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2004 DIGILAW 116 (PNJ)

Sarabjit Singh v. State of Punjab

2004-02-03

V.M.JAIN

body2004
JUDGMENT V.M. Jain, J. - This appeal has been filed by accused-appellant Sarabjit Singh against the judgment and order dated 8.2.1994 passed by the Special Judge, Ferozepur, convicting the accused-appellant under Section 13(2) of the Prevention of Corruption Act, 1988 and sentencing him to undergo RI for one year and to pay fine of Rs. 250/- and in default of payment of fine, to undergo further RI for 15 days. 2. The facts in brief are that on 29.7.1991 at about 4.00 pm. Balwant Singh PW made statement Exhibit PA before Inspector Babu Singh of Vigilance Bureau, Ferozepur, in his office. In the said statement, it was alleged by Balwant Singh that he is a resident of village Sardardinwala and was doing cultivation and that they were three brothers and he used to do the domestic work. It was alleged that their land measuring 6 killa was situated near the canal at the Metalled Road. It was alleged that some days back, there was dust storm at a high speed as a result of which some branches of various trees had fallen on the road and some branches fell in their paddy crop as a result of which damage was caused to their paddy crop. It was alleged that in order to avoid further damage to the paddy crop, they removed the branches of the trees and took the same to their house and burnt the same. It was alleged that accused Sarabjit Singh came to know about it and on 26.7.1991, he came to their fields and called him and he went to him whereupon accused Sarabjit Singh told him the had cut the wood of the forest department from near the road and in front of his land and he was going to the police station to lodge a report againt him and he wrote his name on a piece of paper on which he had written the names of other persons. It was alleged that he told him that he should pay a sum of Rs. 1000/- as bribe to him otherwise he would get him behind the bars. It was alleged that he requested for mercy and thereupon he agreed to accept Rs. 500/- as bribe and not to lodge the report with the police and assured that he would destroy the paper. 1000/- as bribe to him otherwise he would get him behind the bars. It was alleged that he requested for mercy and thereupon he agreed to accept Rs. 500/- as bribe and not to lodge the report with the police and assured that he would destroy the paper. It was alleged that he told him that money was not readily available with him at that time, whereupon accused Sarabjit Singh told him that since he was to go out for two days, he should pay the money on Monday i.e. 29.7.1991 in the afternoon at his house and that he would destroy the papers. It was alleged that since he was against giving illegal gratification, he (Balwant Singh) along with Lakha Singh had come to the Vigilance Bureau and had produced Rs. 500/- and that necessary action may be taken. Thereafter, after recording the aforesaid statement of Balwant Singh, Inspector Babu Singh applied phenolphthalein powder to the currency notes and returned the same to Balwant Singh PW with a direction to hand over the same to accused Sarabjit Singh whereas Lakha Singh PW was directed to act as a shadow witness and to give signal to the raiding party after the amount was passed on to the accused on demand. Necessary memos were prepared in this regard. Thereafter, Inspector Babu Singh sent the said statement of Balwant Singh PW Exhibit PA along with his endorsement with regard to the above said proceedings to the Police Station on the basis of which formal FIR Exhibit PA/2 was recorded in Police Station, City Ferozepur at 4.15 p.m. on 29.7.1991 under Section 13(2) of the Prevention of Corruption Act, 1988. In the meanwhile, the raiding party was formed in which Natha Ram PW (Inspector of PUNSUP) was also joined and introduced to other witnesses. Thereafter, the raiding party left for the house of the accused and Balwant Singh and Lakha Singh PWs were sent inside the house along with currency notes with a direction to Lakha Singh PW to give signal to the raiding party after the money had passed on to the accused. On receipt of necessary signals from Lakha Singh PW, the raiding party headed by Inspector Babu Singh, reached the house of the accused and Inspector Babu Singh disclosed his identity to the accused. On receipt of necessary signals from Lakha Singh PW, the raiding party headed by Inspector Babu Singh, reached the house of the accused and Inspector Babu Singh disclosed his identity to the accused. The hands of the accused were got washed in a mixture of Sodium Carbonate and the colour turned pinkish and the hand wash was taken into possession vide recovery memo. Thereafter, the search of the accused was taken and five currency notes of the value of Rs. 500/- were recovered from the pants pocket of the accused and the serial number on the currency notes tallied with the currency notes noted by the Inspector. The said currency notes were taken into possession vide recovery memo. The pocket of the pant of the accused was also washed in the mixture of Sodium Carbonate and the colour turned pinkish and the pocket wash was also taken into possession vide recovery memo. The accused was formally arrested in this case. After investigation, the challan was submitted against the accused. 3. The accused was charged under Section 13(2) of the Prevention of Corruption Act, 1988, to which charge he pleaded not guilty and claimed to be tried. Thereafter, the prosecution produced its evidence. The statement of accused under Section 313 Criminal Procedure Code was recorded in which he denied the prosecution allegations againt him and stated that he was innocent and had been falsely implicated in this case. He further stated that stealing of the forest wood was rampant in villages Sadardin and Pir Khan Sheikh and that he vigorously pursuaded and got about 1/3 persons of village Sadardin and the Saw Mill owner of Pir Khan Sheikh and recovered pieces of wood and got those persons fined and they were also forced to pay tax. It was alleged that the entire village became inimical towards him. He had stated that he had never demanded nor accepted any money from any person. He stated that on the day of occurrence, he was sleeping in his room and was awakened by Balwant Singh PW and two constables of the Vigilance Department and they took away his pant, which was hanging on a peg and put him in the jeep and took him to the Police Station, City Ferozepur, where he was falsely involved in this case and evidence was fabricated against him. In his defence, he examined DW1 Darshan Singh, Block Forest Officer and DW2 Sunder Singh Draftsman. After hearing both sides and after perusing the record, the learned Special Judge convicted and sentenced the accused-appellant, as stated above, vide judgment and order dated 8.2.1994. Aggrieved against the same accused-appellant filed the present appeal in this Court. 4. I have heard the learned counsel for the parties and have gone through the record carefully. 5. The learned counsel appearing for the accused-appellant submitted before me that he accused-appellant had been falsely involved in this case and has been illegally convicted and sentenced by the Trial Court. It was submitted that no independent witness was examined by the prosecution to prove the demand of money and the payment of the tainted currency notes. It was submitted that the only independent witness, namely, Natha Ram, had not been examined by the prosecution and was given up as unnecessary. It was submitted that Nath Ram independent witness, could not have been given up as unnecessary and the non- examination of Natha Ram PW would only show that the prosecution had not taken any step to join any independent witness to witness the recovery proceedings. Reliance in this regard was placed on the law laid down by the Honble Supreme Court in the case reported as Raghubir Singh v. State of Punjab, AIR 1976 Supreme Court 91, which was followed by this Court in the case of Ram Parkash v. State of Punjab bearing Criminal Appeal No. 149-SB of 1992 decided on 16.7.2003. On the other hand, the learned counsel appearing for the State submitted that the case against the accused-appellant was duly proved on the basis of the statements of the prosecution witnesses and that non-examination of Natha Ram would have no effect of the case of the prosecution. 6. After hearing the learned counsel for the parties, I find considerable force in the submission made before me by the learned counsel for the accused-appellant. 6. After hearing the learned counsel for the parties, I find considerable force in the submission made before me by the learned counsel for the accused-appellant. PW6 Inspector Babu Singh deposed about the manner in which Balwant Singh and Lakha Singh PWs came to him on 29.7.1991 and the manner in which Balwant Singh made the statement before him and the manner in which he had applied phenolphthalein powder to the currency notes and handed over the same to Balwant Singh PW and the manner in which he had asked Balwant Singh and Lakha Singh PWs to go to the house of the accused and after the money was paid to the accused on his demand, Lakha Singh was required to give signal to the raiding party. He also deposed that after giving all these instructions to Balwant Singh and Lakha Singh PWs, a raiding party was formed and Natha Singh PW Senior Assistant in the office of PUNSUP was joined in the raiding party from the PUNSUP office and was introduced to Balwant Singh and Lakha Singh PWs and thereafter Balwant Singh and Lakha Singh PWs were sent to the house of the accused and after Lakha Singh gave the necessary signals to the raiding party, the raiding party had gone to the house of the accused and thereafter he introduced himself to the accused and thereafter the recovery proceedings were effected. From the statement of PW6 Inspector Babu Singh, it would be clear that Natha Ram PW, a Senior Assistant in the office of PUNSUP was joined in the raiding party being an independent witness. However, in order to prove its case, the prosecution examined PW1 Balwant Singh (complainant) and PW2 Lakha Singh (shadow witness) and the case was still at the stage of remaining prosecution evidence when the learned Additional Public Prosecutor appearing for the State gave up Natha Ram "as unnecessary" on 2.7.1993 as per the statement made by Mohinder Singh Dhaliwal, Additional Public Prosecutor, available on the Trial Court record. It was thereafter that the prosecution examined PW6 Inspector Babu Singh. In this manner, only three witnesses are examined by the prosecution, namely, PW1 Balwant Singh (complainant). PW2 Lakha Singh (shadow witness) and PW6 Inspector Babu Singh (Investigating Officer). PW Balwant Singh (complainant) is an interested witness, who was interested in the success of his case against the accused. It was thereafter that the prosecution examined PW6 Inspector Babu Singh. In this manner, only three witnesses are examined by the prosecution, namely, PW1 Balwant Singh (complainant). PW2 Lakha Singh (shadow witness) and PW6 Inspector Babu Singh (Investigating Officer). PW Balwant Singh (complainant) is an interested witness, who was interested in the success of his case against the accused. So far as PW2 Lakha Singh is concerned, he is also an interested witness as he had come to the Vigilance Bureau along with Balwant Singh PW of his own and it is proved on the record that he was having inimical relations with the accused. This fact stands proved on the record inasmuch as PW2 Lakha Singh and admitted that Surat Singh is the son of Hakam Singh resident of village Bhure Kalan and that said Hakam Singh is the real elder brother of his father. Thus, Lakha Singh PW and Surat Singh PW are first cousins. DW12 Darshan Singh, Block Forest Officer on the basis of record deposed that the accused had worked under him and used to catch hold of the persons who used to steal wood of the forest department and used to challan them and used to produce them before him for necessary action. On the basis of the record, he deposed that the had fined Surat Singh son of Hakam Singh of village Bhure Kalan for stealing the wood of the forest department and had collected money from him. He produced the various receipts in this regard. Similarly PW2 Lakha Singh admitted that Ujagar Singh is the brother of his grand father Kehar Singh and that Gurbax Singh is the son of said Ujagar Singh and Angrej Singh is the son of said Gurbax Singh residing in village Pir Khan Sheikh. DW1 Darshan Singh, Block Forest Officer had deposed that he had also fined Angrej Singh son of Gurbax Singh of Pir Khan Sheikh for stealing wood of the forest department and had collected money from him. In this manner, it would be clear that at least two close relatives of Lakha Singh PW, namely, Surat Singh son of Hakam Singh and Angrej Singh son of Gurbax Singh were fined by DW1 Darshan Singh, Block Forest Officer as they were produced before him by accused Sarabjit Singh in his capacity as Forest Guard as he had found them stealing wood of the forest department. From this evidence, in my opinion, it would be clear that Lakha Singh PW could not be termed as an independent witness inasmuch as he was having inimical relations, with the accused since two of his close relatives were got fined by the accused for stealing wood of the forest department. The other witness examined by the prosecution is Inspector Babu Singh, Investigating Officer, who had laid the trap and he also could not be termed as in independent witness. As referred to above, the only independent witness, namely, Natha Ram PW was not examined by the prosecution and was given up as unnecessary. It is not a case where the prosecution gave him up as having been won over by the accused. On the other hand, he was given up as unnecessary. In my opinion, under the given circumstances when even PW2 Lakha Singh was an interested witness besides Balwant Singh PW, it was the duty of the prosecution to have examined Natha Ram PW, who was an independent witness and the prosecution could have given him up as unnecessary. 7. In AIR 1976 Supreme Court 91 (supra), it was held by the Honble Supreme Court as under :- "The Officers functioning in the anti-corruption department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the Court is not left in any doubt as to whether or not any money was paid to the pubic servant by way of bribe. They should insist on observing this safeguard for the protection of public servants against whom a trap may have been laid. In the present case the search witnesses were interested witnesses and, therefore, their evidence with regard to the giving of bribe and the recovery of the amount from the person of the accused was not relied upon." 8. They should insist on observing this safeguard for the protection of public servants against whom a trap may have been laid. In the present case the search witnesses were interested witnesses and, therefore, their evidence with regard to the giving of bribe and the recovery of the amount from the person of the accused was not relied upon." 8. The law laid down by the Honble Supreme Court in the above mentioned authority was relied upon by this Court in Ram Parkash v. State of Punjab Criminal Appeal No. 149-SB of 1992 decided on 16.7.2003 (supra) and the accused was acquitted only on the ground that the only independent witness had been given up as unnecessary and it had to be presumed that there was no independent witness at the time of the trap and the prosecution story thus suffered from serious infirmity. In my opinion, on the facts and circumstances of the present case, the non-examination of Natha Ram PW, the only independent witness and giving him up by the prosecution as unnecessary would create a doubt with regard to the case of the prosecution against the accused, especially when the other witnesses examined by the prosecution were interested witnesses including PW2 Lakha Singh, who was inimical towards the accused. In my opinion, on the facts and circumstances of the present case, the prosecution has miserably failed to prove its case against the accused since no independent witness was examined in support of its case and the other witnesses, who were examined, are only interested witnesses. 9. In view of my detailed discussion above, in my opinion, it would be clear that the accused-appellant could not have been convicted on the basis of the interested evidence. Accordingly, the present appeal is allowed, the judgment and order passed by the Special Judge are set aside and the accused-appellant is acquitted of the charge framed against him. Appeal allowed.