Decided on March 22,2012

Amichandra Appellant


Sudhanshu Dhulia, J. - (1.) HEARD Mr. T.A. Khan, Senior Advocate assisted by Mr. Rajesh Joshi, Advocate for the appellant and Mr. M.A. Khan, Brief Holder for the State of Uttarakhand.
(2.) THIS appeal arises out of judgment and order dated 2.12.2004 passed by the Special Judge (Anti Corruption/Additional District Judge/Second Fast Track Court) in Special Trial No. 2 of 2001 (State Vs. Amichandra) for the offences punishable under Section 7/13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The brief facts of the case, as per the prosecution, are that on 5.1.2000 complainant was made by one Neeraj Awasthi who was subsequently produced as PW -1 before the Superintendent of Police (Vigilance), Dehradun stating that his sister -in -law ("Bhabhi") Smt. Laxmi W/o Hoshiyar Singh R/o Deep Nagar Ajabpur Kalan has been allotted a plot by Village Panchayat since 1994. On this plot she has already constructed a room where her family members are staying. All the same, when she was raising a wall on the said plot on 5.1.2000 the accused -appellant Amichandra, who was "Patwari" of the area, stopped the construction and said that he will only be allowed to raise this wall when he gives Rs. 5,000/ - to him. Thereafter the matter was settled for the said amount by which Rs. 1,500/ - was to be given to him tomorrow i.e. 6.1.2000 and the remaining amount after the wall is constructed. He, however, stated in his FIR that he does not want to give bribe to such a person and in fact such person should be arrested and prosecuted. On this report Superintendent of Police (Vigilance), Dehradun sought a confidential report from his Deputy and consequently it was registered as an FIR of 5.1.2000. Consequent to the said FIR and on instructions of Superintendent of Police (Vigilance) a trap team was constituted under the leadership of Inspector Harsharan Singh Panwar. Two independent witnesses Ram Teerath (PW -3) and Rajendra Prasad (PW -5) were also procured, of which PW 3 was a daily -wage worker in an organized sector and PW 5 was a conductor in Uttar Pradesh State Road Transport Corporation. Consequently, thereafter as per the "guidelines" in such matters, a demonstration of phenolphthalein powder etc. was conducted and the required instruction given to all the members of the parties. Clarifications were made before the trap party could proceed, and thereafter trap party along with decoy/complainant Neeraj Awasthi and two witnesses PW 3 and PW 5 proceeded towards Village Kedarpur near the house of Puma Thapa at about 3.30 p.m. on 6.1.2000. The accused/appellant was sitting on the "Aangan" i.e. courtyard as per the statements given by PW 1 he entered in the house where the accused -appellant was sitting on a chair whereas PW 3 and PW 5 remained outside the house of Puma Thapa to hear the conversation between the PW 1/complainant and accused. He further states that he had placed three notes of Rs. 500/ - on the table and he had no conversation with the accused/appellant. As soon he placed the money on the table the police party presented himself on the spot. He further states that Inspector Sri Harsharan Singh Panwar shook hands with the accused -appellant and showed his identity card stating that he was a police officer and that he was arresting him for accepting bribe. At this stage, on the request of prosecution, PW 1 declared hostile. PW 3 and PW 5 the trap witnesses though support the case of the prosecution, but with certain contradictions. According to PW 3, they were watching this transaction between PW 1 and accused -appellant from a distance of about 15 -20 steps and the wall was of about five feet high but none actually heard the conversation between two i.e. PW 1/complainant and accused -appellant. All the same, PW 3 states that three notes were given by PW 1 to the accused which he promptly kept in his jacket pocket and it was from his jacket that the money was subsequently recovered by the trap party. According to PW 5, however, money was given by PW 1 to the accused -appellant, which the accused -appellant received in his right hand and it was at that time the police actually recovered the money from his hand. There is another contradiction between the stories of prosecution inasmuch as per the guidelines laid down for such trap proceedings, immediately after a person is caught in such proceedings his hands must be washed on the spot itself and then the solution is sealed and kept in a bottle. Important thing here is that the solution has to be prepared and the proceeding has to be done on the spot. According to PW 3 the proceedings (preparation of solution etc.) were done on the spot, but according to PW 5 no such proceedings took place on the spot and this formality was done only at the police station later.
(3.) BE that as it may, according to the prosecution, the recovery of Rs. 1500/ -, which was the same tainted money and was numbered and noted at the time of pre trap proceedings in the police station, tallied with the ones received from the appellant. Consequently, charge was framed against the accused -appellant under Section 7 as well as 13(1)(c) which is punishable under Section 13(2) of the Prevention of Corruption Act, 1988.;

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