced the currency notes from the pocket of his pants. Pocket of his pants was also washed and pocket-wash also turned pink, when solution of sodium carbonate was added to it. Currency notes were taken into possession. Marking lists Ex. PB-2 to Ex. PB-57 were also taken into possession from the office of the respondent. Hand-wash and pocket-wash were sent to the Chemical Examiner, who vide report Ex. PA, opined that there were traces of sodium carbonate and phenolphthalein in those washes. 5. On completion of the investigation, sanction to prosecute the respondent was obtained from his Appointing - 5 - Authority, under Section 19 of the Prevention of Corruption Act and thereafter challan was filed. 6. Respondent was charged with the offences, under Sections 7 and 13 of the Prevention of Corruption Act. He pleaded not guilty and was, therefore, put on trial. 7. Prosecution mainly relied upon the testimony of PW-12 Vijay Kumar from whom bribe was demanded, PW-15 Onkar Chand, the shadow witness, PW-2 Rakesh Kumar, a brother of PW-12 Vijay Kumar, who was allegedly present when the currency notes were recovered from the respondent, PW-3 Dalel Singh, in whose presence demand for bribe was made by the respondent on 17th May, 1997 and PW-16 Krishan Chand, Inspector (Vigilance), who laid the trap. 8. Respondent took the plea that on 17th May, 1997, he was approached by respondent No.12 Vijay Kumar, at his house, in the evening, for signing the lists of marked trees but he told him that he would be comparing the lists with his demarcation reports, before putting his signatures and asked him to collect the same on 19th May, 1997 from his office. He stated that when PW-12 Vijay Kumar came to his office on 19th May, 1997, he was busy comparing the lists with the help of two Patwaris and at that time he was wearing only Baniyan (vest) and Pyjama and his pants was in the adjoining room. PW-12 Vijay Kumar went to the kitchen, on the pretext of taking water, passing through the said room, and after some time he returned and sat on a bench. He further stated that - 6 - soon thereafter, police entered his office and asked where had he kept the bribe money. He told the police that he had taken no money from anybody and that PW-12 Vijay Kumar told the police people that the money was in the adjoining room and then said PW-12 Vijay Kumar and a Constable went to that room and brought the currency notes, which were placed on the top of his table. 9. Learned Special Judge appreciated the evidence of the prosecution, in the light of the aforesaid plea of the respondent and concluded that the case of the prosecution did not stand established, beyond reasonable doubt. Consequently, the respondent was acquitted. 10. I have heard the learned Assistant Advocate General and the learned counsel for the respondent and gone through the record. 11. Evidence of the prosecution is required to be appreciated not only in the light of the defence plea taken by the respondent, but also the fact that PW-12 Vijay Kumar is a black-listed forest contractor and his licence was cancelled a few years prior to the incident and thereafter he started carrying on his business as a contractor in the name of his brother PW-2 Rakesh Kumar. Also, PW-12 Vijay Kumar, per his own statement, has been convicted in two-three cases of smuggling of forest produce. 12. PW-16 Krishan Chand, Inspector (Vigilance), did not associate any independent witness. He associated a brother - 7 - and a brother-in-law of PW-12 Vijay Kumar. Though PW-16 Krishan Chand stated that witnesses were not available, his testimony cannot be taken to be a gospel truth, in view of the fact that he was approached by PW-12 Vijay Kumar at Bilaspur, which is a District Headquarter, where a number of witnesses were supposed to be available. 13. Even the interested witnesses, associated by PW-16 Krishan Chand did not corroborate the version, as testified by him and PW-12 Vijay Kumar. PW-2 Rakesh Kumar stated that it was he who had gone to the office of the respondent on 17th May, 1997 and not his brother PW-12 Vijay Kumar, when the respondent had demanded bribe. According to testimony of PW-12 Vijay Kumar, PW-2 Rakesh Kumar had gone to Bhatiyan in Hamirpur District, on the relevant day and, therefore, there was no question of his having visited the office of the respondent. Again, PW-2 Rakesh Kumar stated that it was he who had given the bribe to the respondent, who, after accepting the same, kept the same on his table top, but according to the statement of PW-12 Vijay Kumar and the testimony of PW-16 Krishan Chand, bribe was paid by PW-12 Vijay Kumar and the respondent had put the money in the side pocket of his pants. PW-15 Onkar Chand also did not testify the prosecution case, as is testified by PW-12 Vijay Kumar and PW-16 Krishan Chand. According to him, PW-12 Vijay Kumar, accompanied by one Mehar Singh, went inside the office of the respondent to pay the bribe, while he and Dalel Singh waited - 8 - outside and that when the police entered the office of the respondent money was lying on his table top. PW-3 Dalel Singh, in whose presence demand for bribe was made on 17th May, 1997, though stated that he accompanied Vijay Kumar to the house of the respondent on the aforesaid date, yet he denied that any demand for bribe was made. He also denied that a sum of Rs.1,700/- was paid to the respondent on that date and an amount of Rs.2,500/- was agreed to be paid on 19th. 14. PW-2 Rakesh Kumar, brother of PW-12 Vijay Kumar, PW-15 Onkar Chand, shadow witness, and PW-3 Dalel Singh, were cross-examined by the prosecution, with the leave of the Court. However, nothing surfaced in their cross- examination, indicating that they had any motive to favour the respondent and to disprove the version of PW-12 Vijay Kumar, their close relative. 15. In view of the abovestated position, particularly the fact that even though the shadow witness and other witnesses associated in the trap were close relatives and friends of PW-12 Vijay Kumar, they did not support the prosecution version, I do not think this to be a fit case for interfering in the judgment of acquittal. Hence, the appeal is dismissed. July 16, 2009(sd) (Surjit Singh), J.