Ram Nath Vs. State of H.P. - Court Judgment

SooperKanoon Citationsooperkanoon.com/891157
SubjectCriminal
CourtHimachal Pradesh High Court
Decided OnJun-23-2009
Judge Surinder Singh, J.
AppellantRam Nath
RespondentState of H.P.
Cases ReferredIn Raghbir Singh v. State of Punjab
Excerpt:
criminal - illegal gratification - contradictory evidence - sections 13(1)(a) and 13(2) of the prevention of corruption act, 1988 - appellant allegedly contravened provisions of section 13(1)(a) of act and thus, charge-sheeted and convicted for offence punishable under section 13(2) of act for taking illegal gratification - hence, present appeal - held, there is no corroboration to solitary and self serving statement of complainant which is full of material contradictions, particularly with respect to demand and payment of bribe amount by appellant - statements of other witnesses also found to be contradictory - prosecution case suffers from serious infirmity in as much as demand of money and contradictions of witnesses are concerned - explanation given by appellant is more sound and convincing - hence, case against appellant stands not proved beyond reasonable doubt - thus, impugned judgment and conviction order of appellant set aside - consequently, appellant is acquitted - code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. this course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit.surinder singh, j. 1. in criminal case no. 1-s/7 of 2000, the appellant was alleged to have contravened the provisions of section 13 (1) (a) of the prevention of corruption act, 1988 for short 'the act', thus he was charged-sheeted and convicted for the offence punishable under section 13 (2) of the act for allegedly taking illegal gratification of rs. 500/- from complainant naresh kalia (pw-1) as such sentenced to undergo the rigours imprisonment for a period of one ear and also to pay fine of rs. 2000/-; in default of payment of fine, to further undergo rigours imprisonment of two months, which has been challenged in this appeal. 2. the background of the facts giving rise to the present appeal can be summed up thus. the appellant was posted as the office kanungo in sub tehsil ram shehar in nalagarh sub division. in addition to it, he was deputed to function as the field kanungo of circle no. ii. smt. santo devi, father's sister of the complainant (pw-1) had died about 5 years back, therefore, her estate was to devolve upon ram swaroop, father of the complainant naresh kalia pw-5 and other legal heirs. the complainant naresh kalia is alleged to have handed over the death certificate of smt. santo devi to the patwari concerned on 25.5.2009 to enter the mutation. 3. on 22.6.2009, the complainant is further alleged to have revisited the patwari to know about the fate of the mutation and patwari concerned informed him that he had already performed his part of the job and the entry of mutation had been sent to kanungo appellant for necessary verification. the appellant-accused took undue time to complete and dispose of the matter thus, the halqua patwari advised the complainant to meet him. on the same day, i.e. on 22.6.2009, the complainant went to the appellant and requested him to get the mutation verified/attested in favour of his father but instead of doing the needful, he asked for some 'sewapani' (bribe) and demanded an amount of rs. 1000/- to do the work. the complainant did not agree to pay this much amount to the appellant, but ultimately, the appellant agreed to get the work done on paying the amount of rs. 500/- to him and the appellant told the complainant to come on 2.7.1999. 4. according to the prosecution story, on 2.7.1999 when the complainant was on his way to the office of the appellant, he met dy. s.p. (enforcement) hari chand (pw-10), the deputy superintendent of police (enforcement0 in nalagarh rest house and told him about the above facts and handed over his complaint ext. p-b in writing to him. 5. pw-10 hari chand, dy.s.p. at that time was accompanying sub inspector harish chander, 6. h.c. yadav chand, constables satish and babu ram. on receiving the complaint in the rest house, it was sent for the registration of the case to the anti corruption unit at solan. 7. in the meantime, dy.s.p. hari chand, aforesaid constituted a trap and associated pw-6 taj mohammad as an independent witness. the complainant presented rs. 500/- currency notes of 100/- denomination each and its serial numbers were noted and memo ext. p-d to this effect was prepared in his presence and other police officials. he treated the currency notes with phenolphthalein powder, thereafter he prepared the solution of sodium carbonate and gave the demonstration by washing his own hands with said solution and the hand wash turned pink. the said sample was taken in a nip ext. p-3 and sealed with seal impression 'r'. thereafter the seal was handed over to taj mohammad (pw-6) after taking its sample separately. 8. the treated currency notes of rs. 500/- ext. p-5 to p-9 aforesaid were handed over to the complainant with the direction not to tamper or interfere with them but to hand over it to the appellant on his demand. he also conducted the personal search of the complainant to ensure that he was not having in his possession any other currency notes except the one treated by him and prepared the panchnama ext. p-s to this effect. 9. taj mohammad pw-6 was made a shadow witness and he was imparted instruction to remain out side the office of the appellant and to pass over signal by placing his hand on his head to harish chander sub inspector when money as bribe is handed over to the appellant. 10. the raiding party reached ram shehar, arranged the trap to nab the appellant. it was around 1 p.m. the complainant went to the office of the appellant followed by taj mohammad (pw-6) and harish chander sub inspector who remained out side. 11. on getting signal through harish chander as aforesaid, the raiding party barged into the office and found the appellant sitting on his chair. 12. the complainant was on the thresh hold of the door of the office. pw-6 taj mohammad was just out side the office. pw-10 dy. s.p. hari chand gripped the appellant from both his arms and sent babu ram constable to call pw-8 jagdev chand naib- tehsildar from his office. hari chand dy. s.p. interrogated the appellant regarding the acceptance of the bribe amount given by the complainant. in the meantime pw-8 jagdev chand naib tehsildar also came there to whom dy.s.p. disclosed his identity and made him a witness to the personal search of the appellant. in his presence and also in presence of taj mohammad and harish chander, he recovered five currency notes of 100 denominations each from left-side pocket of his green coloured t-shirt. serial numbers of the recovered currency notes were got tallied with the memo already prepared earlier, which matched. 13. the hands of the appellant were got washed with sodium carbonate solution. the hand- wash turned pink. it was poured into the nip ext. p-2 which was sealed with seal impression 'h' and was taken into possession vide recovery memo ext. p-q. 14. the pocket of t-shirt was also got washed with sodium carbonate solution which also turned into pink and was taken into possession in nip ext. p1. 15. the recovered currency notes were sealed with seal impression 'h' in a separate pocket. the case property was taken into possession vide memo ext. p-e. 16. the seal impression 'h' was handed over to taj mohammad (pw6) after separately taking specimen seal ext. p-10. 17. a list (ext. pt) of remaining articles found in possession of the appellant was prepared. 18. the site plan ext. p-u of the place of incident was also prepared by the police. the appellant was arrested and the case property was deposited with the mhc. 19. the hand-wash and pocket-wash both were sent to the forensic science laboratory junga, (shimla). the report of analysis is ext. p-b. the appointment and posting orders ext. p-q and pr with respect to the appellant were also taken into possession vide memo ext. p-w. 20. the prosecution sanction ext. p-a was also obtained. further copies of the mutation and other revenue record ext. p-m and p-k were also taken into possession. after completing the investigation; the case was presented in the court for trial of the appellant. 21. prima facie the learned special judge found reasonable grounds to frame the charge against the appellant under section 13 (2) of the act. the appellant pleaded not guilty and claimed to face trial. 22. to prove its case prosecution examined its witnesses and the appellant was also examined under section 313 of the code of criminal procedure. 23. the appellant had denied the circumstances which were found attendant upon him. he alleged his false implication in the case. his defence was that on the request of the complainant when the entry was made by the patwari in the revenue record, on 25.6.1999, on the same day, he had verified the mutation which was attested by the tehsildar on 30.6.1999. according to the appellant, the complainant wanted to get the mutation of smt. santo devi to be got entered and attested only in favour of his father, whereas there were other legal heirs also, thus he refused to do so and he entered the names of other legal heirs in the mutation register. thus the complainant felt offended. ultimately the mutation was attested by the naib tehsildar on 30.6.1999. therefore, the aforesaid drama was enacted by him in connivance with the police in the pwd rest house nalagarh, where he was called through constable chet ram from his office at ram shehar. 24. to prove his defence, the appellant also examined dw-1 gian chand to the effect that the complainant had told him that he would teach the appellant a lesson and would fabricate a false case against him. dw-2 ashwani kumar criminal ahlmad was examined to show that taj mohammad (pw6) was a prosecution witness in state v. munish kumar a case registered under section 292 of the indian penal code. dw-3 mukesh gupta criminal ahlmad of the court of learned additional sessions judge, solan was also examined to prove that in another case 'state v. pawan kumar', taj mohammad also appeared as a police witness. 25. the learned special judge disbelieved the defence version while relying upon the prosecution evidence, convicted and sentenced the appellant, as aforesaid, which is under challenge. 26. mr. m.s. chandel, learned senior advocate duly instructed by sh.rakesh jaswal, advocate has argued with vehemence that the prosecution has failed to prove that on 22.6.1999 or even before, the complainant as alleged had presented the death certificate of smt. santo devi to the patwari concerned. it is submitted that the evidence on record shows that for the first time it was presented by him on 25.6.1999 to the patwari (pw7) and insisted upon to enter the mutation only in the name of his father alone ignoring the other legal heirs, which entry was made by the patwari, but the appellant had refused and made corrections by adding the names of other legal heirs, which caused annoyance to the complainant. learned counsel also took me through the evidence on record and canvassed that the mutation in the instant case was entered on 25.6.1999, it was corrected and verified on the same day by the appellant, and finally pw-8 naib tehsildar jagdev chand accepted and attested it in favour of all the legal heirs of smt. santo devi including ram swarup, the father of the complainant on 30.6.1999 which clearly demonstrates that this fact was within the knowledge of the complainant as stated by pw8 aforesaid and fabricated a false case against the appellant on 2.7.1999 to square his own vendetta, when otherwise also there remained nothing to do in the mutation. he further pointed out that taj mohammad though not supported the prosecution case was also a stock witness with the police. it is further argued that evidence with respect to the demand and acceptance of the alleged bribe is shrouded by suspicious circumstances and the recovery of the money as well as trap itself has become doubtful in view of the discarded pouch ext. d-c which pertained to the same case and was admitted to be in the hands of the dy. s.p. who had conducted the trap in this case but no cogent explanation was given by him as to why he had prepared this pouch which was alleged to have been found discarded. 27. on the other hand, shri j.s. guleria, learned assistant advocate general, assisted by sh. vikas rathore, deputy advocate general, while supporting the impugned judgment of conviction and sentence passed by the learned trial court argued that in the instant case, the demand raised by the appellant stands proved. the evidence of the complainant is consistent and is supporting all the contemporaneous documents prepared by the investigating officer before the money was delivered to the appellant. the recovery of bribe money also stands proved for which the appellant failed to explain as to how this came into his possession. according to him, prosecution has produced the reliable evidence whereas, the appellant could not make any dent in this case. therefore, there is no scope for interference in the impugned judgment. 28. but however, sh. guleria could not explain as to how and under what circumstances the discarded pouch ext. dc came into existence, why the serial number of currency notes including the fir number and signatures of witnesses in the hands of pw10, dy.s.p. appeared on it. 29. i have given my thoughtful consideration to the rival contention of the parties and have critically reappraised the evidence on record. 30. the prosecution is obliged to prove the demand and acceptance of the bribe coupled with the fact of the recovery of money and chemical test. if these elements are established in accordance with law, the case of the prosecution can be said to have been proved and reference can be made to the judgment of the apex court in state of andhra pradesh v. m. radha krishna murthy : 2009crilj1896 and krishna ram v. state of rajasthan jt 2009 (4) sc88. 31. in the case in hand, following facts are not disputed. (i) smt. santo devi , bua (father's sister) of the complainant had died on 21.9.1995 (ext.pm). (ii) on 25.6.1999, the complainant a press correspondent, had approached the patwari pw-7 heera singh with a death certificate (ext. pm) of smt. santo devi and informed that his father ram swaroop is the only sole heir of the deceased and this fact was noted by the patwari in the rojnamcha waaquiati, ext. d-a, on the basis of which mutation no. 155 (ext. p.n) was entered showing the name of only ram swaroop as the legal heir of smt. santo devi. (iii) on the same day i.e. on 25.6.1999, the appellant was acting as a field kanungo of circle no. ii. the mutation was presented to him for doing needful. he found that besides ram swaroop other persons were also legal heirs of smt. santo. thus added their names in the said mutation and simultaneously recorded this fact in 'fard partal' ext. d-b. (iv) pw8 jagdev chand, naib tehsildar testified on oath that he had informed the complainant to be present on 30.6.1999 at the time of mutation by him (v) the mutation no. 155 aforesaid was accepted and attested in favour of all the legal heirs by the assistant collector iind grade i.e. naib tehsildar jagdev chand, in absence of the complainant. . (vi) the copy of mutation ext. p-j akash sajra kishtwar ext. p-k were taken into possession by the dy. s.p. aforesaid on the same date i.e. on 2.7.1999, which fact is evident from his initials coupled with the statement of pw-7 patwari. (vii) although pw-5 naresh kalia has stated that the estate of his bua santo devi was to be mutated in favour of his father and other legal representatives and that he visited the patwari on 22.6.1999 with regard to the mutation of the property in the name of his father. but according to him on the same day patwari disclosed that he had done his duty and sent the mutation to ram nath, appellant who had not attested that mutation and advised him to meet him. cleverly the appellant did not mention the name of the patwari anywhere, as to who was the patwari to whom he approached for the said purpose. but pw7 heera singh has stated that he was the patwari to whom the complainant had made the request to enter the mutation only in the name of his father on 25.6.1999. 32. except the self serving statement of the complainant there is nothing on record to substantiate his plea that he had not the patwari either on 22.6.1999 or before that date. however, the complainant is proved to have reported to the patwari only on 25.6.1999. 33. the complainant as pw5 stated that he met the appellant at ram shehar on 22.6.1999 on the same day when he had met the patwari and asked him to meet the appellant about the attestation of the mutation in the name of his father and it was then the appellant has asked him for some 'sewa pani' and demanded rs. 1000/- if he wanted to get the mutation attested in favour of his father regarding the estate left behind his bua, to which he declined. but according to him ultimately the appellant is alleged to have agreed to do the work by paying him rs. 500/-. 34. as noticed from this part of the statement of the complainant all this happened on 22.6.1999 but record shows that patwari had entered the mutation on 25.6.1999. if it had happened on 22.6.1999 as stated by him, it is not understood why he was called on 2.7.1999 i.e. after about 12 days. 35. further the anti corruption department of the police consisting of dy. s.p. and other police officials were already present in nalagarh rest house. the complainant did not state as to how he came to know about their presence there. according to him, he approached the vigilance people at nalagarh on 2.7.1999 i.e. the date when the complainant was alleged to have asked by the appellant to bring him bribe. he stated that he narrated the entire story to them and handed over the complainant ext. p-b to the dy.s.p. (pw10). 36. in cross-examination, he categorically denied that he visited patwari for the first time on 25.6.1999 which fact is corroborated by ext.da. he denied that he asked the appellant on the said date i.e. on 25.6.1999 to attest the mutation in the name of his father and also to the patwari not to attest the mutation to in favour of any of the legal heir save and except his father. however, he admitted that his father had two other brothers and one of the brothers had died after the death of his bua. he denied having approached the tehsildar on 22.6.1999 or 27.6.1999 for attesting the mutation. he denied that tehsildar had called him on 30.6.1999 for attestation of the mutation. he however, denied that he had told another press correspondent gian chand dw-1 who is the brother - in-law of the appellant having admitted that the appellant had not demanded any bribe. 37. whereas, pw-8 jagdev chand naib tehsildar in his cross-examination has shattered the case of complainant by stating that on 27.6.1999 complainant(wrongly mentioned as accused) had come to him for attestation of the mutation and he gave him 30.6.1999 as the date for attestation of mutation at ram shehar but the complainant did not appear on 30.6.1999. 38. in anand swrup v. state: 1988 cri. l.j. 756, the supreme court inter alia observed that after introduction of section 165 -a of the indian penal code, making the person who offers bribe guilty of the abetment of bribery, the complainant cannot be placed on any better footing then that of an accomplice and corroboration in material particulars connecting accused with the crime is required to be insisted upon. 39. in the instant case there is no corroboration to the solitary and self serving statement of the complainant which is full of material contradictions, particularly with respect to the demand and payment of the bribed amount to the appellant. the rojnamcha report ext.da, fard parhtal ext.db and attestation of mutation ext.pj on 30.6.1999 knocked down the basis of acceptance of bribe on 2.7.1999 as these documents probablised the defence version. 40. the complainant is a correspondent of the daily news paper as admitted by him in his cross examination and admittedly before the complaint ext. p-b dated 2.7.1999, he did not make any complaint to any other person earlier to that whereas pw8 jagdev chand naib tehsildar has admitted that the complainant had come to him on 27.6.1999. surprisingly he did not make any complaint to him. this makes his version questionable, with respect to the demand of the money, which according to the complainant was raised by the appellant on 22.6.1999 and the appellant asked him to be present on 2.7.1999. further his denial that he had insisted upon the attestation of the mutation only in the name of his father also stands falsified from the complaint, report rojnamcha ext. d-a entered at his instance by the patwari and the statement of hira singh patwari (pw7) itself wherein the name only of his father was entered by him. ext. db fard parhtal makes the defence version very clear. 41. the complainant has categorically admitted in his cross-examination that heera singh pw-7 was also present at the time of raid in the office of the appellant and the entire proceeding in ext. p-e were drawn in the office of appellant itself but hira singh aforesaid did not utter even a single word with regard to the passing of money to the appellant at the instance of the complainant nor he was cross-examined to corroborate the version of the complainant to the effect that he was contacted by the complainant with respect to the attestation of mutation and told him that he should contact the appellant as he had already done his part of the job. whereas pw7 aforesaid only stated that the complainant met him on 25.6.1999 as stated above. this makes the version of the complainant quite unnatural and highly improbable and the acceptance of bribe money in the presence of patwari sitting in the same room also becomes doubtful and further non- inclusion of the patwari hira singh as one of the witness cast a serious doubt on the case of the prosecution. 42. as far as the trap and recovery of the money is concerned although pw-10 hari chand has corroborated the case of the prosecution but, in his cross-examination he admitted vital facts, that the discarded pouch ext.dc containing the serial numbers of the currency notes alleged to have been produced in evidence was in his own hands but did not offer any explanation regarding its existence. 43. further he stated to have collected the demonstration hand-wash in the nip ext.p3 and ex.p1 was the pocket-wash collected after the recovery of money, but the chemical report ext.pv reveals that ext.p-3 was a pocket-wash of the t- shirt of the accused and not a demo wash. thus the report of the chemical examiner also does not help the prosecution in any manner. 44. pw6 taj mohammed has denied the prosecution case and categorically stated that he did not accompany the trap party to ram shehar. he also stated that the appellant was brought by the police from patwar khana ram shehar and taken to the rest house, nalagarh and no demonstration took place as alleged. thus his deposition supports the case of appellant that he was called to nalagarh rest house, where the alleged recovery was fabricated. 45. in raghbir singh v. state of punjab : 1976crilj172 the supreme court has observed that the officers functioning in the anti corruption department must sincerely endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. 46. in the present case pw6 taj mohammad can neither be called as an independent witness nor he supported the case of prosecution. 47. thus the prosecution case suffers from serious infirmity in as much as the demand of money and the above contradictions are concerned. the explanation given by the appellant is more sound and convincing. 48. in view of the foregoing discussion and reasons, in my opinion, the case against the appellant stands not proved beyond a reasonable doubt as such the impugned judgment and conviction and sentence is unsustainable hence set aside. consequently the appellant is acquitted. 49. ordered accordingly. 50. the appellant is hereby discharged the bail bonds entered upon by him at any stage during the proceedings of the case. 51. fine amount, if any, be refunded to him send down the records.
Judgment:

Surinder Singh, J.

1. In criminal case No. 1-S/7 of 2000, the appellant was alleged to have contravened the provisions of Section 13 (1) (a) of the Prevention of Corruption Act, 1988 for short 'the Act', thus he was charged-sheeted and convicted for the offence punishable under Section 13 (2) of the Act for allegedly taking illegal gratification of Rs. 500/- from complainant Naresh Kalia (PW-1) as such sentenced to undergo the rigours imprisonment for a period of one ear and also to pay fine of Rs. 2000/-; In default of payment of fine, to further undergo rigours imprisonment of two months, which has been challenged in this appeal.

2. The background of the facts giving rise to the present appeal can be summed up thus. The appellant was posted as the Office Kanungo in Sub Tehsil Ram Shehar in Nalagarh Sub Division. In addition to it, he was deputed to function as the Field Kanungo of Circle No. II. Smt. Santo Devi, father's sister of the complainant (PW-1) had died about 5 years back, therefore, her estate was to devolve upon Ram Swaroop, father of the complainant Naresh Kalia PW-5 and other legal heirs. The complainant Naresh Kalia is alleged to have handed over the death certificate of Smt. Santo Devi to the Patwari concerned on 25.5.2009 to enter the mutation.

3. On 22.6.2009, the complainant is further alleged to have revisited the Patwari to know about the fate of the mutation and Patwari concerned informed him that he had already performed his part of the job and the entry of mutation had been sent to Kanungo appellant for necessary verification. The appellant-accused took undue time to complete and dispose of the matter thus, the Halqua patwari advised the complainant to meet him. On the same day, i.e. on 22.6.2009, the complainant went to the appellant and requested him to get the mutation verified/attested in favour of his father but instead of doing the needful, he asked for some 'Sewapani' (bribe) and demanded an amount of Rs. 1000/- to do the work. The complainant did not agree to pay this much amount to the appellant, but ultimately, the appellant agreed to get the work done on paying the amount of Rs. 500/- to him and the appellant told the complainant to come on 2.7.1999.

4. According to the prosecution story, on 2.7.1999 when the complainant was on his way to the office of the appellant, he met Dy. S.P. (Enforcement) Hari Chand (PW-10), the Deputy Superintendent of Police (Enforcement0 in Nalagarh Rest House and told him about the above facts and handed over his complaint Ext. P-B in writing to him.

5. PW-10 Hari Chand, Dy.S.P. at that time was accompanying Sub Inspector Harish Chander,

6. H.C. Yadav Chand, Constables Satish and Babu Ram. On receiving the complaint in the Rest House, it was sent for the registration of the case to the Anti Corruption Unit at Solan.

7. In the meantime, Dy.S.P. Hari Chand, aforesaid constituted a trap and associated PW-6 Taj Mohammad as an independent witness. The complainant presented Rs. 500/- currency notes of 100/- denomination each and its Serial Numbers were noted and memo Ext. P-D to this effect was prepared in his presence and other police officials. He treated the currency notes with phenolphthalein powder, thereafter he prepared the solution of sodium carbonate and gave the demonstration by washing his own hands with said solution and the hand wash turned pink. The said sample was taken in a Nip Ext. P-3 and sealed with seal impression 'R'. Thereafter the seal was handed over to Taj Mohammad (PW-6) after taking its sample separately.

8. The treated currency notes of Rs. 500/- Ext. P-5 to P-9 aforesaid were handed over to the complainant with the direction not to tamper or interfere with them but to hand over it to the appellant on his demand. He also conducted the personal search of the complainant to ensure that he was not having in his possession any other currency notes except the one treated by him and prepared the Panchnama Ext. P-S to this effect.

9. Taj Mohammad PW-6 was made a shadow witness and he was imparted instruction to remain out side the office of the appellant and to pass over signal by placing his hand on his head to Harish Chander Sub Inspector when money as bribe is handed over to the appellant.

10. The raiding party reached Ram Shehar, arranged the trap to nab the appellant. It was around 1 p.m. The complainant went to the office of the appellant followed by Taj Mohammad (PW-6) and Harish Chander Sub Inspector who remained out side.

11. On getting signal through Harish Chander as aforesaid, the raiding party barged into the office and found the appellant sitting on his chair.

12. The complainant was on the thresh hold of the door of the office. PW-6 Taj Mohammad was just out side the office. PW-10 Dy. S.P. Hari Chand gripped the appellant from both his arms and sent Babu Ram constable to call PW-8 Jagdev Chand Naib- Tehsildar from his office. Hari Chand Dy. S.P. interrogated the appellant regarding the acceptance of the bribe amount given by the complainant. In the meantime PW-8 Jagdev Chand Naib Tehsildar also came there to whom Dy.S.P. disclosed his identity and made him a witness to the personal search of the appellant. In his presence and also in presence of Taj Mohammad and Harish Chander, he recovered five currency notes of 100 denominations each from left-side pocket of his green coloured T-shirt. Serial Numbers of the recovered currency notes were got tallied with the memo already prepared earlier, which matched.

13. The hands of the appellant were got washed with sodium carbonate solution. The hand- wash turned pink. It was poured into the Nip Ext. P-2 which was sealed with seal impression 'H' and was taken into possession vide recovery memo Ext. P-Q.

14. The pocket of T-shirt was also got washed with sodium carbonate solution which also turned into pink and was taken into possession in Nip Ext. P1.

15. The recovered currency notes were sealed with seal impression 'H' in a separate pocket. The case property was taken into possession vide memo Ext. P-E.

16. The seal impression 'H' was handed over to Taj Mohammad (PW6) after separately taking specimen seal Ext. P-10.

17. A list (Ext. PT) of remaining articles found in possession of the appellant was prepared.

18. The site plan Ext. P-U of the place of incident was also prepared by the police. The appellant was arrested and the case property was deposited with the MHC.

19. The hand-wash and pocket-wash both were sent to the forensic science Laboratory Junga, (Shimla). The report of analysis is Ext. P-B. The appointment and posting orders Ext. P-Q and PR with respect to the appellant were also taken into possession vide memo Ext. P-W.

20. The prosecution sanction Ext. P-A was also obtained. Further copies of the mutation and other revenue record Ext. P-M and P-K were also taken into possession. After completing the investigation; the case was presented in the court for trial of the appellant.

21. Prima facie the learned Special Judge found reasonable grounds to frame the charge against the appellant under Section 13 (2) of the Act. The appellant pleaded not guilty and claimed to face trial.

22. To prove its case prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure.

23. The appellant had denied the circumstances which were found attendant upon him. He alleged his false implication in the case. His defence was that on the request of the complainant when the entry was made by the Patwari in the revenue record, on 25.6.1999, on the same day, he had verified the mutation which was attested by the Tehsildar on 30.6.1999. According to the appellant, the complainant wanted to get the mutation of Smt. Santo Devi to be got entered and attested only in favour of his father, whereas there were other legal heirs also, thus he refused to do so and he entered the names of other legal heirs in the mutation register. Thus the complainant felt offended. Ultimately the mutation was attested by the Naib Tehsildar on 30.6.1999. Therefore, the aforesaid drama was enacted by him in connivance with the police in the PWD Rest House Nalagarh, where he was called through constable Chet Ram from his office at Ram Shehar.

24. To prove his defence, the appellant also examined DW-1 Gian Chand to the effect that the complainant had told him that he would teach the appellant a lesson and would fabricate a false case against him. DW-2 Ashwani Kumar Criminal Ahlmad was examined to show that Taj Mohammad (PW6) was a prosecution witness in State v. Munish Kumar a case registered under Section 292 of the Indian Penal Code. DW-3 Mukesh Gupta Criminal Ahlmad of the Court of learned Additional Sessions Judge, Solan was also examined to prove that in another case 'State v. Pawan Kumar', Taj Mohammad also appeared as a police witness.

25. The learned Special Judge disbelieved the defence version while relying upon the prosecution evidence, convicted and sentenced the appellant, as aforesaid, which is under challenge.

26. Mr. M.S. Chandel, learned Senior Advocate duly instructed by Sh.Rakesh Jaswal, Advocate has argued with vehemence that the prosecution has failed to prove that on 22.6.1999 or even before, the complainant as alleged had presented the death certificate of Smt. Santo Devi to the Patwari concerned. It is submitted that the evidence on record shows that for the first time it was presented by him on 25.6.1999 to the Patwari (PW7) and insisted upon to enter the mutation only in the name of his father alone ignoring the other legal heirs, which entry was made by the Patwari, but the appellant had refused and made corrections by adding the names of other legal heirs, which caused annoyance to the complainant. Learned Counsel also took me through the evidence on record and canvassed that the mutation in the instant case was entered on 25.6.1999, it was corrected and verified on the same day by the appellant, and finally PW-8 Naib Tehsildar Jagdev Chand accepted and attested it in favour of all the legal heirs of Smt. Santo Devi including Ram Swarup, the father of the complainant on 30.6.1999 which clearly demonstrates that this fact was within the knowledge of the complainant as stated by PW8 aforesaid and fabricated a false case against the appellant on 2.7.1999 to square his own vendetta, when otherwise also there remained nothing to do in the mutation. He further pointed out that Taj Mohammad though not supported the prosecution case was also a stock witness with the police. It is further argued that evidence with respect to the demand and acceptance of the alleged bribe is shrouded by suspicious circumstances and the recovery of the money as well as trap itself has become doubtful in view of the discarded pouch Ext. D-C which pertained to the same case and was admitted to be in the hands of the Dy. S.P. who had conducted the trap in this case but no cogent explanation was given by him as to why he had prepared this pouch which was alleged to have been found discarded.

27. On the other hand, Shri J.S. Guleria, learned Assistant Advocate General, assisted by Sh. Vikas Rathore, Deputy Advocate General, while supporting the impugned judgment of conviction and sentence passed by the learned trial court argued that in the instant case, the demand raised by the appellant stands proved. The evidence of the complainant is consistent and is supporting all the contemporaneous documents prepared by the investigating officer before the money was delivered to the appellant. The recovery of bribe money also stands proved for which the appellant failed to explain as to how this came into his possession. According to him, prosecution has produced the reliable evidence whereas, the appellant could not make any dent in this case. Therefore, there is no scope for interference in the impugned judgment.

28. But however, Sh. Guleria could not explain as to how and under what circumstances the discarded pouch Ext. DC came into existence, why the serial number of currency notes including the FIR number and signatures of witnesses in the hands of PW10, Dy.S.P. appeared on it.

29. I have given my thoughtful consideration to the rival contention of the parties and have critically reappraised the evidence on record.

30. The prosecution is obliged to prove the demand and acceptance of the bribe coupled with the fact of the recovery of money and chemical test. If these elements are established in accordance with law, the case of the prosecution can be said to have been proved and reference can be made to the judgment of the apex Court in State of Andhra Pradesh v. M. Radha Krishna Murthy : 2009CriLJ1896 and Krishna Ram v. State of Rajasthan JT 2009 (4) SC88.

31. In the case in hand, following facts are not disputed.

(i) Smt. Santo Devi , Bua (father's sister) of the complainant had died on 21.9.1995 (Ext.PM).

(ii) On 25.6.1999, the complainant a press correspondent, had approached the Patwari PW-7 Heera Singh with a death certificate (Ext. PM) of Smt. Santo Devi and informed that his father Ram Swaroop is the only sole heir of the deceased and this fact was noted by the Patwari in the Rojnamcha Waaquiati, Ext. D-A, on the basis of which mutation No. 155 (Ext. P.N) was entered showing the name of only Ram Swaroop as the legal heir of Smt. Santo Devi.

(iii) On the same day i.e. on 25.6.1999, the appellant was acting as a Field Kanungo of Circle No. II. The mutation was presented to him for doing needful. He found that besides Ram Swaroop other persons were also legal heirs of Smt. Santo. Thus added their names in the said mutation and simultaneously recorded this fact in 'Fard Partal' Ext. D-B.

(iv) PW8 Jagdev Chand, Naib Tehsildar testified on oath that he had informed the complainant to be present on 30.6.1999 at the time of mutation by him

(v) The mutation No. 155 aforesaid was accepted and attested in favour of all the legal heirs by the Assistant Collector IInd Grade i.e. Naib Tehsildar Jagdev Chand, in absence of the complainant. .

(vi) The copy of mutation Ext. P-J Akash Sajra Kishtwar Ext. P-K were taken into possession by the Dy. S.P. aforesaid on the same date i.e. on 2.7.1999, which fact is evident from his initials coupled with the statement of PW-7 Patwari.

(vii) Although PW-5 Naresh Kalia has stated that the estate of his Bua Santo Devi was to be mutated in favour of his father and other legal representatives and that he visited the Patwari on 22.6.1999 with regard to the mutation of the property in the name of his father. But according to him on the same day Patwari disclosed that he had done his duty and sent the mutation to Ram Nath, appellant who had not attested that mutation and advised him to meet him. Cleverly the appellant did not mention the name of the Patwari anywhere, as to who was the Patwari to whom he approached for the said purpose. But PW7 Heera Singh has stated that he was the Patwari to whom the complainant had made the request to enter the mutation only in the name of his father on 25.6.1999.

32. Except the self serving statement of the complainant there is nothing on record to substantiate his plea that he had not the Patwari either on 22.6.1999 or before that date. However, the complainant is proved to have reported to the Patwari only on 25.6.1999.

33. The complainant as PW5 stated that he met the appellant at Ram Shehar on 22.6.1999 on the same day when he had met the Patwari and asked him to meet the appellant about the attestation of the mutation in the name of his father and it was then the appellant has asked him for some 'sewa pani' and demanded Rs. 1000/- if he wanted to get the mutation attested in favour of his father regarding the estate left behind his Bua, to which he declined. But according to him ultimately the appellant is alleged to have agreed to do the work by paying him Rs. 500/-.

34. As noticed from this part of the statement of the complainant all this happened on 22.6.1999 but record shows that Patwari had entered the mutation on 25.6.1999. If it had happened on 22.6.1999 as stated by him, it is not understood why he was called on 2.7.1999 i.e. after about 12 days.

35. Further the Anti Corruption Department of the Police consisting of Dy. S.P. and other police officials were already present in Nalagarh Rest House. The complainant did not state as to how he came to know about their presence there. According to him, he approached the Vigilance people at Nalagarh on 2.7.1999 i.e. the date when the complainant was alleged to have asked by the appellant to bring him bribe. He stated that he narrated the entire story to them and handed over the complainant Ext. P-B to the Dy.S.P. (PW10).

36. In cross-examination, he categorically denied that he visited Patwari for the first time on 25.6.1999 which fact is corroborated by Ext.DA. He denied that he asked the appellant on the said date i.e. on 25.6.1999 to attest the mutation in the name of his father and also to the Patwari not to attest the mutation to in favour of any of the legal heir save and except his father. However, he admitted that his father had two other brothers and one of the brothers had died after the death of his Bua. He denied having approached the Tehsildar on 22.6.1999 or 27.6.1999 for attesting the mutation. He denied that Tehsildar had called him on 30.6.1999 for attestation of the mutation. He however, denied that he had told another Press Correspondent Gian Chand DW-1 who is the brother - in-law of the appellant having admitted that the appellant had not demanded any bribe.

37. Whereas, PW-8 Jagdev Chand Naib Tehsildar in his cross-examination has shattered the case of complainant by stating that on 27.6.1999 complainant(wrongly mentioned as Accused) had come to him for attestation of the mutation and he gave him 30.6.1999 as the date for attestation of mutation at Ram Shehar but the complainant did not appear on 30.6.1999.

38. In Anand Swrup v. State: 1988 Cri. L.J. 756, the Supreme Court inter alia observed that after introduction of Section 165 -A of the Indian Penal Code, making the person who offers bribe guilty of the abetment of bribery, the complainant cannot be placed on any better footing then that of an accomplice and corroboration in material particulars connecting accused with the crime is required to be insisted upon.

39. In the instant case there is no corroboration to the solitary and self serving statement of the complainant which is full of material contradictions, particularly with respect to the demand and payment of the bribed amount to the appellant. The Rojnamcha report Ext.DA, Fard Parhtal Ext.DB and attestation of mutation Ext.PJ on 30.6.1999 knocked down the basis of acceptance of bribe on 2.7.1999 as these documents probablised the defence version.

40. The complainant is a correspondent of the Daily News paper as admitted by him in his cross examination and admittedly before the complaint Ext. P-B dated 2.7.1999, he did not make any complaint to any other person earlier to that whereas PW8 Jagdev Chand Naib Tehsildar has admitted that the complainant had come to him on 27.6.1999. Surprisingly he did not make any complaint to him. This makes his version questionable, with respect to the demand of the money, which according to the complainant was raised by the appellant on 22.6.1999 and the appellant asked him to be present on 2.7.1999. Further his denial that he had insisted upon the attestation of the mutation only in the name of his father also stands falsified from the complaint, report Rojnamcha Ext. D-A entered at his instance by the Patwari and the statement of Hira Singh Patwari (PW7) itself wherein the name only of his father was entered by him. Ext. DB Fard Parhtal makes the defence version very clear.

41. The complainant has categorically admitted in his cross-examination that Heera Singh PW-7 was also present at the time of raid in the office of the appellant and the entire proceeding in Ext. P-E were drawn in the office of appellant itself but Hira Singh aforesaid did not utter even a single word with regard to the passing of money to the appellant at the instance of the complainant nor he was cross-examined to corroborate the version of the complainant to the effect that he was contacted by the complainant with respect to the attestation of mutation and told him that he should contact the appellant as he had already done his part of the job. Whereas PW7 aforesaid only stated that the complainant met him on 25.6.1999 as stated above. This makes the version of the complainant quite unnatural and highly improbable and the acceptance of bribe money in the presence of Patwari sitting in the same room also becomes doubtful and further non- inclusion of the Patwari Hira Singh as one of the witness cast a serious doubt on the case of the prosecution.

42. As far as the trap and recovery of the money is concerned although PW-10 Hari Chand has corroborated the case of the prosecution but, in his cross-examination he admitted vital facts, that the discarded pouch Ext.DC containing the serial numbers of the currency notes alleged to have been produced in evidence was in his own hands but did not offer any explanation regarding its existence.

43. Further he stated to have collected the demonstration hand-wash in the nip Ext.P3 and Ex.P1 was the pocket-wash collected after the recovery of money, but the chemical report Ext.PV reveals that Ext.P-3 was a pocket-wash of the T- shirt of the accused and not a demo wash. Thus the report of the chemical examiner also does not help the prosecution in any manner.

44. PW6 Taj Mohammed has denied the prosecution case and categorically stated that he did not accompany the trap party to Ram Shehar. He also stated that the appellant was brought by the police from Patwar Khana Ram Shehar and taken to the Rest House, Nalagarh and no demonstration took place as alleged. Thus his deposition supports the case of appellant that he was called to Nalagarh Rest House, where the alleged recovery was fabricated.

45. In Raghbir Singh v. State of Punjab : 1976CriLJ172 the Supreme Court has observed that the officers functioning in the Anti Corruption Department must sincerely endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the Court and the court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe.

46. In the present case PW6 Taj Mohammad can neither be called as an independent witness nor he supported the case of prosecution.

47. Thus the prosecution case suffers from serious infirmity in as much as the demand of money and the above contradictions are concerned. The explanation given by the appellant is more sound and convincing.

48. In view of the foregoing discussion and reasons, in my opinion, the case against the appellant stands not proved beyond a reasonable doubt as such the impugned judgment and conviction and sentence is unsustainable hence set aside. Consequently the appellant is acquitted.

49. Ordered accordingly.

50. The appellant is hereby discharged the bail bonds entered upon by him at any stage during the proceedings of the case.

51. Fine amount, if any, be refunded to him Send down the records.