IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.46 of 2007 Date of decision : May 4, 2011 Nand Lal ….Appellant Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Ms Sunita Sharma, Advocate. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge(Oral) Appellant Nand Lal has preferred this appeal against the judgment dated 28th February, 2007/2nd March, 2007, of learned Special Judge, whereby he has been convicted of offences, under Sections 7 & 13(2) of the Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for two years and to pay a fine of `5,000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of six months, for each of the aforesaid two offences. 2. Appellant was working as Patwari in Patwar Circle, Kripalpur in Nalagarh Tehsil of Solan District, in the year 2005. One Shri Inder Singh of village Punjera had sold a piece of land to one Shri Subhash Chand, a relative of Shri Kulbir Dhiman (PW-12). Vendor Shri Inder Singh Whether reporters of the local papers may be allowed to see the judgment? …2… executed an instrument of Power of Attorney in favour of PW- 12 Shri Kulbir Dhiman, a relative of the vendee, for the purpose of attestation of mutation, in respect of the aforesaid piece of land, purchased by Shri Subhash Chand. PW-12 Shri Kulbir Dhiman approached the appellant for attestation of mutation. The latter allegedly demanded a sum of `3,000/-, on account of illegal gratification, for the job. 3. PW-12 Shri Kulbir Dhiman reported the matter to Vigilance people, when one of their Inspectors, namely Shri Dhanbir Singh (PW-14), was present at Baddi, on 26th September, 2005. Shri Kulbir Dhiman made statement, under Section 154 of the Code of Criminal Procedure, copy Ex. PW-12/A. The same was recorded by PW-14 Inspector Dhanbir Singh at Baddi. It was sent to the Police Station, for registration of case. Case was registered vide FIR, copy Ex. PW-8/A. 4. PW-12 Shri Kulbir Dhiman was required to produce currency notes of `3,000/-. He produced six currency notes of the denomination of `500/- each. Numbers of those notes were noted down in Memo Ex. PW-1/B. Those notes were treated with phenolphthalein powder and returned to PW-12 Shri Kulbir Dhiman, with a direction not to fiddle with them till they were paid to the appellant, on demand. It was demonstrated to Shri Kulbir Dhiman, in the presence of PW-1 Shri Balwant Singh, how solutions of phenolphthalein powder and sodium carbonate, when mixed, turned pink. Thereafter, PW-12 Shri Kulbir Dhiman was asked …3… to go to Patwarkhana at Kripalpur to pay the tainted money to the appellant. PW-6 HC Om Prakash was directed to accompany him as a shadow witness. Both of them left, on a Motorcycle, for Kripalpur. Shri Kulbir Dhiman went to the Patwarkhana, while shadow witness PW-6 HC Om Prakash hid himself by the side of wall of a temple, from where he could see what was going on in the Patwarkhana. When PW-12 Shri Kulbir Dhiman paid the money to the appellant, shadow witness PW-6 HC Om Prakash gave the prefixed signal to the waiting Vigilance party, comprising of PW-14 Inspector Dhanbir Singh, Dy.S.P. PW-13 Shri Chaman Lal Kaushik and some other police officials. PW-14 Inspector Dhanbir Singh and Dy.S.P. PW-13 Shri Chaman Lal Kaushik then went to the Patwarkhana. Pradhan of the Panchayat PW-3 Ms Seema Chaudhary and Nambardar PW-2 Shri Gandu Ram were called. 5. Appellant, who had been overpowered, was made to wash his hands, in the presence of the aforesaid two witnesses PW-3 Ms Seema Chaudhary and PW-2 Shri Gandu Ram, in a tray. Solution of sodium carbonate was prepared and added to the hand-wash. It turned pink. The same was collected in a nip and the nip was sealed. Appellant was then required to produce the currency notes. He took out the currency notes from the pocket of the pants, which he was wearing. Numbers of the currency notes tallied with the currency notes, as appearing in Ex. PW-1/B. Appellant was required to change his pants. Pocket of his …4… pants was also washed. To that wash also solution of sodium carbonate was added and it also turned pink. It was collected in a separate nip and that nip was also sealed. 6. Appellant produced the sale deed, which had been earlier handed over to him by PW-12 Shri Kulbir Dhiman. The same was taken into possession, vide Memo Ex. PW-14/C. Appellant was taken into custody. Spot map was prepared, which is Ex. PW-14/D. On 30th September, 2005, appellant produced Power of Attorney executed by the vendor in favour of PW-12 Shri Kulbir Dhiman, which was taken into possession, vide Memo Ex. PW-14/H. 7. Nips, containing the hand-wash and the pocket- wash, were sent to the Chemical Examiner, who opined, vide report Ex. PW-10/B, that the same contained traces of phenolphthalein powder and sodium carbonate. Collector, Solan, was approached to accord sanction to prosecute the appellant. Collector accorded sanction, vide order Ex. PW- 9/A. Thereafter, report, under Section 173 of the Code of Criminal Procedure, was drawn and presented in the Court of Special Judge, Solan, alongwith relevant papers. 8. After being supplied copies of report, under Section 173 of the Code of Criminal Procedure, and the relevant papers, appellant’s counsel and the learned Public Prosecutor were heard and the record was also gone through and it was felt by the learned Special Judge that a prima facie case, under Sections 7 & 13(2) of the Prevention of Corruption Act, 1988, was made out against the appellant, …5… who was charged accordingly. He pleaded not guilty to the charge and was, therefore, put on trial. 9. Prosecution examined 14 witnesses, besides proving certain documents to bring the charge home to the appellant. He pleaded that his job was only to enter mutation, on the basis of the sale deed, which he did enter and that thereafter he got the entry verified from the Kanoongo and submitted the mutation entry to the Tehsildar for attestation, and there nothing remained to be done by him, after 14th August, 2005, on which date mutation entry had been verified by the Kanoongo. He pleaded that there was no occasion for him to have demanded bribe. 10. Learned trial Court held that recovery of tainted money from the appellant stood proved, beyond reasonable doubt, per testimony of PW-12 Shri Kulbir Dhiman, PW-14 Inspector Dhanbir Singh and Dy.S.P. PW-13 Shri Chaman Lal Kaushik. Learned trial Court observed that there was no reason to disbelieve the testimony of Dy.S.P. PW-13 Shri Chaman Lal Kaushik, he being a senior Gazetted Police Officer. Trial Court concluded that the appellant had accepted the bribe and was, therefore, guilty of offences, under Sections 7 & 13(2) of the Prevention of Corruption Act, 1988. Consequently, the appellant was convicted and sentenced, as aforesaid. …6… 11. I have heard learned counsel for the appellant as also learned Assistant Advocate General and reappraised the entire evidence, minutely. 12. None of the prosecution witnesses, including complainant PW-12 Shri Kulbir Dhiman and the shadow witness PW-6 HC Om Prakash, who is an employee of Vigilance Department, speaks about the presence of Dy.S.P. Shri Chaman Lal Kaushik, examined as PW-13, on the spot, at the time of demonstration as to how solutions of two chemicals, when added turn pink or at the time of alleged recovery of tainted money from the appellant. It is only PW-14 Inspector Dhanbir Singh and Dy.S.P. PW-13 Shri Chaman Lal Kaushik, who testified about the presence of the latter. None of the documents, regarding proceedings conducted on the spot, is signed by Dy.S.P., PW-13 Shri Chaman Lal Kaushik. Also, his statement, under Section 161 of the Code of Criminal Procedure, is not there on record. PW-12 Shri Kulbir Dhiman does not say that the Dy.S.P., PW-13 Shri Chaman Lal Kaushik, joined the operation, at any stage. Similarly, PW-6 HC Om Prakash, who was supposed to be knowing PW-13 Shri Chaman Lal Kaushik, on account of his being the subordinate of Dy.S.P. of Vigilance Cell, also does not testify about the presence of Dy.S.P., PW-13 Shri Chaman Lal Kaushik. Therefore, learned trial Court was not justified in holding that the testimony of PW-12 Shri Kulbir Dhiman, PW-14 Inspector Dhanbir Singh and PW-6 HC Om Prakash having been corroborated by a Gazetted …7… Police Officer, namely Dy.S.P. PW-13 Shri Chaman Lal Kaushik, there was no reason to disbelieve the same. 13. As a matter of fact, learned trial Court has not taken notice of the fact that Dy.S.P. PW-13 Shri Chaman Lal Kaushik is not named as a witness, associated in the operation, at any stage, either by the complainant, who allegedly paid the bribe money or the shadow witness. 14. Investigating Officer did not associate an independent person as a shadow witness. He used one of its own employees, namely PW-6 HC Om Prakash, as a shadow witness. No explanation has been put forward by the prosecution, for departing from the normal practice of associating an independent person as shadow witness. It is not the case of the prosecution that independent persons were not available, rather it has come in the evidence of the prosecution itself that a number of persons were present not only at the place where report was made to the police by PW-12 Shri Kulbir Dhiman, i.e. Baddi, but also at Manpura, where alleged demonstration, regarding mixing of solutions of phenolphthalein powder and sodium carbonate, was given to PW-12 Shri Kulbir Dhiman. 15. As a matter of fact, PW-1 Shri Balwant Singh of village Manpura is alleged to have been associated in the demonstration proceedings, but he was allowed to go back to his village thereafter. This was despite the fact that the seal used in sealing the nip, containing the mixture of two solutions and the packets containing the samples of two …8… powders, had been handed over to him and that very seal was required to be used by Vigilance people for sealing other case property during the subsequent investigation. PW-6 HC Om Prakash stated that the nips, currency notes and the other things were sealed with the same seal, which had been handed over to Shri Balwant Singh and that that seal was available, because Shri Balwant Singh had handed over the same to PW-12 Shri Kulbir Dhiman, before he left after witnessing the demonstration. 16. Demonstration is alleged to have been given at a deserted place at a bridge of a nullah, near village Manpura. Statement, under Section 154 of the Code of Criminal Procedure, was recorded at Bus Stand, Baddi. A number of persons were present there, at that time, per deposition of PW-6 HC Om Prakash and PW-12 Shri Kulbir Dhiman. No explanation has been offered by the prosecution why the demonstration had not been given at Baddi itself or why the currency notes had not been treated with the phenolphthalein powder at that place. 17. From Baddi, police officials went to village Manpura. They visited the shop of Shri Balwant Singh in that village. Demonstration could have been given in village Manpura, at the shop of Shri Balwant Singh or at some other place in that village, but that was not done. The party instead went outside the village to a deserted place and it was there that the alleged demonstration was given. …9… 18. PW-14 Inspector Dhanbir Singh says that after recording statement, under Section 154 of the Code of Criminal Procedure, he gave a ring to Dy.S.P., PW-13 Shri Chaman Lal Kaushik, who was present on that day at Nalagarh, and requested him to join the raiding party. Dy.S.P. PW-13 Shri Chaman Lal Kaushik says that he received a telephonic call from PW-14 Inspector Dhanbir Singh, requesting him to reach Manpura and that after he reached village Manpura demonstration was given in his presence and subsequent thereto the tainted money was recovered from the appellant. 19. As already noticed, neither the complainant nor the shadow witness, who is none else but a subordinate police official of Dy.S.P., PW-13 Shri Chaman Lal Kaushik and PW-14 Inspector Dhanbir Singh, says that Dy.S.P., PW-13 Shri Chaman Lal Kaushik was with the party on that day. Similarly, other witnesses, namely Shri Balwant Singh (PW-1), Shri Gandu Ram (PW-2) and Ms Seema Chaudhary (PW-3), Pradhan of the Panchayat, do not speak of the presence of Dy.S.P., PW-13 Shri Chaman Lal Kaushik, on the spot. 20. PW-2 Shri Gandu Ram and PW-3 Ms Seema Chaudhary have denied that hands of the appellant were got washed in their presence or that he produced the currency notes from the pocket of his pants, in their presence. Both of them testified that they had been called subsequently and required to sign the Memos. They have stated that many persons were present on the spot, when they reached there. …10… They were declared hostile and cross-examined by the prosecution, with the leave of the Court. Learned trial Court has not only disbelieved them but has also criticized them, in strong words. As a matter of fact, a reading of the testimony of the other witnesses, including PW-6 HC Om Prakash, suggests that what these two witnesses have testified, may not be incorrect. PW-6 HC Om Prakash and PW-12 Shri Kulbir Dhiman stated, in the cross-examination, that many persons had gathered on the spot, before PW-3 Ms Seema Chaudhary and PW-2 Shri Gandu Ram were called and it was known to the persons on the spot that the appellant had been caught red-handed with bribe money. 21. One of the witnesses of the prosecution, namely PW-5 Shri Vijay Kumar Patwari, who took over the charge from the appellant, after his suspension, in connection with the present case, testified that mutation, in question, had been entered by the appellant on 10th August, 2005 and its verification had been done by the Kanoongo on 14th August, 2005. Complainant PW-12 Shri Kulbir Dhiman stated that the matter had been submitted to the Tehsildar for attestation of mutation and that once when he appeared before the Tehsildar, the latter told him that mutation could not be attested until the vendor and the vendee both were present. He stated that the matter was again taken up by the Tehsildar on 19th September, 2005, when he did not appear. Now, when the matter was already with the Tehsildar, as per testimony of complainant PW-12 Shri Kulbir Dhiman, after the …11… mutation had been entered by the appellant and even Kanoongo had verified that entry and it was the Tehsildar who had not been attesting the mutation, for want of presence of both the vendor and the vendee, where was the occasion for the appellant to demand bribe to get the mutation attested. 22. Prosecution story is that after the Tehsildar had refused to attest the mutation, appellant was handed over the sale deed and the Power of Attorney, by PW-12 Shri Kulbir Dhiman, on appellant’s telling him that he would manage to get the mutation attested, if a sum of `3,000/- was paid. The story does not inspire confidence. According to prosecution’s own evidence, on the date of raid, i.e. 26th September, 2005, only sale deed was produced by the appellant and the Power of Attorney was produced by him subsequently on 30th September, 2005. Memo, regarding sale deed is Ex. PW-14/C. This Memo is a document of suspicious nature. On all the documents, prepared on 26th September, 2005, the Investigating Officer, namely PW- 14 Inspector Dhanbir Singh, has written below his signature that he is Inspector (Vigilance), Solan and was camping at Baddi or Manpura or Kripalpur, depending upon the place where the particular documents were prepared. In the case of Ex. PW-14/C, it is not written that the Investigating Officer had been camping at Kripalpur, where the sale deed was supposed to have been produced. Again, the date of FIR, on the top of this document, is overwritten. Initial date was 29th …12… June, 2005 and by overwriting, it has been changed to 26th September, 2005. Moreover, when the complainant had handed over both the documents, i.e. the sale deed and the instrument of Power of Attorney, to the appellant at the same time, the same were supposed to be available with the appellant in his Patwarkhana, on 26th September, 2005. However, the date of seizure Memo of instrument of Power of Attorney is 30th September, 2005. The abovestated position renders the entire prosecution version highly doubtful. Learned trial Court has ignored all the aforesaid circumstances. Consequently, appeal is accepted, judgment of the trial Court, convicting and sentencing the appellant, is set aside and the appellant is acquitted. May 4, 2011(sd) ( Surjit Singh ), J