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2008 DIGILAW 1292 (PNJ)

Suresh Kumar v. State of Haryana

2008-07-30

VINOD K.SHARMA

body2008
JUDGMENT Vinod K. Sharma, J. - This appeal is directed against the conviction and sentence awarded to the appellant in case FIR No. 13 dated 29.08.1990 registered under sections 7 and 13 of the Prevention of Corruption Act (for short the Act) at Police Station State Vigilance Bureau, Karnal, by the learned Special Judge, Karnal. 2. The appellant was tried and sentenced to undergo R.I. for three years and to pay a fine of Rs. 500/- and in default of payment of fine to undergo further R.I. for a period of 6 months under section 7 read with section 13 of the Act. 3. The case of the prosecution is that a piece of land was his transferred on a decree in the name of Sewa Singh complainant and brother Dalip Singh by their father. Sews Singh complainant approached the accused appellant who is Patwari for getting mutation entered and attested in his name. It is the case of the prosecution that accused demanded a sum of Rs. 300/- by way of illegal gratification. The complainant Sewa Singh approached DSP Vigilance namely Ravi Azad and complained to him about the demand for illegal gratification. DSP obtained three currency notes of Rs. 100/- each from the complainant. He applied phenolphthalein powder and entered number of notes in the memo and handed over the currency notes to the complainant. DSP then conducted a raid and Rakam Singh was asked to follow the complainant and to give signal to the police party as soon as money is received by the accused. Rakam Singh is said to have given signal whereupon the police party reached Patwarkhana, and secured the accused and recovered the currency notes of Rs. 300/- from the shoe of the accused. He also got the hands and foot of the accused washed with the solution of soda bicarbonate. The colour of the water turned pinkish. Said water was put into three different nips which were sealed at the spot. The water was sent to FSL, Haryana for examination and report. FSL report showed that the water carried phenolphthalein powder and sodium carbonate. After getting sanction from the Deputy Commissioner the appellant-accused was challaned and charged under sections 7 and 13 of the Act to which he pleaded not guilty and claimed trial. 4. The water was sent to FSL, Haryana for examination and report. FSL report showed that the water carried phenolphthalein powder and sodium carbonate. After getting sanction from the Deputy Commissioner the appellant-accused was challaned and charged under sections 7 and 13 of the Act to which he pleaded not guilty and claimed trial. 4. The prosecution to prove its case examined complainant Sewa Singh as PW 5 and Rakam Singh PW 6 who supported the prosecution story. Sewa Singh in his statement stated that the accused had demanded a sum of Rs. 300/- from him and he complained to DSP in this connection. A written complaint was also filed. He proved the factum of notes having been given to the DSP on which phenolphthalein powder was applied and thereafter notes were handed over to him for handing over to accused appellant. 5. PW 6 Rakam Singh also supported the prosecution version being a shadow witness and having been given signal to the police party on the receipt of the money by the accused. Ravi Azad DSP appeared as PW 7 and proved the complaint Ex.PH given to him by the complainant. He also proved the factum of obtaining Rs. 300/- from the complainant and returning the same after noting down the numbers. He also proved the raid and other proceedings carried out by him. Nips of the hand and foot wash of the accused which were taken into possession were also proved. The decree sheet Ex.PM/1 , Register Ex.P.9 was also taken into possession from the accused. It was pleaded that on search of the accused a sum of Rs. 538/- was recovered from his purse. The prosecution also placed on record the affidavit of formal witness, Report of FSL and concluded its evidence. 6. In the defence the accused set up a plea that recovery of tainted currency notes was not made from him. He alleged that a sum of Rs. 538/- was taken into possession by the police at the time of his arrest from his village. He also alleged that Sewa Singh had actually threatened him and told him to desist from having any links with the Sarpanch. It was the case of the accused that Sewa Singh handed over the copy of decree sheet to him and he entered the mutation in his register. He also alleged that Sewa Singh had actually threatened him and told him to desist from having any links with the Sarpanch. It was the case of the accused that Sewa Singh handed over the copy of decree sheet to him and he entered the mutation in his register. However, his request for immediate supply of copy was not adhered to and it was on account of this that he was implicated in a false case. In defence the accused examined Jai Bhagwan DW 1 to prove his presence in the house of Rameshwar Kailash etc at Gharaunda when he was brought by the police and he was told that he had been arrested. He also added that at the instance of police the accused had left his wrist watch and ring with him. Bhalle Ram DW 2 in his statement stated that police had taken him with them and later told him that they had recovered tainted currency notes from the accused. 7. Learned Special Judge, Karnal on appreciation of evidence recorded a finding that the factum of accused being posted at village Bal Rangran as Patwari was not disputed. It was also admitted that he was entrusted with the duty of entering mutations and the factum of Sewa Singh having approached him with a copy of decree sheet to get mutation entered in his name. In defence, it was pleaded that mutation was entered on the same day although copy could not be supplied as the mutation had not been attested by the Tehsildar and on account of this annoyance he has been falsely implicated. Enmity was also pleaded on the ground that the accused was friendly with the then Sarpanch of village Panchyat. However, learned trial Court noticed that Sarpanch was not examined to substantiate the contention of the accused. The Court also came to the conclusion that no material was produced on record to show the enmity as suggested in defence by the accused. Learned Court, therefore, came to the conclusion that once enmity was not proved the possibility of false implication stands ruled out. The Court also came to the conclusion that it stands established that the accused has actually made a demand for illegal gratification from the complainant. Learned Court, therefore, came to the conclusion that once enmity was not proved the possibility of false implication stands ruled out. The Court also came to the conclusion that it stands established that the accused has actually made a demand for illegal gratification from the complainant. The Court also came to the conclusion that the factum of demand stands proved from the testimony of Rakam Singh PW 6, who was the shadow witness. Court also noticed that there was positive assertion by Sewa Singh that mutation had been entered and amount of Rs. 300/- demanded by the accused. 8. Learned trial Court ignored the discrepancies in the statement regarding payment because of the distance at which Rakam Singh shadow witness was standing where the entire talk might not have been fully audible. The learned Court also came to the conclusion that the evidence brought on record established that the tainted currency notes had actually been recovered from the possession of the accused soon after the amount was handed over to him. The following discrepancies were ignored by the learned trial Court :- 1. According to the Sewa Singh application Ex.PM was a written by Rakam Singh. However, the same was denied by Rakam Singh. 2. Sewa Singh stated that application was handed over to the accused on the day when it was written along with copy of decree sheet and the same was kept by the accused. However, Rakam Singh stated that the said application was submitted for mutation 5-6 days prior to the present occurrence. 9. The occurrence is said to have been taken place on 29.8.1990. The prosecution case was that Jai Bhagwan Patwari was present at the time of raid. However, said assertion of the prosecution was denied by Jai Bhagwan when he appeared as DW 1. A positive stand was taken that no raid was conducted in his presence nor recovery effected from the accused. Bhalle Ram who was other prosecution witness was not examined by the prosecution but he appeared as DW 2 and did not support the prosecution case. Learned Special Judge also ignored the factum that no independent witness was associated and that the official witnesses had not come forward to support the prosecution allegation by placing reliance on the statement of Rakam Singh shadow witness. Learned Special Judge also ignored the factum that no independent witness was associated and that the official witnesses had not come forward to support the prosecution allegation by placing reliance on the statement of Rakam Singh shadow witness. The Court came to the conclusion that the defence witness produced by the accused were of no help to him. Bhalle Ram who was examined by the accused for the purpose of showing whether BDO was on leave or not. In cross-examination has stated that no recovery was effected in his presence. The learned trial Court came to the conclusion that this might have occurred because he might not have been present at the time of the raid. The Court, thus, convicted the appellant and sentenced as referred to above. 10. Mr. Sudhir Sharma, learned counsel for the appellant challenges the conviction and sentence awarded to the appellant on the ground that in the present case it was proved on record that mutation was sanctioned in favour of the complainant on 30.7.1990, whereas the application was made on 21.8.1990. Learned counsel for the appellant also apointed out that in the present case while Hakam Singh has stated that money was given to the accused, however, said notes were said to have been recovered from the left shoe. Learned counsel for the appellant further submitted that Bhalle Ram independent official witness was not examined and was given up. Learned counsel for the appellant also contended that Investigating Officer did not offer himself for search before the accused whose search was conducted. Thus, by placing reliance on the judgment of this Court in the case of State of Punjab v. Kushal Singh Pathania, 2004(4) RCR(Criminal) 498 contended that the appellant is entitled to acquittal. 11. Learned counsel for the appellant made reference to the evidence of Rakam Singh to contend that no demand was made in his presence and therefore in the present case there being no proof of demand it would not be safe to maintain the conviction and sentence awarded to the appellant. 12. In support of his contention learned counsel for the appellant placed reliance on the judgment of Honble Supreme Court in the case of Subhash Parbt Sonvane v. State of Gujarat, 2002(3) RCR(Criminal) 188 wherein Honble Supreme Court has been pleased to lay down as under :- "10. 12. In support of his contention learned counsel for the appellant placed reliance on the judgment of Honble Supreme Court in the case of Subhash Parbt Sonvane v. State of Gujarat, 2002(3) RCR(Criminal) 188 wherein Honble Supreme Court has been pleased to lay down as under :- "10. In the background of aforesaid settled legal position, we would now refer to the relevant part of the evidence. Before the trial Court, it was submitted by the learned APP that complainant has not supported the prosecution case on main ingredients of demand and acceptance and was treated hostile. In cross- examination also, he has not supported the prosecution version on demand or acceptance of the amount. The trial Court has also observed that the complainant deliberately does not support on the points of demand and acceptance. However, the Court relied upon the evidence of Panch Shailesh Devshankar Pandya (PW2). We were taken through the evidence of PW Pandya and from his evidence, it is difficult to find out any statement made by him that accused demanded any amount from the complainant. The relevant part of the evidence of this witness suggests that when the prosecution party went at the police chowki, accused asked the complainant as to why he had come there at that time ? To that, complainant replied that he was waiting since 1.00 Oclock and that he has brought one witness to be examined. Accused informed him to come in the evening as his writer was not present. When the accused started to go towards toilet, the complainant followed him and he gave something from his pocket to the accused who took the same and put that in his pocket. From this evidence, it cannot be inferred that accused demanded any amount from the complainant or that he had obtained the same. It is apparent that the trial Court and the High Court misread the evidence of PW 2 and held that there was demand by the accused and the amount was paid to him by the complainant. It was unreasonable to hold that accused demanded money from the complainant. Complainant denied the said story and PW 2 had not stated so." 13. Mr. It was unreasonable to hold that accused demanded money from the complainant. Complainant denied the said story and PW 2 had not stated so." 13. Mr. D.P. Sharma, Learned Deputy Advocate General, Haryana on the other hand supported the conviction and sentence awarded to the appellant on the plea that in the present case demand stood proved on the statement of Sewa Singh complainant and the acceptance of money also stood proved because of recovery. 14. Learned counsel for the State contended that once the recovery was made presumption had to be drawn in favour of the prosecution which was required to be rebutted by the accused which has not been done in this case. In support of this contention learned counsel for the State placed reliance on the judgment of this Court in the case of Ramesh Chander v. State of Punjab, 2005(2) RCR(Criminal) 330. 15. However, on consideration of the matter, I find force in the contentions raised by the learned counsel for the appellant. The prosecution has failed to prove the demand by an independent witness and this fact stands noticed by the learned Special Judge, as it has been held that the demand could not be heard by the shadow witness due to the distance. Furthermore, in the present case it is proved on record that Investigating Officer did not offer himself for search before effecting the search of the accused. This factor assumes importance as there is material discrepancies in the statement of prosecution witnesses as regards the recovery. The appellant, therefore, deserves acquittal by giving benefit of doubt. For the reasons stated above, this appeal is allowed. The appellant is acquitted of the charge framed against him. Appeal allowed.