HARI KISHAN Vs. STATE

JUDGEMENT

(1.) By this appeal the Appellant lays a challenge to the judgment dated 21 st July, 2010 convicting him for offences punishable under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act (in short P.C. Act) and order on sentence directing him to undergo Rigorous Imprisonment for a period of four years and a fine of Rs. 20,000/- on each count and in default of payment of fine to further undergo Simple Imprisonment for a period of six months on each count.

(2.) Learned counsel for the Appellant contends that the initial demand has not been proved in the case. The most important witness that is the complainant has not been examined. PW4 is a shadow witness and PW5 a panch witness. PW4 Kashmir Singh has nowhere stated as to when they met and where they met. PW4 does not even say that they went to meet in the office of the accused on the 31 st January, 2006 along with complainant Hukam Singh where the alleged bribe amount was settled. It is contended that the testimony of this witness is not reliable as he retracted and changed his statement. In inquiry he has stated that it was 30 th January, 2005 when he and Hukam Singh met the accused after knowing that the Appellant was on leave on 31 st January, 2005. As per the statement of the raiding officers and others it was PW7 Kalyan Singh in whose presence the demand was made and money was given. However, in his cross-examination PW7 has stated that the Appellant did not demand and accept any bribe in his presence. The version of PW4 cannot be believed as the site plan Ex.PW6/A does not show his presence. According to PW8 Inspector Sunil Kumar the proceedings were completed by 7.15 PM whereafter the rukka was sent. However the most material witnesses Ct. Kishan Pal and driver of the vehicle have not been examined who could prove the sequence of events. PW5 SI Om Prakash has however stated that Ct. Kishan Kumar reached by 8.00 PM along with the Rukka sent by Inspector Sunil Kumar and it took about 2 hours to write down the FIR. He has further stated that no one asked about the FIR number from him by means of telephone. Thus, it is apparent that the entire team would have waited for Ct. Krishan Kumar till 10.30 PM. PW8 has stated in his cross-examination that Hukam Singh did not give him any papers. He also did not try to ascertain the identity of Hukam Singh and Kashmir Singh from any independent source before proceeding for raid. PW6 Inspector Jai Prakash has stated that he along with Inspector Sunil Kumar and panch witness left the Anti-corruption office at about 1.30 PM. This testimony of the witness is contrary to that of the other witness. Thus, the testimony of three witnesses i.e. the PW4, PW6 and PW8 is not reliable and two important witnesses have been withheld by the prosecution. The Appellant be acquitted of the offences charged.

(3.) Learned APP on the other hand contends that the demand and acceptance has been proved by the prosecution. PW4 Kashmir Singh has clearly deposed about the incident and the accused demanding bribe. The presumption under Section 20 of the P.C. Act comes into operation as accused was found in possession of the notes. The Appellant has not discharged the onus put on him to prove his innocence. In his statement under Section 313 Cr.P.C. he has simply denied the alleged incident. Even though the complainant has not been examined, the case of the prosecution has been proved beyond reasonable doubt by the clear and cogent testimonies of other witnesses.