State of Himachal Pradesh Vs. Tilak Raj - Court Judgment

Excerpt:
criminal - demand of bribe - acquittal - contradictory evidence - sections 7 and 13(2) of the prevention of corruption act, 1988 - present appeal filed by state against acquittal of respondent from offence punishable under sections 7 and 13(2) of act - held, version of prosecution witness was found to be contradictory as he is not specific about the amount recovered from respondent - another two prosecution witnesses have contradicted each other as to who gave signal to police after alleged payment of bribe money to respondent - it has come in evidence that place where police was allegedly hiding was visible from room of respondent and vice-versa - this also creates suspicion that in that situation, respondent would demand bribe from complainant - in order to establish commission of offence for which respondent was charged, it was incumbent on prosecution to prove demand of bribe by respondent from complainant - but complainant in his statement has stated that respondent never demanded money from him - in absence of proof of demand of bribe, prosecution has failed to prove case against respondent - in result, appeal fails and is dismissed accordingly - 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.kuldip singh, j.1. the respondent was tried by the learned special judge, una in corruption case no. 4 of 1999 and acquitted him on 18-10-2001 and therefore, the state has filed this appeal for setting aside the acquittal of respondent.2. the facts, in brief, are that respondent was appointed as patwari vide order ex. pe dated 13-3-1992 and vide order ex. p-g, he was posted as patwari at tahliwal uperala. the further case of the prosecution is that the father of the complainant jarnail singh pw-7 had some land dispute with one amar chand and, therefore, the complainant wanted a copy of jamabandi of that land which was situated in patwar circle, tahliwal uperala. pw-7 jarnail singh on 7-4-1996 went to respondent and requested him to supply a copy of jamabandi, but respondent asked him for 'seva pani'. he demanded rs. 200/- as illegal gratification but complainant gave him rs. 100/-. on 8-4-1996, complainant along with ranbir singh again went to respondent in the morning and at that time also, the respondent demanded rs. 100/- bribe from him. thereafter, the complainant and ranbir singh came to the office of anti corruption zone una and complainant lodged fir ex. pj.3. the complainant jarnail singh handed over two currency notes of rs. 50/-each ex. p-3 and ex. p-4 to dy. s. p. pw-9 which were treated by police with phenolphethalein powder. the dy. s. p. also told the functioning of phenolphethalein powder and sodium carbonate powder. the treated currency notes were put in the shirt pocket of the complainant and he was asked not to touch the same and to give the same to respondent on demand. ranbir singh was made shadow witness. he was instructed to give signal to the police on passing over of the amount to the respondent. the proceedings were recorded in the shape of memo ex. pk.4. on instructions received from the police, the complainant and ranbir singh went with the police party from una to tahliwal uperala, they were dropped on the way. thereafter, both of them proceeded to patwarkhana on a scooter at about 1.00 p. m. on 8-4-1996.5. the complainant met respondent and asked him about the copy of jamabandi, he was told by the respondent that the copy had not been prepared. the respondent asked the complainant to arrange forms for the same. the complainant handed over currency notes ex. p-3 and ex. p-4 to respondent who put them in the pocket of his pant ex. p-5. the complainant then signaled to the police and police party reached there, pw-8 niranjan singh, up-pradhan was called by the police. the currency notes ex. p-3 and ex. p-4 were recovered from pant. ex. p-5 and their numbers were tallied with the numbers of currency notes mentioned in ex. pk and were found to be the same. the currency notes were taken into possession vide memo ex. pn and were sealed with seal 'b' in an envelope ex. pl.6. the hands of the respondent were washed and hand wash was collected in a plate. sodium carbonate mixture was prepared separately. the collected hand wash and sodium carbonate mixture were mixed together, its colour turned pink which was put into nip ex. p-l and was sealed with seal 'b'. the nip ex. p-1 was taken into possession vide memo ex. pp. the pocket wash of pant ex. p-5 was also taken separately and it was also mixed with sodium carbonate mixture which turned pink and was collected in nip ex. p-2 and sealed with seal 'b'. the nip ex. p-2 was taken into possession vide memo ex. po. pant ex. p-5 was also taken into possession.7. pw-9 r. r. bhatia conducted the investigation, site plan of patwarkhana of tahliwal uperala was prepared. jamabandies ex. pa and ex. pb were taken into possession vide memo ex. pc from ranjit singh. the appointment and posting orders of the respondent were taken into possession vide memo ex. pd from jagdish chand. the posting order ex. pg was taken into possession vide memo ex. ph from pw-5 harbans lal. the nips ex. p-1 and ex. p-2 were sent for chemical analysis by mhc sirikant through constable pw-3 dharam pal. on 22-4-1996, report ex. pr was received. the sanction order ex. ps to prosecute the respondent was taken from settlement officer, kangra. on completion of investigation, challan was presented against the respondent. he was charged for offence punishable under sections 7 and 13(2) of the act. the respondent pleaded not guilty and claimed trial. the prosecution in order to prove the case has examined nine witnesses and placed some documents on record. the statement of respondent was recorded under section 313 cr. p.c. in which he denied the prosecution case. the respondent did not lead any evidence in defence. the learned special judge acquitted the respondent, hence this appeal.8. i have heard mr. anshul bansal, learned additional advocate general for the state and mr. paresh sharma, advocate learned counsel for the respondent and have also gone through the record. it has been submitted on behalf of the state that prosecution has led oral and documentary evidence on record to prove the case against the respondent and same has been proved beyond reasonable doubt. the learned court below has misconstrued and mis-interpreted the material on record and has committed an error of law in acquitting the respondent. the learned counsel for the respondent has supported the impugned judgment. he has submitted that learned court below has rightly appreciated the material on record and no error can be found in the order of acquittal.9. in order to appreciate the prosecution case, it is necessary to refer to evidence which has come on record. pw-1 ranjit singh has stated that in the year 1996 he was posted as chairman in the office of kanungo, nangal kalan and he had produced copies of jamabandi ex. pa and ex. pb vide memo ex. pc. pw-2 gurcharan singh in the year 1996 posted as constable in anti-corruption zone, una and he has stated that on 14-10-1996 appointment and posting orders of the respondent were taken into possession from jagdish chand vide memo ex. pd and copies of such orders are ex. pe and ex. pf. pw-3 dharam pal has stated that in the year 1996 he was posted in anti corruption zone, una. shrikant mhc handed over two nips ex. p-1 and ex. p-2 to him on 22-4-1996 for being taken to f. s. l. bharari, shimla which he deposited with f.s.l. shimla on the same day. pw-4 sita ram bhatia has stated that in the year 1998 he was posted at nadaun. in the year, 1992, he was posted as naib tehsildar (settlement) at haroli and posting orders of patwaris ex. pg were issued by him. pw-5 harbans lal has stated that in the year, 1998 he was posted as patwari reader in the office of naib tehsildar (settlement), haroli, he handed over orders ex. pg to police vide memo ex. ph. pw-6 chain singh, retired dy. s. p. has stated that in the year, 1997 he was posted as dy. s. p. in anti-corruption zone, una. he partly investigated the case and took into possession posting orders ex. pg vide memo ex. ph.10. pw-7 jarnail singh complainant has stated that in the year 1996 he was a student of b. a. part-i. there was a land dispute of his father with amar chand, hence they wanted a copy of jamabandi of that land. in this connection, he went to patwarkhana in the year 1996 and requested respondent to supply a copy of jamabandi, who asked 'sewa pani' and demanded rs. 200/- as illegal gratification, but he paid him rs. 100/-. on the next day, he came to the office of anti-corruption zone, una, narrated the story to dy. s. p. the police recorded his statement ex. pj. he handed over two currency notes of rs. 50/- each to dy. s. p. which were treated with some powder by dy. s. p. and then said notes were returned to him. dy. s. p. asked him to hand over those currency notes to respondent when he would go for obtaining copy of jamabandi. a memo ex. pk was prepared and the numbers of the notes were noted in ex. pk. ranbir singh had gone with him to the office of dy. s. p. anti corruption zone, una. he alone came to patwarkhana to obtain copy of jamabandi and remaining police party hid itself in the nearby fields. he asked the respondent to hand over the copy of jamabandi, respondent told that he had not prepared the same. the respondent told him that he will have to arrange forms etc. for the same. he paid rs. 100/- in the form of aforesaid currency notes of rs. 50/- each. the respondent put those currency notes in his pant pocket. the police party had asked him to give a signal on payment. he accordingly gave a signal to the police from the room and the police party came to the room of the respondent. the police then called up-pradhan and one more witness. then the currency notes were taken out from the pocket of the accused. the hands of the respondent were washed and the colour of the hand wash turned pink. the number of the currency notes were tallied with the numbers mentioned in ex. pk. he identified currency notes ex. p-3 and ex. p-4.11. this witness was cross-examined by the prosecution as he did not support the prosecution. in the cross-examination conducted by the prosecution, he has stated that on 8-4-1996 ranbir singh had also accompanied him to patwarkhana. he gave rs. 100/- to respondent in presence of ranbir singh. he denied that ranbir singh gave signal to the police. he said that he does not remember that the colour of the hand wash of the respondent remained natural. on search of the pant of the respondent four currency notes of rs. 50/- were found. smt. kanta devi, pradhan had also come to the spot when the hands of the respondents were washed. in the cross-examination conducted on behalf of the respondent, he has stated that ranbir singh is his cousin. he has admitted that since 1974 entries of the land, in question, were in the name of amar chand. he denied that he requested the respondent to make entry in the revenue record during the consolidation proceedings in the name of his father to which he refused. he has also stated that respondent never demanded money from him before 7-4-1996. he had gone to patwarkhana on 7-4-1996 for the first time. he has also stated that one could see inside the patwarkhana from the place where the police party was hiding itself and vice-versa. dy. s. p. sent one constable to call the witnesses niranjan singh and kanta devi only after the accused was caught by dy. s. p. they reached the spot in 10-15 minutes. he has stated that he was an accused in a criminal case of assault and in a case under ndps act. he admitted ex. db, photocopy of the receipt showing his signatures.12. pw-8 niranjan singh has stated that on 8-4-1996 he was present in gram panchayat meeting as up-pradhan. pw-7 jarnail singh came to the panchayat and informed that a corruption case has taken place and he requested all the members to accompany him to patwarkhana. they accordingly went to patwarkhana. he was asked by dy. s. p. to take personal search of the respondent, currency notes were found in the pocket of pant of the respondent but he does not remember the amount. out of them, two currency notes tallied with the numbers mentioned in ex. pk which currency notes are ex. p-3 and ex. p-4. this witness did not support the prosecution and he was declared hostile and was cross-examined by the prosecution. in the cross examination, he has stated that colour of hand wash of the respondent remained natural. in the cross-examination conducted on behalf of the respondent, he has stated that respondent was saying that he had not taken bribe and he was being implicated falsely. kanta came to the spot after about half an hour after him and by that time entire process had been completed.13. pw-9 r. r. bhatia has stated that in the year 1996 he was posted as dy. s. p. anti corruption zone, una. he has stated that ranbir singh gave signal to the police party and he nabbed the accused. in cross-examination, he has stated that jarnail singh had met him in the office on 8-4-1996 and ranbir singh was accompanying him at that time. he did not move an application to the deputy commissioner to secure the presence of executive magistrate or any other official for the trap. he had not shown in site plan ex. pq the place where the police party was hiding. he has also not shown the position of jarnail singh and ranbir singh in ex. pq. nirajan singh, other witnesses came to the spot of their own. he has shown his ignorance that jarnail singh had taken the copy of jamabandi on 4-4-1996 vide receipt ex. db.14. the respondent has denied the prosecution case, but it does emerge from the trend of cross-examination conducted on behalf of the respondent that the complainant wanted that the name of the father of the complainant should be entered in the revenue record instead of amar chand on the land in dispute but respondent declined and, therefore, complainant falsely implicated the respondent in the case. there is no denial of the fact that the respondent was posted as patwari at tahliwal uperala at the relevant time. pw-1 to pw-6 are formal witnesses. the prosecution case is that complainant visited respondent on 7-4-1996 for obtaining copy of jamabandi and on that date respondent demanded rs. 200/- from the complainant. but complainant paid him rs. 100/- on that date. the complainant approached the anti corruption zone, una and got recorded fir ex. pj and thereafter, complainant, ranbir singh and police went to patwarkhana where the complainant gave rs. 100/- to respondent in the form of two currency notes of rs. 50/- each. as per pw-7, ranbir singh had accompanied him to the office of anti corruption unit. it is also the prosecution case that ranbir singh had again accompanied the complainant on 8-4-1996 when complainant went to the respondent. pw-9 has stated that ranbir singh had given signal to the police party and then he nabbed the respondent. pw-7 has stated that he moved his hand from the room itself and then police party came to the room. thus, pw-7 and pw-9 have contradicted each other as to who gave the signal to the police after alleged payment of bribe money to the respondent.15. there is also contradiction with respect to other witnesses present on the spot. pw-7, has stated that police called up-pradhan and one. more witness after the police came in the room when he gave the signal. pw-8 has stated that smt. kanta devi had come to the spot after about half an hour after him. pw-7 has stated that he reached patwarkhana at about 2.00 p. m. pw-8 has stated that he reached patwarkhana at about 2.30 p. m. it has not come in the statement of pw-7 that after reaching patwarkhana, he waited for some time. in other words, the alleged bribe money was given by pw-7 to the respondent at about 2.00 p. m. but pw-8 reached the spot after about half an hour. smt. kanta devi has not been examined. pw-8 has stated that the colour of hand wash of the accused remained natural. ranbir singh has not been examined. the cumulative effect of statements of pw-7 and pw-8 does not make the presence of pw-8 doubtful at the time of alleged recovery of rs. 100/- from the pant of respondent.16. it has come in evidence that place where the police was allegedly hiding was visible from the room of respondent and vice-versa. this also creates suspicion that in that situation, the respondent would demand bribe from the complainant. the complainant has stated in his cross-examination that he had gone to patwarkhana on 7-4-1996 for the first time. the genesis of the case of the prosecution is that complainant wanted a copy of jamabandi regarding the land over which his father had dispute with amar chand and for supplying that copy, respondent demanded 'sewa pani'. pw-7 has admitted in his statement, photocopy of receipt ex. db showing the supply of copy of jamabandi on 4-4-1996 to jarnail singh. this document creates suspicion in the prosecution story. ex. db also establishes that pw-7 is not a truthful witness. when pw-7 had already received the copy of jamabandi vide ex. db on 4-4-1996, there was no question of his approaching respondent on 7-4-1996 for supplying same copy again and demand of bribe by respondent on that date or on 8-4-1996. this also establishes that there is no truth in the prosecution case that pw-7 approached the respondent on 7-4-1996 or 8-4-1996 for supplying copy of jamabandi and respondent demanded 'sewa pani' from the complainant. in order to establish commission of offence for which the respondent was charged, it was incumbent on the prosecution to prove demand of bribe by respondent from complainant. but pw-7 complainant in his statement has stated that on 7-4-1996 respondent never demanded money from him. in absence of proof of demand of bribe, prosecution has failed to prove case against the respondent.17. the prosecution case is that pw-7 approached anti corruption unit on 8-4-1996, thereupon fir ex. pj was got registered. pw-9 r. r. bhatia, despite prior information, did not feel it proper to join some responsible officer or executive magistrate in the raiding party. he proceeded to the spot along with complainant and another person ranbir singh, who as per pw-7 is his cousin. no other independent witness was joined. ranbir singh cannot be said to be an independent witness. thus, right from the very beginning, no serious attempt was made to join independent witnesses for laying the trap.18. pw-7 complainant has admitted in his statement that he was prosecuted in a criminal case of assault and also in a case under ndps act. at the time of alleged occurrence, he was studying in b. a. part-i, therefore, it cannot be said that pw-7 is a simpleton person. the defence of the respondent cannot be ruled out altogether. according to respondent, the complainant wanted entry of his father in the revenue record in place of amar chand regarding the land over which his father had dispute with amar chand. but when respondent refused, then complainant implicated him in the false case. the learned special judge has appreciated the material on record properly. it cannot be said that the view taken by the learned special judge does not emerge from the evidence on the record or conclusion drawn by the court below is perverse. in appeal, the acquittal cannot be converted into conviction simply on the ground that other view is also possible. there is no merit in the appeal which is liable to be dismissed.19. no other point was urged.20. as a result of above discussion, the appeal fails and is accordingly dismissed. the bail bonds are discharged.