Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 1606 (HP)

Shyam Chand v. State of H. P.

2019-10-24

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The instant appeal, is, directed by the convict/accused/appellant, against, the pronouncement made by the learned Special Judge, Kullu, District Kullu, H.P., upon, Sessions Trial No.1-2002/4-2011, where under, he convicted, besides imposed consequent therewith sentences, upon, the convict/accused/appellant, for, his committing offences punishable, under, Section 7, and, under, Section 13(2), of, the Prevention of Corruption Act. 2. The facts relevant to decide the instant case are that complainant Satish Kumar lodged report vide Ex.PW1/A with the police that he was a Karyana merchant running his shop at village Jia. He had purchased 5-9-0 bighas of land, comprised in Khasra No.2753 from one Khima Ram of village Jia. After execution of sale deed, accused was approached for entering the mutation for which the accused retained original sale deed with him and asked the complainant for fee etc. It is further case of the prosecution that the complainant also reported that the accused had taken Rs.6000/- as bribe from him for supply of copy of jamabandi. Subsequently, the accused informed the complainant about date of mutation of phati Kashawari as on 11.4.2002, and, asked the complainant to contract him and was asked to pay Rs.2000/- as bribe for entering the mutation. It was also reported by the complainant that on approaching the accused, he was told by the accused that ?Ham Mehenge patwari hain and bina paise se kaam nahin hoga?. The complainant was advised by one Vinod Mahant to report the matter to the Anti Corruption Department. On this report of the complainant FIR Ex.PW1/A was registered, and investigation of the case ensued. During the investigation PW-10 Amar Nath, Dy. S.P., gave demonstration to the complainant, Raj Krishan and Vinod Mahant qua mixture of phenolphthalien powder and sodium carbonate in two different. The complainant was asked to produce the currency notes which he had to give to the accused as bribe, on his demand. Thereafter complainant produced twenty currency notes in the denomination of rupees one hundred each having serial No. 8GC-795281 to 8GC-795300 as per memo Ex.PW1/B, which were smeared with phenolphthalein powder and were returned to him with direction to give the same to accused on demand. Raj Krishan was kept as shadow witness to keep watch on the trap. The complainant was directed to keep his hand on his head at the time of demand of bribe to give signal. Raj Krishan was kept as shadow witness to keep watch on the trap. The complainant was directed to keep his hand on his head at the time of demand of bribe to give signal. It is further the case of the prosecution that on 11.4.2002 after forming a raiding party alongwith complainant and shadow witness they went to Patwar Circle Kashawari, situated at Parla Bhunter where accused and other Patwaris were found present. The complainant was directed to go to the Patwar Khana along with Raj Krishan and the I.O.. along with other staff stayed near a temple from where shadow witness Raj Krishan was visible to them. The complainant after some time came back and told that mutation was to be sanctioned at Chhani Khor. Upon this raiding party proceeded to Chhani-Khor, where on inquiry it was told that mutations were being sanctioned and attested in the house of one Maya Ram. Accordingly, IO directed the complainant and shadow witness to remain present outside house of Maya Ram. At about 2 p.m. a van bearing HP-34-4884 reached near the house of Maya Ram from which accused and other persons alightened and went to the room in the ground floor. The complainant delivered the smeared currency notes to the accused and thereafter shadow witness signaled the raiding party. On this IO along with accompanying staff entered the room of house of Maya Ram. I.O. disclosed his identity to the accused. The accused threw currency notes on the ground by taking the same out of his pocket of coat. The accused torn photo copy of the gift deed Ex.P-26 in presence of Davinder Chandel Tehsildar. Thereafter the accused was taken into custody. The currency notes and torn copy of the gift deed were taken into possession vide memo Ex.PW1/C. Thereafter the hands of the accused were got washed with the help of solution of sodium carbonate, as a result of which the colour of the water turned light pink. The same was put into a bottle and sealed with seal-S at the spot. The same was put into a bottle and sealed with seal-S at the spot. The currency notes were also put in separate packet in an envelope and sealed with seal-S and taken into possession vide memo Ex.PW1/C. The pocket of the coat worn by the accused was also got washed, on which the colour of the water also became light pink, which was packed in a container and sealed with seal-S The coat of the accused was taken into possession. Thereafter the police completed all other formalities relating to investigations. 3. On conclusion of the investigation, into the offences, allegedly committed by the accused, a report, under Section 173 of the Code of Criminal Procedure, was prepared, and, filed before the learned trial Court. 4. The accused/appellant herein, stood charged, by the learned trial Court, for, his committing offences, punishable under Section 7, and, under Section 13(2), of, the Prevention of Corruption Act. In proof of the prosecution case, the prosecution examined 10 witnesses. On conclusion of recording, of, the prosecution evidence, the statement of the accused, under, Section 313 of the Code of Criminal Procedure, was, recorded by the learned trial Court, wherein, the accused claimed innocence, and, pleaded false implication, in, the case. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction upon the accused/appellant herein, for his hence committing the aforesaid offences. 6. The appellant herein/accused, stands aggrieved, by the findings of conviction, recorded, by the learned trial Court. The learned counsel appearing, for, the appellant herein/accused, has concertedly and vigorously contended, qua the findings of conviction, recorded by the learned trial Court, standing not, based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, of the material on record. Hence, he contends qua the findings of conviction warranting reversal by this Court, in the exercise of its appellate jurisdiction, and, theirs being replaced by findings of acquittal. 7. On the other hand, the learned Additional Advocate General has with considerable force and vigour, contended qua the findings of conviction, recorded, by the learned trial Court, rather standing based, on a mature and balanced appreciation, by it, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication. 8. 7. On the other hand, the learned Additional Advocate General has with considerable force and vigour, contended qua the findings of conviction, recorded, by the learned trial Court, rather standing based, on a mature and balanced appreciation, by it, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. The accused/convict was nabbed red handed hence by the officials of the State Vigilance, and, Anti Corruption Wing concerned. At the relevant time, he was nabbed while accepting an illegal gratification, of, Rs.2,000/-. The nabbing of the convict by the officials, of, the State Vigilance, and, Anti Corruption Wing concerned, was, a, sequel, of, the complainant purveying an intimation, to, the Vigilance department concerned, and, obviously thereafter he was decoyed, to, ensure the nabbing, of, the convict/accused. 10. The testimony rendered by PW-1, has, acquired assured corroboration from the testification rendered, by PW-10 Mr. Amar Nath, Dy. S.P.. However, the afore testifications rendered with mutual corroboration, cannot, per se constrain this Court, to, assign the utmost solemn truth thereto. Contrarily, this Court would proceed to assign, the, utmost solemnity, vis-a-vis, the genesis of the prosecution case, (i) only when forthright evidence emerges, and, it making candid bespeakings, vis-a-vis, at the relevant time, some official work of PW-1, pending or being subjudice before the accused/convict, and, for ensuring the completion, of, the subjudice work, before the accused/convict, his, demanding an illegal gratification, from, the complainant/PW-1. The relevant purported subjudice work, pending for completion, before the accused/convict, appertains, to, the attestation of mutation, in pursuance, to, a registered deed, of conveyance executed, vis-a-vis, the complainant, by, the vendor concerned. The afore public duty is under law rather required to be performed by the Tehsildar concerned, and, obviously hence in the completion, of, the afore public duty, the accused/convict has no role except, his doing the requisite preliminary work, (ii) for thereafter the Tehsildar concerned, making an order attesting mutation, on anvil, of, the apposite registered deed of conveyance, whereunder, the complainant, is, the vendee. Since, the charge appertains to an incident, which occurred, on, 11.4.2002, (iii) thereupon, vis-a-vis, the afore date, the evidence as adduced by the prosecution, is, to make loud echoings, that the accused/convict, not, deliberatedly ensuring, the, completion of the requisite preliminary work, and, his beguiling or misleading the complainant, that, the Tehsildar concerned, visiting the patwar khana concerned, for his making, an, order hence attesting the mutation, on anvil, of the registered deed, of, conveyance, whereunder the complainant, is, a vendee. Consequently, the best evidence, hence, for dispelling the effect, if any, of, evidence emerging, and, being adversarial, vis-a-vis, the accused, is comprised in the testimony of PW-9, the Tehsildar concerned, (iv) who rather in his cross-examination, has made echoings that the date assigned, for, the requisite order of mutation, being recorded, being 11.4.2002, (v) and, also he makes, a, further deposition, that, all the subsequent thereto entries, in, the rojnamacha rapat, being recorded, rather by the accused/convict. Furthermore, there, is, a candid echoing in his testification, vis-a-vis, the, public duty appertaining to the attestation of mutation, qua the acquisition of title, through, a sale deed, and, as, appertaining to the complainant, being also recorded, on 11.4.2002, (vi) and, the afore date, of, the requisite attestation of mutation, is, the, day, whereat the accused/convict, was allegedly rather caught red handed, while, taking, an, illegal gratification of Rs.2000/-, from, the complainant. In addition, when the complainant in his testification, occurring in his cross-examination, has, also accepted the afore testification rendered by the Tehsildar concerned, (vii) thereupon, there is no occasion, to, erect any inference, that, the accused/convict beguiling the complainant, about, the date of visiting, of, the Patwar Khana, rather by the Tehsildar concerned, (viii) whereat he was, to, make attestation of mutation, on anvil, of the apposite sale deed, nor any inference can be erected, that, any subjudice work remaining with the Patwari, and, also hence, there was no occasion for the accused/convict, to, for ensuring, the, completion, of, the requisite public duty, conspicuously, when the public duty was evidently completed both by him, and, by the Tehsildar concerned, rather to demand, any illegal gratification, from, the complainant. 11. 11. Be that as it may, since the afore inferences, forestall the vigour of the charge against the accused, and, also engender, a, further inference, that, the story propounded by the complainant, being entirely contrived or concocted, besides when in his cross-examination, PW-9 has made clear voicings, that, he had not seen any trap witness inside the room of the Halqua Patwari, especially, at the time when the accused was apprehended, by the team, of the Vigilance department, (a) thereupon, the testifications rendered, by, the purported trap witnesses, to, the relevant occurrence, and, where through they mete corroboration, to, the testification, of, the investigating officer, rather lose their probative vigour, (b) and, the reason for fortifying, the, afore inference, is garnered from the factum, that, the Tehsildar concerned, in his cross-examination, makes, voicings, that, at the relevant time, he was rather sitting inside the room, occupied by the patwari, testification whereof remains unreroded. Furthermore, with his making, a vague deposition, in his cross-examination, that, though he sighted the accused to be holding currency notes, in his hands, yet when he has further there onwards, made a vague deposition, and, has also feigned ignorance, vis-a-vis, the origin of the currency notes purportedly, held by the accused, and, also when he has voluntarily unrebuttingly deposed, that, he had sighted the accused, to, throw the currency notes, on, the floor, (c) hence, constrain, this Court, to, erect, an, inference, that, the deposition, of, the investigating officer, and, whereto succor, is, lent by the trap witnesses, and, appertaining to the accused, being caught red handed, while receiving, an, illegal gratification, becoming eclipsed, (d) and, also assuming that the accused, was, holding afore currency notes, yet, the, mere holding, of, currency notes, by the accused would not beget, a, further inference that he had voluntarily accepted, the, afore sum of illegal gratification, from, the complainant, or from the trap witnesses, (e) as, PW-9, in his deposition comprised, in his cross-examination, deposes that he had sighted, the, accused to throw the currency notes, on, the floor,(f) wherefrom, hence, it is to be contrarily inferred that the decoyed witness or the trap witness or the staff of the vigilance department, rather forcing the afore money onto the hands of the accused, and, hence, there being no element of voluntary acceptance, of, the illegal gratification by the accused, and, also hence the propagation, of, the prosecution, that, the accused had inserted, the, afore received sum of money, in, his pocket, standing falsified. Cumulatively, hence this Court is constrained to conclude that entire exercise of the vigilance department, being a coloured exercise or it being, a, charade, for, merely falsely implicating, the, accused, despite, for, all, the, afore reasons no public duty remaining subjudice with him. 12. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court, has not appraised the entire evidence on record, in a wholesome and harmonious manner, apart therefrom, the analysis of the material, on record, by the learned trial court, hence, also suffers from any gross perversity or absurdity of mis-appreciation, and, non appreciation of germane thereto evidence, on record. 13. Consequently, the instant appeal is allowed. In sequel, the judgement impugned before this Court is set aside, and, the accused/appellant herein is acquitted of the charged offences. 13. Consequently, the instant appeal is allowed. In sequel, the judgement impugned before this Court is set aside, and, the accused/appellant herein is acquitted of the charged offences. Fine amount, if any, deposited by the accused, be refunded to him. Bail bonds stand discharged. All pending applications also stand disposed of. Records be sent back forthwith.