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2010 DIGILAW 1049 (PNJ)

Gurdial Singh v. State Of Punjab

2010-03-03

A.N.JINDAL

body2010
Judgment A.N.Jindal, J. 1 This appeal is directed against the judgment dated 09.03.2006, passed by Special Judge, Ferojpur, convicting and sentencing Gurdial Singh appellant-accused (herein referred as the accused) to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1,000/- for the offence under Section 7 of the Prevention of Corruption Act, 1988 (herein referred as the Act). 2 Accused Guridial Singh, was an office Kanungo, holding control of the area of village Mallanwala. Complaint Jarnail Singh owned land measuring 15 acres in the revenue estate of village Mallanwala out of which 8 acres of land is recorded in the name of Iqbal Singh. The land of his cousins adjoins to the land of complaint. Doubting that some encroachment of his land was made by his cousins, two months prior to the occurrence, he had moved an application before Tehsildar, Zira, for demarcation, who marked it to the accused. The complainant met him 2/3 times in this connection but the matter was put off by the accused. On 16.02.2001, he had again met the accused for demarcation. On this, he stated that the same could not be done without payment of Rs. 4,000/- as illegal gratification. However, the complainant showed his helplessness, at this, the matter was settled at Rs. 1500/-. The complainant further told that he was not having ready money with him. At this, the accused responded that he should come to his office on 19.02.2001 alongwith bribe money and then he would go to his fields for demarcation. Since the complainant was reluctant to pay the bribe money, therefore, he met Balkar Singh, who advised him to complain about the same to the Vigilance Department. As such, the complainant alongwith Balkar Singh, shadow witness, went to the office of DSP Sukhdev Singh and got recorded his statement Ex.PB, on the basis of which FIR was recorded. DSP Sukhdev Singh, after treating the currency notes as handed over by the complainant to him, also recorded the numbers of the same in the memo and handed back to the complainant for paying the same to the accused on demand and not to shake hands with him before or after payment. Demonstration of the solution was done by the Investigating Officer and the solution was destroyed. The Investigating Officer washed his hands with the soap and water. Demonstration of the solution was done by the Investigating Officer and the solution was destroyed. The Investigating Officer washed his hands with the soap and water. Balkar Singh was nominated as a shadow witness. Official witnesses namely Gurdip Singh, SDO Tejinderpal, Draftsman, both of Public Health Department were also associated in the raiding party. In the way, they were introduced with the complainant and the shadow witness and were told about the purpose and process. Accordingly, all of them went to the office of the accused- Kanungo whereas the said members of the raiding party remained behind. In the meantime, on receiving the signal, DSP Sukhdev Singh alongwith other members of the raiding party reached the office where accused was sitting in his chair. After revealing his identity, the accused was inquired about the receipt of the bribe money, whereupon the accused started apologizing. He was holding two currency notes of Rs. 100/- each in his left hand and produced the same before the DSP Sukhdev Singh. On comparison numbers of the currency notes tallied with the memo already prepared. Thereafter, DSP Sukhdev Singh procured a glass of water in which Sodium Carbonate was poured and a solution was prepared. On the instructions of DSP Sukhdev Singh, the official witnesses dipped their hands one by one in the said solution but its colour did not change. When in the same solution, the hands of the accused were got washed then the colour of the solution became pink. The said solution was transferred into the nip which was duly sealed by DSP Sukhdev Singh with his seal bearing impression "SS". On personal search, a sum of Rs. 340/-, identity card and the wrist watch were recovered from the accused, which were also taken into possession by the Investigating Officer. Then the inquiry about demarcation application dated 20.12.2000 having copy of the jamabandi, annexed thereto, was made whereupon he got procured the same from the small room/store of his office. This was the application which was marked by Tehsildar, Zeera to the accused with a direction to report about the same within 15 days. The said application alongwith copy of the jamabandi was taken into possession by the Investigating Officer. He also prepared the rough site plan of the place of occurrence; recorded the statements of the witnesses and on completion of investigation challan against the accused was presented in the Court. The said application alongwith copy of the jamabandi was taken into possession by the Investigating Officer. He also prepared the rough site plan of the place of occurrence; recorded the statements of the witnesses and on completion of investigation challan against the accused was presented in the Court. 3 The accused was charged under Sections 7, 13(2) of the Prevention of Corruption Act, to which he pleaded not guilty and claimed trial. 4 The prosecution, in order to substantiate the charges, examined Kewal Krishan Field Kanungo (P.W. 1), to prove the posting order of the accused vide letter Ex.P1 and sanction letter Ex. P2 relating to the accused; Jarnail Singh complainant (P.W. 2), Gurdip Singh Heer, S.D.O. Public Health, (P.W. 3), Balkar Singh, shadow witness (P.W. 4), Head Constable Harinder Singh (P.W. 5), Constable Balbir Singh (P.W. 6), Balwinder Kumar, reader to Tehsildar, Zira (P.W. 7) and Basant Singh, Clerk (P.W. 8). 5 On the closure of the prosecution evidence, when examined under Section 313 Cr.P.C, the accused denied all the incriminating circumstances appearing against him and pleaded his false implication. It was further explained by him that complainant Jarnail Singh came to him with an application dated 20.12.2000 for demarcation of the land comprised of Khasra No. 165M//21/1/2 (1-0) at Mallanwala Janubi about which Gurdip Singh son of Hazoor Singh whose land adjoins the land of the complainant had the objection and had also moved an application on 29.12.2000 forwarded by Naib Tehsildar Bachhittar Singh for stopping the demarcation. Thereafter, he directed the complainant to first get the khasra number corrected from the Civil Court and the Patwari and only then the demarcation could be conducted. Because of this annoyance of the complainant, false case got registered against him. The accused further explained that Balkar Singh (shadow witness) and his brother Dial Singh were inimical to him because in an earlier demarcation about Pahi by him, Balkar Singh had to lose certain piece of land. He further explained that earlier to the said application, the accused had conducted demarcation of other land pertaining to the complainant and as a result of which he had to suffer a loss of some land. 6 In defence, the accused examined D.W. 1 Gurdip Singh, D.W. 2 Bachittar Singh Dhada Naib Tehsildar Makhu, D.W. 3 Bhupinder Singh. He further explained that earlier to the said application, the accused had conducted demarcation of other land pertaining to the complainant and as a result of which he had to suffer a loss of some land. 6 In defence, the accused examined D.W. 1 Gurdip Singh, D.W. 2 Bachittar Singh Dhada Naib Tehsildar Makhu, D.W. 3 Bhupinder Singh. Record Keeper, S.K. Branch, D.C. Office, Ferozepur, D.W. 4 Jagdish Rai, Sardar Kanungo, D.W. 5 Vikrant Kumar, Clerk and DW6 Darshan Singh Patwari. 7 On scrutiny of the evidence, the trial ended in conviction. 8 Arguments heard. Record perused. In order to secure the judgment of conviction, it was obligatory on the part of the prosecution to prove, firstly, there was a demand of bribe for doing illegal act or legal act by illegal means; secondly, there was acceptance of the said amount by the bribe taker and lastly the prosecution was required to prove that there was acceptance and recovery of the tainted money from the accused. 9 The motive in the instant case is regarding demarcation of the land comprised of Khasra No. 165M//21/1/2 (1-0), village Mallanwala Janubi for which the complainant had moved an application on 20.12.2000 over which the Tehsildar had ordered to proceed and submit his report within 15 days; The occurrence is said to have taken place on 19.02.2001. The case of the complainant is that since the accused did not effect demarcation and he wanted bribe money of Rs. 1500/- for that purpose, as such, he had to pay the bribe money. In this regard, it may be observed that actually things were not going on in the manner as stated by the complainant. D.W. 1 Gurdeep Singh, while appearing in the witness box, has stated that he had also moved an application Ex. D1 to Tehsildar, Zeera, not to conduct the demarcation over which Tehsildar, Zeera, had made an endorsement to take necessary action. He has stated that he went to the Kanungo with the said application and stated that Tatima of the land has been wrongly prepared and its correction was required to be made by the Civil Court. Admittedly, Jarnail Singh did not apply to the Civil Court for correction of Tatima. He has stated that he went to the Kanungo with the said application and stated that Tatima of the land has been wrongly prepared and its correction was required to be made by the Civil Court. Admittedly, Jarnail Singh did not apply to the Civil Court for correction of Tatima. D.W. 2 Bachittar Singh Dhada, Naib Tehsildar, Makhu, has also supported this fact, stating that there was a dispute with regard to Killa No. 21 between Jarnail Singh and Gurdeep Singh. Both the applications Ex. P8 and Ex. Dl were forwarded to the accused. D.W. 4 Jagdish Rai, Sardar Kanungo, Ferozepur, has stated that demarcation of the said killa number was not possible because in the year 1982, Tatima was wrongly prepared and that was required to be corrected by the Civil Court before the said demarcation, made by Tehsildar, Zeera. As such, the accused on the basis of the application Ex. Dl moved by Gurdeep Singh so also on account of dispute, stayed his hands to effect the demarcation, therefore, the complainant already having been annoyed with him decided to proceed against him. 10 Though, the demand and acceptance of bribe are the pre-conditions to complete an offence under Section 7, 13(2) of the Prevention of Corruption Act but in the case in hand, the two witnesses namely Jarnail Singh and Balkar Singh over whom the proof of these conditions revolves, being inimical, cannot be placed reliance. Both the witnesses had a motive to implicate the accused in the case. The enmity stands proved by way of admissions as well as documentary evidence. The accused has proved on record a demarcation report Ex. D5, conduct by him on the application of Gurdeep Singh (D.W. 5) dated 27.12.1999 i.e. much prior to the present trap. This report reveals that it was conducted by the accused with the help of Satpal Singh Patwari. Jarnail Singh has admitted that as a result of the said demarcation, he had to lose a long strip of land 3-4 feet wide and to the length of more than one acre. During further cross-examination, complainant Jarnail Singh lias also admitted that the demarcation was conducted by the accused and Satpal Patwari. It is a matter of common experience that the land is beloved of village farmer in this part of the country. During further cross-examination, complainant Jarnail Singh lias also admitted that the demarcation was conducted by the accused and Satpal Patwari. It is a matter of common experience that the land is beloved of village farmer in this part of the country. He does not allow an inch of land to be taken out of his possession even at the cost of his limb. Thus, obviously, he must be inimical and biased against the accused as due to demarcation on the application made by Gurdeep Singh, his cousin, he had to give up a strip of land. Even in the instant case of demarcation, there was dispute between the complainant and Gurdeep Singh. 11 Similarly, the conduct of Balkar Singh, shadow witness (P.W. 4), is not above board. He is not only inimical with the accused but he is a co-villager and close friend of the complainant also. Balkar Singh has admitted during his cross examination that he is known to the complainant since the partition of the country. Similarly, Balkar Singh (P.W. 9), has admitted that the complainant discussed with him regarding the demand of bribe by the accused. 12 As regards enmity of Balkar Singh with the accused, it has come in evidence that the accused had made a demarcation report Ex. D7 on 18.02.2000 on the application Ex. D6 of Baj Singh Ex-Panch and Gurcharan Singh, Ex- Sarpanch, regarding the passage comprised of Khasra No. 438/2 and an entry in the Roznamcha Ex. D9, proved on the record, reveals that the said demarcation went against Balkar Singh and he had to lose possession of some land. Balkar Singh (P.W. 4) has admitted during his cross-examination as under :- It is correct that Baj Singh Ex-Sarpanch and Gurcharan Singh moved one application against us regarding the demarcation of passage and the demarcation was done by Satpal Patwari and accused Kanungo and as per demarcation, we lost possession of some land in the passage. Myself and my brother Dyal Singh were present at the time of first demarcation of the passage on 18.02.2000." 13 In these circumstances, the following inference could be drawn :- 1. Both Jarnail Singh and Balkar Singh were friends and were sufferers from the accused; 2. Both having lost land on the report made by the accused never wanted him to remain posted at Mallanpur; 3. Both Jarnail Singh and Balkar Singh were friends and were sufferers from the accused; 2. Both having lost land on the report made by the accused never wanted him to remain posted at Mallanpur; 3. They wanted to have revenge against him as they had to lose land on his report. 14 The evidence further reveals that both Jarnail Singh and Balkar Singh are contradictory to their statements with regard to the placing of the money. The complainant states that the accused received the money and put the same in the pocket and thereafter he took it from the pocket and started counting the same whereas Balkar Singh (P.W. 4) states that the money was still in the hands of the accused when the police party apprehended him. DSP Sukhdev Singh did not got washed the shirt where the money is stated to have been put. Anyway, had the money been put in the pocket then it would have touched the currency notes to the tune of Rs. 340/-, which were recovered from his pocket, but the same were not dripped into the water so as to know that the said currency notes when dipped, the colour became pink. Furthermore, the conduct of both Jarnail Singh and Balkar Singh is not above board. Both are interested witnesses in the success of the trap. Further the conduct of complainant was not of a bonafide complainant. He admits that a case was registered against him under Sections 354/326 I.P.C. He also admits that another case was registered against his son Iqbal Singh under Section 376 I.P.C. In such circumstances, when the trap witnesses are interested and inimical witnesses and they are qualitatively inferior in the testimonies then no reliance could be placed on such witnesses. Similar view was taken by this High Court in case Amrik Singh v. State of Punjab 2005 (4) RCR (Criminal) 310, wherein it was observed as under :- In Sat Paul v. Delhi Administration, 1976 SCC (Cri.) 160, it was held that trap witnesses are interested witnesses concerned with the success of the trap and qualitatively their testimonies are inferior to that of an ordinary interested witnesses. Besides, it was observed that corroboration of such interested witness from independent source is essential where witnesses have poor moral fiber with bad antecedents and have motive to remove the accused from their way. Besides, it was observed that corroboration of such interested witness from independent source is essential where witnesses have poor moral fiber with bad antecedents and have motive to remove the accused from their way. Corroboration of another trap witness, who was a police official was held not to be sufficient. The other circumstance which requires consideration though may not be of much consequence but assumes significance in the circumstances is that from the evidence produced by the prosecution the guilt of the appellant cannot be said to be established beyond shadow of reasonable doubt: The circumstances are that the currency notes smeared with phenol phthalein powder were not initialled and there is no evidence regarding smearing the currency notes with phenolphthalein powder. In the backdrop the plea of the appellant that the currency notes were thrust on him assumes significance as complainant Baldev Singh (P.W. 1) had applied for copy of the registered sale- deed for the purpose of mutation which had, in fact, already been done. Besides, Ajaib Singh (PW 2) was related to complainant Baldev Singh. Therefore, it is to be seen whether the acceptance of the tainted money raises a presumption within the meaning of Section 20(1) of the Act. Section 20(1) of the Act is pari materia to Section 4(1) of the Prevention of Corruption Act, 1947. In Banshi Lal Yadav v. State of Bihar, AIR 1981 SC 1235, in the context of Section 4 (1) of the Prevention of Corruption Act, 1947, it was held as follows :- "Before presumption can be raised, the burden is on the prosecution to prove that the accused has accepted or obtained, or has agreed to accept or attempted to obtain, for himself any gratification other than legal remuneration etc. If the accused when examined under Section 313 of the Code of Criminal Procedure with reference to the circumstances appearing against him in evidence, only stated that currency notes were thrust in his pocket, that statement by itself without anything more is not sufficient to satisfy the necessary ingredients of Section 4(1) that accused accepted or obtained or has agreed to accept or attempted to obtain, any gratification other than legal remuneration so as to be able to raise the presumption. Acceptance or obtaining, or agreeing, to accept or attempting to obtain is a voluntary act. In the statement of the accused, this element of voluntary acceptance is missing. Acceptance or obtaining, or agreeing, to accept or attempting to obtain is a voluntary act. In the statement of the accused, this element of voluntary acceptance is missing. Therefore, the statement of the accused by itself in the facts and circumstances of this case and especially the language used cannot provide the necessary factual basis or fact situation which must exist before presumption can be raised. In fact accused denied having accepted bribe and stated that he was the victim of malevolent act of Naushad in thrusting marked currency notes in his pocket. This statement will not show acceptance of illegal gratification and the High Court was in error in raising the presumption under Section 4." 15 As regards the official witnesses, it has been admitted by P.W. 5 Gurdeep Singh Heer that officials of our office are frequently joined by the Vigilance. He has further admitted that no official of the raiding party was sent to join the independent person from the general public at village Mallanwala. Besides the aforesaid infirmity in the case, it is noticed that D.S.P. Sukhdev Singh, Investigating Officer, has not been examined by 10 who monitored investigation was not the prosecution who monitored the investigation. He was to prove the ruqa, site plan, the demonstration process and many other material documents but he has been withheld for the reasons best known to the prosecution. He was also to explain if he had inquired from the complainant and the shadow witness that they have no enmity or motive to implicate the accused. Even, according to the complainant Jarnail Singh (P.W. 2), the accused did not not demand the money and he had just asked that if the complainant had brought the money. Only this fact does not amount to demand made by the accused. Further the money was still in the hands of the accused and he had not pocketed the same. All these circumstances go to show that the prosecution case is full of doubts and no sufficient evidence has been led in order to prove the demand and acceptance of the bribe money for a motive or reward. The aforesaid circumstances were not taken into consideration by the trial Court while holding him guilty of the offences. The case is based on mis-appreciation of evidence. The aforesaid circumstances were not taken into consideration by the trial Court while holding him guilty of the offences. The case is based on mis-appreciation of evidence. The defence has not been properly appreciated, as such interference at my end in the impugned judgment has become inevitable. 16 Resultantly, I accept this appeal; set aside the impugned judgment and acquit the accused of the charges framed against him and he is directed to set at liberty forthwith. Fine, if deposited, be refunded.