Himachal Pradesh High Court
Dharmender Kumar vs State Of Himachal Pradesh on 24 August, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 302/2015
Reserved on: August 23, 2016
Decided on: August 24, 2016
.
___________________________________________________________________
Dharmender Kumar ...... Appellant
Versus
State of Himachal Pradesh ........Respondent
___________________________________________________________________
Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge
Whether approved for reporting? 1 yes.
of
___________________________________________________________________
For the appellant : Mr. Rahul Verma, Advocate.
For the respondent rt :
Mr. Parmod Thakur, Additional
Advocate General.
___________________________________________________________________
Rajiv Sharma, Judge:
Instant appeal has been preferred against Judgment dated 10.7.2015 rendered by the learned Special Judge, Mandi, District Mandi (HP) in Sessions Trial No. 14/2011, whereby appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for the commission of offence under Sections 7 and 13 (2) of the Prevention of Corruption Act, was convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of ` 10,000/- under Sections 7 & 13 (1)(d) punishable under Section 13 (2) of the Prevention of Corruption Act, 1988 and in default of payment of fine, to further undergo simple imprisonment for six months.
1 Whether the reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 2
2. Case of the prosecution, in a nutshell, is that the accused was posted as Assistant Engineer, Electrical Sub Division, Mandi and was in charge of the work to be executed in Judicial .
Court Complex Mandi. PW-14 Dheeraj Kumar was electrical contractor in electrical wing of PWD and was awarded work of electrical fixture in the Court complex in the year 2005 vide agreement No. 47 of 2005-06. Work was awarded for a total sum of ` 4,40,000/-. PW-14 received all the payments except final bill of of `56,000/-, which was verified by Netar Singh, Junior Engineer on 25.11.2009 and thereafter was pending for verification and payment rt with the accused. Accused demanded a sum of `1800/- from the complainant, as bribe for passing the bill. PW-14 Dheeraj Kumar approached the Vigilance Police on 23.12.2009. FIR Ext. PW-13/A was registered. PW-15 Bhupinder Singh, Additional Superintendent of Police, conducted demonstration of pre-trap proceedings in the presence of PW-14 Dheeraj Kumar, PW-13 Inspector Mohinder Kumar, PW-2 Rajinder Kumar and PW-10 Jitender Singh (shadow witness). Solutions of Sodium Carbonate and Phenolphthalein powder were prepared. Their colour did not change. When they were mixed, the colour changed to light pink. Solutions were destroyed in the presence of the witnesses. Thereafter, Phenolphthalein powder and Sodium Carbonate powder were separately packed into two small paper packets, these were put into separate match boxes and match boxes were sealed in two separate cloth parcels sealed with seal impression "T" at seven places. Sample seal Ext. PW-10/D was ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 3 drawn and seal after its use was handed over to the shadow witness. Complainant handed over bribe money i.e. currency notes of `1000/-, `500 and three notes of `100/- to the Investigating .
Officer. Those were smeared with Phenolphthalein powder. The numbers of the currency notes were noted down on memo Ext. PW- 10/B. Thereafter, the Investigating Officer instructed the complainant to handover the currency notes to the accused on his demand. PW-10 Jitender Singh was associated as shadow witness of to give prefixed signal after acceptance of bribe money by the accused. Thereafter, raiding party was formed and their hands were rt washed vide memo Ext. PW-10/C in the presence of complainant, Dheeraj Kumar and Jitender Kumar. Thereafter, complainant and shadow witness went to the office of the accused. Complainant inquired about his bill and accused demanded bribe. Complainant handed over the bribe money to the accused and he put the same into his left bottom pocket of the coat. Shadow witness signalled the police party by moving hands on his head. Accused was caught red- handed. PW-9 Thakur Dass Chauhan, Executive Engineer was called. Thereafter, hands of accused were washed in a bowl with water. The colour did not change. When a pinch of Sodium Carbonate powder was added to that solution, its colour turned light pink. Light pink coloured solution of bowl was put into a nip and nip was sealed with seal impression "T". Nip was taken into possession vide memo Ext. PW-9/A. Investigating Officer directed the accused to produce the bribe money. He produced the same ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 4 from the left bottom pocket of his coat. Currency notes were tallied with the numbers noted down in the memo already prepared and the numbers were found to be the same. Currency notes were kept .
in a Khaki coloured envelope which was put into a cloth parcel and parcel was sealed with three seals of impression "T" and taken into possession vide memo Ext. PW-9/B. Thereafter, Investigating Officer washed the pocket of the coat of the accused with water in a bowl. Its colour did not change. When a pinch of Sodium Carbonate was of added to it, its colour changed to light pink. Pocket wash solution was put into a nip and nip was sealed with one seal of impression rt "T" and was taken into possession vide memo Ext. PW-9/C. Case property was taken into possession. It was deposited with the Malkhana. These were sent to the RFSL Gutkar vide RC Ext. PW- 3/B. Competent authority accorded sanction to launch prosecution against the accused vide Ext. PW-2/A. The Forensic Science Laboratory after examination of the articles submitted its report Ext. PW-15/C. Investigation was completed. Challan was put up in the Court after completing all the codal formalities..
3. Prosecution has examined as many as 15 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence and stated that the witnesses have deposed falsely against him at the instance of the police. Accused was convicted as noticed herein above. Hence, this appeal.
::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 5
4. Mr. Rahul Verma, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused.
5. Mr. Parmod Thakur, Additional Advocate General, has .
supported the judgment of conviction.
6. I have heard the learned counsel for the parties and also gone through the record carefully.
7. PW-2 Jitender Singh testified that he was posted as Junior Assistant in the office of Engineer-in-Chief, HPPWD Shimla.
of He had brought the file pertaining to prosecution sanction of accused. In the year 2011, Shri Nand Lal Sharma, was posted as rt Engineer-in-Chief, who accorded prosecution sanction against the accused.
8. PW-3 HC Vinod Kumar deposed that as per record, on 23.12.2009, the then Dy.SP Bhupinder Singh deposited case property in FIR No. 24/2009. He entered the same at Sr. No. 65 of the Register No. 19. He has proved the abstract of register Ext. PW- 3/A. In his cross-examination by the learned defence Counsel he deposed that on 26.12.2009, he sent four parcels in Ext. PW-3/A vide RC No. 26/2009 through Constable Pramod Kumar with a direction to take the same to RFSL Gutkar. On 9.3.2010, Constable Brijesh Kumar brought all the four parcels from RFSL Gutkar.
9. PW-8 Constable Pramod Kumar deposed that on 26.12.2009, MHC PS SV & ACB Mandi handed over to him two sealed nips which were sealed with seal "T" and two sealed parcels also sealed with seal impression "T" with a direction to take the ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 6 same to RFSL Gutkar. MHC also handed over to him specimen seal impression of seal "T" vide RC No. 26/2009. He deposited said articles in RFSL Gutkar on the same day.
.
10. PW-9 Thakur Dass, testified that he was posted as Executive Engineer in Chief Engineer's office from 2008 to 2011. On 23.12.2009, at about 2 PM, he was associated in the investigation of the case by the police. On that day, Dy.SP Vigilance Mandi came to him and asked him to accompany him to the office of SDO of (Electrical), Mandi because they had caught the accused red handed while accepting the bribe. He accompanied Dy.SP Vigilance to the rt office of accused. He found accused sitting in the chair. Both of his hands were caught by the police officials. Dy.SP told him that the accused had accepted `1800/- as bribe. Thereafter, hands of accused were got washed in a fibre bowl with clean water from the water bottle. After hand wash, colour of the water remained natural. Thereafter, Dy.SP added Sodium Carbonate to the hand wash. The colour of water in the bowl turned light pink. Said pink coloured water was put in a nip, which was sealed with seal "T". Nip was taken into possession vide Ext. PW-9/A. It was signed by the complainant, witness and him as well as accused. Thereafter, police inquired about the bribe money, on which accused took out the bribe money from the bottom left pocket of the coat worn by him. Currency notes were in the denomination of `1000, `500 and three notes of `100/- Serial numbers of these currency notes were tallied with serial numbers noted by the police on a paper, which were ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 7 found correct. Currency notes were thereafter put in an envelope which was put into a cloth parcel and parcel was sealed with three seals of "T". Parcel was taken into possession vide seizure memo .
Ext. PW-9/B, which was signed by the complainant, witness Jitender, him and the accused. Thereafter, Dy.SP got the coat of the accused removed. Bottom left pocket of the coat was got washed with clean water in a clean bowl. On wash, colour of the water remained natural. Dy.SP then added powder of Sodium Carbonate of to the water on which the colour of water changed to light pink. Light pink coloured water was taken into a nip, which was sealed rt with seal "T" and taken into possession vide seizure memo Ext. PW- 9/C. In his cross-examination, he deposed that the office of Chief Engineer was situate in a thickly populated area. He admitted that when he was called, he was sitting in the first floor of the Chief Engineer's office. Dy.SP Vigilance requested him to accompany him. It took about 2 minutes to reach the office of Assistant Engineer. There were 6-7 persons in the vigilance team. He did not know whether any local inhabitant was also called by the vigilance officials. He denied the suggestion that many persons had gathered when vigilance officials reached there. He denied the suggestion that pocket of the coat of the accused was not washed in his presence.
11. PW-10 Jitender Singh testified that he was running a shop of electrical motor winding at Ram Nagar, Mandi. About 3-4 years back, he had gone to park his vehicle near Tehsil Office at Mangwain at about 12.30 or 1 PM. Some police officials known to ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 8 him met him, who took him to the office and obtained his signatures. Thereafter, he came back for lunch. He did not accompany the police to the office of Chief Engineer. No currency .
notes were recovered from the accused in his presence. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination, he deposed that he was an under-matriculate. He did not know Dheeraj Kumar. He denied that the demonstration was given before him. He admitted his signatures of on Ext. PW-10/A, Ext PW-10/B, Ext PW-10/C, Ext PW-9/A, Ext PW-9/B and Ext PW-9/C. He denied that demonstration was given rt before him. He denied the signatures on Ext. PW-10/D but admitted his signatures on Ext. PW-10/E. He also admitted his signatures on Ext. PY and Ext. PZ. He also denied that the complainant has handed over currency notes of `1000, `500 and three notes of `100 to the Investigating Officer. He denied that the police treated these notes with Phenolphthalein powder and their serial numbers were noted down on the memo. He denied the suggestion that he was associated as shadow witness and was instructed to give signal by moving his hand on head when accused would accept the bribe. He denied preparation of Ext. PW-10/B in his presence. He denied that he alongwith Dheeraj Kumar went to the office of PWD on a motorcycle on jail road. He denied the suggestion that on reaching the office of PWD, Dheeraj Kumar went inside the office of accused and he was outside the office. He denied that the police party had reached the spot and taken their position. He denied the suggestion ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 9 that when complainant handed over bribe to the accused, he signalled the police as per the instructions given by the police. He denied that the police entered the office and introduced themselves .
to the accused. He denied that thereafter Constable Brijesh Kumar and Inspector Mohinder Kumar caught hold of the arms of accused. He denied that thereafter, Dy.SP vigilance called Shri Thakur Dass Chauhan, Executive Engineer and briefed him about the case. He denied that the police got both the hands of accused washed in a of fibre bowl with clean water and its colour did not change. He denied that thereafter police added Sodium Carbonate in the solution and rt its colour changed to light pink. He denied that the solution so obtained was put in a nip which was sealed with seal impression of '"T". He denied that the said nip was taken into possession by the police vide seizure memo Ext. PW-9/A. He denied that thereafter, police inquired from accused about the bribe money and on inquiry accused took out `1800/- from the bottom left pocket of the coat worn by the accused. He denied that the currency notes recovered from the accused were put in a paper envelope which was put into a cloth parcel and sealed with three seal impressions of "T" and was taken into possession vide seizure memo Ext. PW-9/B. However, he has admitted his signatures on this memo. He denied that thereafter, pocket in which bribe money was kept was also washed by the police with clean water in the bowl. He denied that the colour of water did not change. He denied that thereafter police added Sodium Carbonate to the water, on which solution turned light ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 10 pink. He denied that thereafter police put the light pink coloured mixture into a nip and sealed with seal "T". He denied that the police also put the coat of the accused in a cloth parcel and sealed .
the parcel with ten seals of seal "T" and took into possession the nip and the parcel vide seizure memo Ext. PW-9/B, which was signed by him as a witness. He admitted his signatures on the specimen of seal Ext. PW-9/D. In his cross-examination by the learned defence Counsel, he testified that the signatures of the other persons were of also obtained at Police Station, Mangwain. Some of the papers were blank and some were already filled in when he signed the same.
12. rt PW-12 Rajinder Kumar Arora testified that he was posted as Executive Engineer, in Electrical Division, HPPWD Mandi since January 2008. He remained associated in the investigation of the case. Accused was working under him in the year 2009 as Assistant Engineer since 15.9.2009. He was In-charge of B&R Division Nos. 1 and 2, Sarkaghat Division, Dharampur Division and Jogindernagar Division. All the electrical works in these divisions were under the accused. The electrical fitting work of the Judicial Court complex at Mandi was also under the accused. Shri Netar Singh, AAE was also working with him. Contract work of the electrical division of Judicial court Complex, Mandi was awarded to Dheeraj Kumar for `4,40,000/- (sic 4,04,000). Work was completed by the contractor by September 2009. Final bill amounting to `64,000/- approximately of Dheeraj Kumar qua this work was pending with the Department. Bill had not come to him till the ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 11 registration of the present case. Work of the spot is measured by the JE/AAE and entered in the MB (Measurement Book). The MB thereafter is sent to the Assistant Engineer, In-charge for test check, .
who after test check prepares the bills and submits the same to the Division office, for further action. In the Division Office, the bill is scrutinized by the Account Branch and drawing branch, and the bill is passed, if found in order. Thereafter the bill is signed by him and payment is made. Third and fourth bills of Dheeraj Kumar were of seized by the vigilance. In his cross-examination by the learned defence Counsel, he deposed that the Executive Engineer is rt competent to approve the deviation upto 30% or `40,000/- whichever is less. He did not remember when the final bill was passed by him. He admitted that the Dealing Clerk in the office of AE used to prepare the bills. He also admitted that the bills are forwarded and dispatched by the clerical staff.
13. PW-13 Inspector Mohinder Kumar also deposed the manner in which demonstration was given and accused was apprehended accepting `1800/-. All the codal formalities were completed on the spot. In his cross-examination, he deposed that the complainant came to the Police Station at 10.45 AM. FIR was registered within 15 minutes. Complainant and shadow witness Jitender Singh proceeded from Police Station on motorcycle and they proceeded on other motorcycle. They stayed back on reaching the office of accused at a distance of 10 metres on the side of the road. He admitted that the road was busy. He entered into the office ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 12 of accused within 3-4 minutes on receiving the signal from shadow witness. They were 7 police officials who entered the room of the accused. After accused was apprehended by them, Thakur Dass .
came there. He admitted that there were shops in the vicinity. They returned to the Police Station, after six hours.
14. PW-14 Dheeraj Kumar also testified that the work of Court Complex regarding electrical fixtures was awarded in the year 2005 vide agreement No. 47 of 2005-06. Award was of `4,40,000/-.
of He received the payment except the final bill which was for `56,000/-. Bill was verified by Netar Singh, Junior Engineer on rt 25.11.2009. Thereafter, the bill was lying with the accused. Accused was posted as Assistant Engineer, Electrical Sub Division, Mandi, District Mandi, HP. Accused had demanded `1800/-. He had gone to the accused 3-4 times but he did not verify the bill and demanded bribe money from him. He went to the Police Station, State Vigilance & Anti Corruption Bureau, Mangwain, District Mandi, HP. Jitender Singh accompanied him to Police Station. He reported the matter to the Vigilance Police, on which FIR Ext. PW- 14/A was registered. Thereafter, IO Bhupinder took out the investigation kit and took out two powders i.e. Sodium Carbonate and Phenolphthalein from two small boxes and these powders were separately put into glasses of water and their solutions were prepared which remained colourless. When solutions were mixed together the colour turned light pink. Mixtures were destroyed. Investigating Officer demonstrated the whole procedure to them. He ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 13 handed over currency notes of `1000, `500 and three notes of `100/- each to the Investigating Officer. Said notes were treated with Phenol powder and handed over to him. Numbers of the notes .
were noted down on separate papers vide memo Ext. PW-10/B. He put his signatures on the same. IO instructed him that he should hand over these currency notes to the accused on his demand. Witness Jitender was associated as shadow witness. IO also instructed Jitender to signal to the police party by moving hands on of his head when the money is handed over to the accused by him. He alongwith Jitender went to the office of accused. Accused was in his rt office and was alone. He inquired regarding his bills. Accused demanded the bribe money. He handed over bribe money to the accused. Accused put the same in his left bottom pocket of the coat. Jitender Singh signalled to the police party by moving his hands on his hand. Thereafter, police party entered the office of the accused and introduced themselves to him. IO called Thakur Dass Chauhan, Executive Engineer from the office of Chief Engineer, PWD Central Zone, Mandi. Accused was caught by Constable Brijesh Kumar from his right arm and Inspector Mohinder Kumar, from his left arm. Thereafter, IO got washed the hands of accused in a fibre bowl. Colour of water remained natural. When a pinch of Sodium Carbonate powder was added to the water in the bowl, its colour turned light pink. The light pink coloured solution in the bowl was put into a nip and said nip was sealed with seal "T". Nip was taken into possession vide Ext. PW-9/A. It was signed by him and Thakur ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 14 Dass Chauhan, Executive Engineer. Thereafter, IO asked the accused to produce the bribe money, which was kept by him in his left bottom pocket of the coat. Accused took out the bribe money .
from his pocket and handed over the same to the Investigating Officer. IO tallied the numbers of currency notes with the numbers noted in the memo which was prepared in the Police Station. Numbers were found to be the same. Currency notes were put into Khaki coloured envelope, which was put in a cloth parcel and parcel of was sealed with seal "T" at three places. Thereafter, pocket wash of the coat of accused was also undertaken. Colour of water in the rt bowl remained natural. Thereafter, IO added a pinch of Sodium Carbonate powder to the water and its colour turned light pink. The coloured water of pocket wash was put into a separate nip and nip was sealed with seal "T" at one place. Nip containing pocket wash and the coat were taken into possession vide memo Ext. PW-9/C, which was signed by him, witness and the accused. Sample seal was taken on a separate piece of cloth and seal was handed over to Jitender Singh. In his cross-examination, he deposed that he had executed 50 works at various sites. He admitted that firstly MB is prepared with regard to work. After that MB is submitted in the office of Assistant Engineer, where bill is prepared by the dealing clerk. He admitted that bill remained in possession of the clerk. After that, MB is sent to the Assistant Engineer for test check. During test check the Junior Engineer, Assistant Engineer and Executive Engineer remain present. He admitted that it was the ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 15 duty of the clerk to prepare the bill and place it before the Assistant Engineer. He also admitted that after verification of the bill, bill is further sent by dealing clerk to the office of Executive Engineer. He .
was accompanied by Jitender, when he went to the office of accused on the alleged date of occurrence. He remained in the office of the accused for about 15 minutes. When he inquired from the accused about his bill, then he demanded money from him, which he handed over to him. Police officials entered the room within 2-3 minutes of after handing over money by him to the accused.
15. PW-15 Bhupinder Singh, Additional Superintendent of rt Police testified that on 23.12.2009, complainant Dheeraj Kumar came to his office and got recorded FIR, Ext. PW-13/A. Thereafter, he conducted demonstration proceedings in the presence of Jitender Kumar and prepared demonstration memo Ext. PW-10/E. Thereafter, powders of Phenolphthalein and Sodium Carbonate were sealed in a separate piece of paper and put into two match boxes and match boxes were put in two separate parcels and sealed with seal "T" each and taken into possession vide memo Ext. PW-10/E. Thereafter, complainant Dheeraj Kumar produced currency notes of `1800/-, which was bribe money demanded by the accused. These currency notes were treated with Phenolphthalein powder and handed over to the Complainant Dheeraj Kumar. He was directed to hand over the same to the accused on his demand. Jitender Kumar was deputed as a shadow witness and he was directed to indicate to the police regarding receipt of the money by the accused by ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 16 moving his hand on his head. Currency notes of `1800/- were taken into possession and handed over after noting their numbers vide Ext. PW-10/B. Memo was signed by the complainant, shadow .
witness and Inspector Mohinder Kumar. Thereafter, a raiding party was formed. They proceeded to the office of the accused in a government vehicle. Raiding party took its position in the office of the accused, which was situated in the office of Chief Engineer, PWD, Mandi Zone, HP. On receiving signal from the shadow of witness, he alongwith other officials of the raiding party entered the office of the accused. Inspector Mohinder Kumar and Constable rt Brijesh Kumar caught the accused from his wrists. He went to the office of Chief Engineer, PWD and introduced himself. He asked for the witness of Gazetted Officer. Chief Engineer directed Shri Thakur Dass, Executive Engineer to become witness. Thereafter, he alongwith Thakur Dass went to the office of the accused. He briefed Thakur Dass about the case and got conducted the hand wash of the accused in a bowl. Water remained clear. Thereafter, a pinch of Sodium Carbonate was added to the said water which turned light pink in colour. Said solution of pink coloured water was poured into a nip and nip was sealed with seal "T". Nip was signed by the witnesses, Dheeraj Kumar, Jatinder Kumar, Thakur Dass Chauhan, Inspector Mohiner and accused. It was taken into possession vide Ext. PW-9/A. Thereafter, currency notes of `1800/- were recovered from the lower pocket of the accused. Numbers of notes were tallied with the numbers already recorded during the process of ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 17 demonstration. Coat of accused was also washed, from which currency notes were recovered. Site map was prepared. In his cross- examination, he has deposed that it took around 1 hour or quarter .
past one hour to complete the proceedings before proceeding to the office of the accused. He has not obtained any record pertaining to the telephonic calls between the accused and the complainant, from the office of BSNL. Complainant alone had gone to the office of the accused. Shadow witness Jitender was standing outside the office.
of He did not notice anyone going inside or coming out of the office of accused. He admitted that the office of the accused was in a thickly rt populated area. He admitted that the bill was passed on 22.12.2009 as per the statement of Senior Assistant Padam Dev.
16. Complainant was awarded the work of Court Complex regarding electrical fixtures vide agreement No. 47 of 2005-06, for a sum of `4,40,000/-. He received all the payments except for the final bill which was of `56,000/-. Bill was verified by Netar Singh, Junior Engineer on 25.11.2009. Thereafter, bill was lying with the accused. Accused demanded bribe money of `1800/-. PW-14 Dheeraj Kumar lodged a complaint with the SV & ACB Mangwain. FIR was registered. Demonstration was given. Raiding party was constituted. PW-10 Jitender Kumar was the shadow witness. Complainant entered the office of accused. He demanded bribe money. Money was handed over by the complainant to him. Thereafter, money was got recovered from the accused. ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 18
17. PW-14 Dheeraj Kumar has categorically deposed that the accused demanded bribe money. He has filed a complaint with the SV & ACB Mangwain. FIR Ext. PW-13/A was registered.
.
Demonstration was given in his presence. Jitender Kumar was associated as a shadow witness. Accused demanded bribe. He handed over a sum of `1800/- to him. Thereafter, Jitender Kumar signalled the police. Police entered the office of the accused. IO called Shri Thakur Dass, Executive Engineer from the office of Chief of Engineer, PWD, Central Zone, Mandi. Currency notes were handed over by the accused to the police officials. Investigating Officer rt tallied the numbers of the currency notes with the numbers noted in the memo which was prepared by the police. Memo was prepared. Pocket wash of the coat worn by accused was conducted by the Investigating Officer in a fibre bowl.
18. PW-10 Jitender has not supported the case of the prosecution. He was declared hostile and cross-examined by the learned Public Prosecutor. However, fact of the matter is that he has admitted his signatures on Exts. PW-10/A, PW-10/B, PW- 10/C, PW-9/A, PW-9/B and PW-9/C as well as on Ext. PW-10/E. He also admitted his signatures on Exts. PY and PZ. It is not believable that he signed blank papers as argued by the Mr. Rahul Verma, Advocate. He has not filed any complaint with the police that his signatures were obtained on blank papers. Statement of PW-14 Dheeraj Kumar is duly supported by PW-9 Thakur Dass, who was working as Executive Engineer in Chief Engineer's office, ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 19 Mandi. He testified that on 23.12.2009, at 2 PM, he was associated in the investigation by the police. Dy.SP Mandi came to him and asked to accompany him to the office of SDO. He accompanied .
Dy.SP to the office of the accused. He found the accused sitting in his office. His hands were caught by the police officials. Hands of accused were got washed in a fibre bowl with clean water from water bottle. After hand wash, colour remained natural. Thereafter on adding a pinch of Sodium Carbonate, colour changed to light pink.
of Coloured water was put in a nip. Nip was sealed with seal "T". Nip was taken into possession vide memo Ext. PW-9/A, which was rt signed by the complainant, witness, him and by the accused. Thereafter, accused took out the bribe money from bottom left pocket of coat. Currency was in the denominations of `1000, `500 and three notes of `100. Serial numbers of the currency notes were tallied with the numbers noted on the memo, which were found correct. Bottom left pocket of coat was washed with clean water. Colour of water remained natural. Thereafter, Dy.SP added a pinch of Sodium Carbonate to said water. The colour changed to light pink. PW-11 Rajinder Kumar Arora has also deposed that the final bill amounting to `64000/- approximately was pending with the department. PW-15 Bhupinder has deposed the manner in which complaint was received by them. FIR was registered. Thereafter, demonstration was given and raiding team was constituted. Accused has accepted bribe money of `1800/- from the complainant. Serial numbers of the currency notes tallied with the serial numbers noted ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 20 in the pre-trap memo. Case property was sent to RFSL Gutkar. Report of the RFSL is Ext. PW-15/C. According to the report, Phenolphthalein was detected in the contents of parcel Ext. P/1, .
Sodium Carbonate was detected in parcel Ext. P/2, Sodium Carbonate and Phenolphthalein were detected in parcels Ext. P/3 and P/4.
19. Sanction to prosecute the accused was granted vide Ext. PW-2/A. Prosecution has led tangible evidence to establish that of the accused has demanded bribe money from the complainant for passing his bill. It has come in the statement of PW-14 Dheeraj rt Kumar that the bill of `56,000/- was pending with the accused. accused was In-charge of the work and bill was pending with him. Ext. PW-4/B has been proved on record and MB has been proved as per the statement of PW-4 Padam Dev and PW-5 Netar Singh. Bribe money has been recovered in the presence of PW-9 Thakur Dass Chauhan, Executive Engineer. PW-9 Thakur Dass is an independent witness.
20. According to Mr. Verma, learned advocate for the accused, Vigilance Police wanted to get premises of the Police Station furnished with electrical appliances and due to this, accused has been falsely implicated. He has not made any complaint to his superiors, that the police has ever asked to fit electrical appliances in their premises. He has not given any explanation for accepting a sum of `1800/-. Recovery of tainted money, washing the hands of accused and washing of the pocket of coat of accused has been ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 21 proved by PW-9 Thakur Dass. Numbers of currency notes tallied with the number in pre-trap memo/Panchnama. Currency notes have been recovered from the accused. Accused has not lodged any .
complaint against his false implication. Accused has failed to pinpoint material contradiction in the statements of the witnesses and has also not led any evidence. Accused was required to rebut the presumption under charged sections.
21. Their lordships of the Hon'ble Supreme Court in State of of U.P. v. G.K. Ghosh reported in AIR 1984 SC 1453 have held that in case of an offence of demanding and accepting illegal rt gratification, depending on the circumstances of the case, the Court may feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the police officers even if the trap witnesses turn hostile or are found not to be independent. When besides such evidence there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case. Their lordships have held as under:
"11. It is now time to deal with the criticism urged as a matter of course in the context of the police officer leading the raiding party-namely that he is an interested witness. This is true, but only to an extent a very limited extent. He is interested in the success of the trap to ensure that a citizen, who complains of harassment by a Government officer making a demand for illegal gratification, is protected and the role of his department in the protection of such citizens is vindicated. Perhaps it can be contended that he is interested in the success of the trap so that his ego is satisfied or that he earns a feather in his cap. At the same time it must be realised that it is not frequently that a police officer, himself being a Government servant, would resort to perjury and concoct evidence in order to rope in an innocent Government servant. In the event of the Government servant concerned refusing to accept the currency notes offered by the complainant, it would not be reasonable to ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 22 except the police officer to go to the length of concocting a false seizure memo for prosecuting and humiliating him merely in order to save the face of the complainant, thereby compromising his own conscience. The court may therefore, depending on the circumstances of a case, feel safe in accepting the prosecution version on the basis of the oral evidence of the .
complainant and the police officers even if the trap witnesses turn hostile or are found not to be independent. When therefore besides such evidence there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case. The present appears to be a case of that nature. If the circumstantial evidence is of such a nature that it affords adequate corroboration to the prosecution case, as held by the learned Special Judge, the appeal must succeed. If on the other hand the circumstantial evidence is considered to be inadequate to buttress the oral testimony, the appeal of necessarily must fail."
22. Their lordships of the Hon'ble Supreme Court in Mukut Bihari & anr. V. State of Rajasthan reported in AIR 2012 SC 2270 rt have held that the presence of shadow witness in trap party is desirable but not must. Mere absence of such witness would not vitiate whole trap proceedings. Their lordships have held as under:
"14. So far as the instant case is concerned, the appellants had been working under the health department of the State of Rajasthan. No provision analogous to the paragraphs contained in Railway Vigilance Manual, applicable in the health department of the State of Rajasthan at the relevant time had been brought to the notice of the courts below, nor had been produced before us.
Therefore, it can be held that it is always desirable to have a shadow witness in the trap party but mere absence of such a witness would not vitiate the whole trap proceedings."
23. Their lordships of the Hon'ble Supreme Court in Devraj v. State of Chhattisgarh reported in AIR Weekly 2016 SC 3498 have held that the evidence of a witness who has been declared hostile can be relied if there are some other material on record on the basis of which said evidence can be corroborated. Their lordships have held as under:
"19. The evidence of a witness who has been declared hostile can be relied if there are some other material on the basis of ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP 23 which said evidence can be corroborated. More so, that part of evidence of a witness as contained in examination-in-chief, which remains unshaken even after cross- examination, is fully reliable even though the witness has been declared hostile."
24. Accused has demanded and accepted the bribe money .
from the complainant, PW-14 Dheeraj Kumar. Tainted currency notes were recovered from the possession of the accused. Numbers and denominations of the recovered currency notes matched with those mentioned in the pre-trap Panchnama. Traces of Sodium of Carbonate and Phenolphthalein were found in Exts. P/1 to P/4.
25. In view of the discussion made herein above, the prosecution has duly proved its case against the accused for rt demanding and accepting illegal gratification of `1800/- from the complainant, Dheeraj Kumar, PW-14 for passing his bill in discharge of his official functions. Thus, he committed an offence punishable under Sections 7 and 13((1)(d) of the Prevention of Corruption Act, 1988.
26. Accordingly, there is no merit in the appeal and the same is dismissed. Pending applications, if any, are also disposed of. Bail bonds of the accused are cancelled.
(Rajiv Sharma) Judge August 24, 2016 (vikrant) ::: Downloaded on - 15/04/2017 21:04:47 :::HCHP