IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 19 of 2007 a/w Cr. Appeal No. 23 of 2007 Date of decision: 7.9.2011 1. Cr. Appeal No. 19 of 2007 Devinder Singh …..Appellant Versus State of H.P. ….Respondent 2. Cr. Appeal No. 23 of 2007 Khem Raj …..Appellant Versus State of H.P. ….Respondent [[[[[ Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No. Cr. Appeal No. 19 of 2007 For the appellant: Mr. Ramakant Sharma, Advocate. For the respondent: Mr. Vivek Singh Thakur, Additional Advocate General. Cr. Appeal No. 23 of 2007 For the appellant: Mr. Anup Chitkara, Advocate. For the respondent: Mr. Vivek Singh Thakur, Additional Advocate General. _____________________________________________________ Deepak Gupta, J(oral) 1. These two appeals by the appellants are directed against the judgment of the learned Special Judge, Solan in Case No. 1-S/7 of 2006, whereby the appellants have been 2 convicted of having committed offences punishable under Section 7 read with Section 13(2) of the Prevention of Corruption Act. 2. The prosecution story, in brief, is that the complainant Sandeep Sharma PW-1 was given the contract of transporting milk from the Military Farm, Dagshai to various places in Himachal Pradesh in the year 2004-2005. As per the terms and conditions of the contract, the complainant had furnished security of Rs.20,000/- to the Military Farm by pledging and depositing his FDR for the aforesaid amount. According to the complainant, on completion of the contract on 31st March, 2005, the FDR was to be returned to him and he was also to be paid the transportation charges for the month of March 2005. According to the complainant, appellant Khem Raj demanded a bribe of Rs.10,000/- from him for releasing the FDR and paying him the amount due for the month of March 2005. The complainant did not pay the bribe and he alongwith his brother PW-2 and Suresh Kumar went to the Police Station Anti Corruption, Solan and lodged FIR Ext.PW-1/A on 19.4.2005. The Investigating Officer PW- 10 then gave a demonstration of the use of Phenolphthalein powder to the complainant, his brother and Suresh Kumar. The case of the prosecution is that thereafter Sandeep Sharma, complainant, produced Rs.10,000/- in the shape of currency notes of the denomination of Rs.500/- each. These notes were also treated with Phenolphthalein powder and the 3 complainant was informed that on demand of the bribe he should hand over these notes to appellant Khem Raj. He was also told not to shake hands with anybody nor to hand over the notes to any other person. 3. Further case of the prosecution is that on 19th April, 2005 when as per the plan, the complainant, his brother and the shadow witness Suresh Kumar accompanied by the police officials, went to the Military Farm at Dagshai so as to entrap the appellant Khem Raj, he was not found in the office. Therefore, they returned from the Military Farm and the police officials told the complainant that he should again get in touch with Khem Raj and should inform them when Khem Raj calls the complainant to his office. 4. The prosecution case further is that the complainant got in touch with Khem Raj and decided to visit the Military Farm on 27th April, 2005 to pay the bribe. On the same day, the complainant informed the police that he was going to the Military Farm, Dagshai to pay the bribe to appellant Khem Raj and thereafter the police officials met the complainant and his brother near Kumarhatti and proceeded towards Dagshai, where the complainant alongwith his brother went inside the office of the appellant Khem Raj and on demand by Khem Raj, bribe of Rs.10,000/-was paid to the appellant. A predetermined signal was given to the police by the shadow witness Suresh Kumar and thereafter the police raided the office of Khem Raj and asked whether he had 4 received a sum of Rs.10,000/-. He stated that he has handed over this amount to the second appellant Devinder Singh and the same was recovered from the drawer of appellant Devinder Singh. Hand wash of both Khem Raj and Devinder Singh was taken and after mixing the hand wash with Sodium Carbonate, the same turned pink. 5. After obtaining the requisite sanction on the basis of the aforesaid facts, the appellants were charged with having committed the offences aforesaid and they have been sentenced to undergo six months imprisonment under Section 7 of the Prevention of Corruption Act and one year substantive sentence under Section 13(2) of the Prevention of Corruption Act and they both have been directed to pay fine of Rs.3000/- and Rs.2000/-, respectively. Hence, the present appeal. 6. I have heard Shri Anup Chitkara and Shri Ramakant Sharma, learned counsel for the appellants and Shri Vivek Singh Thakur, learned Additional Advocate General on behalf of the State. 7. It is contended on behalf of the appellants that the prosecution has miserably failed to prove its case and the entire conviction is based on conjecture and surmises and cannot be sustained. It is strenuously urged before this Court that the amount of Rs.10,000/- was paid by the complainant Sandeep Sharma for payment to Manish Garg, 5 DW-3 from whom he had admittedly obtained a loan and it was not a bribe. 8. At the outset, it may be stated that the appellants do not deny the fact that Rs.10,000/- was paid to them by Sandeep Sharma. The case of the appellants is that the pick- up vehicle used by the complainant for transporting the milk had become un-roadworthy and required repair, Therefore, he needed an amount of Rs.20,000/- to get the vehicle repaired. DW-3 Manish Gard was also a contractor, supplying fodder to the Military farm and the convict Khem Raj at the behest of complainant Sandeep Sharma requested DW-3 Manish Garg to loan a sum of Rs.20,000/- to the complainant. Manish Garg accepted this request and gave a sum of Rs.20,000/- to the complainant. For securing repayment of the loan, the complainant Sandeep Sharma gave a blank undated cheque of Rs.20,000/- in favour of Manish Garg, which was handed over to Shri Manish Garg through appellant Khem Raj and it was understood between the parties that after Sandeep Sharma paid the amount of Rs.20,000/- Manish Garg would return the blank cheque. It is also not disputed that Sandeep Sharma paid a sum of Rs.10,000/- to Manish Garg in the month of February 2005 and the balance amount of Rs.10,000/- was to be paid after his dues were settled in the month of April 2005. 9. PW-1 Sandeep Sharma while appearing in the witness box has admitted the fact that he had taken loan of 6 Rs.20,000/- from Manish Garg through appellant Khem Raj. He also admits that Rs.10,000/- had been paid by him in the month of February and the balance amount of Rs.10,000/- was to be paid by him. DW-3 Manish Garg has been produced by the appellants-convicts and he has fully supported their case. 10. The case of the appellant-convicts is that an amount of Rs.10,000/-was handed over to Khem Raj by Sandeep Sharma for onward payment to Manish Garg towards the liquidation of his loan and was not paid as a bribe. The statements of the complainant and DW-3 clearly indicate that such an amount was due from the complainant to Manish Garg and that on the date when Manish Garg was examined, Rs.10,000/- had still not been paid to him and therefore, he had retained the cheque which he produced in the Court. The aforesaid statements of the complainant and Manish Garg cast a cloud on the version of the prosecution that Rs.10,000/- was paid to Khem Raj as a bribe. 11. Admittedly, the complainant Sandeep Sharma had been a contractor for one year and had received payments over a period of 11months and even according to him and his brother PW-2 no bribe was ever demanded prior to the aforesaid date. It is also undisputed that the loan was arranged by the appellant Khem Raj. It was, therefore, but natural that Khem Raj would have ensured that when the complete payment is being released to the complainant he 7 should repay the loan amount which he had received from Manish Garg through the aegis of the appellant Khem Raj. 12. Other than this, even on merits, there are some glaring contradictions in the testimony of the prosecution witnesses. 13. The Apex Court in R.C.Mehta vs. The State of Punjab, AIR 1971 SC 1420 held that the burden of proving his innocence can never be shifted on the accused. In Ram Prakash Arora vs. The State of Punjab, AIR 1973 SC 498 the Apex Court held that evidence of interested and partisan witnesses who are concerned in the success of the trap must be tested in the same way as that of any other interested witness. Therefore, there should be independent corroboration before a person can be convicted. 14. In Panalal Damodar Rathi vs. State of Maharashtra (1979) 4 SCC 526 the Apex Court held that the statement of the complainant cannot be placed on a better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime must be insisted upon. 15. Shri Anup Chitkara and Shri Ramakant Sharma, learned counsel have relied upon a judgment of the learned Single Judge of the Delhi High Court in Anand Sarup vs. The State, 1988 Cri. L.J. 756, in which it was held that mere recovery of money divorced from the circumstances under which it was paid is not sufficient to convict the accused 8 when the other substantive evidence in the case is not reliable. 16. The last judgment cited before me is State of Kerala and another vs. C.P.Rao, (2011) 6 SCC 450 wherein the Apex Court again reiterated that the testimony of the complainant regarding demand of bribe by the accused must be corroborated and only the statement of the complainant cannot be relied upon. The Apex Court held as follows:- “12. Those observations quoted above are clearly applicable in this case. In the context of those observations, this Court in SCC para 28 of A.Subair made it clear that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is proved to the contrary by proper proof of demand and acceptance of illegal gratification, which is the vital ingredient to secure the conviction in a bribery case. In view of the aforesaid settled principles of law, we find it difficult to take a view different from the one taken by the High Court.” 17. Applying the aforesaid principles, it is obvious that the prosecution must prove that there is demand of bribe and furthermore that the money has been paid to the accused as a bribe as illegal gratification and nothing else. 9 18. Complainant Sandeep Sharma no doubt states that appellant Khem Raj demanded Rs.10,000/- as bribe from him and that thereafter he lodged FIR Ext.PW-1/A on 19.4.2005 where after demonstration of Phenolphthalein powder was given to him by the police officials. According to him on 19.4.2005 when they went to Dagshai, appellant Khem Raj was not found in the office or at his home and thereafter the police asked him to contact appellant Khem Raj after sometime. He thereafter contacted Khem Raj on 27th April, 2005. He then informed the police that he had contacted Khem Raj and they met the police at Kumarhatti and then he, his brother, shadow witness alongwith the police officials proceeded to Dagshai, where his brother Tikka Ram PW-2 paid the amount of Rs.10,000/- in the form of currency notes treated by the police to appellant Khem Raj. The witness was declared hostile since in his statement to the police he had stated that it was he who had paid the money to Khem Raj. Despite cross-examination by the learned Public Prosecutor, he again reiterated that he had not paid any amount to Khem Raj but the amount was paid by PW-2 Tikka Ram. He admits that the police had told him that he should keep the amount with himself and pay the amount himself to the appellant Khem Raj but according to him it was Tikka Ram who paid the same. According to him, he was present in the room of Khem Raj when the bribe was paid in his presence by his brother. 10 19. This version is totally contradictory to the version of Tikka Ram, whose statement is that he alone went into the room of Khem Raj and when he paid the money to Khem Raj, neither his brother PW-1 Sandeep Sharma nor the shadow witness Suresh Kumar was present. The story of these two witnesses does not tally with each other. They are real brothers but are giving totally different versions with regard to incident. According to Sandeep Sharma, he was present when the amount was paid by Tikka Ram, but according to Tikka Ram-it was he alone who was inside the room when the amount was paid. 20. If Tikka Ram is right then who gave the signal to the police. According to the police, it was Suresh Kumar who gave the signal. Unfortunately, Suresh Kumar has not been examined and according to Sandeep Sharma it was he who gave the signal to the police. Another glaring lacuna in the prosecution case is that there is no explanation as to in what condition these currency notes were kept and in whose possession they remained from 19th April 2005 till 27th April, 2005. Could the notes which were treated on 19th April, 2005 still have Phenolphthalein powder on them after eight days? If they were handled by a number of persons, as is apparent from the statements of the complainant and his brother, there is no explanation why the notes were not treated again with Phenolphthalein powder on 27th April, 2005. If the police party had prior information and had accompanied the 11 complainant on 27th April, 2005 it should have taken the precaution of again treating the notes with Phenolphthalein powder and again preparing memo with regard to number of notes or some cogent evidence should have been led that the notes remained in the same condition for this period of one week. 21. There is another glaring contradiction in the prosecution case. According to the PW-2, they were in Naina Tikkar, which is about 22-23 kms from Dagshai and 18-19 Kms. from Kumarhatti when they contacted Khem Raj and decided to proceed towards Dagshai. The complainant states that he had informed the police about the fact that they were going to meet appellant Khem Raj from his mobile phone. Whereas according to PW-2 Tikka Ram it was he and not the complainant who has informed the police and that too from his landline phone. This also shows that these witnesses are not telling the truth and hiding something from the Court. 22. Another aspect of the matter is that PW-8 Dy. S.P. who admittedly was a part of the raiding party, when he appeared in the witness box did not say a word about the manner in which the raid was conducted and spoke only of the lodging of the FIR. There is no explanation why he kept silent on this aspect when the Investigating officer has clearly admitted that he was part of the raiding party. 23. In view of the above discussion, I am of the considered view that the learned trial Court gravely erred in 12 convicting the accused. As far as accused Devinder Singh is concerned, there is not an iota of evidence against him. All the witnesses have admitted that there was no demand of bribe by accused Devinder Singh, but the only reason to implicate him was that Khem Raj had handed over the amount of Rs.10,000/- to him. Even if this is accepted to be correct no criminal liability attaches to Devinder Singh. Even as per the complainant and his brother no demand for bribe was made by Devinder Singh. He was called by Khem Raj and asked to count the notes and keep the same in his office. He did not know why this amount had been paid and even if the prosecution story was to be believed Devinder Singh could not have been convicted by any stretch of imagination 24. With regard to the main appellant Khem Raj his version is that this amount was paid to him for onward payment to Manish Garg cannot be brushed aside. Keeping in view the plausible explanation given by Khem Raj as well as glaring contradictions in the prosecution case, I am of the considered opinion that the learned trial Court has gravely erred in convicting the accused. Accordingly, the judgment of the learned trial Court is set aside and the appellants are acquitted. The fine, if any, deposited, shall be refunded to the applicants. Bail bonds discharged. September 7, 2011 (Deepak Gupta) (vt) Judge