IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.321 of 2002 Date of decision : March 24, 2009 State of H.P. …Appellant. Versus J.S. Banyal …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. P.M. Negi, Deputy Advocate General with Mr. Ramesh Thakur Assistant Advocate General. For the Respondent : Mr. Arvind Sharma, Advocate. Surjit Singh, J ( Oral ) State has appealed against the judgment dated 12th December, 2001, passed by learned Special Judge, Una, whereby respondent Dr. J.S. Banyal, who was charged with and tried for offences, punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988, has been acquitted. 2. Case of the prosecution, as per evidence adduced by it during trial, may be summed up thus. On 20th October, 1995, at 11 a.m., PW-1 Hans Raj, accompanied by PW-3 Kamal Dev, went to Police Station, Anti Corruption Zone, Una, and lodged FIR Ex. PA, to the effect that on 21st September, 1995, he and his wife happened to have a scuffle with one Taro Devi, which resulted in some injuries to said Taro Devi and she had lodged a report with the police. Said Taro Devi was admitted to Whether reporters of the local papers may be allowed to see the judgment? …2… the hospital on the very day of the incident and was discharged on 1st October, 1995. The same day, PW-1 Hans Raj met the respondent and paid him Rs.400/-, as bribe, for changing the date of discharge from 1st October, 1995 to 6th October, 1995. Thereafter, the respondent took a bribe of Rs.1,000/- from Taro Devi and entered the date of her discharge, in the record, as 11th October, 1995, with a view to bringing the injuries in the category of grievous hurt. On coming to know about this, PW-1 Hans Raj went to the hospital on 19th October, 1995 and met the respondent and protested against his act of changing the date of discharge to 11th October, 1995, upon which the respondent demanded bribe of Rs.500/- to change the date again. On 20th October, 1995, PW-1 Hans Raj again went to the respondent accompanied by PW-3 Kamal Dev and in the presence of Kamal Dev also the respondent demanded Rs.500/- to change the medical certificate. PW-11 Raghu Ram Bhatia, Dy.S.P., recorded the FIR and, as per his note below the FIR, proceeded to the spot in the company of other police officials to conduct investigation. There is one Memo Ex. PB, per which PW-11 Raghu Ram Bhatia asked PW-1 Hans Raj to produce Rs.500/-. PW-1 Hans Raj produced ten currency notes of the denomination of Rs.50/- each, on which phenolphthalein powder was applied and those currency notes were put into the pocket of Hans Raj, with a direction to pay the same to the respondent. PW-3 Kamal Dev was required to become shadow witness. It was demonstrated to PW-1 Hans Raj and PW-3 Kamal Dev, how anything treated with phenolphthalein and …3… then washed with water turned the water pink, when solution of sodium carbonate was added to it. The same day, PW-11 Raghu Ram Bhatia accompanied by some other police officials, PW-1 Hans Raj and PW-3 Kamal Dev went to Haroli where the respondent was posted as Medical Officer in a Government dispensary. PW-1 Hans Raj and PW-3 Kamal Dev were directed to go to Civil Dispensary, Haroli, while PW-11 Raghu Ram Bhatia went to the Office of Naib Tehsildar and associated PW-2 Partap Singh, Naib Tehsildar, as independent witness. Pradhan of the Panchayat Gurbachan Singh (now dead) was also associated as independent witness. Around 4 p.m., respondent, who had gone to Una that day, returned to the Dispensary. PW-1 Hans Raj and PW-3 Kamal Dev went to the Civil Dispensary. PW-1 Hans Raj went inside the respondent’s room, while PW-3 Kamal Dev stood outside at the door. PW-1 Hans Raj passed on the money, treated with phenolphthalein powder to the respondent, who placed it in the drawer of his table. On noticing the respondent accepting the bribe money, PW-3 Kamal Dev gave the already fixed signal to the waiting party, comprising of PW-11 Raghu Ram Bhatia, PW-2 Partap Singh, Naib Tehsildar, and the abovenamed Pradhan of the Panchayat. The party rushed to the room of the respondent. He was caught hold of by his wrists and was made to wash his hands into a Thali. Solution of Sodium Carbonate was added to the hand-wash, which turned pink. That hand-wash was poured into a nip and the same was sealed. Respondent was arrested. …4… 3. During the course of investigation, record pertaining to admission of Taro Devi, comprising of discharge summary, treatment chart, MLC register and admission register, was taken into possession. Hand-wash of the respondent was sent to the Chemical Examiner, who opined that the contents of the nip were water with traces Sodium Carbonate and phenolphthalein. On completion of the investigation, respondent was challaned. Learned Special Judge charged him with the aforesaid offences and on his pleading not guilty put him on trial. At the end of the trial, learned Special Judge held that the evidence adduced by the prosecution was not sufficient to hold the respondent guilty. Consequently, he passed the judgment of acquittal. 4. I have heard the learned Deputy Advocate General as also the learned counsel representing the respondent and gone through the record. 5. There are several contradictions in the testimony of witnesses and also there are a number of discrepancies and infirmities as also improvements, which render the prosecution story highly doubtful. According to the FIR Ex. PA lodged by PW-1 Hans Raj, initially, he had paid a bribe of Rs.400/- to the respondent to get the date of discharge of Taro Devi changed from 1st October, 1995 to 6th October, 1995. It is not conceivable why should have PW-1 Hans Raj, who had assaulted Taro Devi, got the date of discharge of Taro Devi from the hospital changed from 1st October, 1995 to 6th October, 1995, because this change was not to his advantage …5… but could have worked to his disadvantage, as it would have meant that Taro Devi remained admitted in the hospital for a longer period than the period for which she actually remained admitted and this would have gone against PW-1 Hans Raj in the case pertaining to assault on Taro Devi. 6. Again, as per FIR, PW-1 Hans Raj went to the dispensary of the respondent on 19th October, 1995, on coming to know that the date of discharge of Taro Devi had been changed to 11th October, 1995, by accepting a bribe of Rs.1,000/- from Taro Devi and it was on that date that the respondent demanded a bribe of Rs.500/- to change the date so as to bring down the period of admission of Taro Devi to less than 20 days. However, while appearing as PW-1, Hans Raj did not say that he went to the dispensary on 19th October, 1995. He stated that he went to the respondent on 20th October, 1995, accompanied by PW-3 Kamal Dev and it was during such visit that the respondent demanded bribe. According to him, he went to the dispensary on 20th October, 1995, around 10 or 10.30 a.m., and thereafter he and PW-3 Kamal Dev boarded a bus for Una and reached there at 12 O’ Clock and went to the Office of PW-11 Raghu Ram Bhatia. However, the FIR records that he reached the Office of PW-11 Raghu Ram Bhatia at 11 a.m. The fact belies the deposition of PW-1 Hans Raj that he went to the dispensary at Haroli at 10 or 10.30 a.m., accompanied by PW-3 Kamal Dev, and the respondent demanded the bribe in the presence of Kamal Dev. The fact belies not only the testimony of PW-1 Hans Raj but also that of …6… PW-3 Kamal Dev, who too says that he and Hans Raj had gone to the dispensary on 20th October, 1995, around 10 or 10.30 a.m. As a matter of fact, PW-11 Raghu Ram Bhatia, Dy.S.P., has admitted that on 20th October, 1995, respondent had gone to Una and returned to Haroli at 4 p.m. Respondent’s plea, during trial, had been that on 20th October, 1995, he had gone to Una to attend a Court case, in the capacity of a witness, and was not in the dispensary at 10 a.m. Statement of PW-11 Raghu Ram Bhatia fits into this defence of the respondent. 7. Even though there is a Memo Ex. PB regarding application of phenolphthalein powder to the currency notes produced by PW-1 Hans Raj and also about the demonstration given by PW-11 Raghu Ram Bhatia to PW-1 Hans Raj and PW-3 Kamal Dev at the Police Station, yet none of the abovenamed three witnesses has uttered even a word about the demonstration, referred to in Ex. PB. Also in view of the fact that PW-11 Raghu Ram Bhatia started recording the FIR at 11 a.m. and by 12 O’ Clock he was at Haroli, per his own deposition, it cannot be believed that any demonstration was carried out. Not only this, even this much appears to be doubtful that phenolphthalein powder was applied to the currency notes, because the recording of the FIR and the action taken note below it itself could have consumed about half and hour an another half an hour was taken in reaching Haroli from Una, per statement of PW-11 Raghu Ram Bhatia. 8. Contradictions are also there in the testimony of PW-1 Hans Raj and the shadow witness PW-3 Kamal Dev as to …7… the time when bribe was allegedly accepted by the respondent as also with respect to some other material facts. From the testimony of PW-1 Hans Raj, it appears that they went to the dispensary and handed over the money to the respondent around 3 p.m., but PW-3 Kamal Dev says that they reached Haroli from Una, accompanied by PW-11 Raghu Ram Bhatia, at 3 p.m. This statement of PW-3 Kamal Dev is contradictory to the testimony of PW-11 Raghu Ram Bhatia, who says that he reached Haroli, accompanied by PW-1 Hans Raj and PW-3 Kamal Dev, at 12 noon. PW-1 Hans Raj’s testimony that bribe was accepted by the respondent at 3 p.m. cannot be believed, in view of the categorical admission by PW-11 Raghu Ram Bhatia that the respondent returned to Haroli from Una that day at 4 p.m. Again, PW-1 Hans Raj says that he went to the room of the respondent all alone and PW-3 Kamal Dev remained at the door, but PW-3 Kamal Dev says that he too went inside the room with PW-1 Hans Raj, when the bribe was offered to the respondent. Further, PW-1 Hans Raj and PW-3 Kamal Dev say that the money was taken out of the drawer by PW-2 Partap Singh, Naib Tehsildar, but PW-2 Partap Singh says that the money was taken out by the police and handed over to him and the respondent for being counted. Now, when the money was handed over to the respondent for being counted, as testified by PW-2 Partap Singh, it is quite likely that traces of phenolphthalein powder appeared on his hands while counting the currency notes. And there is no guarantee that the hands of the respondent were got washed before the counting of the …8… currency notes, especially when there are so many contradictions and improvements in the testimony of the prosecution witnesses, as pointed out hereinabove, which suggest that investigation was not conducted in a fair manner. 9. PW-1 Hans Raj had an axe to grind by falsely implicating the respondent, because the later had kept Taro Devi admitted in the hospital for more than 20 days, which meant that the injuries sustained by her at the hands of PW-1 Hans Raj and his wife were grievous in nature. PW-3 Kamal Dev is also an interested witness, because he had been accompanying PW-1 Hans Raj throughout. PW-1 Hans Raj admits that he hails from his own vicinity (Mohalla), though he denies that he is his friend. In view of the abovestated position, I do not consider this to be a fit case for interfering with the judgment of acquittal. Hence, the appeal is dismissed. March 24, 2009(sd) ( Surjit Singh ), J