Dalip Chand vs The State of Himachal Pradesh

Bhawani Singh, J.—Dalip Chand has a grievance against the judgment of Special Judge, Kangra Division, whereby he has been convicted in case No. CC No. 15/85, decided on 30-4-1987, u/s 161 of the Indian Penal Code and Section 5(1)(d) punishable u/s 5(2) of the Prevention of Corruption Act, 1947 and sentenced to rigorous imprisonment for one year and a fine of Rs. 500/- and in default of payment to suffer further simple imprisonment for three months u/s 161 of the Indian Penal Code and rigorous imprisonment for three years and a fine of Rs. 500/- and in default of the payment of fine further to undergo simple imprisonment for three months u/s 5(l)(d) of the Prevention of Corruption Act, 1947. Substantive sentences have, however, been made to run concurrently.

Let the facts, in brief, be stated thus: On 17-3-1985, the Appellant was posted as Patwari of Patwar Circle, Sudher, Tehsil and District Kangra, and thus a public servant. One Shri Hari Ram, the complainant, requested the Appellant to make necessary changes in the revenue record as a sequel to the judgment of the Civil Court but the Appellant went on postponing the matter and ultimately asked him to pay an amount of Rs. 50/-as consideration for doing the same, Ultimately, he reported the matter to the Anti Corruption Unit, Dharamshala, and the trap was laid. As a result of it, a case under the aforesaid provisions was initiated, investigated and laid before the Special Judge against the Appellant and by the impugned judgment he was convicted. The defense of the Appellant can be seen from the trend of the cross-examination of the prosecution witnesses and the statements of the defense witnesses. In addition to that, the Appellant stated in his examination u/s 313 of the Code of Criminal Procedure and the same is as under:

I had entered the mutation in favour of the complainant per the judgment and decree in his favour, but the same was rejected by the Revenue Officer with a direction that the same be re-entered in accordance with rules. The old record according to which the decree was passed was not available with me. The Kanungo concerned told me that he will visit sometime in the Patwarkhana and after consultation of the old record at Dharamshala, the same will be entered. I informed the complainant accordingly. The complainant wanted me to help him with respect to felling of certain chill trees and wanted that his name be entered in the possessor column or the demarcation be given in such a way that the land from where the trees were felled should be shown in his land and I refused. Hari Ram P.W. came to the Patwarkhana and placed an envelope on the table and requested me to do my work regarding the pine trees. I told him that I will do the needful after receiving the ''Latha''. Thereafter Hari Ram left the room and after sometime came back followed by the police. I was made to raise my hands and nothing was recovered from my personal search. The Dy. S.P. then searched the papers lying on the table and in the process the envelope placed by the complainant fell down and the currency notes also fell out of the envelope. I was asked to pick up the currency notes to which I refused. I was slapped when I refused to pick up the currency notes. On account of apprehension of further beating, I picked up the currency notes and placed them on the table as desired by the Dy. S.P.I neither demanded nor received any illegal gratification, either earlier when I entered the mutation which was rejected or at the relevant time. After my apprehension in this case, I have moved the Deputy Commissioner that I have been falsely implicated in the present case, but no action seems to have been taken by the concerned authority, I am absolutely innocent.

Before the versions of the witnesses in this case are examined and the matter analyzed, it is relevant to reproduce the provisions of Section 161 of the Indian Penal Code and Section 5 of the Prevention of Corruption Act:

Public servant taking gratification other than legal remuneration in respect of an official Act.-Whoever, being or expecting to be a public servant, accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavor to any person, or for rendering or attempting to render any service or disservice to any person, with the Central or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in Section 21, or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both,.. "

"5. Criminal misconduct. (1) A public servant is said to commit the offence of criminal misconduct.

(a) xx xx xx XX XX xx xx (c) xx xx xx XX XX xx xx (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or..

xx xx xx xx

In this respect the observations of K. Subba Rao, J., as he then was, while speaking for the Court, reported in M. Narayanan Nambiar Vs. State of Kerala, are as follows:

(9) The preamble indicates that the Act was passed as it was expedient to make more effective provisions for the prevention of bribery and corruption. The long title as well as the preamble indicate that the Act was passed to put down the said social evil i.e. bribery and corruption by public servant. Bribery is a form of corruption. The fact that in addition to the word "bribery" the word "corruption" is used shows that the legislation was intended to combat also other evil in addition to bribery. The existing law i.e. Penal Code was found insufficient to eradicate or even to control the growing evil of bribery and corruption corroding the public service of our country. The provisions broadly include the existing offences under Sections 161 and 165 of the Indian Penal Code committed by public servants and enact a new rule of presumptive evidence against the accused. The Act also creates a new offence of criminal misconduct by public servants though to some extent it overlaps on the preexisting offences and enacts a rebut table presumption contrary to the well known principles of Criminal Jurisprudence. It also aims to protect honest public servants from harassment; by prescribing that the investigation against them could be made only by police officials of particular status and by making the sanction of the Government or other appropriate officer a precondition for their prosecution. As it is a socially useful measure conceived in public interest, it should be liberally construed so as to bring about the desired object, in to prevent corruption among public servants and to prevent harassment of the honest among them.

Therefore, it is most essential to strike a balance between the object with which this legislation was enacted and the fact that honest and innocent public servants are hot harassed.

Shri Roshan Lai (P.W. 3) states that in his presence the-complainant gave an application with three currency notes of the denomination of Rs. 20(2) and Rs. 10(1) to Dy. S.P. which were taken into possession vide recovery memo. Ex. PE/1. The same bears his signature. They were then treated with powder .and again handed over to the complainant vide recovery memo. Ex. PE ]2 .and Ex. PW/2. They also bear his signatures. The numbers of these currency notes were duly recorded in the aforesaid recovery memos.

In cross-examination, he admits that he was related to the complainant collaterally and that the Appellant had demanded bribe for effecting mutation pursuant to the judgment in his favour four or five times prior to the incident. He could not give the exact date.

Shri Hari Ram (PW5) is the complainant. He states that Sub-Judge, Kangra, had decided Civil Case No. 107of 1976, 75/75 on 26-8-4978 in his favour regarding a land dispute. Ex. PC is a certified copy of the judgment and ExPD of the decree sheet. He further states that he visited Patwari, Sudher, many times for effecting mutation on the basis of the said decision and also made successive applications\\complaints to the Tehsildar and higher authorities for doing the needful directing the Patwari to effect the mutation, in accordance with law. He visited the Appellant 10 of 15 times but he put off the matter on one pretext or the other and also took money from him but did not do the work.

Further, he says that he visited the Patwari on 15-3-1985 and again requested him to do the needful in his favour and the Appellant told him that the work could be done provided he could be paid sufficient money as the work involved sufficient amount of money (expenditure). He was further directed by the Appellant that he should come with money if he intended his work to be done and he was told that he would be available in the Patwarkhana on l7th of that month. Therefore, on 17-3-1985, tie gave an application to the- Anti Corruption Department at Dharamshala and wrote the entire episode in that application. This application is Ex. PE which is in his hand and bears his signature. Along with this, he handed over two notes of Rs. 20/-and one note of Rs. 10/- and the same were taken into possession "vide recovery memo. Ex. PE/1 in the presence of Jewan Parkash.The numbers of these notes were noted and thereafter these were treated with powder. These notes were given to him vide memo. Ex. PW/2 and he was directed to hand over the same to the Patwari on demand. He was also directed that as soon as the same was done, he should indicate the fact by either seeing the watch or by scratching the head after coming out of the Patwar- khana. He went to the Patwarkhana leaving behind - Dy. S.P. along with other police officials who concealed themselves behind the bushes.

At that time the Appellant was sitting in a chair inside the Patwarkhana and only one boy, namely, Abdesh, was there v. at that time. He asked the Appellant to attest the mutation in his favour whereupon the Appellant inquired as to whether his fee had been brought by him or not. He answered in the affirmative and then handed over the currency notes to him. The Appellant counted the same and then put them into the pocket of his pant which he was wearing.-, on the pretext of urinating, became out and signaled to the party by seeing his wrist watch as a result of which the police party came and the Dy. S.P., told the Appellant that he had pocketed the bribe money. The accused refused to have accepted the same. The Dy. S.P. conducted his personal search in the presence of witness and thereafter Shri Avdesh .was sent out, being a child. As soon as the Dy. S.P. wanted to search the pocket of the Appellant worn by him, the Appellant himself took out the amount of Rs. 50/- from the right pocket of his trouser and then handed. Over the same to the said Dy. S.P. The number of these currency notes was tallied with the notes of memo. Ex. PE/1. Thereafter water was sent for from the house of Shri Ravan and white powder was mixed in that which did not change the colour. Thereafter the Appellant was asked to wash his hands in that water in that pot the colour of the water turned red. It was put into an empty ''adhia''. It was closed and sealed with seal ''H''. The pant was also taken into possession and duly sealed; A separate parcel of the currency notes so recovered was also made and sealed. All these articles were then taken into possession by the police party vide memo. Ex. PE/3 in the presence of the witnesses and he also signed the same as a witness. The envelope containing the alleged currency notes was opened and a controversy arose as to it in the following manner:

At this stage, the learned defense counsel pointed out that the thread with which they said cloth parcel has been sewed can be opened easily without disturbing the said seals. On cutting one end of the said thread with the blade, the same has been tried to be taken out and in this attempt less '' than half portion of the sealed cloth parcel marked with red pencil could be opened.

The envelope was folded into two parts and the currency, notes were inside. The Ld. Counsel had. Been asked to place the said envelope in that very position, inside the said, cloth parcel, in the open condition. He is reluctant to do -so. It is to be, noted that had such attempt been made, the envelope would more folds than it now c6ntains.

The witness tallied the numbers of the currency notes -Ex. P-l to Ex. P-3 and also recovery memo. Ex. PE/1 and Ex. PE/2. The said currency notes tallied with two recovery memo. Ex. PE/1 arid Ex, PE/2 respectively. -However, currency note of Rs. 20/- Ex. P. 2 did not tally with the'' number recorded in Ex. PE/3. Its number is 30-S-4Q9664. Said notes handed over by me Ex. P-l to Ex. P-3 respectively. The bottle containing light pinkish colour water is the same, and it is Ex. P-4. Pant (trousers) Ex. P-5 is the. same, which the accused was wearing at that time.

In cross-examination, he further states that he had requested the predecessor of the Appellant once for effecting the mutation in h{s favour but he was transferred after six months. He requested the Appellant 15/16 times to do his work but the same, was not done. He had applied to him in writing also. He admits that the Appellant had entered mutation No. 1Q(Ex. D.l) which was endorsed by the Kanungo but was rejected by the Revenue Officer on 24-11-1984,- an the ground that the mutation was not in accordance with the Rules and afresh mutation was ordered to be entered. He admits that he did not specifically state in his complaint Ex. P.E. the fact of the rejection of the mutation and visits to the Appellant for getting the '' same entered. He also admits that he did not mention in his complaint the fact that he had visited the Appellant 15/16 times for entering the mutation nor could he assign any reasons for this omission. It is also admitted by him that the officials of the" Forest Department had seized some timber wood from his saw mill at Sudher but states that the -case was decided in his favour. He denied the suggestion that the. Trees cut. Were in the Government land and demarcated as such. He states that the same were demarcated as such because the, Patwari was from the Forest Department. He states that he. Had already handed over the copies of the judgment and decree sheet to the Appellant much before the occurrence, and then says that the copy of the judgment and decree were sent through Tehsildar, Kangra. He admits that he was present at the time of the rejection of RX D-l before the Tehsildar. He denies the suggestion that the copies of the judgment and decree were handed over to the Appellant on 17-3-1985 in an envelope and that the trap money was also in that envelope.

As soon as the Dy. S.P. came, the Appellant was asked to stand-up and raise his hands. Then he was asked to produce the currency notes on which he refused. He denies the suggestion that the Appellant was slapped by the Dy. S.P. and that the currency notes were lying on the table which fell down and the Appellant was asked by the Dy. S.P. to pick up the same from the ground which he did and placed the same on the table. Regarding reference to complaint Ex. PA and more particularly non-reference therein as to the making of payment to the Appellant for this work earlier too, he states that he did not remember as to whether this fact was written by him in the complaint. He also denies the suggestion that the present case was intentionally foisted on the Appellant as he was not obliged in the forest case. The mutation regarding the land in'' village Sudher has not been entered in his favour even now as the present incumbent contends that the Appellant had not given him the requisite documents in the charge.

Shri Jeewan Parkash (PW 6) states that he was summoned to the Anti Corruption Department, Dharamshala, . Where the complainant was also present, besides officials of the department. The complainant produced currency note of the value of Rs. 50/- in the denomination of two notes of Rs. 20/-- and one-note of Rs. 10/-. Recovery memo (Ex. PE/1) of the same was prepared after noting down their numbers. The same was signed by him. The Dy. S.P. applied white powder to the currency notes and handed them over to the complainant vide memo. (Ex PE/2), which is also signed by him. The complainant was directed to hand over the currency notes to the Appellant and then give a signal to the raiding party by looking at his wrist watch. They went there and after about 5 minutes the complainant came out and gave signal. The raiding party went to the Patwarkhana where the Appellant was sitting in a chair. A boy and the complainant were sitting there inside the Patwarkhana. He saw the currency notes lying scattered on the table and the Dy. S.P. was asking the Patwari of count the notes and the Patwari was refusing to do so. The Appellant was made to count the currency notes. His hands were then got washed. Water turned pink which was then sealed. This witness has been declared hostile. However, no material answer favorable to the prosecution appears to have come from this witness during the course of his cross-examination by the prosecution, although he sticks to his earlier statement that he saw the currency notes lying on the table. During cross-examination by the learned Counsel of the Appellant, he states that his father is working in the same office in which the complainant was working and that in the Patwarkhana other documents were also lying on the" table where the currency notes were noticed by him. He admits that the '' v. Appellant had told the Dy. S.P. that the complainant had given him an envelope in which there was papers and the currency: notes were hidden in the papers.

Shri Avdesh Kumar (PW 7), a boy, was sitting inside. The Patwarkhana at that time. He states that the complainant: placed his envelope on the table and after about'' 5 minutes left the, room on the pretext of urinating and in the mean time, the police same there and they asked the Appellant to raise his hands and on-his personal search nothing came out. The police then searched the papers and the envelope containing the currency notes and other papers fell down on the ground and the currency notes fell out of the envelope. The police then slapped the Appellant and asked him to pick-up the same from the ground who picked them up accordingly and placed them on the table. The Appellant was then mafia to count the currency notes forcibly and there were- three currency notes of the, denomination of rupees 20-two notes-and one ten rupees note. He was then asked to go out of the room, and he, therefore, left. This witness has also been declared hostile. However, Nothing material could be elicited during his cross- examination by the prosecution rather while under cross examination by the'' learned Counsel of the Appellant, he reiterates that the Dy. S.P. made the Appellant to count the Notes and the Appellant, after counting the same, placed them on the table.

Shri Sansar Chand (PW 8), Head Constable, also admits the presence of this witness in the Patwarkhana at that time and that this witness was asked to go out, being a child

Shri Neter Singh (PW 9) is the Investigating Officer. He has narrated the steps taken by him in connection with the .investigation of this case.

The Appellant, in his statement u/s 313 of the Code of Criminal Procedure, denies that he ever demanded money from the complainant, although" he admits that the complainant had come to the: Patwarkhana when he was sitting with Avdesh Kumar. He further states that the complainant had not left the room and the raiding party came there. He further states that the water, with which his hands were washed, did not change colour. He states that his pant was taken into possession by the police from a peg in a wooden pole which was affixed in the -kitchen. He himself was wearing. a pajama at that time. Regarding seal, he states that the same was never handed over to Jeewan Parkash (P W6) and the same was given to him on 25-8-1985, in answer to question No. 23, the Appellant has given a detailed answer which has already been reproduced.

The Appellant has examined witnesses in defense.

Shri Des Raj (DW 2), Patwari, states that the copies of the judgment in case No. 107/76 (Shri Hari Ram vs.; Dharam Chand) were lying in the dank file in the office. He was incharge of the whole of Sudher Circle and the land under judgment fell in his circle. He did not implement the judgment because there was no Khasra No. of the area falling within his jurisdiction regarding which correction was to be made in the revenue record. There was no mention of any application having been moved by the complaint nor there was any mention of any copy of the judgment or decree-sheet in the Roznamcha Wakiyati.

Shri Ravan (DW 3) states that he was present in the Patwarkhana at that particular time. He states that when the Appellant declined the order of the Dy. S.P., he was given a slap by hint. Thereafter the pockets of the trousers were searched but nothing was recovered. He saw the money lying on the table. He also states that the colour of the water turned pinkish. The complainant is his maternal brother and he did not see him entering the Patwarkhana. However, he found him along with other persons when he came to this place.

Perusal of the statements of various witnesses cited by the prosecution in this case does not in any way substantiate the prosecution allegations against the Appellant. The story is highly improbable. It is in evidence that the complainant had been writing to the higher authorities against the Appellant for not doing the needful in pursuance of the judgment of the civil court. Can it be said in these circumstances that the Appellant would still demand money from the complainant? The simple answer is in the negative. Although it is a fact that the mutation was not entered by the Appellant, but the same was not in the sole discretion of the Appellant. He was simply to initiate it, that he did once, but the same, though approved by the Kanungo, was rejected by the revenue officer. This eliminates any intention on the part of the Appellant to demand any money from the complainant that was complaining, inaction on the part of the Appellant in this connection. Having failed to secure the object, he appears to have complained to the Anti Corruption Department by raising the bogy of the, demand of bribe by the Appellant. Perusal of the complaint to the Anti Corruption Department shows that the complainant has'' just manufactured a story against the Appellant. This complaint lacks'' the details which have been narrated by the complainant while giving his statement in the Court. Although ft is not necessary that the compliant should have .given details, but essential details were necessary. He is an interested witness and, therefore, the statement given by him cannot be believed without proper corroboration and I do not see that this statement has been corroborated by other witnesses. Reference to the statements of various witnesses on this aspect indicates that these witnesses have made conflicting versions. It can be safely concluded that the fact of demurred of money by the Appellant and acceptance of the same as a con- sequel thereof, has not been established by the "Prosecution. It appears that in order to trap the Appellant, the money was inserted along with .papers in an envelope and was kept on the table in the Patwatkhana. The same fell down and the Appellant was asked to pick up the same and then at that stage taken into possession by the raiding party. This fact is amply proved even by some of the prosecution witnesses in addition to the defense witnesses."

The washing of hands of the Appellant "and turning of the water red or pink, is not very much convincing. The same can happen in various ways. Evidence discloses that the Appellant picked up the currency notes when they had fallen on the floor from the table. They were counted. Obviously, on washing of hands, the water could change colour. There is no convincing evidence that the Appellant took out these currency notes from his pocket. In order to eliminate this evidence, it would have-been better for the prosecution, had it washed the pockets of the pant of the Appellant which it took into possession, The prosecution case that the Appellant after accepting the money, put the same into the right pocket of his pant, could have been established by it. Failure to do sq, casts serious doubt as to the credibility of the prosecution stripy rendering it thoroughly unbelievable.

It is the duty of the prosecution to join independent, disinterested and reputable persons of the area and locality for evidencing the trap. Need of such a course on the part of the officers concerned in such cases has been stressed in Raghbir Singh Vs. State of Punjab, wherein it has been observed as under:

We must take this opportunity of impressing on the officers; functioning in the anti-corruption department to insist on observing this safeguard as zealously and scrupulously as possible for the protection of public servants against whom a trap may have to be laid. They must seriously Endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. We cannot, in the present case, rely on the evidence of Jagdish Raj and Arjun Das for the purpose of holding that a sum of Rs. 50/- was paid by Jagdish Raj to the Appellant by way of bribe.

The same view has been taken in 1978 CAR (SC) 181 ,(a Ram Lakhe v. State of Punjab) and Hari Obula Reddy and Others Vs. The State of Andhra Pradesh, . (Requirement of such a course is all the more fundamental in j corruption cases where trap has been laid in view of 1979 CLR SC 574 (Panalal Damodar Rathi v. State of Mahara shtra) 1983 2 CLR 192 (Tar lok Singh v. the State of Punjab) and Doma and Another Vs. The State of Maharashtra,

The facts disclose that the Appellant has hot, at all, demanded any bribe from the complainant, as alleged, nor the same was ever accepted by him. The prosecution version on this aspect is thoroughly weak, shaky and incredible. To convict the Appellant on such evidence will not only be illegal but also hazardous.

The result of the examination of this case, keeping in view the statements of the witnesses, documents on record ''and the submissions of the learned Counsel for the parties, I am of the considered opinion that the prosecution case is not, at. All,-established against the Appellant.

There is merit in this appeal and the same is allowed. The conviction and sentences imposed upon the Appellant are set aside. He is acquitted of the charge. Bail bond and surety bond, if any, executed by him at any stage of this case are here by discharged.