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Uttarakhand High Court
Hari Ram Tiruwa vs State Of Uttarakhand on 30 April, 2025
Author: Pankaj Purohit
Bench: Pankaj Purohit
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.107 of 2017
Hari Ram Tiruwa .........Appellant
Versus
State of Uttarakhand .........Respondent
Mr. Arvind Vashishtha, Sr. Advocate assisted by Mr. Sarang Dhulia and Mr. B.K.
Mishra, Advocates for the appellant.
Mr. S.C. Dumka, learned AGA for the State.
Judgment reserved on 21.04.2025
Judgment delivered on 30.04.2025
Hon'ble Pankaj Purohit, J. (Oral)
This appeal is preferred by the appellant under
Section 374(2) Cr.P.C. and is directed against the judgment and
order dated 13.04.2017 passed by the learned Special Judge
(Prevention of Corruption Act)/ 1st Additional Sessions Judge,
Nainital in Sessions Trial No.5 of 2011, State vs. Hari Ram
Tiruwa, whereby, the accused/appellant has been convicted under
Section 7 and 13(2) of Prevention of Corruption Act, 1988 and
was sentenced to undergo five years simple imprisonment with
fine of Rs.10,000/- with default stipulation of one year simple
imprisonment under Section 7 Prevention of Corruption Act and
was sentenced to undergo five years simple imprisonment with
fine of Rs.20,000/- with default stipulation of one year simple
imprisonment under Section 13(2) Prevention of Corruption Act.
Both the sentences were directed to run concurrently and period
already spent in jail in this case shall also be adjusted with the
sentence imposed.
2. In brief the prosecution case is that the complainant
(PW-5) wrote a letter to S.P. Vigilance, Haldwani stating that she
is working as a contractual steno recruited through UPNL in
Government P.G. College, Dwarahat, Almora and the principal of
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the said college is demanding a bribe of a mobile phone or
Rs.10,000/- in the alternative in lieu of letting her continue in the
said job.
3. On the basis of above complaint, S.P. Vigilance R.P.
Sharma (PW-4) by an order dated 07.03.2011 directed Inspector
Harak Singh Firmal (PW-1) to conduct a preliminary
investigation who in turn filed a report dated 08.03.2011 stating
therein that prima facie it is a fit case for laying a trap.
Thereafter, the S.P. Vigilance directed the Inspector (PW-1) to
take necessary steps regarding the trap and also wrote a letter to
S.D.M., Ranikhet requesting him to provide two independent
witnesses who in turn named Puran Singh Supyal (PW-3),
Revenue Inspector, Ranikhet and Kundan Bisht Patwari,
Ranikhet as Government witnesses. Thereafter, the vigilance
team on 10.03.2011 went to Spring Field Police Guest House
along with the complainant and the independent witnesses and
conducted a mock trial for laying the trap. They applied Sodium
Carbonate Powder and Phenolphthalein Powder to the currency
notes used for the trap. Thereafter, on 11.03.2011, they went to
the area near principal’s office and directed the complainant to
hand him over the currency notes, on which the said chemical
were applied at around 10.50 am, they caught the
accused/appellant red handed while he was counting the currency
notes. Thereafter, the currency notes were taken into custody and
put into an envelope and the hand of the accused/appellant were
washed, during washing the water turned pink colour because of
the chemical, the sample of the pink liquid was seized and sealed.
4. On the basis of above drill, the accused was charged
under Section 7/13(1)(d) read with Section 13(2) and after
investigation, a charge-sheet was filed in the court of the learned
Special Judge (Prevention of Corruption Act).
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5. Thereafter, on 13.07.2012, learned Special Judge,
framed charges under Section 7, 13(1)(d) and 13(2) Prevention of
Corruption Act. The charges were read over and explained to the
accused, who pleaded not guilty and claimed to be tried.
6. To prove its case, the prosecution has examined PW-1
Inspector Harak Singh Firmal, PW-2 S.P. Anand Singh Gussain,
PW-3 Revenue Inspector Pooran Singh Supyal, PW-4 Retd. S.P.
R.P. Sharma, PW-5 Complainant Chandra Chauhan, PW-6
Inspector Devendra Singh Digari, PW-7 Principal Secretary to
U.K. Government Manisha Panwar.
7. After prosecution evidence, the statement of appellant
was recorded under Section 313 Cr.P.C. in which he stated that
the complainant was working in his college as a steno and she
was careless in her work and used to even take leaves without
permission. On that fateful day when he called her in his chamber
to call for an explanation for an unauthorized leave to his surprise
she entered alongwith persons from vigilance and the team
forcefully took him to Ranikhet. He claimed that he was innocent
and claimed to be tried. The appellant also got examined DW1-
Jagat Singh, who was the driver of the concerned vehicle, in his
defence.
8. During trial, PW-1 reiterated the facts of prosecution
story and supported it. He stated that he was nominated by S.P.
Vigilance (PW-4) to lead the trap and he also confirmed that he
went to the Government P.G. College, Dwarahat along with the
trap team and caught the accused/appellant red handed when he
was counting the currency notes received in bribe. He thereafter
washed the hands of the accused and the liquid turned pink
because of the chemicals applied. He further stated that FSL
report confirmed that sodium carbonate and Phenolphthalein
Powder applied on the hands of the accused, victim was the
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same.
9. PW-2 on oath deposed that he was also nominated by
the then S.P. Vigilance in the trap team. He also supported the
prosecution story along with other facts of laying the trap, catching
of the accused red handed while he was counting the currency notes
and the water turning pink because of the applied chemicals.
10. PW-3 in his examination in chief stated that at the time
of alleged incident he was working as Revenue Inspector and the
then SDM, Ranikhet nominated him as independent witnesses of
the trap team. He also supported the prosecution story and stated
that in the Spring Field Guest House the victim was supplied with
20 currency notes of Rs.500/- denomination by inspector Firmal.
He further stated that after handing over the currency notes the
inspector washed his hand and sealed the resultant liquid. He
also stated that thereafter the team reached Government P.G.
College, Dwarahat and when the accused was counting the
currency notes they caught him red handed.
11. PW-4 who was the then SP Vigilance on oath stated
that after doing preliminary inquiry on the received complaint he
directed to inspector Harak Singh Firmal to lay a trap. He also
confirmed and exhibited his signatures on the various documents
which were a part of the trap.
12. PW-5 who was the victim on oath stated that she was
working as a contractual employee in Government P.G. College,
Dwarahat and the accused was working as the Principal of the
said college. In her examination in chief she deposed that the
Principal used to humiliate her. She also stated that he used to
treat her inhumanly and denied her leaves. She further deposed
that she initially thought of making complaint against the
principal to the directorate of education but someone advised her
that she should instead file a complaint to the vigilance. She
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thereafter went to vigilance Cell Haldwani where she met
Inspector Firmal who told her that she need not worry and
assured her that she will be able to continue her job, if she brings
Rs.10,000/- he also promised that the said money will be returned
to her later. She further deposed that on hearing this she withdrew
Rs.10,000/- from a nearby ATM and handed it over to Mr. Firmal
and on his instructions wrote a complaint against the Principal
Government P.G. College, Dwarahat. She further stated that on
10.03.2011, she received a call from vigilance and she was asked
to meet at Spring Field Government Guest House on 11.03.2011
when she reached there, Mr. Firmal introduced her to all the
member of trap team and handed her over Rs.10,000/- with
certain chemicals applied. She also stated that thereafter her
hands were dipped in water which was sealed after it turned pink.
After doing all this, the team went to Government P.G. College,
Dwarahat and instructed her to hand over the currency notes to
the principal but as he was not there she placed the currency
notes in his drawer. As soon as the principal reached in his
chamber she went inside and before anything else could have
happened, the trap team entered inside and started counting the
currency notes. On counting, it was found that one currency note
was missing and she had left one currency note in her purse. She
thereafter rushed and brought that note and handed it over to the
team. She further stated that her hands were again dipped into
water and sample was sealed after it turned pink. She was
declared hostile by the prosecution.
13. PW-6 was also a member of the trap team and
supported the story of prosecution in its entirety.
14. PW-7 who was posted as the then Secretary Higher
Education on the alleged date of incident in her examination in
chief deposed that after going through the entire file of the trap,
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she granted sanction to prosecute the accused/appellant.
15. It is vehemently argued by the learned counsel for the
appellant that the judgment of learned trial court is devoid of
merit and unsustainable in the eyes of law as it is based on
evidence of hostile witness, i.e. PW-5/complainant who has even
deposed that FIR was written at dictation of other prosecution
witness. He further states that no independent witness proves
demand and payment of illegal gratification and the fact that the
money was received from the drawer of accused raised suspicion
of planting of money.
16. It is also submitted by the learned counsel for the
appellant that the sample which were taken on 11.03.2011 were
sent to FSL on 17.03.2011. This unexplained delay too, raises
great suspicion in the prosecution story. He further argues that no
hand wash sample were taken of PW1 and PW-2 inspite of the
fact that both of them handled the money. Ḥe also submits that
the testimony of trap witnesses cannot be relied upon as they
were immediate subordinate to SP Vigilance and therefore cannot
be relied upon as independent witnesses. He also stated that story
of the prosecution appears to be dubious as inspite of the fact that
various other persons were present at the place of incident there
was no reason for prosecution to take their own subordinate as
shadow witnesses. He also submitted that no preliminary inquiry
as to the general character and disposition of the
accused/appellant was carried on by the trap team.
17. Per contra, learned State counsel admits the fact that
the appellant/accused was caught counting the money but the
prosecution failed to establish the demand and delivery of money.
18. Having heard the learned counsel for the parties and
on perusal of record and evidence of PW-5 and appreciation of
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the entire evidence, this Court is of the opinion that there is
nothing on record to prove the guilt of the appellant to the hilt
and beyond all reasonable doubts as here in the case in hand, it is
very clear from perusal of record that the star witness PW-5 i.e.
the complainant very clearly in her examination in chief stated
that the principal used to trouble her, humiliate her and not grant
her leaves, but she nowhere stated that there was any demand for
money as bribe instead it has been clearly stated by her that there
was no demand for any sort of illegal gratification which is the
most essential ingredients for conviction for an offence under
Section 7 and 13(2) of Prevention of Corruption Act. Moreover,
she herself deposed that the whole complaint was written under
the direction of the Vigilance Inspector and also stated that she
did not handed over the money to Principal but planted it in his
drawer in his absence. Further in her cross examination she has
clearly stated that it will be wrong to say that principal demanded
illegal gratification. Thus demand and delivery has not been
proved by the prosecution. In such view of the matter, conviction
cannot be sustained.
19. The aforesaid view is also supported by relevant para
88 of the celebrated judgment of Hon’ble Apex Court in the case
of Neeraj Dutta vs. State (NCT of Delhi), (2023) 4 SCC 731:
2022 SCC OnLine SC 1724. The relevant portion is herein
quoted below:
“88. What emerges from the aforesaid discussion is
summarised as under:
88.1. (a) Proof of demand and acceptance of illegal
gratification by a public servant as a fact in issue by the prosecution
is a sine qua non in order to establish the guilt of the accused public
servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.
88.2. (b) In order to bring home the guilt of the
accused, the prosecution has to first prove the demand of illegal
gratification and the subsequent acceptance as a matter of fact. This
fact in issue can be proved either by direct evidence which can be in
the nature of oral evidence or documentary evidence.
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88.3. (c) Further, the fact in issue, namely, the proof of
demand and acceptance of illegal gratification can also be proved by
circumstantial evidence in the absence of direct oral and
documentary evidence.”
20. This Court is of the opinion that in the case in hand
various lacunaes like unexplained delay in sending the sample to
FSL, non washing of hands of PW-1 and PW-2 who handled the
money, hand wash of the victim not turning pink but milky white
and non presence of independent witnesses go on to contradict
the cardinal principal of criminal law i.e. the guilt of the accused
should be proved beyond all reasonable doubts.
21. The upshot of the aforesaid discussion is that appeal
deserves to be allowed. Accordingly, present appeal is allowed
and the impugned judgment and order dated 13.04.2017 passed
by Special Judge, Prevention of Corruption Act/1st Additional
Sessions Judge, Nainital is hereby set aside. The appellant is on
bail. He need not surrender. His sureties discharge forthwith.
22. Let the TCR be immediately sent back to Trial Court
for consignment.
(Pankaj Purohit, J.)
30.04.2025
Ravi
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