Himachal Pradesh High Court
Baldev Singh vs State Of H.P on 22 March, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 457 of 2011.
Reserved on: March 21, 2016.
Decided on: March 22, 2016.
.
Baldev Singh ......Appellant.
Versus
State of H.P. .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? 1 Yes.
of
For the appellant: Mr. Satyen Vaidya, Sr. Advocate, with Mr. Vivek Sharma,
Advocate, for the appellant.
For the respondent: Mr. Neeraj K. Sharma, Dy. AG.
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Justice Rajiv Sharma, J.
rt This appeal is instituted against the judgment dated 28.11.2011, rendered by the learned Special Judge (Forests), Shimla, H.P., in Corruption Case No. 4-S/7 of 2010, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 was convicted and sentenced to suffer imprisonment for one year and to pay fine of Rs. 10,000/- and in default of payment of fine to further undergo simple imprisonment for six months.
2. The case of the prosecution, in a nut shell, is that on 8.10.2009, Sanjay Sharma (PW-7) made a complaint to Vigilance to the effect that Baldev Thakur, SHO Bhawarna had demanded Rs. 15,000/- for assisting him in his bail. He paid him Rs. 10,000/- on 24.9.2009 and remaining amount was to be paid after the matter was over in the High Court on 8.10.2009. He did not want to give him the money. The SHO 1 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:58:18 :::HCHP 2recorded the FIR and obtained from the complainant, 10 currency notes of 500 denomination bearing No. 9BA 991271 to 991280 and the same were .
treated with phenolphthalein powder and given to him. A demonstration was given about the reaction of sodium carbonate and the phenolphthalein and when mixed, mixture turned pink. The currency note numbers were also recorded in a memo. The trap party came to the High Court on confirmation of bail by the High Court on 8.10.2009 when complainant of Sanjay Sharma gave Rs. 5000/- on demand being made by Baldev Thakur, SHO Bhawarna near High Court parking. When he was caught by rt vigilance officials from his shoulder, he threw the money into the bushes.
The hands of the accused were washed firstly with plain water and thereafter sodium carbonate mixture was added and the mixture turned pink. The mixture was put in a nip and sealed. Accused Baldev Thakur was asked to pick up the currency notes which were lying in the bushes and seized. The hands were again got washed as aforesaid procedure and mixture turned pink. The hand wash was put in a nip and sealed. The I.O. prepared the site plan and recorded the statements of the witnesses.
The hand wash nips were sent to the FSL, Junga and on analysis, the nips contained traces of sodium carbonate and phenolphthalein. The investigation was completed and the challan was put up after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 8 witnesses. The accused was also examined under Section 313 Cr.P.C. He denied to have demanded any money from the complainant and when case was registered against him, he was asked to produce the vehicle ::: Downloaded on - 15/04/2017 19:58:18 :::HCHP 3 which he was not doing. He had opposed his bail application in the High court even on 8.10.2009. No money was given to him on 8.10.2009 and .
complainant tried to thrust money into his pocket to which he resisted and he threw away the money. His hand wash was obtained but its colour was not shown to him. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal.
4. Mr. Satyen Vaidya, Sr. Advocate, has vehemently argued that of the prosecution has failed to prove its case against the accused. On the other hand, Mr. Neeraj K. Sharma, Dy. Advocate General has supported rt the judgment of the learned trial Court dated 28.11.2011.
5. I have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully.
6. PW-1 Dheeraj Lagwal deposed that on 8.10.2009, he alongwith Karan and Sanjay Sharma had come to Shimla and went to the office of Vigilance, where Sanjay Sharma lodged complaint. Sanjay Sharma told the police that accused Baldev Thakur SHO had demanded money from him.
Naratta Ram Inspector gave demonstration. They were 4-5 officials in civil dress. Sanjay produced 10 currency notes of Rs. 500/- denomination and they were treated with one power. Demonstration memorandum Ext. PW-
1/A was prepared. He identified his signatures on the memorandum.
These were treated with powder. Memorandum was prepared vide Ext.
PW-1/B. The currency notes, so treated were handed over to Sanjay, who put those notes in his left pocket of the pants. He was directed to hand over the same when demanded by SHO Baldev. He alongwith Sanjay Sharma and Karan Pathania came in their vehicle to High Court. There ::: Downloaded on - 15/04/2017 19:58:18 :::HCHP 4 was one official of the vigilance in civil dress. He remained with him inside the Court and also outside. The case was listed for hearing in the Court .
No. V. At about 11:15 AM, the court had passed the bail order in favour of Sanjay. Accused Baldev Thakur, SHO Bhawarna was present in the Court.
He met Sanjay Sharma, complainant outside the Court and told him that the work had been done. Accused had demanded money and Sanjay had told him that he had kept money in the vehicle and he should meet him in of the High Court Parking. Sanjay and accused proceeded on the road near High Court parking and at some distance Sanjay Sharma handed over rt money to Baldev who put the money in his pant pocket. He was following Sanjay and behind him, two vigilance officials were present. As soon as money was put in the right pocket of the pants by accused Baldev Thakur, he gave signal by putting his hand on head and immediately, two officials who were following him caught hold of Baldev Thakur, SHO Bhawarna from his shoulders. Accused Baldev took out the money from his pocket and threw the same into the bushes near the parking. Within 2-3 minutes Naratta Ram came there. Accused told Naratta Ram that he had thrown away money down into the bushes. Naratta Ram requisitioned one plate and jug from the parking canteen alongwith water. The hands of accused were got washed and water did not change. Sealing proceedings were completed on the spot. Accused Baldev got recovered currency notes from the bushes and the notes were handed over to I.O. Naratta Ram. The notes were seized vide memo Ext. PW-1/D. These were put in envelope and sealed with seal impression A-4. Out of the envelope, ten currency notes of Rs. 500/- denomination were found. The currency notes were the same ::: Downloaded on - 15/04/2017 19:58:18 :::HCHP 5 which were recovered. The proof of the currency notes was tallied with the pre-raid memo Ext. PW-1/D. The number tallied. In his cross-
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examination, he categorically testified that they had reached Shimla in the evening and at 7:00 AM, they had lodged the report. Money was demanded within his hearing range in the High Court complex. He apprised the police that money was demanded in his presence in the High Court complex. The police had told him to give agreed signal by placing his hand of on his head. Sanjay gave him signal and thereafter he gave signal to the police. He was present in the Court No. V when the bail was allowed. He rt admitted that the bail was opposed by the accused and he filed reply Ext.
DB. On 8.10.2009 the wife of accused was already on bail.
7. PW-2 Charan Singh deposed that complainant Sanjay Sharma reached the office at about 7:30 AM alongwith Karan Pathania and Dheeraj Lagwal. In his presence complainant Sanjay Sharma told Naratta Ram that Baldev Thakur, SHO Bhawarna demanded Rs. 5,000/-. Naratta Ram obtained from complainant Rs. 5000/- in the denomination of Rs. 500/-
each. The same were treated with phenolphthalein powder. The numbers of the notes were taken down separately. Dheeraj Lagwal was appointed as shadow witness with the direction that when the bribe was demanded, he would give signal to the party. At a distance of 50-60 feet from High Court parking, the shadow witness gave signal. Immediately thereafter, he caught Baldev Thakur from his left shoulder and Ashok Kumar caught him from his right shoulder. The accused threw away the money. Insp.
Naratta Ram deputed one Constable Chander Shekhar to bring one plate and jug from the canteen. The canteen was at a distance of 50-80 feet.
::: Downloaded on - 15/04/2017 19:58:18 :::HCHP 6Chander Shekhar brought jug and plate and hands of accused were got washed with clean water. That was put in a glass. In another glass, .
mixture of sodium bicarbonate was mixed. Naratta Ram asked the accused to pick up the currency notes. Thereafter, his hands were got washed. The mixture was put in a nip and sealed with seal "T". The currency notes were taken into possession. In his cross-examination, he admitted that their office is situated in thickly populated area in Khalini.
of Sanjay, Karan Pathania and Dheeraj had come together in the Police Station. The FIR was lodged after Naratta Ram had reached there. The rt complainant had only informed that only Rs. 5000/- was demanded and no other demand was made. The complainant had not disclosed that he had made any payment to the accused. The demonstration was given by Naratta Ram. They had not seen either demanding the money or receiving the same.
8. PW-3 MHC Dayawati deposed that she was posted as MHC in Police Station SV & ACB, Shimla since 2008. On 8.10.2009, Insp. Naratta Ram deposited with her demonstration nip including specimen impression of seal "D" and one nip hand wash after recovery alongwith specimen seal impression seal "T", hand wash nip after recovery sealed with seal "T", one pants in a packet sealed with seal "T", one envelope alleged to be containing currency notes sealed with seal "T", one pants wash nip sealed with seal "T". She made entry in the malkhana register. On 16.10.2009, through Const. Om Prakash, the same were sent to FSL, Junga vide RC No. 43/09 dated 16.10.2009.
::: Downloaded on - 15/04/2017 19:58:18 :::HCHP 79. PW-4 Const. Om Prakash has taken the case property to FSL, Junga.
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10. PW-7 Sanjay Sharma testified that he alongwith Dheeraj Lagwal and Karan Pathania had come from Dharamshala and reached at Shimla at about 7:00 AM. They went to Khalini Vigilance Police Station.
At about 8:00 AM, SHO Amar Singh and two other officials reached there.
He told Amar Singh that at PS Bhawarna, a case was registered against of him and I.O. Baldev Thakur had demanded Rs. 15,000/- for facilitating his bail. The bail was listed before the High Court on 8.10.2009. He had paid rt Rs. 10,000/- to Baldev Thakur, SHO Bhawarna at his residence and remaining Rs. 5000/- were to be paid after confirmation of bail by the High Court. The FIR was recorded vide Ext. PW-5/A. He went in the Court room in the High Court and one vigilance official was with him. Dheeraj Lagwal and Karan Pathania were also in the Court. Baldev was also present in the Court. The High Court confirmed his bail at about 11:00 AM. When he and Baldev Thakur came out of the Court room, Baldev Thakur told him that he had kept money in the vehicle parked in the High Court parking and there he will make the payment. Accused Baldev Thakur, SHO Bhawarna proceeded further and behind him Karan and Dheeraj and two officials were there. After the lapse of ten minutes, accused met him near the parking. Dheeraj Lagwal was at a distance of 10-12 feet away from him. At a distance of 50 feet from the parking on the main road, he took out money from his rear pocket of the pants and the same was taken by accused Baldev by his left hand. He was told that as soon as money was paid, he should give signal by scratching the head. He ::: Downloaded on - 15/04/2017 19:58:18 :::HCHP 8 gave signal to Dheeraj Lagwal and Dheeraj gave the agreed signal to police and two persons came there. In his cross-examination, he deposed that .
his wife was in police department. She was also an accused in the case.
He had drawn Rs. 15,000/- from the SBI bank Jai Singhpur. He did not know the exact date when he has drawn the money from the bank. He admitted that he had told that he had gone to Police Station Bhawarna before Baldev Thakur, SHO Bhawarna on 19.9.2009 and 20.9.2009 and of SHO had required him to produce Alto vehicle No. HP-37 B-1139. He had refused to produce the vehicle since he was paying installments and vehicle rt was financed by him. SHO had told him that in case he did not produce the vehicle, he would get his bail cancelled. He could not say whether his bail was opposed by Baldev Thakur, SHO Bhawarna in the High Court by filing reply. In the High Court accused Baldev had not said that bail may be granted. In the High Court complex, money was demanded by accused in the presence of Dheeraj Lagwal and Karan Pathania. Dheeraj has not heard their talk. Dheeraj was asked to give signal and not to hear the conversation.
11. PW-8 Insp. Naratta Ram testified that he prepared raising party comprising of Insp. Subhash, HC Yashwant, HC Ashok, Const.
Davinder and Const. Charan Singh. In his presence, Sanjay produced Rs.
5000/- currency notes. The notes were handed over to Sanjay with direction that money be handed over only on demand. The demonstration was given. Currency notes were recovered and put in a packet and sealed with seal "T". In his cross-examination, he categorically admitted that Police Station SV & ACB is situated in thickly populated area and he had ::: Downloaded on - 15/04/2017 19:58:18 :::HCHP 9 not joined any independent witness from the locality as there was no time.
They reached High Court at 10:00 AM. He also admitted that the accused .
had opposed the bail in the High Court.
12. PW-1 Dheeraj Lagwal in his cross-examination has categorically stated that they had reached Shimla in the evening and at 7:00 AM they lodged the report. However, PW-7 Sanjay Sharma, complainant deposed that they had reached Shimla alongwith PW-1 of Dheeraj Lagwal and Karan Pathania on 8.10.2009 at 7:00 AM. PW-1 Dheeraj Lagwal is a shadow witness and PW-7 Sanjay Sharma is the complainant.
rt
13. The case of the prosecution is that the accused had demanded money from the complainant PW-7 Sanjay Sharma for helping him in getting bail. PW-1 Dheeraj Lagwal, in his cross-examination has categorically admitted that the bail was opposed by accused in the High Court and he had filed reply Ext. DB. PW-8 Insp. Naratta Ram has also admitted in his cross-examination that the accused has opposed the bail in the High Court. PW-7 Sanjay Sharma, complainant, in his cross-
examination has admitted that he had told that he had gone to the Police Station Bhawarna before Baldev Thakur accused on 19.9.2009 and 20.9.2009 and SHO had required him to produce the Alto vehicle No. HP-
37B-1139. SHO had told him that in case he did not produce the vehicle, he would get his bail cancelled. PW-7 Sanjay Sharma has deposed that he had drawn Rs. 15,000/- from the bank SBI Jai Singhpur, however, there is no proof of the same. When according to PW-1 Dheeraj Lagwal and PW-8 ::: Downloaded on - 15/04/2017 19:58:18 :::HCHP 10 Insp. Naratta Ram, the accused had opposed the bail in the High Court, there was no occasion for him to demand money from the complainant.
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14. The prosecution is required to prove that the accused has demanded money from the complainant. In his cross-examination, PW-1 Dheeraj Lagwal, deposed that money was demanded within the hearing range in the High Court complex. However, PW-7, in his cross-
examination, has deposed that Dheeraj had not heard their talk. Dheeraj of was asked to give signal and not to hear conversation. Thus, the accused has not demanded any money in the presence of Dheeraj. Karan Pathania rt who had come with the accused has not been examined. He was a material witness.
15. The accused has opposed the bail of the complainant (accused in bail petition) and also filed the reply Ext. DB. The accused/complainant was asked by the SHO Baldev Singh to produce the Car. The SHO has specifically told him that if the Car was not produced, the bail would be cancelled. The accused Sanjay Sharma had lodged the report in the morning on 8.10.2009. The Court has already noticed that he alongwith Dheeraj Lagwal and Karan Pathania reached Shimla at 8:00 AM in the morning and thereafter they went to Police Station SV and ACB, Khalini.
However, PW-1 Dheeraj Lagwal deposed that they have reached Shimla in the evening at 7:00 PM. There are material contradictions in the statements of PW-1 Dheeraj Lagwal and PW-7 Sanjay Sharma about their arrival at Shimla. It casts doubt in the prosecution case.
16. PW-2 Const. Charan Singh deposed that Insp. Naratta Ram deputed Const. Chander Shekhar to bring one plate and one jug from the ::: Downloaded on - 15/04/2017 19:58:18 :::HCHP 11 canteen. The canteen was at a distance of 50-80 feet. However, Const.
Chander Shekhar has not been produced as a witness.
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17. Sh. Neeraj K. Sharma, Dy. Advocate General for the State has vehemently argued that the statement of PW-7 Sanjay Sharma complainant has been corroborated by PW-1 Dheeraj Lagwal that the money was demanded. However, the fact of the matter is that statement of PW-1 Dheeraj Lagwal and PW-7 Sanjay Sharma, complainant do not inspire of confidence.
18. Their lordships of the Hon'ble Supreme Court in the case of N. rt Sunkanna vrs. State of Andhra Pradesh, reported in (2016) 1 SCC 713 have held that unless there is proof of demand of illegal gratification, proof of acceptance will not follow. It has been held as follows:
"5. The prosecution examined the other fair price shop dealers in Kurnool as PWs 3, 4 and 6 to prove that the accused was receiving monthly mamools from them. PWs 4 and 6 did not state so and they were declared hostile. PW-3 though in the examination-in-chief stated so, in the cross-examination turned round and stated that the accused never asked any monthly mamool and he did not pay Rs.50/- at any time. The prosecution has not examined any other witness present at the time when the money was demanded by the accused and also when the money was allegedly handed-over to the accused by the complainant. The complainant himself had disowned his complaint and has turned hostile and there is no other evidence to prove that the accused had made any demand. In short there is no proof of the demand allegedly made by the accused. The only other material available is the recovery of the tainted currency notes from the possession of the accused. The possession is also admitted by the accused. It is settled law that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7, since demand of illegal gratification is sine-qua-non to constitute the said offence. The above also will be conclusive insofar as the offence under Section 13(1)(d) is concerned as in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain ::: Downloaded on - 15/04/2017 19:58:18 :::HCHP 12 any valuable thing or pecuniary advantage cannot be held to be established. It is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or .
forbearing to do any official act. Unless there is proof of demand of illegal gratification proof of acceptance will not follow. Reference may be made to the two decisions of three- Judge Bench of this Court in B. Jayaraj vs. State of Andhra Pradesh [(2014) 13 SCC 55] and P. Satyanarayna Murthy vs. The District Inspector of Police and another [(2015 (9) SCALE 724]."
19. Their lordships of the Hon'ble Supreme Court in a recent of judgment in the case of Krishan Chander vs. State of Delhi, reported in (2016) 3 SCC 108, have held that the sine qua non for conviction under rt Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, is proof of demand and acceptance. It has been held as follows:
"14. It was further contended by him that the demand of illegal gratification by the accused is a sine qua non for constitution of an offence under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. A mere production of the tainted money recovered from the appellant along with positive result of phenolphthalein test, sans the proof of demand of bribe is not enough to establish the guilt of the charge made against appellant. In support of the above legal submission, he placed reliance upon the judgments of this Court in the cases of B. Jayaraj v. State of Andhra Pradesh[1], A. Subair v. State of Kerala[2] and State of Kerala & Anr. v. C.P. Rao[3], wherein this Court, after interpreting Sections 7 and 13(1)(d) of the PC Act, has held that the demand of bribe money made by the accused in a corruption case is a sine qua non to punish him for the above said offences. The learned senior counsel has also placed reliance upon the three Judge Bench decision of this Court in the case of P. Satyanarayana Murthy v. The Dist. Inspector of Police, State of Andhra Pradesh & Anr.[4], in which I was one of the companion Judges, wherein this Court, after referring to the aforesaid two Judge Bench judgments on the question of necessity of demand of bribe money by the accused, has reiterated the view stated supra."
20. Thus, the prosecution has failed to prove the case against the accused.
::: Downloaded on - 15/04/2017 19:58:18 :::HCHP 1321. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence .
dated 28.11.2011, rendered by the learned Special Judge(Forests), Shimla, H.P., in Corruption Case No. 4-S/7 of 2010, is set aside. Accused is acquitted of the charges framed against him. Fine amount, if any, already deposited by the accused is ordered to be refunded to him.
of
March 22, 2016, ( Rajiv Sharma ),
(karan) Judge.
rt
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