Himachal Pradesh High Court
Ram Rattan vs State Of H.P on 26 March, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 48 of 2013 .
Reserved on : 21.3.2015 Decided on: 26.3. 2015 ______________________________________________________ Ram Rattan. ...Appellant Versus State of H.P. ...Respondent.
______________________________________________________________ Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting?1 Yes For the Appellant : Mr. Anoop Chitkara, Advocate vice Mr. J.R. Poshwal, Advocate.
For the Respondent : Mr. Neeraj K. Sharma, Dy. A.G. ____________________________________________________________ Per Justice Rajiv Sharma, Judge.
This appeal is instituted against the judgment dated 22.2.2013 rendered by the Special Judge, Solan in Corruption Case No. 1-S/7 of 2012, whereby the appellant-accused (hereinafter referred to as the "accused" for convenience sake), who was charged with and tried for offence punishable under section 7 and 13 (2) of the Prevention of Corruption Act (hereinafter referred to as 'Act'), has been convicted and sentenced to 1 Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 2 undergo rigorous imprisonment for one year and to pay a fine of Rs.10,000/- and in default of payment of fine, to .
undergo further imprisonment for two months under Section 7 of the Act and he was also convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.20,000/- and in default of payment of fine to undergo imprisonment for six months under Section 13 (2) of the Act.
2. Case of the prosecution, in a nutshell, is that son of PW-1 Surender Singh was injured by one Mohan Singh by firing a gunshot in his leg. Mohan Singh used to threaten the complainant and his family members. In order to safeguard himself and his family members, complainant wanted to have a revolver and for this purpose, he was required to know handling of the fire arm. The complainant came to know that Commander Home Guard will give certificate to this effect. Thus on 9.5.2011, he visited the office of the Accused at Nalagarh alongwith application Ext. PG. The complainant was told by the accused that he would issue certificate to him subject to some 'Sewa Paani'. Complainant assured the accused to do his work and that he would see this aspect.
::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 3On 11.5.2011, complainant contacted the accused on telephone. The accused told him that his work has been .
done. He demanded Rs.1,000/-. Complainant told accused that he would come to his office on 13.5.2011.
Complainant did not want to give bribe. He was told on 13.5.2011 by some person to report the matter to vigilance officials. He was told that Vigilance Officers were present in the rest house. He went to the rest house alongwith PW-2 Amarjeet and PW-3 Dhiraj Kumar. He met PW-3 Ramesh Sharma, the then Deputy S.P., SV & ACB Solan. He handed over the application /complaint Ext. PA to him. He after, making endorsement, sent the same to the police station through PW-6 HHC Balbir Singh. FIR Ext. PW-10/A was registered by PW-10 Inspector Deep Ram. The raiding party was constituted.
Complainant Surender Singh produced two currency notes each of Rs.500/- denomination to the police through PW-2 Amarjeet Singh. The currency notes were treated with Phenolphthalein powder. The same were handed over to Amarjeet. He put the currency notes in the pocket of the shirt of the complainant. Amarjeet Singh was directed to dip his fingers in a solution of sodium ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 4 carbonate and its colour changed to pink. PW-2 Amarjeet was asked to remain in close vicinity of the complainant .
and to give signal to the trap party after the bribe money was given to the accused by the complainant. Pre-
demonstration memo Ext. PB was prepared. The members of the trap party proceeded to the office of accused and they reached there at 5.15 pm. Complainant and shadow witness PW-2 Amarjeet Singh went ahead, whereas remaining members of the trap party remained behind.
The complainant met the accused outside his office. The office was locked. The complainant enquired from the accused about his work. Accused replied that it has been done. Thereafter, accused handed over certificate Ext. PE to the complainant. He handed over Rs.1000/- to the accused. He put the currency notes in a diary on which signal was given by the complainant to the shadow witness and he further gave signal to the remaining members of the trap party. The Vigilance Officials arrested the accused. The key of office room of the accused was procured from Home Guard personnel and office room was got opened. Thereafter, the hand wash of the accused was conducted with plain water in a plate, whose colour ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 5 did not change. Thereafter, solution of Sodium Carbonate was prepared in a separate glass which was mixed with .
the hand wash of the accused and it turned to light pink in colour. The solution so prepared was put in a glass nip, which was packed and sealed with seal impression "Y"
and was sealed vide memo Ext. PC. Impression of seal was taken separately vide Ext. P3. Numbers of currency notes were tallied. Complainant produced certificate Ext.
PE which was seized vide memo Ext. PF and application Ext. PG was seized vide memo Ext. PH alongwith diary Ext. P1. Site plan was prepared. The case property alongwith sample seal was deposited with PW-7 Anil Kumar. He made entry in the Malkhana Register vide Ext.
PW7/A. The sealed nip alongwith sample seal was forwarded to the State Forensic Science Laboratory, Junga through constable PW-11 Krishan Lal vide RC Ext.
PW-7/B. Admitted handwriting Ext. PW-9/F to Ext. PW-
9/P of the accused was obtained from the record of the office from Ramanand Kashyap vide letter Ext. PW-13/D. The specimen signature, Ext. PW-9/B to Ext. PW-9/E of accused were obtained in the presence of JMIC Solan. The report of FSL Junga is Ext. PW-9/Q. The police completed ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 6 the investigation and challan was put up in the Court after completing all the codal formalities.
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3. Prosecution examined as many as 16 witnesses in all to prove its case against the accused.
Statement of accused under Section 313 Cr.P.C. was recorded. He has admitted that complainant visited his office on 9.5.2011, as he was posted as Company Commander in Home Guards, Nalagarh. Complainant visited with application Ext. PG for the purpose of obtaining a certificate. He told him that he can not give any such certificate. Therefore, he did not entertain the application. He has denied that he has demanded and accepted Rs.1000/- from the complainant. Learned trial Court convicted and sentenced the accused, as noticed hereinabove.
4. Mr. Anoop Chitkara, learned counsel for the accused has vehemently argued that the prosecution has failed to prove its case against the accused.
5. Mr. Neeraj K. Sharma, Deputy Advocate General, has supported the judgment of conviction passed by the trial Court.
::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 76. I have heard the learned counsel for the parties and have gone through the record meticulously.
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7. PW-1 Surender Singh is the complainant. He has testified that Mohan Singh used to threaten him and members of his family. He used to demand Rs.15.00 Lakh. Mohan Singh had fired at his son and injured his leg. In order to safeguard his body and the members of his family, he wanted to have a revolver. He was told that he should be knowing the handling of the arms. In this connection, he came to know that the Commandant Home Guards would give a certificate to this effect. On 9.5.2011, he visited the office of the accused alongwith application Ext. PG. Accused told him that he would do it subject to some 'Sewa Pani'. He told him to do the work and he would see this aspect. Thereafter he contacted the accused on telephone on 13.5.2011. The accused told him that his work has been done and asked him to bring Rs.1,000/-. He told him that he would come on 13.5.2011. He wrote an application and went to the rest house alongwith Amarjeet and Dheeraj Kumar. He handed over the application to the DY.SP. He handed over two currency notes of Rs.500/- denomination each to ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 8 Amarjeet Singh, who further gave these notes to the police. The Police noted down the serial numbers of the .
currency notes. Pre-trap demonstration was given. Police instructed him to give a signal by raising his hand over his head after delivery of the currency notes to the accused. When he reached near the office of the accused, he was found standing outside his office. His office room was locked. He went to the accused. When he enquired from the accused about his work, he told that it has been done. The accused gave him certificate after taking it out from the diary. Then he read the certificate and gave him Rs.1,000/-. Accused had also made a demand on 13.5.2011. He had given the money after the demand by the accused. The accused had taken the currency notes in his hands. Thereafter, he put those currency notes in the diary and then he had given the assigned signal. The police raiding party appeared and caught hold of the accused from his wrists. Thereafter, the police told the accused to open his office room. It was got opened after taking the telephone number from the accused of some Home Guard, who came and opened the lock. The police have taken into possession currency notes, which were ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 9 delivered by the accused to the police after taking the same from his diary. Police compared the serial numbers .
of these currency notes. In his cross-examination, he has admitted that Ext. PG was got written by him at Nalagarh.
He has categorically admitted that he has not mentioned in Ext. PG that he wanted a certificate to the effect that he knows handling of weapons and maintaining the same.
Ext. PA was also written by some other person.
8. PW-2 Amarjeet has deposed that no proceedings have taken place in his presence in the rest house. He was declared hostile and cross-examined by the learned Public Prosecutor. He did not know that Surender Singh in order to obtain certificate had approached accused, who was a Company Commander. He has denied that Surender Singh had given two currency notes of Rs.
500/- denomination to the Police through him. He has denied that police have obtained his handwash with plain water in a glass tumbler and put some powder, but its colour did not change. He has denied that currency notes were treated with another powder and serial numbers of the currency notes were noted down. He has denied that Police had given him treated currency notes for putting in ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 10 the pocket of shirt of the accused. He has also denied that his hands were got immersed in the already prepared .
solution in a glass tumbler. He had denied that the colour changed to pink. He has denied that he was given instructions to remain close to the complainant and accused and to witness the occurrence and also to hear the conversation. He has admitted his signatures Ext. PB.
He has also denied that he had accompanied Surender Singh and thereafter to the office of the accused. He has also denied that accused met them outside his office. He has denied his presence there. He has also denied that there was some talk between Surender Singh and the accused and accused handed over him certificate after taking the same from his diary. He has also denied that they were directed by the police to give signal after handing over the money to accused. He has also denied that police officials immediately came there and caught hold of accused. He has also denied that solution with some other powder was prepared separately in a glass and when two solutions were mixed, the colour changed to pink. He has also denied that the same was put in a nip.
He has denied his signature Ext. P2. He has denied that ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 11 Ext. PC was prepared in his presence though he has signed at point 'B'. He has denied that accused handed .
over two currency notes of Rs. 500/- denomination from his diary, numbers of which tallied with the numbers already noted down. He has admitted his signatures Ext.
P1. He has admitted that sample seal Ext. P3 bears his signatures. He has also admitted that memo Ext. PD bears his signatures. According to him, the same was not prepared by the police in his presence. He has denied that Surender Singh handed over the certificate Ext. PE to the police in his presence through memo Ext. PF.
9. PW-3 Dheeraj Kumar has also not supported the case of the Prosecution. He was declared hostile. He was cross-examined by the learned Public Prosecutor. His statement is on the same and similar lines as made by PW-2 Amarjeet.
10. PW-4 Raj Kumar has deposed that he went to the Superintendent of Division, where Vigilance official was sitting. He was directed by the Superintendent to go alongwith the Vigilance officials. He was taken to the office of Home Guards in a vehicle. He saw that Vigilance police has caught hold of the accused outside the office of ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 12 the Company Commander of the Home Guards.
Thereafter, the room of the office of accused was got .
opened by the Vigilance police. Accused was taken inside.
The hands of accused were got washed in a plate with plain water. The colour of which remained clear.
Thereafter, a powder was put in a glass alongwith some water. The hands of accused were washed with the solution of glass tumbler. Solution of glass tumbler put in the hand was drained in the plate and colour of mixture changed to red. The mixture was taken in a nip, which was packed with seal impression "Y". His signatures were taken on a nip Ext. P3. The numbers of currency notes were tallied. The notes Ext. P5 and Ext. P6 were the same.
11, PW-5 Bhag Singh has deposed that he was working as a Clerk. Ext. PE was in his handwriting and bears signatures of Ram Rattan accused, in circle 'A'. In his cross-examination, he has deposed that Surender Singh had come again after two three days for the certificate but the accused had told him that he has no such powers to issue certificate. Surender Singh got annoyed and left the office.
12. Statement of PW-6 is formal in nature.
::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 1313. PW-7 Anil Kumar, on 16.5.2011, delivered the sealed nip to Krishan Lal for its onward delivery to FSL .
vide RC No. 14/11. On 5.7.2011, report of FSL was received by head constable Yog Raj.
14. Statement of PW-8 Yograj is formal in nature.
15. PW-9 Dr. Jagjit Singh has proved Ext. PW-9/B to Ext. PW-9/Q. In his cross-examination, he has admitted that he has given the reasons Ext. PW-9/R for the first time in the court.
16. rStatements of PW-10 Inspector Deep Ram, PW-11 Krishan Lal, PW-12, Madan Lal and PW-13, Pawan Kumar, are formal in nature.
17. PW-14 Ramanand Kashyap has supplied the record containing admitted handwriting of Ram Rattan vide Ext. PW-9/F to Ext. PW-9/P.
18. PW-15 Inspector Hari Ram has deposed that complainant Surender Singh alongwith Amarjeet and Dheeraj Kumar came to PWD rest house. He lodged complaint against Ram Rattan. Thereafter, Ramesh Kumar DY.S.P. gave pre-trap demonstration. He has also deposed the manner, in which currency notes were treated with Phenolphthalein powder and handed over to ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 14 Amarjeet. He put those currency notes in the left pocket of the shirt of Surender Singh. The fingers of Amarjeet were .
got washed in the solution of Sodium Carbonate and the colour of solution turned pink. The complainant was instructed to give signal to shadow witness Amarjeet, after the bribe was given to the accused. The complainant and shadow witness were sent ahead and rest of the witnesses followed them. When they reached near the office of accused, they found him standing outside his office. The complainant was standing besides him and after some time at about 5.15 pm, shadow witness gave signal and thereafter, SI Naresh Kumar and HHC Karam Chand caught hold of the accused from his wrists. He asked the accused for the keys of the office room of the accused, who gave him telephone number of one Home guard personnel. The key was obtained and the office of the accused was got opened. Thereafter, the hands of the accused got washed with plain water in a plate whose colour did not change and thereafter a solution of sodium carbonate was prepared in a glass tumbler. This solution was mixed with the hand wash in the plate. It turned into light pink which was taken in a glass nip packed and ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 15 sealed with seal impression "Y". In his cross-examination he has admitted that there are many residential houses .
near the office of the accused. The office of PWD official who was joined in the investigation was at a distance of 1½ k.m. from the office of accused. No person was joined from the residential houses near the house of the accused. The statement of the home guard jawan, who had allegedly brought the keys was not recorded nor he knew his name. He did not remember his telephone number on which he informed nor he made any note of it anywhere in the investigation. He has admitted in his cross-examination that in the statements of SI Naresh Kumar and Head Constable Karam Chand under Section 161 Cr.P.C., there was a mention that key of the office of the accused was taken from the accused himself. They reached the office of the accused at 5 p.m. He has admitted that the office time of the accused was 10 a.m. to 5 p.m. He has admitted that certificate Ext. PE did not bear any diary number. PW-16 Ramesh Sharma has deposed that Surender Singh along with two other persons Amarjit and Dheeraj came to rest house Nalagarh and gave a written complaint Ext. PA. Thereafter, a ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 16 raiding team was constituted. In his cross-examination, he has admitted that no separate memo of hand wash of .
raiding party was prepared. He did not preserve the hand wash solution of pre-trap demonstration. He has admitted that he has not mentioned in pre-trap memo Ex.PB that Amarjeet shadow witness would see and hear everything between Surender and accused. He has also admitted that it has been recorded in statement under section 161 of the Code of Criminal Procedure that he came to know at about 4.30 P.M. that the accused had been taken into custody in trap case. He did not know at what distance the office of the accused was situated from the Rest House. He did not know from whom Surender Singh got the application Ex.PA written.
19. Case of the prosecution, in a nutshell, is that complainant Surender wanted to have a revolver and for that purpose it was required that he should know handling of the fire arm. He moved an application Ex.PG before the accused on 9.5.2011. He contacted the accused on 11.5.2011. The accused demanded a sum of Rs. 1000/- from the complainant. He told that he would visit his office on 13.5.2011. Thereafter, raiding party was ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 17 constituted. Accused was apprehended and the money was seized.
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20. According to PW-1 Surender Singh, every thing has happened in presence of PW-2 Amarjeet and PW-3 Dheeraj Kumar. The Court has already noticed that neither PW-2 Amarjeet nor PW-3 Dheeraj Kumar has supported the case of prosecution. They were cross-
examined by the learned Public Prosecutor. PW-2 Amarjeet, in his cross-examination by the Public Prosecutor has deposed that Surender had not told him that accused had demanded Rs. 1000/- for the issuance of certificate. He has denied that Surender had given two currency notes of Rs. 500/- denomination to police through him. He has also denied that he had accompanied Surender to the office of the accused.
Similarly, PW-3 Dheeraj Kumar has denied that Surender had told him that accused has demanded Rs. 1000/- for the issuance of certificate. He has also denied that Surender had given two currency notes of Rs. 500/-
denomination to police through Amarjeet. He has also denied that police had obtained hand wash of Amarjeet with plain water in a glass tumbler and put some powder ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 18 but its colour did not change. He has also denied that police had given treated currency notes to Amarjeet for .
putting the same in the pocket of the shirt of the complainant. He has denied that he was given instructions to remain closer to the complainant and accused and to witness the occurrence and also to hear the conversation. He has denied that accused met them outside his office. He has also denied that accused demanded Rs. 1000/- from Surender which was handed over by Surender to him and was put by the accused in his diary.
21. PW-4 Raj Kumar has deposed that he saw that Vigilances Police had caught hold of the accused outside the office of the Company Commander of the Home Guard. Thereafter, the room of the office of the accused was got opened by the Vigilance Police. The accused was taken inside. PW-5 Bhag Singh has deposed that accused told the complainant that he had no power/authority to issue certificate. The accused got annoyed and left the office. PW-9 Dr. Jagjeet Singh has proved report Ex.PW-9/Q. PW-15 Inspector Hari Ram has deposed that when they reached near the office of the ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 19 accused, they found him standing outside his office and complainant was standing besides him. After sometime at .
about 5.15 P.M. shadow witness gave signal and thereafter SI Naresh Kumar and HHC Karam Chand caught hold of the accused from his wrists. He has also deposed that he asked the accused for the key of his office, who gave him a telephone number of one Home Guard Personnel. The key was obtained and the office room of the accused was got opened and thereafter the hands of the accused were got washed with plain water in a plate whose colour did not change. In his cross-
examination, he has admitted that in the statements of SI Naresh Kumar and HC Karam Chand under section 161 of the Code of Criminal Procedure, there is a mention that the key of the office of the accused was taken from the accused. PW-15 has also admitted that the office time of the accused was 10.00 A.M.to 5.00 P.M. PW-16 Ramesh Sharma has admitted that he has not mentioned in pre-
trap memo Ex.PB that Amarjeet shadow witness would see and hear everything between Surender and accused.
According to PW-1 Surender Singh and PW-15 Hari Ram accused gave telephone number of Home Guard Personnel ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 20 and thereafter, key was obtained and the office room of accused was got opened. The hands of the accused were .
got washed with plain water in a plate. However, PW-15 Hari Ram, in his cross-examination, as noticed hereinabove, has admitted that statement of the home guard jawan, who had allegedly brought the key was not recorded. He did not remember his telephone number on which he was informed to come nor he made any note of it anywhere in the investigation record. It has also come in the statement of PW-15 Hari Ram that as per the statements of Naresh Kumar and Karam Chand under section 161 Cr.P.C., the key of the office of accused were taken from the accused and thereafter the office was opened. Thus, there are contradictions in the statements of the material witnesses at what time the door was opened and who opened the door.
22. Case of the prosecution, in a nutshell, is that the accused demanded Rs. 1000/- from the complainant for the issuance of certificate. There is a detailed procedure the manner in which the arms licence is to be issued under the Arms Act, 1959. Section 13 of the Arms Act, 1959 provides that an application for the grant of a ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 21 licence shall be made to the licensing authority and shall be in such form, contain such particulars and be .
accompanied by such fee, if any, as may be prescribed. It is further prescribed that on receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application and such officer shall send his report within the prescribed time. Rule 51 of the Arms Rules, 1962 provides that every application shall be submitted in form 'A'. In form 'A', column No.6, prepared under rule 51 of the Arms Rules, 1962, it is written as "nearest police station" and not the Commandant of the Home Guards. The accused had already told the complainant that he has no authority/power to issue certificate as his defence has been supported by PW-5 Bhag Singh. PW-5 Bhag Singh has admitted that accused had told the complainant that he has no power to issue certificate.
23. Mr. Neeraj Sharma, learned Deputy Advocate General has vehemently argued that certificate Ex.PE was issued by the accused. The Court has seen Ex.PE, but there is no diary number on it. PW-15 Hari Ram has admitted that certificate Ext. PE did not bear any diary ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 22 number. PW-9 Dr. Jagjeet Singh should have given his reasons at the time of preparing the report Ex.PW-9/Q. .
He has submitted the reasons only in the court while appearing as PW-9 vide Ex.PW-9/R. The prosecution has also not examined any independent witness though there were residential houses near the place where the accused was allegedly apprehended. Thus, the place neither was isolated nor secluded. Mr. Neeraj Sharma has also argued that the currency notes were recovered from the possession of the accused.
24. Their Lordships of the Hon'ble Supreme Court in Suraj Mal vs. The State (Delhi Administration), AIR 1979 SC 1408 have held that mere recovery of money from accused is not sufficient. Their Lordships have held as under:
"2. The defence of the appellant was that he was falsely implicated and nothing was recovered from him nor did he make any demand for bribe. The Special Judge on the basis of the evidence led before the Court held that the evidence was extremely shaky and unconvincing and was not sufficient to convict Ram Narain but nevertheless the trial court convicted the appellant on that very evidence. In upholding the conviction of the appellant the High Court completely overlooked the fact that the very evidence on which the conviction of the appellant was based, had been rejected with respect to the same transaction and thus if one integral part of the story given by witnesses was not believable, then the entire ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 23 case failed. In other words, the position was that while P.Ws. 6, 8 and 9 were disbelieved both in regard to the factum of payment of the bribe and the recovery of the money, regarding .
Ram Narain, the very same witnesses were believed so far as the appellant was concerned. It is well settled that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses. For these reasons, therefore, when the Special Judge disbelieved the evidence of P.Ws. 6, 8 and 9 in regard to the complicity of Ram Narain, it was not open to him to have convicted the appellant on the same evidence with respect to the appellant, which suffered from same infirmities for which the said evidence was disbelieved regarding the complicity of Ram Narain. If the witnesses drew no distinction in the examination-in-chief regarding acceptance of bribe by Ram Narain and by the appellant and the witnesses were to be disbelieved with respect to one, they could not be believed with respect to the other. In other words, the evidence of witnesses against Ram Narain and the appellant was inseparable and indivisible. Moreover, there is an additional circumstance which throws a serious doubt on the complicity of the appellant Suraj Mal. Although, in his statement at p. 71 of the paper-book, the complainant has clearly stated that all the three accused including the appellant had met him and demanded bribe of Rs. 2,000, the appellant having demanded Rs. 100, yet in the report which he lodged before Mr. Katoch, there is no mention of the fact that the appellant at any time demanded any bribe at all. Even the presence of the appellant at the time when the demand was made by Devender Singh has not been mentioned, in this document. This report, undoubtedly contains reference to a demand having been made by the S.H.O. Devender Singh on behalf of the appellant, but there is no statement in this report that any demand was made by Suraj Mal directly from the complainant. If, in fact, the appellant would have demanded bribe from the complainant just on the previous evening, it is not understandable why this ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 24 fact was not mentioned in the report which the complainant submitted to the D.S.P. Katoch and which is the F.I.R. constituting the evidence. We have perused the statements of .
P.Ws. 6, 8 and 9 and we find that while in the examination-in-
chief they have tried to implicate all the three accused persons equally without any distinction, in their cross-examination, they have tried to save Ram Narain and made out a different story so far as Ram Narain is concerned and have even gone to the extent of stating that he did not demand any money and that he refused to accept the money which was offered to him. In this state of the evidence, we feel that the High Court was not right in convicting the appellant. Mr. Lalit appearing for the State vehemently submitted that whatever be the nature of the evidence in the case, it is an established fact that money had been recovered from the bush-shirt of the appellant and that by itself is sufficient for the conviction of the accused. In our opinion, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Moreover, the appellant in his statement under S. 342 has denied the recovery of the money and has stated that he had been falsely implicated. The High Court was wrong in holding that the appellant had admitted either the payment of money or recovery of the same as this fact is specifically denied by the appellant in his statement under S. 342 Cr. P. C. Thus mere recovery by itself cannot prove the charge of the prosecution against the appellant, in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money. For these reasons, therefore, we are satisfied that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt. We, therefore, allow the appeal set aside the conviction and sentences passed against the appellant. The appellant will now be discharged from his bail bonds."
25. Consequently, in view of analysis and discussion made hereinabove, the prosecution has failed ::: Downloaded on - 15/04/2017 17:53:35 :::HCHP 25 to prove the case for the offence alleged against the accused beyond reasonable doubt against the accused.
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26. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 22.2.2013 rendered in Corruption Case No. 1-S/7 of 2012 is set aside. Accused is acquitted of the charge framed against him by giving him benefit of doubt. Fine amount, if already deposited, be refunded to the accused. Bail bonds are discharged.
r (Justice Rajiv Sharma)
Judge
26 .3.2015
*awasthi*
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