STATE OF H.P. Vs. KAMLESH KUMAR

JUDGEMENT

(1.) THIS is an appeal filed by the appellant under Section 378 of the Cr.P.C. against the judgment of the court of learned Special Judge, Sirmour District at Nahan, dated 26.12.2003, vide which the respondent was acquitted of the charge framed against him under Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act.

(2.) BRIEFLY stated the facts of the case are that on 14.9.2001, a complaint was made to the Vigilance Department by one Babu Ram, Forest Contractor, that he had purchased private trees and had obtaining felling order after completing all the formalities. The complainant approached the Range Officer Babu Ram, respondent, for export permit. The complainant paid Rs. 6,000/ - to the Range Officer earlier and he made a complaint that for getting the export permit for another type of wood, the respondent had demanded a sum of Rs. 2,000/ - from him as illegal gratification. The complaint was registered by the Vigilance Department and Rs. 2,000/ - given by the complainant were treated with the powder and the demonstration was given to the complainant as to how he has to give the money and give signal after giving the money to the respondent. Two independent witnesses, namely, Rajesh Kumar and Dinesh Kumar were associated at that time. Thereafter, the complainant reached the office of the respondent and PW -2 Dinesh Kumar, an independent witness, was kept standing outside the door and a sum of Rs. 2,000/ - was paid to the respondent in an envelope. Thereafter, the signal was given to the witness Dinesh Kumar to enter into the room alongwith the police officials. Hand -wash of the respondent was taken which turned pink and the money was taken in possession and the notes were tallied with the notes given by the complainant, which were treated, and the respondent was arrested. On completion of the investigation, sanction was taken from the Principal Chief Conservator of Forest and the challan was filed before the learned Judicial Magistrate, which was committed to the learned trial Court, who tried the respondent leading to his acquittal.

(3.) THE main ground taken by the learned trial Court in acquitting the respondent was that there is no evidence on record to show that there was any demand of the money made by the accused/respondent. It was also observed that the complainant has stated that the money was kept in the pocket by the respondent and when the police appeared at the spot, he put the envelope containing the notes on the table whereas the Investigating Officer has stated that the envelope was lying on the table of the accused. It was also observed by the learned trial Court that one of the independent witnesses, namely, Dinesh Kumar, associated during the proceedings, cannot be termed as an independent witness, who had been blacklisted by the Forest Department and had been working earlier also as Forest Contractor. Therefore, he cannot be termed as an independent witness. The learned trial Court also observed that there was sufficient opportunity to associate independent witnesses from the nearby area including bank officials, but no independent witness was associated and as such, the prosecution story was not relied upon. The learned trial Court had also observed that the shirt of the accused was not taken in possession and the pocket -wash was also not taken and, therefore, the prosecution story was not relied upon. One another infirmity pointed out was that the accused's signatures were not taken in regard to the nip containing the hand -wash of the accused by the Investigating Officer and, therefore, also the prosecution story was not relied upon.