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(ii) Hand Wash Of Accused Not Proved:-
It is argued, that as per prosecution story, hand wash of accused prepared on spot was pink colored; PW-1 complainant Ajay Kumar Badyal in his deposition before the trial court has deposed that the bottles shown to him in the court contain white colored solution, PW-2 Mahadeep Singh Jamwal (TLO) has stated in the court that the solution which he saw in the court its color has faded, PW-3 Rajeev Singh Salaria CDPO Vijaypur (Shadow witness) has deposed that both the bottles present in the court and shown to him contain milky colored compound, PW-7 Neeraj Sharma Constable (witness to trap proceedings) in his deposition has stated that the solution in the two bottles shown him in the court is not pink. It is moreso argued, that the glaring contradictions in the trap proceedings and the evidence putforth by the aforesaid witnesses throws lot of suspicion on the genuineness and creditworthiness of the trap proceedings, meaning thereby, that the allegations against appellant/convict are untrue, false and unworthy of reliance.
PW-1 Aiay Kumar Badyal (complainant, witness to corroborate FIR and trap proceedings) in his examination-in-chief on 06-05-2009 has deposed, that he wanted to purchase 3.75 marlas of land from one Mangat Ram against a consideration of Rs. 60,000/-. To obtain the revenue record of the said land, he went to the office of Revenue Department at Gole Gujral Jammu on 15.05.2007. Patwari concerned advised him to apply to Naib Tehsildar and he would get the same marked by Naib Tehsildar on his own and advised him (complainant) to come after 2/4 days, and when he was again approached, the accused (Patwari) demanded a bribe of Rs. 3000/- and after negotiation the amount of bribe was settled at Rs. 2000/-. He paid Rs. 200/- to accused on spot as advance and rest of the amount was agreed to be paid to the accused on 04.06.2007, but on 04.06.2007, he went to the office of SSP Vigilance to register his protest. SSP Vigilance after satisfying himself about the genuineness of the written complaint constituted a trap team to be headed by M.S. Jamwal Dy.SP. In the meantime, five more men reached there, two among whom Sh. Rajeev Singh Salaria and Kul Raj Singh were civilians. The complaint was shown to the witnesses and thereafter he produced Rs. 1800/- comprising of three currency notes of rupees five hundred denominations each and three notes of rupees hundred denomination each. The numbers of these notes were recorded by the independent witnesses on separate slips whereafter these currency notes were dusted with P-powder and the solution of sodium carbonate was prepared with the assistance of independent witness Rajeev Singh Salaria. A demonstration was conducted to show the effect of P-powder on Sodium Carbonate Solution. PW Rajeev Singh Salaria was nominated as shadow witness. He (complainant) was advised to advance the tainted currency notes to the accused on his demand. A pre-trap memo was prepared and at 11.45 a.m the team left towards the destination and at about 12.15 p.m, the team reached revenue complex Gole Gujral. He alongwith shadow witness entered the room of the accused located in the first floor of the building. The accused was present in the room along with one more person. As he demanded the revenue papers, the accused told him that he would get the papers attested from Naib Tehsildar. He and shadow witness remained waiting and as the accused returned back to his room alongwith attested revenue papers, the money was passed on to him and after counting the money, he kept it in the pocket of his shirt. Signal was passed on to the trap team by shadow witness and the money was recovered from the possession of accused. The numbers of the currency notes so recovered were tallied with the already noted numbers and again a demonstration was conducted to show the effect of P-powder on Sodium Carbonate Solution. The test conducted on accused proved to be positive (pink). The Sodium Carbonate Solution was seized alongwith the shirt worn by accused after the test conducted on it also proved to be positive (pink). The documents were prepared. The contents of his complaint Ext- P1, the FIR Ext-P1/1 and other documents Ext-P1/2 to Ext- P1/10 are correct. In cross-examination deposes, that the land which he wanted to purchase was belonging to one Manga Ram, again deposes, that Manga Ram was having only power of attorney, however, in reality the land was in the name of Vikas Chouhan and Preetam Singh. Manga Ram had got the attorney from the owners, which he had seen and which was lying in his possession, but he has not brought it with him today. In regard to the advance of Rs. 20000/- which he had given to Manga Ram, no written document was prepared. He does not remember on whose name he had written the application for obtaining the fard No. This thing is correct, that the said application was addressed to Incharge General Mahafaz Khana, however, name of Incharge Mahafaz Khana was cut and Naib Tehsildar Niabat Gole Gujral was written on it. These words are under the handwriting of Deep Raj Patwari. He does not remember whether before the posting of accused, Deep Raj Patwari was posted there. In the writing of the application about 1 ½ or ¾ hours time was consumed. After dusting the currency notes with powder, independent witnesses had caught hold of the currency notes and had prepared two slips separately by recording the currency note numbers. Powder which was dusted upon the notes was taken out from the bottle and was kept on a paper and thereafter, notes were picked up from the newspaper and the powder was sprinkled by hands. The glass in which liquid was prepared was brought by constable of the vigilance. That glass was taken out from a briefcase in which liquid was prepared. SSP and independent witnesses had only asked from him whether he had any enmity with accused or not. On the pre-trap memo prepared in the vigilance office, whole of the vigilance team which had gone on spot was made to append their signatures on it. The team members which had washed the hands of accused, had brought the water from the office of the Dy.SP. Seven (7) members of vigilance team had proceeded for the spot. These team members had gone on spot in two vehicles. The vehicles were made to park by the team members at a distance of 50/60 yards from main gate. In further cross-examination on 06-07-2009 deposes, that when vigilance team from vigilance office had proceeded for the spot, his search and search of vigilance team was got conducted jointly by independent witnesses whose names he does not remember at this time. When he had given the application for obtaining fard No. in the room of accused, he had given that application to Deep Raj Patwari. Deep Raj Patwari had told him that his name is Mangat Ram and he is the concerned Patwari. Amount of Rs. 2000/- which he promised to pay was settled to be paid to Deep Raj because he had told him his name as Mangat Ram. Rs. 200/- was paid by him alongwith the application, and the remaining amount of Rs. 1800/- was promised to be paid lateron. This amount of Rs. 200/- was paid by him to Deep Raj by pretending him as Mangat Ram. He does not remember whether the papers prepared in the office of SSP were signed all team members. The vehicles were parked outside the gate of Revenue Complex Gole Gujral. Some of the team members after crossing the gate had come inside and some had remained outside, whereas, all of them were ordered to remain at their respective places by Dy.SP Jamwal. The main gate is covered by the compound walling having height of 6/7 feet. Office of the accused was located at 1st floor. Shadow witness had accompanied him in the room of accused where Deep Raj Patwari was present, while accused was also present there. He had handed over bribe money to Deep Raj Patwari with whom it was settled. Deep Raj had told him that this amount be given to Mangat Ram. He does not remember whether he had kept the bribe money on the ground or not. The day he had submitted application for obtaining fard No., on that day he only met Deep Raj and had not met the accused present in the court. When vigilance team was given the signal, then 1st of all in the room of accused Dy. SP Jamwal had entered, however, rest of the team members had entered after 2/4 minutes. Team members immediately encircled the accused. He does not remember whether both hands of accused were washed in one glass or in separate glasses. Pocket of the shirt was overturned and washed in separate glass. One of the constables of the vigilance team had washed the pocket of the accused. His statement was got recorded in the vigilance office after few days of occurrence. The bottles which have been shown to him in the court today contain white colored solution. No more questions. PW-2 Mahadeep Singh Jamwal (the then Dy.SP PRK wing, VOJ, Incharge trap team) in examination-in-chief has deposed, that in June 2007 he was posted as Dy.SP Vigilance PRK Wing. In June 2007 investigating officer had handed over file to him whereby, he was authorized by SSP Vigilance to laid trap. This trap was to be laid against Patwari Mangat Ram. Allegations against the concerned Patwari were that he had demanded Rs. 1800/ as bribe money from the complainant for issuance of copy of revenue extract. After receiving the file of the case he called complainant of the case namely Ajay Kumar in his office room, and additionally he also called two (2) independent witnesses namely, Kuljeet and Rajeev employees of CDPO office in his room. In addition to it, two inspectors and two constables who were members of the trap team were outside the office room. The complaint was given to independent witnesses and in order to satisfy themselves about the genuineness of the complaint, they asked some questions from the complainant and finally got satisfied where after complainant produced three five hundred rupees currency notes and three hundred rupees denomination currency notes. The numbers of these currency notes were recorded by the independent witnesses on separate slips which they retained with themselves. The currency notes were dusted with P- powder and in order to demonstrate the effect of phenolphthalein on Sodium Carbonate Solution independent witness PW Rajeev was associated. Necessary documents were prepared and the dusted currency notes were placed in the pocket of the complainant. The trap team members offered their search. Independent witness PW Rajeev Salaria was nominated as shadow witness who was advised that on receiving the money by accused he will pass on the signal by rubbing his head, and he was also advised to remain always with the accused. The trap team proceeded towards the Revenue Complex Gole Gujral. The complainant and independent witness Rajeev Salaria were advised to meet the accused in his office and pay the tainted currency notes to him on his demand. Both of them went inside the room of the accused and soon thereafter the pre-decided signal was passed on by the shadow witness, upon which the trap team also reached on spot. The independent witness Rajeev conducted the search of the accused and recovered Rs. 1800/ comprising of three five hundred and three hundred rupees denomination currency notes from him. The numbers on these currency notes tallied with the numbers recorded by independent witnesses on their slips. The recovered money was seized and again a Sodium Carbonate Solution was prepared to conduct the hand wash of the accused which tested positive. The accused was arrested on spot and Naib Tehsildar was also summoned and two documents which were handed over by accused to the complainant were also seized. The documents were prepared on spot and so on. In cross-examination, the witness has deposed, that during his tenure in VOJ he remained associated with money traps. He had himself read the complaint filed by the complainant according to which accused had demanded Rs. 3000 as bribe money from the complainant, however, on negotiation it was settled that Rs. 2000/- will be paid by the accused to the complainant as bribe money, however, Rs. 200 was paid in advance. Regarding the contents of the complaint, complainant was asked, but he was not asked on which date accused had demanded bribe money from him. He had not enquired from the complainant that in whose presence accused had demanded Rs. 3000 from him and in whose presence Rs. 2000/- was settled to be paid. He did not enquire from the complainant that in whose presence Rs. 200 were paid. After completion of all the pre-trap formalities, pre-trap memo was prepared. In pre-trap memo the numbers of currency notes were typed by him. He did not see the application which the complainant had submitted to the revenue department for obtaining the revenue extracts. On spot, during trap proceedings he did not see the said application and even he did not made efforts to see that application. In this case the trap team was constituted by SSP (PRK) Vigilance. PRK means Poonch Rajouri & Kathua. He had neither written any application for calling the independent witnesses nor he had received any letter from their officers. How the independent witnesses came in the office he has no knowledge, however, when he received the file he called them in the office room. He does not remember whether one independent witness or independent witnesses had conducted search of whole of the trap team. Adjoining to his office room, from a bathroom, trap team members had washed their hands. On pre-trap memo independent witnesses had appended their signatures, however, he does not remember which of the witnesses had appended signature. Witness was shown EXT-P1/2 pre-trapment who said that it contains the signatures of independent witnesses and complainant, but does not contain the signatures of trap members. He does not remember whether I/O had recorded his statement. Witness on seeing the statement has stated that his statement has been recorded on 19 June, 2007. From the date of occurrence till 19 June, 2007 he remained posted in the office of vigilance. When complainant and shadow witness entered in the office room of accused, he was standing outside in the balcony, and this thing is incorrect that he was standing in the 2nd floor of the building. The place where he was standing, Patwari was not seen by him. He does not remember that he had pass orders to both the persons who had gone in the room in addition to the complainant to raise their hands. In addition to accused and complainant, the other person who was in the room was Deep Raj Patwari. This thing is incorrect, that from the spot both accused Mangat Ram and Deep Raj Patwari were brought in vigilance office, however, Deep Raj was instructed to remain present in vigilance office. This thing is incorrect, that when trap team members went inside the room they had caught hold of Mangat Ram by his arms. He does not remember that Mangat Ram had told that he had not taken the bribe money. This thing is incorrect, that the search of accused Mangat Ram was conducted by witness Kul Raj Singh, however, his search was conducted by witness Rajeev. In his statement recorded u/s 161 Cr.pc it is wrongly written that witness Kul Raj conducted search of the accused. The solution which he saw in the court, its earlier color was pink, however, its color had faded. This thing is not correct that on spot both the hands of accused were put in one solution. He does not remember whether both hands of accused were put in the solution or only one hand was put. He has seen seizure memo EXT-P1/3 appended with the file which contains only words ―Hands‖. Therefore, this thing is correct that one seizure memo was prepared and in one bottle solution was prepared and sealed which means that both the hands were washed in only one solution. On this seizure memo word ―Halqoo‖ has been written on the next line.

11. The 2nd argument portrayed by Ld. Counsel for appellant/convict/ accused is, "that the hand wash of accused has not been proved by the prosecution."

As per prosecution story, hand wash of accused prepared on spot on 04-06-2007 was pink colored. EXT-P1/3 is seizure memo of the hand wash of the accused prepared by the I/O on spot on 04-06-2007 in presence of witnesses viz; PW-1 complainant Ajay Kumar Badyal, PW- 3 Rajeev Singh Salaria CDPO Vijaypur (shadow witness) & PW-4 Kulraj Singh CDPO Khour (independent witness). PW-1 complainant Ajay Kumar Badyal in his deposition before the trial court has deposed that the bottles shown to him in the court contain white colored solution. PW-2 Mahadeep Singh Jamwal (TLO) has stated in the court that the solution which he saw in the court, it's color has faded. PW-3 Rajeev Singh Salaria CDPO Vijaypur (Shadow witness) has deposed that both the bottles present in the court and shown to him contain milky colored compound. PW-4 Kulraj Singh CDPO Khour (independent witness) has not been shown the hand wash EXT-P1/3 (bottles) in the court. PW-7 Neeraj Sharma Constable (witness to trap proceedings) in his deposition has stated that the solution in the two bottles shown him in the court is not pink. It is reiterated here, that regarding the pink colored hand wash of the accused, the aforesaid prosecution witnesses have putforth highly contradictory and distorted versions before the trial court, and none of them have corroborated the prosecution case that the hand wash of the accused shown to them in the court was pink. The glaring contradictions emerging out in the depositions of aforesaid prosecution witnesses shake the very truthfulness of the entire edifice of the prosecution case, meaning thereby, that the prosecution has failed to substantiate the charges against appellant/convict/accused.