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Himachal Pradesh High Court · body

2011 DIGILAW 829 (HP)

Amar Nath v. State of H. P.

2011-03-02

SURJIT SINGH

body2011
JUDGMENT Surjit Singh, Judge Appellant Amar Nath, Patwari, has assailed his conviction and sentence for offences, under Sections 7 and 13(2) of Prevention of Corruption Act, 1988, ordered by learned Special Judge, Kullu, vide judgment dated 11.8.2009 in the present appeal. Appellant has been sentenced as follows: - Sr. Offence Sentence awarded No. (i) Section 7 of the Prevention of Corruption Act, 1988. Rigorous imprisonment for two years and fine of' 100001-; in default of payment of fine; rigorous imprisonment for a further period of three months; (ii) Section 13(2) of the Prevention of Corruption Act, Rigorous imprisonment for three years and fine of' 15000/-; in default of payment of fine; rigorous imprisonment for a further period of four months; 1988. 2. Prosecution's case, as sought to be made out from the evidence led during trial, may be noticed. Appellant was posted as Patwari in Patwar Circle, Tila Sahni in District Kullu. He was approached by PW-l Rajesh Rashpa, an Advocate by profession to give effect to a private partition of landed property, which had taken place among his father and some other persons, recorded as co-owners with his father. He approached the appellant about two months prior to 16th July, 2003. Appellant allegedly told him that since a large chunk of land was involved, an application was required to be submitted. PW-1 Rajesh Rashpa then submitted application Ext.PW1/A, alongwith copy of memorandum of family partition Ext. PW1/B and copies of revenue papers Ext. PW1/C to Ext. PW1/K, which had been obtained from the appellant in the month of January, 2003 to the Assistant Settlement Officer. Two months later, PW-1 Rajesh Rashpa again approached the appellant and requested him to enter the private partition in the revenue papers. Appellant allegedly demanded a sum of '1000/-, immediately, and some more money after the entries were made. 3. PW-1 Rajesh Rashpa approached vigilance people on 16.7.2003. He went to the office of Dy. S.P. Amar Nath, examined as PW-7. He was accompanied by PW-2 Surinder Kumar and one Dharam Pal. He lodged FIR, copy Ext. PW1/Z-8. PW-7 Dy. S.P. Amar Nath called two Inspectors, working under him, and in their presence, he required PW-1 Rajesh Rashpa to produce currency notes of 1000/-. Rajesh Rashpa produced ten currency notes of the denomination of 100/- each. Phenolphthalein powder was applied to those currency notes. He lodged FIR, copy Ext. PW1/Z-8. PW-7 Dy. S.P. Amar Nath called two Inspectors, working under him, and in their presence, he required PW-1 Rajesh Rashpa to produce currency notes of 1000/-. Rajesh Rashpa produced ten currency notes of the denomination of 100/- each. Phenolphthalein powder was applied to those currency notes. It was demonstrated to PW-1 Rajesh Rashpa, PW-2 Surinder Kumnar and Dharam Pal, who were accompanying him, how the solution of phenolphthalein, turned pink, when solution of sodium carbonate, in water, was mixed with it. Currency notes treated with phenolphthalein powder were handed over to PW-1 Rajesh Rashpa. A memo to this effect was prepared which is Ext. PW1/Z-10. Numbers of the currency notes were entered in this memo. PW-2 Surinder Kumar was required to act as shadow witness. Thereafter PW-1 Rajesh Rashpa, PW-2 Surinder Kumar, PW7 Dy. S.P. Amar Nath, two Inspectors of Vigilance Department, and some Constables proceeded, in two separate vehicles, towards Patwarkhana of village Tila Sahni, where the appellant was posted. PW-1 Rajesh Rashpa and PW-2 Surinder Kumar accompanied by one Vigilance Inspector proceeded in a private vehicle. while other members of the party, including PW-7 Dy. S.P. Amar Nath, went by government vehicle. 4. On reaching the village, it was noticed that vehicle of Assistant Settlement Officer was parked at a short distance from Patwarkhana. Inquiry made from the driver of that vehicle revealed that Assistant settlement Officer had gone to the Patwarkhana. Party waited for the Assistant Settlement Officer to leave. He left by his vehicle 10-15 minutes later. Thereafter PW-1 Rajesh Rashpa and PW-2 Surinder Kumar were required to proceed to Patwarkhna. PW-2 Surinder Kumar stayed back in a shed, close to Patwarkhana, from where he could see the appellant as also PW-1 Rajesh Rashpa, handing over the money to the appellant. When PW-1 Rajesh Rashpa reached the courtyard of Patwarkhana, appellant was found sitting on a Bench. He (the appellant) enquired if PW-1 Rajesh Rashpa had brought the demanded money. Upon that, PW-1 Rajesh Rashpa took out tainted money from his pocket and handed over the same to the appellant, who put the same in the left side pocket of his white coloured shirt, which he was wearing. 5. He (the appellant) enquired if PW-1 Rajesh Rashpa had brought the demanded money. Upon that, PW-1 Rajesh Rashpa took out tainted money from his pocket and handed over the same to the appellant, who put the same in the left side pocket of his white coloured shirt, which he was wearing. 5. On seeing PW-1 Rajesh Rashpa handing over money to the appellant and the latter accepting and putting the same in his pocket, PW-2 Surinder Kumar made the prefixed signal, upon noticing which PW-7 Dy. S.P. Amar Nath, accompanied by Vigilance Inspectors and other staff of Vigilance Department, rushed to Patwarkhana. Appellant was seen sitting on a Bench. A Kanungo, under whom the appellant had been working those days, namely P'W-3 Subhash Chand, was also there. In the presence of PW-3 Subhash Chand, appellant was caught hold of his wrists by PW-7 Dy. S.P. Amar Nath. The said Dy. S.P. told the appellant that he was an officer of Vigilance Department and that a trap had been laid. Appellant was told that he had accepted bribe and should produce the bribe money. Appellant took out the tainted currency notes from his pocket and handed the same over to the Dy. S.P. Numbers of those currency notes tallied with the numbers, noted in the memo. Ext. PW1/Z-10, which had been prepared in the office of Dy. S.P. at Kullu. 6. Appellant was made to wash his hands. Solution of sodium carbonate in water was prepared and it was added to the hand wash, which turned pink. Sample of that hand wash was taken in a nip, which was sealed. 7. Appellant was arrested and taken into custody. On the next following day, i,e. 17.7.2003, Assistant Settlement Officer was approached, in writing, through letter Ext. PW4/B, to supply the record pertaining to Mutation Nos. 7 and 8 as also file No.591 dated 20.3.2003, regarding family partition of the land, jointly owned by the father of PW-1 Rajesh Rashpa and some other persons. Those papers and file were made available to the police, vide letter Ext. PW4/A, dated 24.7.2003. Mutation papers, which were supplied, are Ext. PW1/Y, Ext. PW1/Z and Ext. PW1/Z-1 to Ext. PW1/Z-7.Photostat copies of the papers in the aforesaid file No.591 dated 20.3.2003 are Ext. PW1/A to Ext. PW1/K. 8. Appointing Authority of the appellant, i.e. Collector, Kullu, was approached to accord sanction for his prosecution. PW4/A, dated 24.7.2003. Mutation papers, which were supplied, are Ext. PW1/Y, Ext. PW1/Z and Ext. PW1/Z-1 to Ext. PW1/Z-7.Photostat copies of the papers in the aforesaid file No.591 dated 20.3.2003 are Ext. PW1/A to Ext. PW1/K. 8. Appointing Authority of the appellant, i.e. Collector, Kullu, was approached to accord sanction for his prosecution. On receipt of that sanction, report, under Section 173 Cr. P.C was prepared and submitted to leaned Special Judge, who after complying with the requirement of Section 207 Cr. P.C., charged the appellant with the aforesaid offences and on his pleading not guilty, tried him therefor. 9. Prosecution examined 8 witnesses in all. They included PW-1 Rajesh Rashpa, decoy Witness, PW-2 Surinder Kumar, Shadow Witness, PW-3 Subhash Chand, as independent witness of recovery of tainted money from the appellant, PW-5 Yogesh Kumar, a constable working under PW-7 Dy. S.P. as also a witness of recovery and PW-7 Dy. S.P. Amar Nath, who laid the trap and caught the appellant red handed. Appellant denied having demanded or accepted the bribe. 10. Learned Special Judge, relying upon the testimony of PW-1 Rajesh Rashpa, PW-2 Surinder Kumar, PW-5 Yogesh Kumar and PW-7 Dy. S.P. Amar Nath concluded that the case against the appellant stood proved, beyond reasonable doubt, and consequently convicted and sentenced him, as aforesaid. 11. I have heard learned counsel for the appellant as also learned Deputy Advocate General, representing the State and gone through the record. 12. PW-1 Rajesh Rashpa, is an Advocate, practicing at Kullu. According to him, his father and some other persons were joint owners of about 38 bighas of land and that they had divided the joint holding among themselves and were in exclusive cultivating possession of separate portions of the land. He stated that he wanted the said partition, which had been reduced into writing in the form a memo. Ext. PW1/P, to be given effect to in the revenue papers and, so, he approached the appellant, who was Patwari of the concerned Patwar Circle at that time. He further testified that appellant told him that area of the holding being large, an application was required to be submitted and, therefore, he submitted application Ext. PW1/A, alongwith memo of family partition Ext. PW1/B and copies of revenue papers Ext. PWI/C to Ext. PW1/K to the Assistant settlement Officer. He further testified that appellant told him that area of the holding being large, an application was required to be submitted and, therefore, he submitted application Ext. PW1/A, alongwith memo of family partition Ext. PW1/B and copies of revenue papers Ext. PWI/C to Ext. PW1/K to the Assistant settlement Officer. He testified that thereafter he again visited the appellant and requested him to enter the private partition in the revenue papers, but he demanded money to the tune of' 1000/-, upon which he lodged FIR Ext. PW1/Z-8 with the Vigilance Department. He also stated that he took with him PW-2 Surinder Kumar and one Dharam Pal, when he went to lodge the report and that in their presence, PW-7 Dy. S.P. Amar Nath took ten currency notes of the denomination of' 100/- each and treated them with phenolphthalein powder and directed him to hand over those currency notes, on demand, to the appellant. He also testified about the demonstration given by PW-7 Dy. S.P. Amar Nath, regarding turning of solution of phenolphthalein powder into pink, on addition of solution of sodium carbonate. It was also testified by him that PW-2 Surinder Kumar was made shadow witness and that they went to the village where the Patwarkhana is located and then he and PW-2 Surinder Kumar went to Patwarkhana and while Surinder Kumar stayed back in a shed, he went to the courtyard of Patwarkhana, where appellant was sitting on a Bench and he paid the tainted currency notes, on demand by the appellant. 13. PW-2 Surinder Kumar, Shadow Witness, corroborated the testimony of PW-1 Rajesh Rashpa, with regard to the treating of currency notes with phenolphthalein powder, demonstration given by PW-7 Dy. S.P. Amar Nath and the payment of tainted money by PW-1 Rajesh Rashpa to the appellant and then his giving the prefixed signal to the waiting Dy. S.P. and other members of the party. 14. PW-7 Dy S.P. Amar Nath stated that on 16.7.2003, PW-1 Rajesh Rashpa, accompanied by PW-2 Surinder Kumar, came to his office and lodged FIR Ext. PW1/Z-8 and thereafter he proceeded with the matter. He testified the same fact as are deposed by PW-1 Rajesh Rashpa. 15. All the aforesaid witnesses stated that PW-3 Subhash Chand, Kanungo, was already there in the courtyard of Patwarkhana, when money was recovered from the appellant. PW-3 Subhash Chand, Kanungo, however, did not corroborate the prosecution version. PW1/Z-8 and thereafter he proceeded with the matter. He testified the same fact as are deposed by PW-1 Rajesh Rashpa. 15. All the aforesaid witnesses stated that PW-3 Subhash Chand, Kanungo, was already there in the courtyard of Patwarkhana, when money was recovered from the appellant. PW-3 Subhash Chand, Kanungo, however, did not corroborate the prosecution version. He was cross-examined by the prosecution, with the leave of the Court. 16. Learned counsel for the appellant submits that story put forward by PW-1 Rajesh Rashpa about his having approached the appellant for giving effect to private partition, in the revenue papers, is suspicious. According to him, Rajesh Rashpa is a practicing Advocate and he must be knowing, who is competent to give effect to a private partition in the revenue papers and what procedure is required to be followed. According to the learned counsel, when a partition is effected, privately, an application is required to be made to the Revenue Officer for affirming that partition, per Section 135 of H.P. Land Revenue Act. He submits that application Ext. PW1/A was submitted for attestation of mutation, based on private partition to Assistant Settlement Officer, who forwarded the same to Kanungo and the Kanungo marked it to the Patwari, i.e. the appellant, and the latter entered mutation on 10.5.2003. vide papers Ext. PW1/Y, Ext. PW1/Z and Ext. PW1/Z-1 to Ext. PW1/Z-7. 17. Papers Exts. PW1/Y, Ext PW1/Z and Ext. PWl/Z-1 to Ext. PW1/Z-7 pertain to mutation No.8. These papers were demanded fom the Assistant Settlement Officer by the Dy. S.P. on the day, next following the day of trap, ie. 17.7.2003, through writing Ext. PW4/B and were made available to him, vide letter Ext. PW4/A, which is dated 27.4.2003. These papers show that mutation had been entered by the appellant, in accordance with the writings made in application Ext. PW1/A, on 10.5.2003. Mutation was required to be attested by a revenue officer and not by the appellant. His job was only to enter mutation and this fact stands admitted by PW-4 Rajinder Kumar, a Kanungo, examined by the prosecution, to prove the aforesaid documents. That means, there remained nothing to be done by the appellant. PW1/A, on 10.5.2003. Mutation was required to be attested by a revenue officer and not by the appellant. His job was only to enter mutation and this fact stands admitted by PW-4 Rajinder Kumar, a Kanungo, examined by the prosecution, to prove the aforesaid documents. That means, there remained nothing to be done by the appellant. PW-1 Rajesh Rashpa himself being an advocate was supposed to be knowing that attestation of mutation was not the job of the appellant and, therefore, the very genesis of the prosecution story, as testified by PW-1 Rajesh Rashpa that the appellant demanded money for giving effect to private partition, in revenue papers, becomes doubtful. 18. Learned counsel for the appellant further submits that no independent witness was associated in this case and that PW-2 Surinder Kumar as also one Dharam Pal were from PW1 Rajesh Rashpa's own village in Lahaul Sub Division of Lahaul & Spiti District and even PW-7 Dy. S.P. Amar Nath hails from that very Sub Division. It is admitted by PW-1 Rajesh Rashpa and PW-2 Surinder Kumar that they are residents of the same village in Lahaul Sub Division. PW-7 Dy. S.P. Amar Nath also admitted that he too is from Lahaul Sub Division and the above named two witnesses are also from his SubDivision. 19. An independent witness, holding high position and probably also exercising the power of Executive Magistrate, was available to the Police Party on the spot. He was Assistant Settlement Officer. It has come in the testimony of PW-7 Dy. S.P. Amar Nath as also PW-1 Rajesh Rashpa and PW-2 Surinder Kumar that Assistant Settlement Officer was already in the Patwarkhana, when they reached there and they carried out the operation, only after the said Assistant Settlement Officer left the Patwarkhana. Now, when Assistant Settlement Officer was available on the spot, who probably had been conferred with the powers of Executive Magistrate, PW-7 Dy. S.P. Amar Nath was supposed to have associated him and his not associating him gives impression that the intention of the Dy. S.P. was to exclude independent and trustworthy witnesses, for the reasons best known to him. 20. As a matter of fact, practice which is normally followed in trap cases by the vigilance or anti-corruption people, is to approach the District Magistrate to make available the services of some Executive Magistrate to witness the raid as also the search and seizure. S.P. was to exclude independent and trustworthy witnesses, for the reasons best known to him. 20. As a matter of fact, practice which is normally followed in trap cases by the vigilance or anti-corruption people, is to approach the District Magistrate to make available the services of some Executive Magistrate to witness the raid as also the search and seizure. In the present case, not only that this practice was deviated from, but when a superior revenue officer was available on the spot, by chance, he was not only not approached to become a witness, but the party waited for him to leave the spot and only thereafter the trap was laid. 21. PW-3 Subhash Chand Kanungo, under whom the appellant and 3-4 other Patwaris had been working, per deposition of PW-1 Rajesh Rashpa, PW2 Surinder Kumar and PW-7 Amar Nath, Dy. S.P., was on the spot, when the appellant allegedly accepted bribe and tainted money was recovered from him. It is highly improbable that a government servant would accept bribe in the presence of his immediate superior officer. 22. Above stated position apart, the job for which bribe had allegedly been demanded, stood already performed by the appellant. His job, as already noticed, was only to enter the mutation, which he had entered on 10.5.2003, as is evident from revenue papers Exts. PW1/Y, Ext. PW1/Z and Ext. PW1/Z-1 to Ext. PW1/Z-7. It is not that this fact was not known to the appellant and, therefore, he was under the impression that mutation had not been entered. The fact that on the very next day a letter Ext. PW4/B was written by PW-7 Dy. S.P. Amar Nath to Assistant Settlement Officer, for supplying the copy of aforesaid papers, which constitute the record of Mutation No.8, suggests that appellant was fully aware of this fact. If it is so, then where was the occasion for PW-1 Rajesh Rashpa to have approached the appellant and the latter demanding bribe from him for entering the mutation. 23. Also, there is no evidence, corroborating the testimony of PW-1 Rajesh Rashpa, with regard to the demand of bribe. PW-2 Surinder Kumar, the Shadow Witness, very categorically stated that he was at some distance from Patwarkhana and, therefore, he could not overhear conversation that took place between the appellant and PW-1 Rajesh Rashpa, before the tainted money was paid to the appellant. 24. PW-2 Surinder Kumar, the Shadow Witness, very categorically stated that he was at some distance from Patwarkhana and, therefore, he could not overhear conversation that took place between the appellant and PW-1 Rajesh Rashpa, before the tainted money was paid to the appellant. 24. One of the ten currency notes, allegedly recovered from the appellant, was different from the currency notes, which had been treated with phenolphthalein powder and handed over to PW-1 Rajesh Rashpa, for being handed over to the appellant. In the memo. prepared in the office of Dy. S.P., i.e. Ext. PW1/Z-10, number of one of the currency notes is 2NA920966, while in the memo. Ext. PW1/Z-12, regarding recovery of tainted money from the appellant, number of the currency note is 2NA920969. Though in the memo. Ext. PWI/Z-10, the number after overwriting reads as 920969, but I have seen the carbon copy of the memo., available with the learned Deputy Advocate General, in which the over writing is not there and the number is recorded as 920966. I have got the said carbon copy removed from the record of learned Deputy Advocate General. The same is ordered to be placed on the record of the trial court in the file cover containing exhibited documents. The same has been marked Ext. PW1/Z-10 (carbon copy). 25. It has also come in the evidence that the seal used in sealing the sample of hand wash of the appellant remained with the Investigating Officer, i.e. PW-7 Dy. S.P. Amar Nath. The fact is admitted by him in his cross-examination. That means, he had the opportunity to tamper with the sample of hand wash. 26. In view of the above stated position, I am of the considered view that the case of the prosecution does not stand established, beyond reasonable doubt. Hence, appeal is accepted. Impugned judgment convicting and sentencing the appellant is set aside and the appellant is acquitted.