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2010 DIGILAW 2016 (PNJ)

Om Parkash v. State Of Haryana

2010-07-12

JITENDRA CHAUHAN

body2010
Judgment Jitendra Chauhan, J. 1. The present appeal is directed against the judgment/order dated 3/4.3.2008 passed by the learned Special Judge, Gurgaon, whereby the accused-appellant has been convicted for the offences punishable under Sections 7 and 13 (1) (d) of the Prevention of Corruption Act, 1988 (for short `the Act) and sentenced as under : (i) To undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 4,000/- for offence under Section 7 of the Act. In default of payment of fine, to further undergo simple imprisonment for a period of nine months; and (ii) To undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 6,000/- for the offence under Section 13(1) (d) of the Act. In default of payment of fine, to further undergo simple imprisonment for a period of one year. All the sentences were ordered to run concurrently. 2 Brief facts of the case as projected by the prosecution are that Bharat Petroleum Corporation Limited allotted a petrol pump to Smt. Sunita Bhati, wife of Veenu Bhatti. She was required to obtain a No Objection Certificate from Om Parkash, Block Development and Panchayat Officer (herein `the appellant). Veenu Bhati husband of Smt. Sunita Bhati (herein `the complainant) approached the office of the appellant and submitted the relevant documents. The appellant demanded a sum of Rs. 5,000/- as bribe for doing the needful. The complainant and his wife did not pay the said amount and they approached the State Vigilance Bureau, Gurgaon and submitted an application/complaint. 3. A raiding party comprising of Inspector Satbir Singh and Sh. V.S. Hooda, General Manager, Haryana Roadways was constituted. SI Daulat Ram joined the raiding party as shadow witness. The complainant handed over three currency notes of denomination of Rs. 1000/- each and four currency notes of denomination of Rs. 500/- each to the raiding party and the same were returned to him after putting initials of the Investigating Officer and Mr. V.S. Hooda after applying phenolphthalein powder. On reaching the office of the accused, the complainant and SI Daulat Ram were deputed in the office of the accused for giving signal and the others remained present at some distance. The complainant entered the office of the accused/appellant and made payment of the currency notes to the accused. V.S. Hooda after applying phenolphthalein powder. On reaching the office of the accused, the complainant and SI Daulat Ram were deputed in the office of the accused for giving signal and the others remained present at some distance. The complainant entered the office of the accused/appellant and made payment of the currency notes to the accused. After receiving the signal from SI Daulat Ram, Inspector Satbir Singh and Virender Singh Hooda also reached on the spot and recovered the currency notes of Rs. 5,000/- lying on the table of the accused-appellant. The recovered currency notes were the same which were handed over to the complainant and the same were taken into police possession. Hands of the accused were got washed in a solution of Sodium Carbonate whereupon the colour of the water turned light pink. Thereafter the raiding party completed the hand wash process and also obtained the samples from the remaining hand wash solution. The samples were sent to Director, FSL, Madhuban for analysis. 4. Inspector Satbir Singh, PW 10, made endorsement on the application, Exhibit PM/1, and sent the same to the Police Station, SVB Gurgaon and on the basis of which, formal FIR, Exhibit PR, was registered. 5. After completion of the investigation, the accused/appellant was challaned and thereafter charge sheeted by the Special Judge, Gurgaon for the offence under Sections 7 and 13 (i) (d) of the Prevention of Corruption Act, 1988 to which the accused/appellant pleaded not guilty and claimed trial. 6. In order to substantiate the allegations against the accused, the prosecution examined as many as thirteen witnesses, namely, Naresh Kumar, Draftsman as PW 1; ASI Jai Bhagwan as PW2; MHC Surender Kumar as PW-3; Inspector Babu Lal as PW-4; SI Daulat Ram as PW-5; Rajinder Singh, BDPO, Hansi, as PW-6; Vijay Laxmi, Assistant as PW-7; complainant Veenu Bhati as PW-8; Hari Om Nazir as PW-9; Inspector Satbir Singh as PW- 10; Virender Singh Hooda, Estate Officer as PW- 11; Asstt. Subhash Chander as PW-12 and Inspector Jai Bhagwan as PW-13. Constable Rampal, Inspector Jagdish Parshad and Smt.Sarojani Devi were given up being unnecessary. 7. PW-1, Naresh Kumar, Draftsman, who prepared scaled site plan, proved the same as Exhibit PA. 8. PW-4, Inspector Babu Lal recorded the statements of MHC Surender Singh and ASI Jai Bhagwan. 9. Subhash Chander as PW-12 and Inspector Jai Bhagwan as PW-13. Constable Rampal, Inspector Jagdish Parshad and Smt.Sarojani Devi were given up being unnecessary. 7. PW-1, Naresh Kumar, Draftsman, who prepared scaled site plan, proved the same as Exhibit PA. 8. PW-4, Inspector Babu Lal recorded the statements of MHC Surender Singh and ASI Jai Bhagwan. 9. PW-5, S.I. Daulat Ram, P.S. SVB, Gurgaon, stated that he joined the raiding party and gave a signal to them. He further stated that the memos, Exhibits PD, PE, PF and PG bear his signatures. He also stated in his statement that he performed his duty as a shadow witness and supported the case of prosecution. 10. PW-6, Rajinder Singh, Block Development and Panchayat Officer, Hansi, proved letter, Exhibit PD, addressed to Deputy Commissioner, Gurgaon. 11. PW-8, Veenu Bhatti reiterated the same version given in the complaint, Exhibit PM. 12. PW-10, Inspector Satibir Singh, deposed that the complainant, PW-8, gave an application, Exhibit PM, to him and after making endorsement on it, he sent the same to the police station for registration of the case. He further deposed that he joined the raiding party. He as well as Mr. V.S. Hooda, G.M., Haryana Roadways, put their initials on the currency notes and applied phenolphthalein powder. He further stated that he apprehended the accused alongwith the currency notes, which were lying on his table and the currency notes recovered from the accused were found to be the same which were given to the complainant for handing over to the accused. The same were taken into police possession vide Exhibit PE. 13. PW-11, Virender Singh Hooda, G.M., Haryana Roadways, stated that he joined the raiding party and reiterated the same version given by Inspector Satbir Singh, PW-10. 14. The accused-appellant was examined under Section 313 of the Code of Criminal Procedure in which he denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. However, in defence, the accused did not examine any witness. 15. The present appeal was admitted on 14.3.2008 by this Court. 16. Learned counsel for the appellant has argued that the prosecution has failed to establish on the record that the appellant demanded the bribe and envelop containing currency notes, was given to him and the said bribe was accepted; by the appellant. Therefore, demand and acceptance of bribe is not established. 17. 16. Learned counsel for the appellant has argued that the prosecution has failed to establish on the record that the appellant demanded the bribe and envelop containing currency notes, was given to him and the said bribe was accepted; by the appellant. Therefore, demand and acceptance of bribe is not established. 17. Learned counsel has further argued that the material fact of alleged demand and acceptance of bribe was not put to the appellant when he appeared to make statement under Section 313 of Cr.P.C. 18. Learned counsel has also argued that from the contradictions on account of payment of gratification, the story of prosecution pertaining to the trap and recovery of the bribe from the accused/appellant stands falsified. He has submitted that SI Daulat Ram, PW-5, the shadow witness, has stated that phenolphthalein powder was applied on the currency notes and thereafter the same were returned to the complainant by preparing memo before proceeding for the trap. Learned counsel has further referred to the statement of the complainant-Veenu Bhatti, PW-8, to the extent that he did not state anywhere regarding pre-trap proceedings such as the application of phenolphthalein powder on currency notes. Similarly, reference is made to the statement of Inspector Satbir Singh, PW-10, who stated that the phenolphthalein power was applied on the currency notes and the said notes were returned to the complainant after preparing memo and then they proceeded for conducting the raid. Virender Singh Hooda, PW-11, has stated that phenolphthalein powder was applied on currency notes and also on the envelop containing the currency notes. Learned counsel reiterated his argument that there is no mention of the fact that the currency notes contained in envelope were handed over to the accused-appellant. 19. It has also been argued that all the recovery witnesses have stated that the alleged gratification amount was recovered from an envelope lying on the table. However, from the statements of SI Daulat Ram, PW-5, I.O. Satbir Singh, PW-10 and Virinder Singh, PW-11, it has not come on record that the currency notes were given to the complainant in an envelope on demand by the appellant. Learned counsel has further argued that in the present case fact of alleged demand and acceptance of the bribe is not proved. Further, the reports of hand wash and FSL do not support the case of the prosecution. 20. Learned counsel has further argued that in the present case fact of alleged demand and acceptance of the bribe is not proved. Further, the reports of hand wash and FSL do not support the case of the prosecution. 20. Lastly, it has been argued that no independent witness was examined. All the witnesses examined by the prosecution were interested and partisan witnesses, therefore, no reliance can be placed upon on the testimony of such witnesses. 21. On the other hand, learned counsel for the State has argued that case of the prosecution is established beyond any reasonable doubt. The alleged gratification amount was recovered by the raiding party, which was formed on the complaint made by Veenu Bhatti, PW-8. 22. I have heard the learned counsel for the parties and perused the record with their able assistance. 23. There is no doubt that the prosecution is required to put all the incriminating material to the accused/appellant under Section 313 of Cr.P.C. A perusal of question nos. 2 and 3 in the statement under Section 313 of Cr. P.C. goes to prove that the appellant was not confronted with the incriminating material concerning alleged demand and acceptance of gratification. At the time of recording the statement of the appellant, there is no mention of any envelope containing the currency notes allegedly given to the appellant on demand being raised by him. The Honble Supreme Court, while dealing with similar situations in Ranvir Yadav v. State of Bihar, 2009(3) R.C.R.(Criminal) 113 : 2009(3) R.A.J. 624 : (2009) 6 SCC 595, has observed in para 11, which reads as under :- "Above being the position the appeal deserves to be allowed. It is a matter of regret and concern that the trial court did not indicate the criminating material to the accused. Section 313 of the Code is not an empty formal y. There is a purpose behind examination under Section 313 of the Code. Unfortunately, that has not been done. Because of the serious lapse on the part of the trial court the conviction as recorded has to be interfered with. Conviction recorded by the High Court is set aside. Bail bonds executed to give effect to the order of bail dated 8.1.2002 shall stand cancelled because of the acquittal. The appeal is allowed to the aforesaid extent." 24. Because of the serious lapse on the part of the trial court the conviction as recorded has to be interfered with. Conviction recorded by the High Court is set aside. Bail bonds executed to give effect to the order of bail dated 8.1.2002 shall stand cancelled because of the acquittal. The appeal is allowed to the aforesaid extent." 24. As regards contradictions in the statements of the prosecution witnesses, it is the case of the prosecution that phenolphthalein powder was applied on the currency notes, which were given to the complainant, PW-8. It is not the case of the prosecution that the said currency notes were concealed in an envelope which was also treated with phenolphthalein powder. What was recovered from the table of the appellant is an envelope containing the currency notes as recorded in questions No. 2 and 3 in the statement under Section 313 of Cr.P.C. of the appellant and not the currency notes. Further it is not the case of the prosecution that currency notes concealed in an envelope were handed over to the appellant. From the statements of SI Daulat Ram, PW-5 and I.O.-Satbir Singh, Inspector, PW-10, it is made out that currency notes were handed over to the complainant and not the envelope containing the currency notes were handed over to the appellant. 25. As regards demand and acceptance, it has come in the statement of the complainant, PW-8, that he failed to identify the appellant in the Court and that the appellant did not raise any demand or accepted any bribe from him. It has also come on record that SI Daulat Ram, PW-5, the shadow witness did not hear the appellant raising any demand and accepting the bribe, although, he was standing only at a distance of 10 feet. Even as per the case of prosecution, the alleged currency notes were recovered from the table. In Harbans Singh v. State of Punjab, 2010 (1) RCR (Criminal) 892, this Court has observed in paras 11 & 13, which read as under :- "11. The foremost thing that has to be considered is as to whether or not the demand in the given set of circumstances has been proved beyond any doubt. In Harbans Singh v. State of Punjab, 2010 (1) RCR (Criminal) 892, this Court has observed in paras 11 & 13, which read as under :- "11. The foremost thing that has to be considered is as to whether or not the demand in the given set of circumstances has been proved beyond any doubt. In this regard, the evidence of only the complainant himself is on record as the demand was not made in the presence of any other person and consequently, his statement, who is naturally interested in the success of his case ipso facto cannot be accepted that the demand had been actually raised by the appellant. This impression of the Court is also strengthened by the fact that subsequent to the demand, a raid was conducted which was not without any blemish. The sequence of events leading to the raid is not trustworthy. 13. Now, if the testimony of PW-7-Gurbax Singh is to be seen, the same is totally at variance to the statement of the complainant. He has stated that he never entered the room where the appellant was present and he had remained standing outside the room. He has further stated that the recovery was never effected in his presence." 26. In re : R. V. Subha Rao v. State represented by Inspector of Police, Anti Corruption Bureau, Kakinada Range, 2005 (4) RCR (Crl.) 716 (A.P.), it has been observed that there was no witness to the demand of bribe except the complainant. It was held that in case of bribery, mere recovery of amount from the accused is not sufficient for conviction when the substantive evidence is not reliable. 27. There are material contradictions as regards the fact, whether only the currency notes were given or an envelope containing the currency notes was handed over to the appellant. In Harbans Singhs case (supra), this Court has held as under :- "18. For the aforesaid reasons and keeping in view the law laid down in the above mentioned cases, when the prosecution has failed to establish the demand and acceptance of bribe by the appellant, I am of the considered opinion that the case against him cannot be said to have been proved beyond reasonable shadow of doubt. Merely because the amount was placed in the drawer of the appellant does not mean that the same was demanded or accepted by the appellant. Merely because the amount was placed in the drawer of the appellant does not mean that the same was demanded or accepted by the appellant. No independent witness was examined and there are serious discrepancies in the statement of the complainant, who himself has been involved as a witness in various cases and the discrepancies in the statement of the shadow witness, who has stated that the recovery was not effected in his presence, and, therefore, it is held that the prosecution has not been able to prove its case against the appellant. 28. As regards the contention of learned counsel for the appellant that the reports of hand wash and FSL do not support the case of prosecution, it is made out from the statement of I.O. Satbir Singh, PW-10, that phenolphthalein powder was applied on the currency notes before returning the same to the complainant. Thereafter, the recovery of the envelope from the table was made. The currency notes having the phenolphthalein powder were taken out and checked by him and thereafter hand washing procedure of the appellant and the complainant was carried out. It is no where mentioned in the prosecution case that I.O. Satbir Singh, PW-10, washed his hands prior to conducting the hand wash procedure of the appellant and the complainant. Therefore, it cannot be said that the phenolphthalein powder from the hands of I.O. Satbir Singh, PW- 10, reached to the solution for turning it into pink colour and that there was no phenolphthalein powder found on the hands of the appellant. It is settled law that when two views are possible, the one which favours the accused has to be adopted by the Court. In Allarakha k. Mansuri v. State of Gujarat, (2009) 6 SCC 595, the Honble Supreme Court has observed in para 5, which reads as under :- "5. The settled position of law regarding the powers to be exercised by the High Court in an appeal against the order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will not interfere with an order of acquittal because with the passing of an order of acquittal the presumption of innocence in favour of the accused is reinforced. The High Court should be slow in disturbing the finding of the fact arrived at by the trial court. The High Court should be slow in disturbing the finding of the fact arrived at by the trial court. The golden thread which runs through the web of administration of justice in criminal case is that if two view are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted;, In our country it is not a jurisdictional limitation on the appeal court but a judge made guideline of circumspection. In Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra, [AIR 1973 SC 2622] this Court held :- This Court had ever since its inception considered the correct principle to be applied by the Court in an appeal against an order of acquittal and held that the High Court has full powers to review at large the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed. The Privy Council in Sheo Swarup v. King Emperor, 61 Ind App. 398 : (AIR 1934 P.C. 227 (2), negatived the legal basis for the limitation which the several decisions of the High Courts had placed on the right of the State to appeal under Section 417 of the Code. The Privy Council in Sheo Swarup v. King Emperor, 61 Ind App. 398 : (AIR 1934 P.C. 227 (2), negatived the legal basis for the limitation which the several decisions of the High Courts had placed on the right of the State to appeal under Section 417 of the Code. Lord Russel delivering the judgment of the Board pointed out that there was "no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate tribunal," that no distinction was drawn "between an appeal from an order of acquittal and an appeal from a conviction," and that "no limitation should be placed upon that power unless it be found expressly stated in the Code." He further pointed out at p.404 that, "the High Court should an will always given proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2), the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." In Sanwat Singh v. State of Rajasthan, (1961) 3 SCR 12 : (AIR 1961 SC 715) after an exhaustive review of cases decided by the Privy Council as well as by this Court, this Court considered the principles laid down in Sheo Swarups case and held that they afforded a correct guide for the appellate courts approach to a case against an order of acquittal...." 29 Admittedly, no independent witness was joined by the prosecution in the present case. All the prosecution witnesses are interested and partisan witnesses. In Som Parkash v. State of Punjab, 1992 (1) RCR (Crl.) 159., the Honble Supreme Court while dealing with the similar situation, has observed as under :- "2. The High Court found that the witnesses who were associated in the conduct of the raid for recovery of tainted money from the appellant could not be termed as independent who could be associated with such raids. The High Court found that the witnesses who were associated in the conduct of the raid for recovery of tainted money from the appellant could not be termed as independent who could be associated with such raids. The High Court further expressed doubt about veracity of the witness who claimed that money was actually handed over in his presence. The High Court, however, drew an adverse inference against the appellant from the circumstance that the bill which was delayed for unreasonable period had suddenly been passed by the appellant. On an overall assessment the High Court entertained some suspicion about the credibility of the prosecution witnesses but at the same time did not find the suspicion to be strong enough to raise doubt about the guilt of the appellant,. We agree with the learned counsel for the appellant that in the face of the finding that the witnesses who formed part of the raiding party were not independent and the evidence regarding handing over money to the appellant being unbelievable, the conviction of the appellant cannot be sustained. The guilt of the appellant has not been proved beyond reasonable doubt and as such the benefit must go to him." 30. In this manner, the case of the prosecution has becomes doubtful and unbelievable. 31. In view of the above, I have no hesitation to record that the prosecution has miserably failed to prove its case beyond reasonable doubt. The case of the prosecute on is ridden with material contradictions. The demand and acceptance of the bribe is not established. The complainant, Veenu Bhati, PW-8 did not identify the petitioner in the Court. A perusal of the statement of appellant recorded under Section 313 of Cr.P.C. reveal that entire incriminating material was not put to him. 32. In this manner, the prosecution has failed to establish its case. The demand and acceptance is not proved. 33. Accordingly, the present appeal is allowed. The judgment and order dated 3/4.3.2008 passed by the learned Special Judge, Gurgaon, is set aside. The appellant is stated to be on bail. His bail bonds shall stand discharged.