Between vs Anirudh Kumar And Another
2021 Latest Caselaw 5537 HP

         IN   THE     HIGH COURT OF HIMACHAL             PRADESH, SHIMLA

                       ON THE 2nd DAY OF DECEMBER,2021

                                   BEFORE




                                                                   .
                     HON'BLE MR. JUSTICE SANDEEP SHARMA





                         Cr. Appeal No.307 of 2014
    Between:
    State of Himachal Pradesh





                                                                   ....PETITIONER
    (BY MR. SUDHIR BHATNAGAR,
    ADDITIONAL ADVOCATE GENERAL
    WITH MR. NARENDER THAKUR,
    DEPUTY ADVOCATE GENERAL)


    AND
    1.    ANIRUDH KUMAR SON OF SH.
          JAGAN NATH, R/O VILLAGE

          LUTHER, P.O.KOTLA, TEHSIL
          JAWALI, DISTRICT KANGRA,


          H.P.

    2.    MEGH RAJ SON OF SH. PURAN
          CHAND, R/O VILLAGE JANERA,
          P.O. BHALI, TEHSIL JAWALI,


          DISTRICT KANGRA, H.P.
                                                               ....RESPONDENTS
    (BY MR. SANJEEV KUMAR SURI, ADVOCATE).




    Whether approved for reporting? Yes.





    This appeal coming on for orders this day, the Court passed the following:

                         JUDGMENT

By way of instant Criminal Appeal, challenge has been

laid to judgment of acquittal dated 22.2.2014, passed by learned

Special Judge Kangra at Dharamshala, H.P., in Corruption Case

No.3-J/2011, titled State versus Anirudh Kumar and another,

whereby Court below held respondents-accused(hereinafter referred

to as the accused) not guilty of having committed offence

punishable under Sections 7 read with Section 12 and 13(1)(d)(1)

read with section 13(2) of Prevention of Corruption Act and

.

accordingly acquitted them.

2. Precisely, the case of the prosecution as emerge from

the record is that SHO/Inspector, police Station, SV & ACB

Dharamshala, District Kangra H.P., presented challan for trial

against the accused for their having allegedly committed offence

punishable under Sections 7 & 13(2) P.C. Act, 1988 and 120-B IPC

in Case FIR No. 8 of 2010, dated 24.5.2010, Police station SV & ACB

Dharamshala, District Kangra, H.P., alleging therein that on

25.5.2011, accused Anirudh Kumar, Deputy Ranger, Jawali Block of

Jawali Range and accused Megh Raj, Forest Guard, Naina Beat of

Jawali Range, demanded bribe from the complainant Narender

Singh. Police alleged that one Bir Singh (PW-1) was raising

construction of his house and there existed a "Share-Aam-Path"

(Common) near his house, which was being widened by using JCB

of person namely, Narender Singh (PW-2) and while path was

being widened, a tree of 'Amaltash' was uprooted by JCB. Accused

came on the spot and forcibly took away the keys of JCB. Police

alleged in the challan that both accused told PW-2, Narender Singh

to bring `15,000/-to be paid to them as bribe in lieu of return of the

keys. On 24.5.2010, complainant Narender Singh along with one Bir

Singh approached the office of Vigilance Bureau and made a

complaint Ex.PW2/A regarding demand of bribe made by both the

accused. On the basis of compliant Ex. PW2/A, FIR (Ex PW17/A)

was registered by Inspector Asha Kumari (PW-17). After registration

.

of the FIR, case was entrusted to Inspector Bhisham Thakur for

investigation, who after having associated Ravinder son of Prem

Singh as shadow witness and Constable Navneet Kumar alongwith

complainant Narender Kumar, made a plan to catch hold accused

red handed while taking bribe. Above named Investigating Officer

gave demonstration to the persons associated by him that how

currency notes treated with solution of phenolphthalein and sodium

carbonate is to be kept by the complainant for giving it further to

the accused. Inspector Bhisham Thakur, after having taken thirty

currency notes of the denomination of 500/- each from the

complainant Narender Kumar, which were treated with

phenolphthalein powder, prepared memo Ex. PW2/C and asked the

complainant to put the said currency notes in his pent pocket and

hand over the same to the accused when they demand for it.

Inspector also instructed shadow witness Ravinder Singh to give a

signal when such amount is accepted by the accused. As per

prosecution, members of the trap party hid themselves outside the

office of Ranger and the moment shadow witness Ravinder

signaled, then Inspector Bhisham Thakur i.e. Investigating Officer

alongwith other members of the trap party ran to upper storey of

the office of Ranger and found accused Anirudh sitting in his office

Chair and co-accused Megh Raj Forest Guard sitting right in front of

accused Anirudh. Inspector Bhisham Thakur after having given his

introduction, caught hold accused Anirudh from his left arm wrist

.

and HHC Jagroop caught hold of the accused Anirudh from his right

arm wrist and thereafter Inspector Bhisham Thakur took out one

small box from his investigation attaché, which was containing

sodium carbonate, and plastic bowl, empty glass tumblers, one

empty liquor quarter and cleaned them thoroughly and also washed

his own hands and thereafter put sodium carbonate in the empty

glass tumbler and put water in it and prepared its solution and got

washed the hands of accused Anirudh in the sodium carbonate

solution in the plastic bowl, whereafter the colour of solution in the

bowls turned slightly pink and the hand-wash solution was taken in

a glass quarter and sealed with seal impression "P". It is further

alleged by the prosecution that on inquiry accused Anirudh took out

thirty currency notes of the denomination of ₹500/- each from the

front pocket of his shirt worn by him and the same were tallied by

independent witnesses, Surinder Kumar Pradhan, Gram Panchayat

Palahara and the currency notes Ex. P3 to P32 were found to be the

same, which were earlier treated with phenolphthalein powder and

described in the memo Ex. PW2/C. After having effected aforesaid

recovery of currency notes from the accused, police after

completion of all the necessary codal formalities registered FIR

against the accused and presented the challan in the competent

court of law.

3. Learned trial Court on the basis of the material made

.

available to it found prima-facie case against the accused and

accordingly, charged them under Section 7 read with Section 12

Prevention of Corruption Act and 13(1)(d)(1) read with section 13(2)

of Prevention of Corruption Act, to which they pleaded not guilty

and claimed trial.

4. Learned trial Court on the basis of the entire evidence

led on record held accused not guilty and accordingly, acquitted

them. In the aforesaid background, appellant-State has approached

this Court in the instant proceedings, praying therein for conviction

of the accused after setting aside the judgment of acquittal

recorded by the Court below.

5. Having heard learned counsel representing the parties

and perused the material available on record vis-à-vis reasoning

assigned by learned court below while acquitting the accused of the

charges framed against them, this Court finds no force in the

submission of Sh. Sudhir Bhatnagar, learned Additional Advocate

General that court below failed to appreciate the evidence in its

right perspective, as a consequence of which, finding contrary to

the record came on record to the detriment of the appellant-State.

Rather, this Court finds from the record that prosecution miserably

failed to prove beyond reasonable doubt that sum of `15,000/-

allegedly recovered from the pocket of accused Anirudh was paid as

a bribe by complainant Narender Kumar and as such, there appears

to be no reason/justification to interfere with the findings returned

.

by the Court below, which otherwise appear to be based upon the

proper appreciation of evidence led on record by the respective

parties.

6. Prosecution with a view to prove its case examined as

many as seven witnesses. Accused in their statements recorded

under Section 313 Cr.P.C, denied the case of the prosecution in toto

and claimed themselves to be innocent. However, they did not lead

any evidence in defence.

7. PW-1, Bir Singh while stating that he is resident of

village Gaili and in the year 2010 he was raising construction of his

house admitted that there is "Share-Aam-Path" (Common) near to

his house, which was being widened by using JCB of complainant

Narender. He also deposed that while common path was being

widened with the help of JCB, a tree of Amaltash" was uprooted by

JCB and in the meantime, BO Anirudh and Forest Guard came there

and took the keys of JCB in their possession and told Narender

driver of JCB that a compensation of 15000/- shall be paid to the

Forest Department. He deposed that both the accused persons

asked Narender Singh to bring `15,000/-to their office at Jawali on

the next day. He deposed that on 24.5.2010 Narender visited BO

office at Jawali. He deposed that both the accused persons were

present in the office and Narender paid `15,000/- to BO Anirudh

Singh and BO Anirudh Singh counted the currency notes of

`15,000/- and then put the same in his shirt pocket. He further

.

deposed that Forest Guard, Megh Raj obtained his signature on the

damage report and told him that they will fill damage report and

would hand over the copy of the same to him. He deposed that

accused persons did not issue receipt of `15,000/- to him. His

signature were obtained by Forest Guard, Megh Raj on the reverse

of blank form of damage report Ex. PWI/A at three places, which is

in red circle. This witness in his cross-examination admitted that as

per the rules and instructions described in Ex. DX, the Forest

Department of Himachal Pradesh has fixed `15,000/- as

compensation to be deposited for the purpose of compounding

Forest offence, if vehicle involved is JCB. This witness further

admitted that accused persons had only informed him about the

compensation and did not make any demand of bribe from him. He

also deposed that keys of JCB were returned by the Range Officer,

Sushil Guleria. He also admitted that Sushil Kumar Guleria, Range

Officer, was also on duty on that day. While admitting that after his

having put signatures on damage report, police reached there, this

witness feigned ignorance that compensation book and damage

report are verified by the Range Officer.

8. PW-2, Narender Singh deposed that he is owner of JCB

and about two years back, his JCB was hired by Cap. Bir Singh R/o

village Kelly in order to create passage to his house. He stated that

person namely; Arvind Kumar was kept as driver in the said JCB.

While the road was being widened with the JCB, a Amaltash tree fell

.

down and thereafter Forest officials reached there and demanded

`15,000/- as compensation in lieu of tree which fell down. He

deposed that they thought that Forest officials are demanding bribe

as amount of compensation was quite high and as such, he lodged

report with the vigilance police, Dharamshala. He further deposed

that he as well as caption Bir Singh (PW-1) went to the Forest office

at village Labh, Tehsil Jawali and he kept `15.000/ currency notes

on the table of Range officer and thereafter police officials took in

to possession the bribe money from the table

of the Range officer. He also deposed that he put his signatures on

documents as per the direction of police officials. This witness was

declared hostile. In his cross-examination by public prosecutor he

has maintained that he did not make statement Ex.PW2/A to the

police including portion A to A, B to B, C to C, D to D and E to E. He

specifically denied that BO demanded bribe of `15,000/- from him in

lieu of returning keys of JCB. In his cross-examination conducted by

defence counsel, this witness admitted that he came to know that

as per the instructions of the Government Forest Department can

charge `15,000/-as compensation for compounding of Forest

offence if the vehicle involved is JCB. If the statements of aforesaid

two material prosecution witnesses are read in conjunction

juxtaposing each other, there appears to be no illegality, if any,

committed by court below while returning finding that prosecution

miserably failed to prove that sum of `15,000/- was paid by

.

complainant Narender Kumar to the accused as bribe. Both the

witnesses, as detailed hereinabove, specifically stated that one tree

of "Amaltash" fell down while road leading to the house of Capt. Bir

Singh was being widened and thereafter two Forest officials

reached on the spot and asked them to pay compensation. Most

importantly, it has been specifically come in the statements of both

the aforesaid witnesses that they on the askance of investigating

officer visited the office of Forest Department, Dharamshala and

gave `15,000/- currency notes to the accused, who in turn obtained

signature on the damage report and told that they will fill damage

report and hand over the copies of the same to complainant. If the

statement of both the witnesses, are perused in its entirety, it

clearly reveals that both the accused after having visited spot

asked the complainant to come present in their office to pay

compensation, but since complainant gathered the impression that

money is being demanded as bribe, he reported the matter to

vigilance, who without verifying the facts constituted the team and

laid trap.

9. No doubt, statements of Bir Singh reveals that 15000/-

rupees paid by PW-1 Narender Kumar was kept in pocket by

accused Anirudh, but since it has been specifically come in his

statement that accused after having taken money, as detailed

hereinabove, made him to sign on damage report, learned trial

Court rightly concluded that sum of `15,000/- was not paid as bribe,

.

but as a compensation amount.

10. Leaving everything aside, there are major

contradictions and inconsistencies with regard to handing over the

money by Narender Kumar to accused after his visit to office on the

instructions of Investigating Officer. PW-1, Bir Singh stated that sum

of `15,000/- was given to accused Anirudh, who put the same in his

pocket, but complainant Narender Kumar stated that sum of

`15,000/- was kept on the table and thereafter same was recovered

by the police from the table. If afore version of PW-2, Narender

Kumar is taken into consideration, it renders entire story of

prosecution to be highly doubtful and unbelievable. Once sum of

`15,000/- if paid by Narender Kumar was not touched by accused

Anirudh, there was otherwise no occasion for Inspector Bhisham

Thakur and other team members to make accused Anirudh to wash

his hand in the water treated with solution of phenolphthalein and

sodium carbonate. Though, major contradiction with regard to

handing over of sum of `15,000/- to the accused by complainant

Narender Kumar has made story of the prosecution highly doubtful,

but even if it is presumed that sum of `15,000/- was received by

accused Anirudh, there is no evidence that such amount was

received by him as a bribe, rather as per own statement of both the

material prosecution witnesses such amount was paid on account of

damages qua the one tree of Amaltash, which was uprooted on

account of the widening of the road. Though, complainant

.

Narender Kumar was declared hostile but cross-examination

conducted upon this witness by prosecution as well as defence

counsel, nowhere suggests that prosecution was able to extract

something contrary to what this witness stated in his examination-

in-chief. Since, story with regard to handing over sum of ` 15,000/-

as bribe to accused Anirudh has become highly doubtful on account

of aforesaid statements r made by two material prosecution

witnesses PW-1, Bir Singh and PW-2 Narender Kumar, there is no

occasion, if any, for this Court to refer to the statements made by

other official witnesses, who were admittedly part and parcel of the

team, which had laid trap to catch the accused red handed taking

bribe from the complainant Narender Kumar.

11. Interestingly, PW3, Ravinder Kumar shadow witness

deposed that Narender Kumar (PW-2) asked him to accompany him

to Dharamshala and when they reached in the office of Vigilance at

Dharamshala, PW-2, Narender Kumar went inside but he remained

outside. He deposed that PW-2, Narender Kumar told him that

Forest officials were demanding compensation or bribe from him as

a tree fell down while widening the road. He specifically stated that

no proceedings took place in his presence in the Vigilance office.

This witness was declared hostile at the request of Ld. P.P for State,

but even cross-examination conducted upon this witness nowhere

improves case of the prosecution, rather, raises doubt with regard

to story of the prosecution.

.

12. PW4, Surinder Kumar deposed that currency notes were

not seized from the accused in his presence. This witness was also

declared hostile. Cross-examination conducted upon this witness

also does not suggests that prosecution was able to extract

something contrary to what this witness stated in his examination-

in-chief.

13. PW10, Sushil Kumar deposed that in the year 2010 he

was posted as Range Officer, Jawali and on 24.5.2010 police raided

the office of accused Anirudh Kumar BO. He deposed that

complainant party was constructing a road with JCB and one or two

trees fell down about which he was verbally informed by the

accused persons. He deposed that accused persons did not issue

damage report qua falling of trees and breaking of soil. The road

was constructed to the house of Bir Singh. The revenue department

also visited the spot and gave the demarcation of the land and

found that land belongs to the Forest Department. The receipt of

damage book Ex.P35, receipt No.14 Ex.PW1/A is blank and having

the signature only. He deposed that the damage report was issued

by Range Officer, Jawali. If the version put forth by aforesaid

witness is examined in the light of the statements made by PW-1

and PW-2, it clearly establishes on record that at the time handing

over of `15,000/- by complainant Narender Kumar to the accused,

they were duly informed that such amount is being taken as a

compensation/damages that's why they were made to sign on the

.

blank damage report. Since, in the case at hand prosecution has

been not able to prove demand, of bribe, if any, by accused, case

registered against the accused under Section 7 read with Section

12 Prevention of Corruption Act and 13(1)(d)(1) read with section

13(2) of Prevention of Corruption Act, otherwise is not maintainable.

As per own statement of PW-3 sum of `15,000/-was demanded as a

compensation/damage of the tree. He categorically deposed that

since amount of compensation demanded was high, he thought that

it was being demanded as a bribe.

14. By now it is well settled 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. As far as guilt under Section 13(1)(d) is concerned same

cannot be held to be established in the absence of any proof of

demand for illegal gratification. In this regard, reliance is placed

upon the judgment rendered by Hon'ble Apex Court in case titled as

Sunkanna versus State of Andhra Pradesh ,(2016) 1 SCC 713,

wherein it has been held as under:-

"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

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]. In

the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent. The judgments of the Courts below are, therefore, liable to be set aside. For the aforesaid reasons

.

the appeal is allowed and the conviction of the appellant

under Section 7 and under Section 13(1)(d) read with Section 13(2) of the Act and the sentences imposed

are set aside and he is acquitted of the charges. The bail bond, if any, furnished by the appellant be released".

15. Consequently, in view of the detailed discussion made

hereinabove, this Court finds no illegality and infirmity in the

judgment of acquittal recorded by the Court below, which is based

upon proper appreciation of evidence and as such, no interference

is called for and accordingly, same is upheld.

16. The present appeal fails and accordingly same is

dismissed alongwith pending applic ation (s), if any.

(Sandeep Sharma), Judge

2nd December, 2021 (shankar)