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2010 DIGILAW 1713 (PNJ)

Major Singh v. State Of Punjab

2010-05-18

HARBANS LAL

body2010
Judgment Harbans Lal, J. 1. This appeal is directed against the judgment/order of sentence dated 17.5.2006 passed by the court of learned Special Judge, Kapurthala whereby he convicted and sentenced the accused Major Singh to undergo rigorous imprisonment for a period of 2 = years and to pay a fine of Rs. 2000/- under Section 7 of the Prevention of Corruption Act, 1988 (for brevity, the Act) and in default of payment of fine to further undergo rigorous imprisonment for three months and also sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 3000/- under Section 13(2) of the Act and in default of payment of fine to further undergo rigorous imprisonment for three months with further direction that both the substantive sentences shall run concurrently. 2. As set up by the prosecution, Balbir Singh complainant was to obtain a copy of jamabandi from the accused Major Singh patwari. The latter demanded an amount of Rs. 4000/- as illegal gratification for supply of the same. Ultimately, the amount was settled at Rs. 2000/-. Balbir Singh reported the matter to the Vigilance Bureau where his statement was recorded and on its basis formal F.I.R. was registered. The usual formalities were completed. On 5.8.2005 the raiding party including Balbir Singh (sic) and Kulbir Singh shadow witness went to Sultanpur Lodhi. Balbir Singh as well as Kulbir Singh went inside the Tehsil Complex whilst the other members got scattered in different directions. On being asked by the accused, said Balbir Singh and Kulbir Singh went to the tea vend, where he came. On receipt of appointed signal, Manjit Singh D.S.P. alongwith other members went inside the tea vend and apprehended the accused. The necessary formalities were completed. The accused was put under arrest. After completion of investigation, the charge- sheet was laid in the court for trial of the accused. 3. The accused was charged under Section 7 and 13(2) of the Act to which he did not plead guilty and claimed trial. In order to bring home guilt against the accused, the prosecution examined PW-1 Karandeep Patwari, PW-2 Balbir Singh, PW-3 Lakhwinder Singh, PW-4 Kuldip Singh, PW-5 Ranjit Singh, PW-6 Pawan Kumar, PW-7 Sarwan Singh, PW-8 Kulbir Singh, PW-9 Rupinderpal Singh SDO, PW-10 Manjit Singh DSP Investigator and closed its evidence. 4. In order to bring home guilt against the accused, the prosecution examined PW-1 Karandeep Patwari, PW-2 Balbir Singh, PW-3 Lakhwinder Singh, PW-4 Kuldip Singh, PW-5 Ranjit Singh, PW-6 Pawan Kumar, PW-7 Sarwan Singh, PW-8 Kulbir Singh, PW-9 Rupinderpal Singh SDO, PW-10 Manjit Singh DSP Investigator and closed its evidence. 4. When examined under Section 313 of Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. He has come up with the following plea :- "I am innocent. The case is false. The entire evidence has been fabricated against me in order to strengthen the case. I did not Criminal demand any bribe money from Balbir Singh complainant, neither the Balbir Singh complainant gave me any money. No bribe money was recovered from me. The alleged currency notes were recovered from underneath the register lying on the table." 5. He did not adduce any evidence in defence. 6. After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal. 7. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. 8. Mr. A.P.S. Deol, Senior Advocate on behalf of the appellant urged with great eloquence that the learned trial Court has based conviction on the statements of two prime witnesses namely Balbir Singh complainant PW-2 and Kulbir Singh shadow witness PW-8 who have been declared hostile since they did not toe the line of the prosecution with regard to the demand and acceptance of illegal gratification by the appellant. Despite this, the learned trial Court proceeded to convict the accused without looking for any corroboration. This approach of the learned trial Court is against the settled principle of law that the court should be slow to act on the testimony of such like witnesses, who make different statements at different times and have no regard for truth. The mere fact that Balbir Singh (sic) has stated that he kept Rs. 2000/- in the register would not be sufficient to prove the case of the prosecution with regard to demand and acceptance of bribe money. The mere fact that Balbir Singh (sic) has stated that he kept Rs. 2000/- in the register would not be sufficient to prove the case of the prosecution with regard to demand and acceptance of bribe money. He has specifically denied the fact regarding demand of illegal gratification from the appellant on the date of raid. The learned trial Court has tried to pick up one line from here and the other from there to weave its own web, which cannot be digested by any court of law. The learned trial Court has wrongly relied upon the evidence of Rupinderpal Singh PW-9 with regard to the handwash of the appellant, whose presence is not even admitted by Balbir Singh(sic) at the time of the raid, rather he has deposed that all the documents were prepared by Manjit Singh PW-10 while sitting in the office of the Vigilance Bureau, Kapurthala. Thus no reliance should have been placed on his testimony. The motive for demand of illegal gratification of Rs. 4000/- just for a copy of jamabandi seems to be unnatural as no patwari would ask for such a heavy amount only for such a copy. Thus the entire case seems to have been planted upon the appellant by Balbir Singh (sic) with the aid of his close relative Kulbir Singh shadow witness for some or the other reason and later on, they both could not stand pressure of court proceedings and were forced to speak out the truth. 9. It is further argued that no recovery was effected from the person of the appellant, but the tainted currency notes were alleged to be found scattered on a table of tea vendor shop who was present at that time, but was not cited as a witness by the Vigilance Officers. Even story regarding the recovery of currency notes from the Register as propounded by the learned trial court is not corroborated by the Investigating Officer Manjit Singh, who has denied the presence of any register on the table in the tea vend. To buttress his arguments Mr. Deol has placed abundant reliance upon Meena(Smt.) wife of Balwant Hemke v. State of Maharashtra, 2000(2) Recent Criminal Reports(Criminal)661 To tide over these submissions, the learned State Counsel maintained that Rupinderpal Singh SDO PW-9 has testified that "On seeing us the accused threw tainted currency notes on the table". To buttress his arguments Mr. Deol has placed abundant reliance upon Meena(Smt.) wife of Balwant Hemke v. State of Maharashtra, 2000(2) Recent Criminal Reports(Criminal)661 To tide over these submissions, the learned State Counsel maintained that Rupinderpal Singh SDO PW-9 has testified that "On seeing us the accused threw tainted currency notes on the table". The reasonable and legitimate interpretation which can be put on this piece of evidence is that the appellant had demanded and accepted the tainted currency notes and on catching sight of the police party, he threw the same on the table. Thus, the essential ingredients of the offence stand established. He has sought to rely upon Ramesh Chander v. State of Punjab, 2005(2) Recent Criminal Reports(Criminal)330 10. I have given a deep and thoughtful consideration to the rival contentions. 11. After being declared hostile, PW Balbir Singh PW has deposed that "It is a fact and I also stated in Ex. PE that accused demanded a sum of Rs. 2000/- from me. It is also a fact and also stated in Ex. PE that I kept myself Rs. 2000/- in the register. It is a fact and I also stated in Ex. PE that then the accused gave the jamabandi to me." On being cross-examined by the learned defence counsel, he has testified that "The peon met me outside the office of accused and told that he would get my work done for money. The peon demanded the gratification from me. The accused did not demand the gratification from me. On the date of the raid, the peon told me that I should keep the money under the register and he would get my work done. The accused did not demand gratification from me even on that day." Ostensibly, inconsistency is heaped upon inconsistency in his testimony. When he wiped out the cross-examination directed on behalf of the State, it was expected of the trial Court to get it clarified by putting court question as to which of the two versions is correct. The accused did not demand gratification from me even on that day." Ostensibly, inconsistency is heaped upon inconsistency in his testimony. When he wiped out the cross-examination directed on behalf of the State, it was expected of the trial Court to get it clarified by putting court question as to which of the two versions is correct. In Suraj Mal v. The State (Delhi Administration), AIR 1979 SC 1408 it has been held that "where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses become unreliable and unworthy of credence and in the absence of special circumstance no conviction can be based on the evidence of such witnesses." In the backdrop of these observations, no implicit reliance can be placed on the testimony of Balbir Singh(sic). In Ramesh Chanders case(supra) sought to be relied upon adequately on behalf of the State, the tainted money of Rs. 700/- was recovered from the accused. The shadow witness turned hostile. The independent witness was not examined. The fact of recovery of tainted money was proved by a very Sernior Officer as also the complainant. It was in these premises, held by this Court that "there was no reason for the officer to get falsely implicated the accused." The distinguishing feature herein is that "Balbir Singh complainant who is at par with an accomplice continued changing his stands thoroughout his examination in the trial Court. Thus, it would not be free from risk to rely upon his statement. His testimony smacks of pliability. 12. Coming to the statement of Kulbir Singh shadow witness (sic) he has testified that "In my presence, neither any gratification other than remuneration in the sum of Rs. 2000/- was demanded by Major Singh from Balbir Singh, nor the same was accepted by the accused. Nothing happened in my presence." When he was cross-examined by the learned Additional Public Prosecutor for the State after being declared hostile, he deposed that "It is neither a fact, nor did I state in Ex.PR that in my presence the accused demanded a sum of Rs. Nothing happened in my presence." When he was cross-examined by the learned Additional Public Prosecutor for the State after being declared hostile, he deposed that "It is neither a fact, nor did I state in Ex.PR that in my presence the accused demanded a sum of Rs. 2000/- from Balbir Singh and paid the same, thereafter the copy of the jamabandi was given to the said Balbir Singh." When he was cross-examined by the learned defence counsel, he stated that "Balbir Singh (referring to PW-2 the complainant) belongs to my village and is related to me." It is thus, manifestly clear that he is a relation of Balbir Singh (sic). It tends to show that he is a partisan witness. In Ram Parkash Arora v. State of Punjab, AIR 1973 SC 498 it has been held that "Evidence of interested and partisan witnesses who are concerned in the success of the trap must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused persons. There was no independent search witness and no other evidence from which any corroboration could be found of the evidence given by the members of the raiding party including the complainant. The prosecution has not proved the charges beyond all reasonable doubt." In the present one, Kulbir Singh despite being a relation of Balbir Singh has resiled from his earlier statement. The principal ingredients of the offence i.e. demand and acceptance of bribe money were to be demonstrated by Balbir Singh as well as Kulbir Singh PWs. Their above discussed evidence leads to an irresistible conclusion and inescapable inference that the prosecution has not been able to establish the elements of demand as well as acceptance of bribe money. 13. Rupinderpal Singh SDO PW-9 as well as Manjit Singh PW-10 Investigator have consistently deposed that "On seeing the police party the accused threw the tainted currency notes on the table." It implies that the recovery was effected from the table. In Banarsi Dass v. State of Haryana, 2010(2) R.C.R.(Criminal) 553 : 2010(2) R.A.J. 471 : 2010(2) Law Herald 1441, the appellant had demanded bribe from complainant for correcting the Khasra Girdawaris in the name of mother PW-2 Satpal Kaur. A trap was planned. The bribe money was recovered from pocket of the accused. In Banarsi Dass v. State of Haryana, 2010(2) R.C.R.(Criminal) 553 : 2010(2) R.A.J. 471 : 2010(2) Law Herald 1441, the appellant had demanded bribe from complainant for correcting the Khasra Girdawaris in the name of mother PW-2 Satpal Kaur. A trap was planned. The bribe money was recovered from pocket of the accused. It was held by the Apex Court that "In the light of the statement of two hostile witnesses PW-2 and PW-4, the demand and the acceptance of illegal gratification alleged to have been received by the accused for favouring PW-2 by recording the Khasra Girdawaris in the name of her mother cannot be said to have been proved by the prosecution in accordance with law. We make it clear that it is only for the two witnesses having turned hostile and they having denied their statement made under Section 161 of the Cr.P.C. despite confrontation, that the accused may be entitled to acquittal on technical ground." In Meena (Smt.) wife of Balwant Hemkes case (supra) the raid was conducted by the police. Currency note of Rs. 20/- was recovered from the table of the accused. The version of the accused was that the prosecution witness tried to thrust the currency note into her hand, but she pushed it away and note fell on the table. The shadow witness was not examined. The Supreme Court observed that "The question is as to whether the appellant accepted it and placed it on the table or that the currency note fell on the pad on the table in the process of the appellant refusing to receive the same by pushing away the hands of PW-1 and the currency, when attempted to be thrusted into her hands. PW-2, one of the panch witneses, who accompanied PW-1, as a shadow witness, when he tried to give the bribe, did not support the prosecution case. He has been treated hostile and his evidence eschewed from consideration by the Courts below." It has been further observed that "Law has always favoured the presence and importance of shadow witness in the trap party, not only to facilitate such witness to see but also overhear what happens and how it happens also. xx xx xx Mere recovery of the currency note of Rs. xx xx xx Mere recovery of the currency note of Rs. 20/- denomination, and that too lying on the pad on the table, by itself cannot be held to be proper or sufficient proof of the acceptance of the bribe, in the peculiar circumstances of this case which lend also credence to the case of the appellant that it fell on the table in the process of the appellant pushing it away with her hands when attempted to be thrusted into her hands by PW-1. The results of phenolphthalein test, viewed in the context that the appellant could have also come into contact with the currency note when she pushed it away with her hands cannot by itself be considered to be of any relevance to prove that the appellant really accepted the bribe amount. With such perfunctory nature of materials and the prevaricating type of evidence of PW-1 and PW-3, who seem to have strong prejudice against the appellant, it would be not only unsafe but dangerous to rest conviction upon their testimony." Adverting to the instant one, the complainant as well as the shadow witness having not lent support to the prosecution version, it is very difficult to say with absolute certitude that the bribe money was demanded and accepted by the appellant and on viewing the police party, he had thrown the same on the table. Thus, the necessary link to connect the appellant with the tainted currency notes recovered from the table is lacking. In Kalu Ram v. State of Punjab, 1997 (1) Recent Criminal Reports(Criminal) 259, the recovery of tainted currency notes was effected from drawer of the accused and not from person of the accused. It was held that in this situation, the possibility of accused not being present at the relevant time cannot be ruled out. 14. Towards the end of his cross-examination, the Investigating Officer has stated that "some persons were sitting inside the tea vend. An attempt was made to join the owner of the tea vend and the persons sitting inside the tea vend, but they refused to join us. The name of the owner of the tea vend was Mulakh Raj. The remaining did not tell their names to me as they slipped away." To my mind, the tea vendor would have shed light on the reality. The name of the owner of the tea vend was Mulakh Raj. The remaining did not tell their names to me as they slipped away." To my mind, the tea vendor would have shed light on the reality. If he had refused to join the proceedings, the action as warranted by law could have been initiated against him. In State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede, 2009(4) Recent Criminal Reports(Criminal) 217 which was also a case under the Corruption Act, it has been observed that "It is also well-settled principle of law that where it is possible to have both the views, one in favour of the prosecution and the other in favour of the accused, the latter should prevail." If the matter is viewed in the light of this principle of law, then the view in favour of the appellant has to prevail. 15. No other material point has been urged or agitated by either counsel. 16. As a sequel of the above, this appeal succeeds and is accepted by setting aside the impugned judgment/order of sentence. The accused-appellant is hereby acquitted of the charged offence by giving him benefit of reasonable doubt. 17. Since the appeal has been decided, all pending Criminal Miscellaneous,if any, also stand disposed of.