State of Himachal Pradesh vs Sh. B.S. Rana

Bhawani Singh, J.—The acquittal of the accused by the Special Judge, Shimla in Corruption Case No. 5-S/7 of 1987 dated 29.4.1989 for offence u/s 161 of Indian Penal Code read with Section 5(2) of the Prevention of Corruption Act has been challenged by the State through this appeal.

The accused was posted as Chief Sanitary Inspector in Municipal Corporation, Shimla at the relevant time. The complainant Om Parkash was registered with Employment Exchange, Shimla since 1982, but he was not able to get any employment. He approached the accused for employing him in the Corporation as a Sweeper. The accused asked him to pay Rs. 500/-. The accused offered to provide him employment within 2-3 days of the payment of the amount. The complainant "informed the accused on 4.4.86 that his mother "as arranged money so he should be employed. The accused asked him to come to his house and the evening of 6.4.86 alongwith the money and the employment registration card. The complainant took Rs. 500/- from mother some Devi who had taken it from Chowkidar shri (sic) Gandhi Hospital, Shimla by was (sic). The complainant approached (sic) Department on 6.4.86 stating (sic) want to give illegal gratification to the accused and wanted that the accused should be caught, when the complainant would be delivering this amount to the accused. Accordingly, a case under the aforesaid provisions of law was registered.

The Deputy Superintendent of Police, Anti Corruption, Inspectors Nilamber Dev, Mehar Chand and Kamal Narain associated shadow witnesses Chander Mohan, Ram Pal and Om Parkash. In the presence of the witnesses, a demonstration was given whereby phenol-phthalein powder was put in a glass of water, the colour of which remained white and in another glass of water sodium carbonate powder was mixed which was also colour-less. Then, two mixtures were added and the colour turned pinkish. One of this mixture was sealed in a bottle. Thereafter, complainant Om Parkash (PW.6) handed over 25 currency notes of Rs. 20/- each, the numbers of which were noted down. This amount was to be paid by the complainant to the accused by way of illegal(sic), currency notes were treated with phenol(sic)in powder and were handed over to the complainant.

Thereafter as per scheme, the complainant went to the house of the accessed followed by shadow witnesses and the signal(sic) shadow witnesses (sic) followed by the raiding party (sic). At that time Dafedar Ram Raj came out of the house of the accused. The accused was caught red-handed. The police washed the hands of the accused and that water was mixed with (sic) the personal search of the accursed ,twenty currency notes of twenty rupees each (sic) Rs. 400/- were recovered from the pant pocket of the accused. Their numbers were recorded (sic) the presence of the witnesses. On enquire the accused disclosed that Rs. 100/- had been paid by him to Dafedar Ram Raj for purchase of (sic) and meat. Inspector Kamal Narain want to enquire from Dafedar Ram Raj. The pant of fee accused was also washed from the pocket, from where the currency notes were recovered, and that water was mixed with sodium carbonate water and the mixture turned pinkish. A paper from the room of the accused was also recovered wherein the name of the complainant alongwith his employment exchange registration number was recorded. During the investigation, record relating to the appointment and posting of the accused in the Municipal Corporation, Shimla, sample of hand-writings and signatures of the accused were taken in addition to admitted writings and signatures from the office room of the Corporation and opinion from the handwriting expert was also obtained ''about the documents including those of specimen handwritings and admitted writings of the accused. Sanction for the prosecution of the accused was also obtained and the accused was tried for the aforesaid offences.

The accused has denied the commission of the crime and claimed to be tried. He has denied the circumstances appearing against him in the prosecution evidence. According to him, no illegal gratification was demanded from the complainant nor the complainant gave him Rs. 500/- as illegal gratification. He admitted that the currency notes were produced by him to the police and the money was paid towards the loan which the complainant had taken from him. He states that he has been falsely implicated in this case. One J.R. Rana, who was promoted as Chief Sanitary Inspector on adhoc basis was reverted back and in his place he (accused) was promoted. His promotion was assailed by Sh. J.S. Rana through a Civil Writ Petition pending in the High Court of Himachal Pradesh. It was due to this enmity that he has been falsely implicated in the present case. It was Sh. J.S. Rana who had asked the Vigilance Department to suspend him, as is clear from letter (Ext.D.1).

The matter has been examined carefully with the assistance of the learned Counsel for the parties, record of the case scrutinised elaborately.

Complainant Om Parkash (PW.6) has not supported the prosecution case. He has been declared hostile, therefore, examined by the prosecution. He states that he did not talk to the accused about the employment. The accused was not known to him personally. He has denied this suggestion that the accused ever offered him to provide job against payment of Rs. 500/-. He has also denied that he had gone to the office of Dy. Superintendent of Police, Anti Corruption, Shimla for intimating it about the demand of the accused. He has also stated that he is an illiterate person, therefore, denied the contents of First Information Report (Ext.PW.17/A) and his statement (Ext.PW.6/A). According to him, Deputy Superintendent of Police had given him these currency notes, but he did not pay them to the accused, though he has admitted the scheme and the demonstration about laying of trap, use of phenol phthalein powder to the currency notes. He was asked by the Deputy Superintendent of Police to hand over these currency notes to the accused, but admits that a memo (Ext.PF) was prepared, which was signed by him and the numbers of currency notes noted down on it. His personal search memo was also prepared before Rs. 500/- handed over to him. Specifically, he has denied the suggestion that he has handed over Rs. 500/- to the accused and entered his house with raiding party behind him and that Dafedar Ram Raj was already sitting in the house of the accused. He has also denied that he went inside of the house of the accused who bolted his door from inside and that the witnesses requested the accused to provide him job and handed over Rs. 500/- to the accused which were counted. He has also denied various other aspects of the prosecution case and also that the document from the Employment Exchange was found there.

It was Ram Raj who took him to the office of Anti Corruption Department, where they were asked to come the following day and on being asked whether they knew the accused, their reply was in the negative. However, he agreed to deliver Rs. 500/- to the accused as per the desire of the police, assuring to provide him a job. The amount was paid by Ram Raj to the accused saying that it would be adjusted towards the loan amount. Ram Raj took Rs. 100/- from the accused saying that as his daughter was ill, he required the same for her treatment. Out of these Rs. 500/- Rupees one hundred was returned by the accused. He had left and was called from Cart Road and this amount of Rs. 100/- was taken from him by the police, who took him to police Station. He was asked to sign some papers on the next day in the office. The accused was also asked to sign certain papers. Ram Raj was the helper of the police and the police had managed the whole scheme with him. He had neither any occasion to bribe the accused nor any work with him. Whatever documents he was made to sign were not read over to him. He was illiterate and knew to write his name in Hindi.

Gulaba Ram (PW.4) states that the mother of the complainant took Rs. 500/- from him by way of loan for payment to the accused by wav bribe, but says that in April, 1986 he did not pay any amount to Smt. Soma Devi. He has denied the suggestion that Smt. Soma Devi had taken Rs. 500/- from him in April, 1986 by way of loan thereby contradicting previous statement (Ext.PW.4/A) portion A to A made to the police. Smt. Soma Devi (PW.5) has also not supported the prosecution like the previous two witnesses. She has been cross-examined by the prosecution. She stated that the name of the complainant was registered with Employment Exchange, Shimla, but she had no talk with him about his employment. She has denied that complainant had demanded Rs. 500/- from her to bribe the accused for seeking employment in the Municipal Corporation. She has also denied that she arranged Rs. 500/- from Gulab Singh who was working in the hospital and the amount was paid to the complainant.

Sh. Ram Raj (PW.13) says that he never visited the house of the accused situated in Kaithu. He did not go there when complainant was there. This witness has also been declared hostile and was confronted by the prosecution to his previous statement (Ext.PW.13/A). He has stated that the complainant was his sister''s son. On 5.4.86 he came to him and handed over Rs. 500/- to be given to the accused . The complainant told him that this amount was to be paid to the accused towards loan of Rs. 1,000/- taken by him from the accused. According to him, he paid some amount towards part payment of the loan. He took Rs. 100/- from the accused as further loan out of Rs. 500/-. The loan of Rs. 1,000/- was taken from the accused in 1985.

Chander Mohan (PW.12) is a shadow witness. He has not supported the prosecution case. In his presence complainant did not produce anything to the police. He did not state anything further to the police. Complainant did not produce any currency notes to the police in his presence. He has also been declared hostile and confronted with his statement (Ext.PW.12/A). He has denied that he acted as shadow witness of the prosecution case. He went to the house of the accused where Rs. 400/- of 20 rupees denomination were lying on the table. The number of these currency notes were not compared in his presence with the numbers noted by the police. The police did not seal those Rs. 400/- in his presence in an envelop. He has denied that the pant of the accused was taken by the police and washed with water. The complainant did not enter into the house of the accused in his presence nor he came to know that the currency notes were paid to the accused by Ram Raj. At the time of occurrence, a paper from the drawer of the table of the accused was taken by the police and accused was made to write something on that for the purpose of comparison of his hand-writings. He also states that all the memos were prepared by the police next day and he signed them.

Inspector Kamal Narain (PW.17) investigated the case. He proved the first information report recorded by the then Dy. Superintendent of Police, Anti Corruption. He has corroborated the prosecution case by passing through various stages. Onkar Chand (PW.7) has stated about the litigation between the accused and J.R. Rana. Sh. Moti Ram Chauhan (PW.3) is the Employment Officer, Employment Exchange, Shimla, stating about the complainant registration with the Employment Exchange, Shimla on 14.9.82 for the post of Sweeper under Registration No. 4058/82 and N.C.O. No. 541.20 and sponsoring of 381 candidates to Municipal Corporation, Shimla against 14 notified posts of Sweepers including the name of the complainant at Sr. No. 8 of the list. He further stated that on 8.10.85, Municipal Corporation again asked for 33 posts of sweepers and against the said notification, the "Employment Exchange sponsored the names of 240 candidates for the post of sweeper. Thereafter,50 more posts of sweepers were received on 7.2.86 and names of 51 candidates were sponsdred by the Employment Exchange, who were already working of daily wages with the Municipal Corporation, Shimla. The expert witness compared the questioned hand writings with the admitted hand writings of the accused. According to him, the person who wrote the red enclosed writings stamped and marked S-1 to S-7 and A-1 to A-3 also wrote the red enclosed writings similarly stamped and marked as Q-1, meaning thereby that the writing Q-1 was found to be that of the accused when compared with the admitted and specimen handwritings and signatures of the accused. Shri D.S. Minhas (PW.10) accorded the sanction for the prosecution of the accusedand Dr. R.M. Parkash (PW.11). Health Officer, Municipal Corporation, Shimla has stated that the Corporation used to appoint Safai Mazdurs on daily wages basis and the candidates used to be requisitioned from Employment Exchange and the committee consisting of Health Officer, Chief Sanitary Inspector and Superintendent used to screen the candidates. However, appointment was being made by the Commissioner. He has also refers to the litigation between the accused and Sh. J.S. Rana.

The material evidence of the prosecution has been extracted above. It is plainly clear that the prosecution case has not been supported either by the complainant or by the other relevant and material witnesses. The complainant has denied having approached the accused for employment and the accused offered to provide the same against payment of Rs. 500/- by way of illegal gratification. When the basic case of the prosecution stands demolished by its key witness, the remaining allegations/facts are of little consequence. The demand of bribe by the accused has not been proved by the complainant. It appears from his version that the matter was schemed by the police and one J.R. Rana. The version that the accused was paid this amount by his mother who took it from Gulab Singh is also not proved. Similarly, the passing of the amount by way of illegal gratification has also remained un-substantiated, instead, it has been pointed out by some of the prosecution witnesses that the amount was intended to be adjusted against loan amount of Rs. 1000/- taken in 1985 from the accused. Making of recoveries and recording of statements have been seriously assailed by the prosecution witnesses throwing serious doubt about the authenticity of the case. Finally, it also appears that the accused had no power in the engagement of Safai Karamcharies, the appointments used to be made by the Commissioner of the Corporation after the candidates were screened by a Committee of three persons. Only those candidates could be considered whose names were sponsored by the Employment Exchange. The name of the complainant was registered with it and his name was coming for consideration and employment as a matter of course.

In the aforesaid background, it is not possible to accept the prosecution version. The trial Court has examined the matter quite seriously and comprehensively. The evidence has been analysed properly before drawing the conclusions. It is not possible to take any other view of the matter.

After all this is an appeal against acquittal; it is a well settled that unless the approach of the trial Court is grossly unreasonable and palpably wrong, interference by the appellate Court is not called for, more so in an appeal against acquittal. Additionally, this is a matter of 6.4.86, after elapse of more than eight years ,the findings of acquittal may not legitimately be converted into conviction.

Accordingly, there is no merit in this appeal and the same is accordingly dismissed.