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2007 DIGILAW 277 (PNJ)

Karnail Singh v. State Of Punjab

2007-02-20

RANJIT SINGH

body2007
Judgment Ranjit Singh, J. 1. Appellant Karnail Singh, revenue patwari stands convicted for an offence under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as "P.C. Act") and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5000/-. In case of default in payment of fine, the appellant was further to undergo RI for two months. 2. As per the prosecution, revenue patwari Karnail Singh was allegedly caught accepting bribe on a trap laid by Vigilance Bureau and was ultimately put up to trial for the offence as aforementioned. Bachan Singh complainant is the one who had arranged this trap. As per Bachan Singh, the appellant demanded a sum of Rs. 800 to 1000/-as a bribe when he had gone to ask for a copy of jamabandi. Bargain followed and a sum of Rs. 500/-was settled as bribe to be paid by the complainant. The appellant asked the complainant to come with the bribe money on 24.10.2000. The complainant accompanied by one Inderjit Singh (PW6), instead approached Vigilance Bureau, Jalandhar and brought this fact to the notice of DSP working there. The DSP recorded the statement of the complainant, who also demonstrated the working of Phenol Phthalene powder to the complainant and shadow witness Inderjit Singh. Five currency notes of the denomination of Rs. 100/-were treated with the powder and returned to the complainant. Hardyal Singh, Junior Assistant and Gurdip Singh were joined as official witnesses for the purposes of raid. The complaint was converted into FIR on the basis of statement of the complainant, before proceeding to conduct the raid. The raiding party left for village Bazidpur where it stayed behind whereas the complainant and the shadow witness went to the office of the appellant. The complainant testified that on demand he handed over a sum of Rs. 500/-to the appellant, which he kept in drawer of his table. On a signal given by the shadow witness, the raiding party reached the spot. DSP introduced himself to the appellant and apprehended him with the help of other police officials. Hands of the appellant were got dipped in a glass of water by putting sodium carbonate in it and the colour of the solution turned pink. 3. Necessary formalities of putting solution in a nip and sealing thereof was carried out. DSP introduced himself to the appellant and apprehended him with the help of other police officials. Hands of the appellant were got dipped in a glass of water by putting sodium carbonate in it and the colour of the solution turned pink. 3. Necessary formalities of putting solution in a nip and sealing thereof was carried out. The appellant had at that stage even stated that he had not accepted any bribe money. On search of a drawer, a sum of Rs. 500/-was recovered. Numbers of currency notes were checked and these tallied with the numbers mentioned in the memo prepared in the vigilance office. Memo in regard to personal search of the appellant was also prepared and copies of jamabandi and aksh shajra were taken in possession. Investigation followed leading to presentation of challan. Charge under Section 13(2) read with Section 7 of the P.C. Act was framed against the appellant and the trial followed on plea of not guilty. 4. In support of its case, prosecution examined seven witnesses. The appellant when examined under Section 313 Cr.PC pleaded that he was innocent. He further submitted that copies of jamabandi and aksh shajra had already been supplied to the complainant prior to the raid and that he had neither demanded nor accepted any bribe money. In his defence, the appellant also stated that complainant Bachan Singh was pressurizing him to make entry in khasra-girdawari in respect of land measuring 8 kanals, which was in his illegal possession but belonged to Forest Department. As per the appellant, when he refused to oblige the complainant he got him falsely involved in the present case by arranging this raid. Explaining the change in colour of solution, the appellant states that he had been made to shake his hands with the complainant which could have led to the same and that the money had in fact been kept in the drawer of the table without the knowledge of the appellant. Appellant examined one witness namely Tirath Ram in his defence. Believing the prosecution story, Special Judge, Nawanshahar convicted the appellant for the offence Under Section 7 of the P.C. Act. No separate conviction order for offence under Section 13(2) of the P.C. Act was recorded as the appellant was found guilty of offence under Section 7 of the P.C. Act. Appellant was accordingly sentenced to suffer the imprisonment as already noticed. 5. No separate conviction order for offence under Section 13(2) of the P.C. Act was recorded as the appellant was found guilty of offence under Section 7 of the P.C. Act. Appellant was accordingly sentenced to suffer the imprisonment as already noticed. 5. Learned Counsel for the appellant has raised number of pleas in support of the stand of the appellant. Counsel would submit that the prosecution case is not supported by any independent witness and is based on the evidence given by the complainant alone. By referring to his testimony, the counsel submits that complainant has made subtle changes in his version from the one which he had given during investigation. It is also urged that even as per the complainant, number of independent witnesses were present at the time of raid but have not been joined as witness for which adverse inference need to be drawn against the appellant. Complaining about his unusual conduct, counsel contends that he never thought of complaining to Tehsildar or any other superior officer of the appellant. He has also raised a plea of improbability of the case on the ground that it is not possible to accept that the appellant would be so bold to demand and accept the bribe in the presence of independent persons as is the case set up by the complainant. He would also highlight the fact that the recovery was not from the appellant but from the drawer of table, which would stand in line with the version put up by the defence that the money was placed in the drawer when the appellant had gone away from his seat for some time during this period. Above all, counsel would emphasize that the star prosecution and shadow witness, who could have given independent account, did not support the prosecution and was declared hostile denting the case of the prosecution beyond repairs and that this would show that the prosecution failed to prove the case against the appellant beyond reasonable doubt. It is also submitted that it would be unsafe to rely upon the version of the complainant as he was an accomplice, who could not have been believed. Reference has been made to number of judgments in support of his submissions by the counsel. 6. It is also submitted that it would be unsafe to rely upon the version of the complainant as he was an accomplice, who could not have been believed. Reference has been made to number of judgments in support of his submissions by the counsel. 6. Learned State counsel, on the other hand, submits that there is nothing on record, which would cast doubt on the version of the complainant and it is well supported by an independent evidence of raiding party though shadow witness may have resiled. He, accordingly, would submit that no case for interference is made out and the appeal deserves to be dismissed. 7. The position that emerges from the record is that it is the testimony of complainant alone, which has been pressed into service by the prosecution for conviction of the appellant. Shadow witness Inderjit Singh (PW6), as already noticed, did not support the prosecution and was declared hostile. There is no other independent witness to give account of the happenings at the time of acceptance of bribe. Prosecution, perforce as such, has relied upon the version of the complainant alone, which is not in consonance with the evidence of the shadow witness. PW6 otherwise admitted that he had accompanied the complainant as a shadow witness at the time of trap. He also deposed to have accompanied the complainant to the office of the appellant and that the appellant had shaken hands with complainant at that time. Thereafter he has given a divergent version to say that complainant Bachan Singh placed money in the drawer of the table of the appellant without his knowledge when he had gone to nearby almirah in order to take record. The witness (PW6) was then declared hostile and permitted to be cross- examined. PW6 then testified that he had not accompanied the complainant to the office of DSP Vigilance or that statement of complainant was recorded there in his presence. He also denied if the currency notes of the denomination of Rs. 100/-were produced by the complainant, which were treated with some powder and that these were handed back over to the complainant with direction to hand these over to the appellant. The attention of PW6 was drawn to his earlier statement where these facts had been so recorded but he denied having made any such statement before the police. 100/-were produced by the complainant, which were treated with some powder and that these were handed back over to the complainant with direction to hand these over to the appellant. The attention of PW6 was drawn to his earlier statement where these facts had been so recorded but he denied having made any such statement before the police. In addition, PW6 also did not stick to his earlier statement where he had stated that the appellant had demanded a sum of Rs. 500/-from the complainant for obtaining copies of the fard jamabandi and aksh shajra and that he had obtained this amount from the complainant and had then put it in the drawer of the table. His previous statement was read over to the witness word by word but he denied having made the same. Contrary to this, complainant supported the entire case of the prosecution. He brought out that accompanied by PW6, he had gone to the office of DSP where the money was treated and returned to him; his statement was recorded and he was told to hand over the same on demand to the appellant. Bachan Singh (PW7) has further testified that he paid this money in the presence of Inderjit Singh (PW6) on demand which was kept by the appellant in his drawer after counting. While under cross-examination, Bachan Singh (PW7) stated that he had met the appellant alone on 23.10.2000 and thereafter had spoken to Inderjit Singh (PW6) in the evening about this matter. The witness stated that he was unable to recollect if he had met the appellant on 23.10.2000 accompanied by Inderjit Singh (PW6), On his attention being drawn to his previous statement, the witness did not recollect if he had stated therein that on 23.10.2000 he had met the appellant accompanied by Bachan Singh (PW7). This change in the version of the complainant appears to be an subtle change because Inderjit Singh (PW6) had failed to support the prosecution. The complainant, as such, for obvious reason would be keen not to say that he had met the appellant in the company of Inderjit Singh (PW6). Complainant also conceded that there were 1-2 persons present in the office of the appellant when the money was paid to him. Some variation between the version given by the witness in regard to recovery of tainted money can also be noticed. Complainant also conceded that there were 1-2 persons present in the office of the appellant when the money was paid to him. Some variation between the version given by the witness in regard to recovery of tainted money can also be noticed. Complainant Bachan Singh stated that the appellant had got this money recovered from the drawer whereas Amrik Singh SP (PW5) would say that Gurdip Singh official witness had searched the drawer of the table of the appellant and recovered five currency notes. Gurdip Singh, however, was not examined by the prosecution and was given up being unnecessary. Prosecution also did not examine any independent witness to prove the demand of bribe by the appellant and acceptance thereof though admittedly one or two independent persons were present. Appellant, on the other hand, would draw support from the evidence of Tirath Ram DW1, who claims to be present in the office of the appellant on 24.10.2000 at the time of raid. As per DW1, complainant had asked the appellant to explain the contents of the jamabandi supplied to him a day earlier when the appellant asked him to wait. He further deposed that when the appellant had gone to almirah to take out something therefrom, complainant kept something in the drawer of the table. He has also brought out that the complainant had shaken hands with the appellant. DW1 has also deposed that the police on reaching there had asked the appellant to open the drawer and take out whatever was lying therein. It is thus seen that the prosecution would have the version of complainant alone to prove demand and on the other hand, the defence would seek support not only from the version of the defence witness but also from the evidence of star prosecution witness, who was a shadow witness. It would need consideration if the uncorroborated testimony of complainant would be enough to base a conviction. The submission of counsel that the complainant in this case was an accomplice can not be accepted as the complainant cannot be treated to be a participant in the crime more so when he had declined to pay the bribe asked for and arranged the trap with the help of police. Even otherwise, his evidence cannot be discarded on the ground of he being an accomplice. Even otherwise, his evidence cannot be discarded on the ground of he being an accomplice. As per Section 133 of Evidence Act, an accomplice is a competent witness against an accused person and conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Of course to this, there is a ridder in illustration (b) to Section 114 of the Evidence Act which provides that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. This cautionary provision is stated to have been incorporated as a rule of prudence because an accomplice is treated as associate and not a fair witness who betrays his associates and it would be possible to assume that he may weave false details in his evidence with those which are true. The Court, as such, always insist on corroboration of an accomplice evidence before acting upon it. Reference can be made in this regard to Haroom Haji Abadulla v. State of Maharashtra. This aspect may not detain me much as it cannot be said that the complainant in this case was an accomplice. An accomplice is a person who participates in commission of the actual crime charged against an accused. He is to be a participles criminis. Persons giving illegal gratification which is extorted from them cannot be considered as accomplices. See Dalpat Singh and Ors. v. State of Rajasthan. At the same time, it may be worth noticed that the prosecution really would not have any independent witness to support of the complainant and to give accounts of the events that took place at the time of incident. It will be prudent to look for some corroboration to the testimony of the complainant as it may not be safe to base conviction in this case only on his uncorroborated version. In Ram Parkash Arora v. State of Punjab, it was held that evidence of trap witnesses who are concerned in the success of the trap must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person. Trap witness is certainly an interested witness and even can be equated with the partisan witness and as such it would not be advisable to rely upon his evidence without corroboration. Trap witness is certainly an interested witness and even can be equated with the partisan witness and as such it would not be advisable to rely upon his evidence without corroboration. Reference in this regard may be made to Major E.G.Barsay v. State of Bombay. In Major E.G.Barsays case (supra), only it was held that corroboration must be by independent testimony comprising in some material particulars not only that the crime was committed but also that the accused committed it. The submission of the State counsel that the evidence of police officials could be pressed into service to seek corroboration to the testimony of complainant may not be considered safe. As held by Honble Supreme Court in Som Parkash v. State of Delhi, the demanding degree of proof traditionally required in a criminal case and the devaluation suffered by a witness who is naturally involved in the fruits of his investigative efforts, suggest the legitimate search for corroboration from an independent or unfaltering source- human or circumstantial to make judicial certitude doubly sure. Further commenting on police witness, the Honble Supreme Court in this case observed "Not that this approach casts any perjorative reflection on the police officers integrity, but the hazard of holding a man guilty on interested even if honest, evidence may impair confidence in the system of justice." In the case of Raghbir Singh v. State of Haryana, Honble Supreme Court held that a bribe deal is usually a benefit, both syndrome, and the payers lips carry little conviction in the absence of reassuring support. Accordingly, it will be safe to look for corroboration to the version given through payers lips and this should ideally be from some sourse human or circumstantial independent of the witness who is interested in fruits of his investigation. Thus it may not be conducive and safe to seek corroboration to the complainant version from the evidence of Investigating Officer. It would be legally appropriate to look for some corroboration from an independent or unfaltering source to sustain conviction of the appellant. This Court in Sat Pal (Died) through LRs V/s. State of Punjab 2004 (2) RCR (Criminal) 830 held that sole testimony of a complainant cannot be believed as it was not corroborated by any independent witness. 8. Evidence in regard to admission, acceptance, keeping of money in the drawer etc. is based on the testimony of the complainant alone. This Court in Sat Pal (Died) through LRs V/s. State of Punjab 2004 (2) RCR (Criminal) 830 held that sole testimony of a complainant cannot be believed as it was not corroborated by any independent witness. 8. Evidence in regard to admission, acceptance, keeping of money in the drawer etc. is based on the testimony of the complainant alone. Contrary to these assertions of the complainant, evidence of defence and shadow witnesses is on record. The stand of the defence is that money was not demanded and was kept in the drawer surreptitiously by the complainant. This version get support from not only the version of Tirath Ram (DW1) but also from Inderjit Singh (PW6), who was produced as shadow prosecution witness. As already noticed, this is a case, which is based on the uncorroborated testimony of the complainant. An equally probable view is available in the form of defence evidence. If two reasonable probable and evenly balanced views of evidence are possible, one must necessarily concede the existence of reasonable doubt. Of course fanciful and remote possibility must be left out of account. If the preponderance of probability is all one way, a bare possibility of another view may not entitle the accused to claim benefit of any doubt. In the present case, the defence projected by the appellant appears more reasonably probable. As has been constantly held that doubt of which benefit is given to an accused must be such a doubt as a reasonable man may reasonably entertain and not the doubt of weak and vacillating mind. It has also been held that if explanation offered by accused is founded on the standard of preponderance of probability or if it appears on such standard of proof to be probable, it should result in acquittal of the accused as once explanation is found to be probable that will cast doubt on the prosecution case against the accused in which case he will be entitled to an acquittal. 9. Having regard to the consideration as aforementioned and the law as referred, I am to hold that the prosecution was not able to succeed in proving all ingredients of the offence regarding demand and acceptance beyond reasonable doubt. 9. Having regard to the consideration as aforementioned and the law as referred, I am to hold that the prosecution was not able to succeed in proving all ingredients of the offence regarding demand and acceptance beyond reasonable doubt. It would be unsafe to base conviction on an uncorroborated testimony of the complainant, more so when it is receiving indirect corroboration from the evidence of investigating police officials who obviously would be interested to see success of the trap laid at their instance. 10. The appeal is, accordingly, allowed and judgment dated 5.8.2003 of the Special Judge, Nawanshahr is set aside. The conviction and sentence awarded to the appellant is also set aside. 11. The appellant is acquitted of the charge framed against him and sentence awarded to him is set aside Appellant, who is on bail, need not to surrender and his bail bonds would stand discharged.