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2012 DIGILAW 416 (HP)

Sunka Ram v. State Of Himachal Pradesh

2012-08-02

SURINDER SINGH

body2012
JUDGMENT : Surinder Singh, J. The appellant felt aggrieved by the judgment of conviction passed by the learned Special Judge in Corruption Case No. 1 of 2008, decided on 13.7.2011, for the offences punishable under Sections 7 and 13(2) read with Section 13(i)(d) of the Prevention of Corruption Act, 1988, in short "the Act", whereby he was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1,000/- for the offence u/s 7 and for a period of one year and to pay a fine of Rs. 2500/- u/s 13 (2) read with 13(i)(d) of the Act with the default clause. Both the sentences aforesaid were ordered to run concurrently. In brief, the prosecution case can be stated thus. The appellant, hereinafter referred to "the accused", was posted as Patwari in Patwar Circle Namhol, District Bilaspur. PW1 Ram Lok was running a shop in Namhol Bazaar. At that time, he was also 'District President of Youth Federation of India'. He had taken cash and credit limit from the State Bank of India, Namhol branch. To enhance such limit, he needed copy of the Jamabandi of his land, for which the accused was putting him of on one pretext or the other. (ii) It is alleged that on 30th April, 2007, Ram Lok aforesaid went to the accused to get the revenue record of his land, but in turn, he demanded an amount of Rs. .1500/- to supply the same, but the complainant did not want to pay him bribe. The accused was dilly-dallying and told the complainant to come with the bribe amount on 3.5.2007 at 4.00 p.m. in his office. Since the complainant did not like his attitude, as such, he decided to lodge a complaint with Vigilance Department at Bilaspur. On his way with PW2 Des Raj, they met PW11 Vigilance Inspector Anant Ram and PW12 Constable Pawan Kumar at Brahmpukher to whom he narrated the entire story. (iii) PW11 Inspector Anant Ram recorded the statement of the complainant Ext.PW1/A u/s 154 of the Code of Criminal Procedure. On his way with PW2 Des Raj, they met PW11 Vigilance Inspector Anant Ram and PW12 Constable Pawan Kumar at Brahmpukher to whom he narrated the entire story. (iii) PW11 Inspector Anant Ram recorded the statement of the complainant Ext.PW1/A u/s 154 of the Code of Criminal Procedure. Finding a prima-facie case under the aforesaid sections, he made an endorsement on this statement and sent PW12 Constable Pawan Kumar to the Police Station of State Vigilance and Anti Corruption Bureau, Bilaspur for the registration of the case and also informed Inspector Amar Nath on his Mobile Phone and requested him to come with the trap material to Brahmpukher. (iv) Inspector Amar Nath alongwith SI Laxman Dass and Constables Vinod Kumar and Dharam Singh reached there in the Government vehicle and met PW11 Inspector Anant Ram. (v) At Brahmpukher, PW11 Inspector Anant Ram prepared solution of sodium carbonate and Phenolphthalein powder in two separate glasses. Both the solutions remained colourless, but when both solutions were mixed up, it turned pink. This demonstration was given to the complainant and PW2 Des Raj. Thereafter Inspector aforesaid explained the procedure for laying the trap to both of them. The aforesaid mixture was put in to a nip and sealed with seal "K". He also took samples of both these powders in separate pieces of paper and sealed separately in two envelopes with the same seal at three places. Thereafter seal was handed over to PW2 Des Raj. With respect to the entire procedure, memo Ext.PW1/B was prepared in their presence. (vi) Thereafter, PW1 Ram Lok complainant produced the currency notes of Rs. 1500/- out of which, one note was of Rs. 500/- denomination and others of Rs. 100/- each. The numbers of the currency notes were noted down on a piece of paper, thereafter currency notes were treated in Phenolphthalein powder and handed over to the complainant with the direction not to touch the currency notes and not to shake hands with accused, but to hand over these currency notes to the accused on demand. (vii) Shadow witness PW2 Des Raj was to watch the handing over and taking over the money and give signal to the trap party. The above procedure was explained to the said witness and memo to this effect Ext.PW1/C was prepared, which was signed by Ram Lok complainant and Des Raj aforesaid. (vii) Shadow witness PW2 Des Raj was to watch the handing over and taking over the money and give signal to the trap party. The above procedure was explained to the said witness and memo to this effect Ext.PW1/C was prepared, which was signed by Ram Lok complainant and Des Raj aforesaid. (viii) PW1 Ram Lok and PW2 Des Raj both of them left to Patwarkhana on their own motorcycle, followed by the trap party in the official vehicle. The trap party took position near the Patwarkhana behind the bushes, whereas the complainant alongwith Des Raj went to the Patwarkhana. They found accused present there and on demand he is alleged to have handed over the treated currency notes of Rs. 1500/- to him. PW2 Des Raj gave signal to the Vigilance party. They rushed to the spot, caught hold the accused from both the wrists and took his hand wash in a plate which remained colourless. Thereafter the solution of the sodium carbonate was prepared, it also remained colourless, but when it was added with the hand wash of the accused, it turned pink. Thereafter, the hand wash was put into a nip and sealed with seal "K" which was taken from PW2 Des Raj and to this effect, a memo Ext.PW1/D, which was signed by the accused, Ram Lok as well as Des Raj was prepared. Thereafter the accused produced the currency notes from his table which tallied with the numbers noted on a piece of paper earlier. The currency notes recovered were put in a sealed envelope and taken in to possession vide memo Ext.PW1/E. (ix) The accused was arrested and memoExt.PW11/A to this effect was prepared. (x) PW11 Inspector Anant Ram thereafter locked Patwarkhana, the keys whereof were handed over to the Naib-Tehsildar Namhol on the next day. (xi) On 4.5.2007, PW1 Ram Lok produced the photocopies Exts.PW1/G of certificate and PW1/H Jamabandi taken into possession vide memo Ext.PW1/F, which were supplied by the accused. (xii) PW11 Inspector Anant Ram deposited the demonstration nip, hand wash and three envelopes containing samples of Phenolphthalein powder, sodium carbonate and currency notes with PW6 MHC Purshotam Dass on the same day, in the Malkhana. (xiii) Thereafter during the investigation, the Investigating Office Obtained the appointment and posting orders of the accused. (xii) PW11 Inspector Anant Ram deposited the demonstration nip, hand wash and three envelopes containing samples of Phenolphthalein powder, sodium carbonate and currency notes with PW6 MHC Purshotam Dass on the same day, in the Malkhana. (xiii) Thereafter during the investigation, the Investigating Office Obtained the appointment and posting orders of the accused. On 27.10.2007, Inspector Anant Ram took into possession 'Roznamcha Wakayati' Ext.PW5/A and receipt book Ext.PW5/B vide memo Ext.PW5/C from Piar Singh Patwari regarding the supply of copies of certificate and Jamabandi Ext.PW1/G and H respectively. (xiv) PW6 MHC Purshotam Dass entered the above articles in the register of Malkhana. On 11.5.2007 vide RC No. 1/2007, handed over the hand-wash nip, the demonstration nip and envelopes of the sample of both the envelopes of the powders aforesaid in the same condition alongwith sample of seal used and docket through PW4 C. Krishan Lal vide aforesaid R.C., which were deposited by him in the Forensic Science Laboratory, Junga on the same day and after obtaining its receipt on the R.C., it was handed over back to MHC aforesaid. 2. After getting the report Ext.PW11/B from the Forensic Science Laboratory, and on the completion of challan, it was presented in the Court for the trial of the accused. Finding a prima-facie case against the accused, he was accordingly charge-sheeted for the offences aforesaid, tried, convicted and sentenced as stated above, hence the present appeal. 3. Shri H.S. Rana, learned counsel for the accused vehemently argued that there are material contradictions in the statements of the witnesses which rendered the entire prosecution case doubtful. He further argued that the case of the prosecution at the very outset looks fishy against the accused, as the documents sought to be obtained from the accused were already supplied to him and were also handed over to the Bank for the purpose it was needed. He further referred to the nip Ext.DX, envelope of Phenolphthalein powder Ext.DY which was prepared about two months prior to the date of the present FIR depicting bearing the same FIR number. These articles were produced during trial as case property alongwith others before the learned Special Judge, he also noted its description under his signatures and handed it over to the police. He further referred to the statement of PW 6 MHC Purshotam Dass and PW4 C. Krishan Lal with respect to the origin of the aforesaid exhibits. These articles were produced during trial as case property alongwith others before the learned Special Judge, he also noted its description under his signatures and handed it over to the police. He further referred to the statement of PW 6 MHC Purshotam Dass and PW4 C. Krishan Lal with respect to the origin of the aforesaid exhibits. They could not identify in whose handwriting these were prepared. With reference to this, learned counsel for the accused tried to ventilate that the complainant was an influential person and he in connivance with the Vigilance Department had tried to trap the accused in a false case even two months prior to the alleged incident. It is also argued that PW1 complainant Ram Lok initially did not support the case of the prosecution, as such he was declared hostile, but when cross-examined by the learned Public Prosecutor, he toed his line. The learned counsel for the accused also pin-pointed that PW Chaman Lal and DW2 Ram Lal both were present in the Patwarkhana on the day of alleged incident. Though Chaman Lal was examined as PW10, but he did not support the prosecution case and Ram Lal was not examined to support the case of the prosecution, but was examined as a defence witness who had probablised the defence. The learned trial Court is alleged to have ignored the above discrepancies as such prayed for allowing the appeal. 4. On the other hand, Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence and submitted that the case of the prosecution stands fully proved by the statements of the Investigating Officer, complainant and the independent witness PW2 Des Raj. He further argued that the nip Ext.DX and envelope Ext.DY might be of some other case and mistakenly, the FIR number was written as 1/2007 of this case. He further argued that the hostility of the complainant gets diluted when he supported the case of the prosecution when examined by the learned Public Prosecutor and more particularly in his cross-examination defence raised was denied by him. He also referred to the cross-examination conducted by the accused wherein the accused had taken a different and dilatory stand. According to the learned Deputy Advocate General, if the defence version is proved to be false, it is an additional link to the prosecution case. 5. He also referred to the cross-examination conducted by the accused wherein the accused had taken a different and dilatory stand. According to the learned Deputy Advocate General, if the defence version is proved to be false, it is an additional link to the prosecution case. 5. I have given my thoughtful consideration to the rival contentions of the parties and have cautiously and carefully scanned the evidence on record. 6. Certainly, the falsity of defence can be said to be an additional link if the prosecution is able to prove the case against the accused in accordance with law. The complainant and his witness Des Raj both have tried to support the prosecution case, but the scrutiny of the evidence shows the material contradictions and their interestedness. Precisely, the allegation against the accused is that when the complainant had approached him for the supply of revenue records, he demanded an amount of Rs. 1500/-, but when the complainant did not make the payment, according to the case of the prosecution, the said record was not supplied. Feeling dissatisfied and disgruntled from the attitude of the accused, he tried to approach the Vigilance Department of Police to whom he met at Brahmpukher on 3.5.2007 and made a complaint Ext.PW1/A to them, which culminated into the present FIR. Significantly, the trap was laid on 3.5.2007, but a perusal of certificate Ext.PW1/G and Jamabandi Ext.PW1/H reveals that these documents were already supplied to the complainant (PW1) on 1.5.2007. This entry finds mentioned against Report No. 342 of the Roznamcha Wakayati Ext.PW5. Further PW8 Khem Raj Verma testified that these documents stood already supplied to the Bank. During trial, he had brought its originals. Therefore, when the documents, which were required by the complainant, were already supplied to him on 1.5.2007, then, it is not understood as to what remained to be obtained from the accused on 3.5.2007 when the trap was laid against him. There is nothing on record to show that these documents were supplied to the complainant either on the date of the incident or thereafter. Pertinently, the complainant has stated that on 3.5.2007 he alongwith PW2 Des Raj had directly gone to Brahmpukher where they happened to meet the Vigilance Party and complaint was made, thereafter trap was laid and before that he did not meet the accused on that very day to obtain the copies. Pertinently, the complainant has stated that on 3.5.2007 he alongwith PW2 Des Raj had directly gone to Brahmpukher where they happened to meet the Vigilance Party and complaint was made, thereafter trap was laid and before that he did not meet the accused on that very day to obtain the copies. Then the possibility of supplying the documents on 3.5.2007 is completely ruled out, rather it establishes that these were already in his possession of the complainant prior to the date of raid. Thus, this important fact could not be over-looked that the accused demanded illegal gratification on 3.5.2007 if he had already handed over the requisite documents to the complainant two days earlier. 7. Another important circumstance which caused dent in the prosecution is, when the case property was produced during the trial before the learned trial Court as already stated above. It contained Ext.DX the nip of demo mixture in FIR No. 1/07 dated 2.3.2007 and the sealed envelope of the powder Ext. DY also contained FIR No. 1/2007 but is dated 3.2.2007, whereas in the instant case demo nip is Ext.P4 and hand wash is Ext.P5 in FIR No. 1/07 is dated 3.5.07. Both these items Exts. DX & DY were put in the cross-examination to PW4 C. Krishan Lal and PW6 MHC Purshotam Dass, so as to know who had prepared it much before lodging the present FIR. Both of them drew blank. These items were also not sent for chemical examination nor find mentioned in the Road Certificate against which the case property in this case was taken for its examination to Forensic Science Laboratory, Junga. Thus, it beats all the imagination how these two items Exts. DX and DY showing same FIR were prepared two months prior to the alleged incident, it remained a big mystery making the instant case a suspect against the accused. 8. Further the slip on Ext. DX nip shows that one Ravinder Soni, S/o Shri Karam Chand, Bhajan Lal S/o Paras Ram, both residents of Koshrian and one Constable Dharam Singh as witnesses have signed it including Vigilance Inspector, different from the Inspector in the present case, but none of them are witnesses either cited in the list or examined. 9. Further there is another interesting aspect of the case. 9. Further there is another interesting aspect of the case. PW2 Des Raj, who was a shadow witness stated that when Ram Lok complainant entered Patwarkhana, he was also alongwith him on 3.5.2007. Accused asked him to bring the stamp from another Patwarkhana, on his return, he was informed by Ram Lok that the accused took the bribe and he gave signal accordingly, whereas statement of the complainant is otherwise. He did not say that PW2 Des Raj was sent by the accused to bring the stamp from another Patwarkhana, whereas, PW10 Chaman Lal and DW2 Ram Lal happened to be present there. Chaman Lal did not support the prosecution case, he was declared hostile, whereas Ram Lal was examined in defence. He has stated that Ram Lok tried to hand over the currency notes, but the accused refused to accept. Thereafter the accused went inside his office room and the complainant Ram Lok followed him and again tried forcibly to give the currency notes to him, but accused had flatly refused. Thereafter, Ram Lok came outside and contacted someone on his Mobile Phone. It was thereafter 4-5 persons came there inside the office of the accused and caught him by raising his arms. Those persons also asked Ram Lal as to whether the accused had accepted the money. On this, he told them it was Ram Lok who had tried but accused refused. Thus, the defence story stood probablised. 10. Therefore, for the aforesaid reasons, in my considered opinion, the case of the prosecution does not inspire confidence, as such, accused deserves to be acquitted. Accordingly the appeal is accepted and the judgment of conviction and sentence passed by the learned trial Court is hereby set-aside. The accused stands accordingly acquitted for the offences charged by giving him the benefit of doubt. He is already on bail, the bonds furnished by him are discharged. The fine amount, if any deposited by the accused shall be refunded to him. The appeal stands accordingly disposed of. Send down the records.