IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.144 of 2008 Date of decision : May 18, 2011 Amar Chand ….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 : M/s Subhash Sharma & Vinay Thakur, Advocates For the Respondent : Mr. R.P. Singh, Assistant Advocate General. Surjit Singh, Judge(Oral) This appeal by appellant Amar Chand is directed against the judgment dated 27th March, 2008, 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 six months and to pay a fine of `5,000/-, for offence, under Section 7, and to undergo rigorous imprisonment for one year and to pay a fine of `10,000/- for offence, under Section 13(2) of the Prevention of Corruption Act. 2. Case of the prosecution is that Shri Kushal Singh (PW-7) was recorded as tenant, on a piece of land, Whether reporters of the local papers may be allowed to see the judgment? …2… measuring 1 bigha 4 biswa, bearing Khasra No.83, situate in village Thabna, Tehsil Kunihar, District Solan. On 7th January, 1976, he purchased this land from the owner, but in the revenue papers, the seller continued to be recorded as owner and he (PW-7 Shri Kushal Singh) as tenant, under him as before. He wanted the entry, in the revenue papers, to be changed in his favour, so as to show him owner in possession. For this he made an application to the Naib Tehsildar and visited his office three-four times, prior to 2nd December, 2006, on which date appellant, who was then working as Reader to the Naib Tehsildar, met him and told him that he should make an application for correction of entry and pay him (appellant) `2,000/- as bribe and his work would be done. 3. Son of PW-7 Shri Kushal Singh, namely PW-1 Shri Dharminder Singh, is working as a Home Guard and remains attached with Police Stations. Perhaps he was posted at Solan those days. He visited his native place two-three days, after the alleged demand of bribe by the appellant. He was informed by his father PW-7 Shri Kushal Singh about the demand of bribe by the appellant. PW-1 Shri Dharminder then informed Shri Om Prakash, a Head Constable in the Office of Vigilance in Solan, on 4th December, 2006, about the alleged demand for bribe. HC Om Prakash told him that Vigilance Dy.S.P. would be …3… visiting Kunihar on 7th December, 2006 and on that day he should meet him at Petrol Pump. HC Om Prakash telephonically informed PW-1 Shri Dharminder Singh, on the evening of 6th December, 2006, that Dy.S.P. was going to Kunihar on that day and he should be meeting him at the Petrol Pump. 4. On 7th December, 2006, PW-1 Shri Dharminder Singh, accompanied by his cousin PW-2 Jasbir Singh, waited for the Dy.S.P. at the Petrol Pump. Dy.S.P, PW-12 Shri Diwakar Sharma, reached Petrol Pump by a Jeep, in the company of Inspector Babita Rana and some other police officials, including HC Om Prakash. He recorded statement of PW-1 Shri Dharminder Singh, under Section 154 of the Code of Criminal Procedure, which is Ex. PW- 1/B. This statement was endorsed to Police Station Vigilance, Solan, for formal registration of the case. Case was registered vide FIR Ex. PW-9/A. 5. Dy.S.P., PW-12 Shri Diwakar Sharma, required PW-1 Shri Dharminder Singh to produce currency notes of `2,000/-, upon which he produced four currency notes, Ex. P-5 to Ex. P-8. Those currency notes were treated with phenolphthalein powder and returned to PW-1 Shri Dharminder Singh, with a direction not to fiddle with them, until the same were paid to the appellant, on demand by the latter. Demonstration was also given by …4… Dy.S.P., PW-12 Shri Diwakar Sharma, how solutions of phenolphthalein powder and sodium carbonate, when mixed with each other, turned pink. A Memo was prepared, with regard to the proceedings of treatment of currency notes with phenolphthalein powder and the aforesaid demonstration and in that Memo numbers of the currency notes were also noted down. 6. PW-1 Shri Dharminder Singh and PW-2 Jasbir Singh were then required to go to the office of the appellant to pay the bribe money, on demand. PW-2 Jasbir Singh was to act as shadow witness. Both of them went on a scooter. On reaching the office of Naib Tehsildar, PW-1 Shri Dharminder Singh was taken to the roof top of the office, by the appellant, where he (the appellant) accepted the bribe money of `2,000/-. The two then came down to the gound floor. PW-1 Shri Dharminder Singh indicated by some sign to PW-2 Jasbir Singh that money had been paid to the appellant. PW-2 Jasbir Singh then gave the prefixed signal to the waiting police party. Dy.S.P., PW-12 Shri Diwakar Sharma, accompanied by other police officials, then rushed to the office room of the appellant. He was caught hold by his wrists and made to wash his hands. Hand- wash was collected in a plate. Solution of sodium carbonate was prepared in a tumbler. That was added to …5… the hand-wash in the plate. It turned pink. It was poured into nip Ex. P-2 and sealed. PW-3 Shri B.R. Lalta, Naib Tehsildar and a Lecturer from nearby School, namely PW-4 Shri Jaya Nand Sharma, were called. In their presence, the appellant was required to produce the currency notes, accepted by him from PW-1 Shri Dharminder Singh. He took out the currency notes from an almirah, lying in his office room and handed over the same to the Dy.S.P., PW-12 Shri Diwakar Sharma. Numbers of the currency notes matched with the numbers, which had been noted down in the Memo Ex. PW-1/D prepared earlier, at the time of treatment of currency notes with phenolphthalein powder. 7. Application, for correction of entry, which PW-7 Shri Kushal Singh had submitted to the Naib Tehsildar, was also taken into possession. The same is Ex. PW-1/A. 8. On completion of investigation, Appointing Authority of the appellant was approached to accord sanction to prosecute the appellant. On receipt of such sanction, which is Ex. PA, report, under Section 173 of the Code of Criminal Procedure, was filed in the Court of Special Judge, who, after complying with the requirement of Section 207 of the Code of Criminal Procedure, and after hearing the learned Public Prosecutor and the learned defence counsel and going through the record, …6… charged the appellant with offences, under Sections 7 and 13(2) of the Prevention of Corruption Act. Appellant pleaded not guilty to the charge and was, therefore, put on trial. 9. Prosecution examined 13 witnesses to bring the charge home to the appellant. Appellant denied having demanded or accepted the bribe. He denied that PW-7 Shri Kushal Singh, father of complainant PW-1 Shri Dharminder Singh, visited Naib Tehsildar’s office on 2nd December, 2006 and presented application Ex. PW- 1/A. He pleaded that he alongwith Naib Tehsildar was away to Shimla on 2nd December, 2006 and, hence, there was no question of PW-7 Shri Kushal Singh having met him in the office of Naib Tehsildar at Kunihar, on that day and his (appellant’s) demanding bribe money from him. He pleaded that HC Om Prakash, working in the Vigilance Office, had a dispute with him and it was he who had got him falsely implicated in this case, by using PW-1 Shri Dharminder Singh as a tool. 10. Learned Special Judge did not believe the defence version. He concluded that the evidence on record proved the charge, beyond reasonable doubt, and consequently convicted and sentenced the appellant, as aforesaid. …7… 11. I have heard learned counsel for the appellant as also learned Assistant Advocate General and re- appraised the evidence, thoroughly. 12. As a matter of fact, it is not only that the defence plea of the appellant is probabilized by the evidence on record, i.e. prosecution’s own evidence, because appellant did not lead defence evidence, except for showing that he alongwith Naib Tehsildar was away to Shimla, on the relevant date, but the case of the prosecution, otherwise also, does not stand proved, beyond reasonable doubt, because of many material and serious contradictions and inconsistencies in the prosecution evidence. 13. According to PW-1 Shri Dharminder Singh, it was on 4th December, 2006 that he complained about the alleged demand of bribe, by the appellant, to HC Om Prakash, in the office of Dy.S.P. Vigilance, PW-12 Shri Diwakar Sharma, at Solan. Initially, he stated that his statement had been recorded on 4th December, 2006, itself, in the office of Vigilance. Lateron, he stated that his statement was recorded on 7th December, 2006, when Dy.S.P., PW-12 Shri Diwakar Sharma, visited Kunihar. He also says that his statement was recorded in the office of Naib Tehsildar. There is only one statement of this witness and the same is Ex. PW-1/B, which is under …8… Section 154 of the Code of Criminal Procedure. Now, if the statement was recorded on 7th December, 2006, in the Office of Naib Tehsildar, that would suggest that the same was recorded, after the alleged trap, because Dy.S.P., PW-12 Shri Diwakar Sharma, went to the Office of Naib Tehsildar only after he had been signaled by the shadow witness that bribe had been accepted by appellant. It is significant to notice that PW-1 Shri Dharminder Singh was not cross-examined by the prosecution and, therefore, there should be no reason to disbelieve his statement that his statement (supposedly Ex. PW-1/B) was recorded after the alleged trap, as observed hereinabove. 14. PW-1 Shri Dharminder Singh stated that demonstration, regarding solution of two chemicals, turning pink, was given in a jungle, on Arki-Solan road, which is at a distance of about half a kilometer from the Petrol Pump and Dy.S.P., PW-12 Shri Diwakar Sharma also says that such demonstration was given in the forest, but PW-8 Shri Dayal Chand, the Driver of the vehicle, by which the Dy.S.P. travelled from Solan to Kunihar, says that the demonstration was given at the Petrol Pump itself, inside the vehicle. Further, Dy.S.P., PW-12 Shri Diwakar Sharma says that the statement Ex. PW-1/B was recorded by him at the Petrol Pump, but, as already …9… noticed, PW-1 Shri Dharminder Singh says that his statement was recorded in Naib Tehsildar’s office. 15. Again, according to PW-8 Shri Dayal Chand, Driver of the Jeep, HC Om Prakash of Vigilance Cell, Solan, was also a member of the party and travelled with the Dy.S.P., but Dy.S.P., PW-12 Shri Diwakar Sharma himself says that HC Om Prakash had not travelled in the Jeep, but by a scooter. Prosecution did not examine HC Om Prakash to whom PW-1 Shri Dharminder Singh testifies to have complained about the demand for bribe, on 4th December, 2006 and who allegedly telephoned PW-1 Shri Dharminder Singh, on the evening of 6th December, 2006, that the Dy.S.P., alongwith the Police party, would be meeting him at Kunihar Petrol Pump, on 7th December, 2006. 16. According to PW-1 Shri Dharminder Singh, appellant was made to wash his hands, with plain water, and that when that hand-wash was poured into nip Ex. P-2, hand-wash turned pink. However, Dy.S.P., PW-12 Shri Diwakar Sharma says that solution of sodium carbonate was prepared in a tumbler and it was then added to the hand-wash, in a plate, upon which it turned pink. Contradiction in the statements of the two witnesses makes it doubtful if there were traces of phenolphthalein powder on the hands of the appellant, when he was made to wash his hands. It is quite likely that small quantity of phenolphthalein powder and sodium carbonate was …10… already there in nip Ex. P-2 and when the hand-wash was poured into it the water turned pink. There should be no reason to disbelieve the testimony of PW-1 Shri Dharminder Singh, with respect to this aspect of the matter, when the prosecution chose not to cross-examine him, after obtaining permission from the trial Judge, despite his having not testified about the addition of solution of sodium carbonate to the hand-wash, in the plate, but having specifically stated that hand-wash turned pink, when it was poured into nip Ex. P-2. 17. Also, evidence of the prosecution, with respect to the recovery of currency notes from the almirah, lying in the office room, is doubtful. It is only PW-1 Shri Dharminder Singh and Dy.S.P., PW-12 Shri Diwakar Sharma, who say that the money was recovered from the almirah. Other witnesses, however, do not support their version. PW-2 Jasbir Singh, a cousin of PW-1 Shri Dharminder Singh, stated that the currency notes were found lying on a table, in the office room of the appellant. Other two witnesses, namely PW-3 Shri B.R. Lalta, Naib Tehsildar and PW-4 Shri Jaya Nand Sharma, Lecturer, say that when room was searched, in their presence, nothing was recovered, but lateron they were informed by Dy.S.P., PW-12 Shri Diwakar Sharma that money had been recovered from an almirah. …11… 18. Not only this, testimony of PW-1 Shri Dharminder Singh stands totally discredited, because it is contradictory to the earliest version, contained in his statement Ex. PW-1/B, under Section 154 of the Code of Criminal Procedure, with which he was duly confronted. In his testimony as PW-1, he stated that the bribe was demanded from him directly, by the appellant, when he went to the Office of Naib Tehsildar on 6th December, 2006. There is no mention, regarding his visit to the Office of Naib Tehsil on 6th December, 2006 or the demand of bribe from him by the appellant on 6th December, 2006 or on any other day, in statement Ex. PW-1/B. 19. Again, the earliest version makes it highly doubtful if the father of PW-1 Shri Dharminder Singh, namely PW-7 Shri Kushal Singh, went to the office of Naib Tehsildar, on 2nd December, 2006. According to Ex. PW- 1/B, application for correction of entry had been made by PW-7 Shri Kushal Singh, before 2nd December, 2006 and thereafter he visited the office of Naib Tehsildar three- four times and when he visited the office last on 2nd December, 2006, appellant told him (PW-7 Shri Kushal Singh) to make an application for correction of entry and also demanded bribe of `2,000/-. Now, when PW-7 Shri Kushal Singh went to the office of Naib Tehsildar three- …12… four times, after the making of the application and before 2nd December, 2006, how can the prosecution version that application Ex. PW-1/A was made on 2nd December, 2006, be believed. These contradictions not only create a serious doubt about the alleged demand of bribe by appellant, but also probabilize the defence plea that the appellant and the Naib Tehsildar were not even in their office on 2nd December, 2006, when the demand is alleged to have been made. Also, these contradictions indicate that PW-1 Shri Dharminder Singh is not a trustworthy witness. 20. Furthermore, PW-1 Shri Dharminder Singh is a Home Guard. He admits, in his cross-examination, that he remains attached with the Police Stations and other Police Establishments. Defence plea is that HC Om Prakash of Vigilance Cell at Solan had a dispute with the appellant and he used PW-1 Shri Dharminder Singh, who remains attached with the Police Establishments, on account of his being a Home Guard, as a pawn, to frame him, in this case. 21. Contradictions and inconsistencies, noticed hereinabove, render the prosecution evidence highly doubtful. Defence of the appellant is also probabilized by the aforesaid contradictions and discrepancies and also the fact that the application, Ex. PW-1/A, for correction of …13… revenue entry, which PW-7 Shri Kushal Singh, testifies to have submitted on 2nd December, 2006, was presented to the Naib Tehsildar, on 4th December, 2006, as is clear from the endorsement of presentation made by the Naib Tehsildar, on the left margin of this application. PW-3 Shri B.R. Lalta, Naib Tehsildar, testified that this application was presented to him on 4th December, 2006 and that on 2nd December, 2006 he alongwith the appellant was away to Shimla and both of them did not attend the office at Kunihar, on that day. In view of the abovestated position, appeal is allowed, judgment of the trial Court, convicting and sentencing the appellant, is set aside and the appellant is acquitted. May 18, 2011(sd) ( Surjit Singh ), J