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2010 DIGILAW 1386 (PNJ)

Jai Parkash v. State Of Haryana

2010-04-06

A.N.JINDAL

body2010
Judgment A.N.Jindal, J. 1. Jai Parkash accused-appellant (herein referred as the accused) was prosecuted for allegedly receiving a sum of Rs. 700/- on account of illegal gratification from Rajender Kumar complainant (herein referred as the complainant) for supplying the latter copy of the Jamabandi and Khasra Girdawari. Consequently, he was tried, convicted and sentenced vide judgment dated 22.9.1999 passed by the learned Additional Sessions Judge, Rohtak, to undergo rigorous imprisonment for three years and to pay fine of Rs. 5000/- under Section 7 of the Prevention of Corruption Act (herein referred as the Act). 2. Briefly stated, the facts essential for disposal of the present appeal, as culled out from the report under Section 173 Cr.P.C, are that a civil suit for partition was pending for 18.7.1995 between the complainant and his cousin and he needed some copies of the revenue record for producing the same along with the written statement to be filed by him in the said civil suit. In order to procure the copies, the complainant went a number of times to the accused for the said purpose. On 12.7.1995, the accused demanded a sum of Rs. 700/- on account of bribe money for issuance of copies. Since the complainant did not want to give the bribe, therefore, he went to the office of the vigilance department on 13.7.1995 and handed over a sum of Rs. 700/-comprising of 7 currency notes of the denomination of Rs. 100/- each. DSP Yashwant Singh (PW6) after treating the same with phenolphthalein powder recorded their numbers in the memo Ex. PN, recorded statement of the complainant Ex. PF over which he made his endorsement Ex. PF/1 and sent the same to the police station, on the basis of which FIR Ex. PF/2 was recorded by ASI Surinder Kumar. He moved application Ex. PO to the Deputy Commissioner, Rohtak for providing him some gazetted officer to join in the raiding party. At this, Mr. K.K. Gupta, District Revenue Officer was directed to join as an independent witness. The aforesaid currency notes were shown to him and thereafter handed over to the complainant for delivering the same to the accused on demand, inspector Som Dev was deputed as shadow witness to inform the raiding party as soon as the money is handed over to the accused. Som Dev was also Inspector in S.V.B. Gurgaon. Thereafter, they proceeded to the office of the accused. Som Dev was also Inspector in S.V.B. Gurgaon. Thereafter, they proceeded to the office of the accused. The complainant went to the accused, whereas, Som Dev Inspector (PW7) stayed at the gate of the office and the police party stood nearby to raid. 3. As planned, on receipt of the signal DSP Yashwant Singh along with other witnesses went to the office. He directed K.K. Gupta to search the accused. Accordingly, on search being made by K.K. Gupta, District Revenue Officer, seven currency notes were recovered from the right hand side pocket of the shirt. On being tallied, the number of the currency notes tallied with the numbers as mentioned in the memo Ex. PN. The currency notes were sealed in an envelope with the seal bearing impression "RS" and the same were taken into possession vide memo Ex. PJ. Hands of the accused were got washed in sodium carbonate solution which became pink and the solution was sealed in two nips with the same seal and taken into possession vide memo Ex. PK. Similarly, pocket of shirt of the accused was got washed in the sodium carbonate solution which also became pink. The said solution was sealed in two nips with the same seal and taken into possession vide memo Ex. PL. The Kurta was also turned into a parcel and sealed with the same seal and taken into possession vide memo Ex. PL. The complainants hands were also got washed in the sodium carbonate solution which also became pink. The solution was also sealed in two nips with the same seal and the same was taken into possession vide memo Ex. PM. The Investigating Officer also completed other formalities, recorded statements of the witnesses, inspected the spot, prepared the rough site plan with correct marginal of notes and after receiving sanction challan was presented against the accused. 4. The accused was charged under Section 7 of the Act, to which he pleaded not guilty and claimed trial. 5. In order to substantiate the charges, the prosecution examined Hawa Singh Malik, Architect (PW1) who proved the site plan of the place of occurrence Ex. PA. Gulshan Kumar Steno to Deputy Commissioner, Rohtak (PW2) proved the sanction order Ex. PD granted by the Deputy Commissioner, Rohtak. Jai Bhagwan Bill Clerk (PW3) proved the service book of the accused. Rajender complainant (PW4) did not support the prosecution case. PA. Gulshan Kumar Steno to Deputy Commissioner, Rohtak (PW2) proved the sanction order Ex. PD granted by the Deputy Commissioner, Rohtak. Jai Bhagwan Bill Clerk (PW3) proved the service book of the accused. Rajender complainant (PW4) did not support the prosecution case. K.K. Gupta, District Revenue Officer, Hisar (PW5) is a recovery witness. He has not stated if any demand was made by the accused in his presence. DSP Yashwant Singh (PW6), though a witness to the recovery of Rs. 700/- from the accused has not stated if he offered himself for being searched by the accused and if he searched the accused. He also did not state if K.K. Gupta got himself searched from the accused before searching him. Som Dev Inspector State Vigilance Bureau (PW7) also did not state if the amount was handed over to the accused on demand. under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. He further explained as under :- "I have been wrongly implicated in this totally false and fabricated case, as I never demanded any gratification for supplying copies of some documents. Rajender had purchased my buffalo and a sum of Rs. 500/-, the balance* amount of the sale proceeds of the buffalo were due towards him. I was pressing for my balance amount. Rajinder was in need of some documents and he enquired about the charges of these documents from me, I had told him approximately Rs. 200/- as the charges of these documents. I also requested him to bring my balance amount of Rs, 500/- when he came to obtain copies of the documents. It appears that he felt offended and approached the police. I was working in the Patwar Khana. Some respectables i.e. Risal Singh son of Lal Chand, Kartar Singh son of Ram Kala, Rambhaj son of Sis Ram and Kishan son of Bholar, residents of Samchana, Police Station Sampla, of the area were also sitting there and in the meantime, police reached there and whisked me to their office at Rohtak and prepared fictitious proceedings in their office, neither the DRO nor Inspector Som Dev or Rajender PW had accompanied the police to Sampla and their signatures were later on secured on preponed fictitious documents. I am innocent. I would lead defence." 6. However, no evidence was led in defence 7. I am innocent. I would lead defence." 6. However, no evidence was led in defence 7. The trial ended in conviction. 8. Arguments heard. Record perused. 9. Learned counsel for the appellant while thwarting the bid of the prosecution to have a judgment against the accused and in order to support the innocence of the accused has urged that the prime ingredient with regard to the demand of the bribe is missing in this case. The only witness with regard to demand and acceptance of the bribe money was the complainant but he has not supported the prosecution case. The other two witnesses being of official nature are interested in the success of the case. The Investigating Officer has deviated from the procedure for search of the accused instead of keeping this right of search reserved to himself has given the liberty to K.K. Gupta to search the accused and K.K. Gupta (PW5) has not searched the accused in accordance with law. No independent witness was joined in order to attest the recovery. The motive for seeking bribe money does not stand established. As such, the case against the accused does not stand proved beyond reasonable doubt. 10. To the contrary, Mr. Rajiv Malhotra, Additional Advocate General, Haryana, while arguing that all the ingredients for bringing home the guilt of the accused stand proved, prays for dismissal of the appeal. 11. Having heard the rival contentions, the arguments raised by the learned counsel for the appellant weigh with the mind of the court. The motive for demanding the bribe is replete with ambiguities. It was only the complainant, from whom the amount was demanded, was to prove the motive but he has not supported the prosecution case. Whatever was stated by him is that he had to pay Rs. 500/-on account of balance sale proceeds of the buffalo sold by the accused to him and Rs. 200/- were for the purpose of payment of fee for supply of documents. Be that it may, the witness has resiled from his previous statement Ex. PF as originally made by him on 13.7.1995, but, if the statement Ex. 500/-on account of balance sale proceeds of the buffalo sold by the accused to him and Rs. 200/- were for the purpose of payment of fee for supply of documents. Be that it may, the witness has resiled from his previous statement Ex. PF as originally made by him on 13.7.1995, but, if the statement Ex. PF is read in depth, taking the same as basis of reliance to prove the demand, then the same also is not sufficient to bring the accused in the net as it does not reveal as to what documents he needed and as to on which day, date and month he met the accused for the first time and when he went thereafter, Statement Ex. PF further reveals that accused appears to have not demanded the bribe but there is a word "payment of mehantana" in the statement and not the bribe money. The word "mehantana" if could be read in favour of the accused, then certainly it Could be treated as "fee" or "labour". The statement Ex. PF does not disclose if the accused demanded money on account of bribe, but the accused appears to have mis-took the word "mehantana" as bribe that appears to be the cause that conscience of the witness pricked while appearing in the witness box and made clean breast of the facts stating that he was to pay Rs. 200/- on account of the charges for supplying the copies of the documents and Rs. 500/- on account of balance sale price of the buffalo. Since the complainant while appearing in the witness box as PW4 did not utter a word if the accused demanded any bribe. The other witness to prove the demand is Inspector Som Dev (PW7) who is the shadow witness. He has also not stated that if the amount of Rs. 700/- was paid to the accused on demand made by him. He only states that he paid the money to the accused. From this part of the statement no inference could be drawn that the accused had specifically demanded the bribe. He has also not stated that if the amount of Rs. 700/- was paid to the accused on demand made by him. He only states that he paid the money to the accused. From this part of the statement no inference could be drawn that the accused had specifically demanded the bribe. It is also surprising that no document was delivered to the complainant even after the payment of money, though, police party, according to K.K. Gupta, went to the accused after 15 minutes of the giving of the signal, but, no such documents were recovered by the Investigating Officer which were to be delivered by the accused to the complainant on payment of bribe. Thus, the motive for receiving the money by the accused has also not come forth. As such, in the peculiar circumstances of the case, in the absence of the first and last essential document, it would be difficult to hold that the accused had demanded the alleged amount as gratification to show any official favour to him and whether the complainant (PW4) had handed over the same as consideration for showing such official favour. The accused at the earliest point of time explained that it was not a bribe amount received by him but the same was on account of fee plus balance sale price of the buffalo as deposed by the complainant. 12. Now the other fact with regard to the recovery of the tainted money, a shadow of doubt has been raised by the accused with regard to the recovery allegedly effected from him. The accused has alleged that it was handy work of the complainant who having felt annoyed against him when he was asked to part with the remaining sale price of Rs. 500/- which he has not paid despite repeated requests. 13. On appreciation of the entire evidence, it transpires that the prosecution has failed to prove the recovery of the tainted money from the accused. Firstly, the recovery of the bribe money from the accused stand vitiated on account of the serious defects in effecting the same. It is consistent case of the prosecution witnesses that the recovery of bribe money was effected by K.K. Gupta, District Revenue Officer (PW5). K.K. Gupta (PW5) is none else but a District Revenue Officer of whom the accused is subordinate, therefore, he has become certainly an interested witness. It is consistent case of the prosecution witnesses that the recovery of bribe money was effected by K.K. Gupta, District Revenue Officer (PW5). K.K. Gupta (PW5) is none else but a District Revenue Officer of whom the accused is subordinate, therefore, he has become certainly an interested witness. He is not a witness to the demand, but he was joined in the raiding party at about 3.45 p.m. as disclosed by Yashwant Singh DSP (PW6). Yashwant Singh DSP (PW6) has stated nothing if K.K. Gupta was apprised of the object of the raid and he was not appointed to conduct the search. Hands of K.K. Gupta were not got washed before he searched the accused. He also did not offer himself to be searched by the accused before he searched the latter. K.K. Gupta has not stated a word if he had searched the accused. He also states that extra amount was found in both of the pockets of the shirt of the accused. 14. The presence of K.K. Gupta at the place of occurrence and at the time of effecting the recovery is highly doubtful as there are serious contradictions in his statement. He says that clothes of the accused were not got washed in the sodium carbonate, whereas, Yashwant Singh DSP (PW6) as well as Som Dev Inspector (PW7) state that the pocket of the shirt of the accused was got washed in the sodium carbonate solution. P.W. 6 has stated that the gypsy was parked at a little distance from the gate of B.D.Office, whereas, Som Dev (PW7) states that gypsy is shown to have been parked in the site plan Ex. PQ just in front of the main gate. K.K. Gupta (PW5) has stated that no efforts were made to associate any other public witness in the proceedings, whereas, Yashwant Singh DSP (PW6) states that he had made efforts to join some other persons but none joined. K.K. Gupta has stated that they stood about 50 yards away from the B.D. Office, whereas Inspector Som Dev (PW7) states that the raiding party was about 150 yards away the B.D. Office. K.K. Gupta states that after 15 minutes of receiving the signal, they went into the B.D. Office, whereas Inspector Som Dev (PW7) states that immediately on receiving the signal the raiding party reached the accused and the accused was over powered. K.K. Gupta states that after 15 minutes of receiving the signal, they went into the B.D. Office, whereas Inspector Som Dev (PW7) states that immediately on receiving the signal the raiding party reached the accused and the accused was over powered. That apart, statement of K.K. Gupta is replete with the material improvements which also create doubt over his presence at the spot. Firstly, he has no knowledge if the amount was recovered from the right or left side of the pocket. The witness does not know if the complainant met him in the office of DSP or in his office, because in his statement under Section 161 Cr.P.C. h& disclosed only that the complainant also participated in the proceedings. He does not know if he stated in his statement Ex. DA that the currency notes were given by the complainant to the DSP in his presence. When he was confronted with his statement Ex. DA, then it was found that there was nothing about handing over the currency notes by the complainant to the DSP. He states in his statement Ex. DA that instructions were given to the complainant and Inspector Som Dev at Sampla but nothing such was found in the statement Ex. DA. K.K. Gupta (PW5) states that they reached the B.D. Office at 4.00 p.m., whereas, Inspector Som Dev (PW7) states that they had started from Rohtak at 1.00 p.m. for the B.D. Office Sampla. All this goes to show that the presence of K.K. Gupta (PW5) is doubtful at the spot. 15. AH the three witnesses are from the official department. Shadow witness appears to have been intentionally taken from the police department. He has not proved the factum of demand raised by the accused. He being the interested witness could go to any extent to support the prosecution case. He also admits that before District Revenue Officer searched the accused no memo with regard to search by District Revenue Officer was made. The hands of District Revenue Officer was not got washed in the solution. No body from the other office was associated in the raid, though there was many people present in the campus. 16. While going to the worst, in the given circumstances of the case, onus to prove the demand, which was upon the prosecution, does not stand shifted so as to raise the presumption under Section 20 of the Act. No body from the other office was associated in the raid, though there was many people present in the campus. 16. While going to the worst, in the given circumstances of the case, onus to prove the demand, which was upon the prosecution, does not stand shifted so as to raise the presumption under Section 20 of the Act. Mere recovery, in the given circumstances of the case, is hardly sufficient to attract the presumption. It is well settled that the presumption to be drawn under Section 20 is not a inviolable one. The accused charged with the offence could rebut the same either through cross examination of the witnesses cited before him or by adducing reliable evidence. If the accused failed to shift the onus, the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. It is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4 under the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving that preponderance of probability is in his favour. It is not necessary for the accused person to prove his case beyond reasonable doubt or in default to incur verdict of guilt. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden shifts to prosecution which still has to discharge its original onus that never shifts, i.e.; that of establishing the whole case regarding the guilt of the accused beyond reasonable doubt. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden shifts to prosecution which still has to discharge its original onus that never shifts, i.e.; that of establishing the whole case regarding the guilt of the accused beyond reasonable doubt. Reliance, if any, could be placed over the judgment delivered in case Jhangan v. State, 1966(3) SCR 736. 17. In the instant case, the accused appears to have been successful in proving the fact that all the three witnesses, as brought on record, two being from the police department and third being his own official superior, are interested witnesses. He has also pointed out sufficient evidence which contribute to make the case doubtful. The presence of K.K. Gupta at the spot is highly doubtful. The prime ingredient of demand of bribe stand negated by the complainant himself who was the first pillar for construction of the building of guilt of the accused. The factum of recovery also stands vitiated. 18. For the aforesaid reasons, it would be in the fitness of the things to observe that the prosecution has failed to sustain the conviction of the accused under Section 7 of the Act. 19. Resultantly, this appeal is allowed, the impugned judgment dated 22.9.1999 is set aside, the accused is acquitted of the charges framed against him and is directed to be set at liberty forthwith. Bail bond and surety bond furnished by him stand discharged. Fine, if any deposited by him, be refunded.