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2010 DIGILAW 2173 (PNJ)

Nahar Singh v. State Of Punjab

2010-07-30

JITENDRA CHAUHAN

body2010
Judgment Jitendra Chauhan, J. 1. The present criminal appeal has been preferred by the appellant challenging the judgment/order dated 25.2.2000, passed by the learned Special Judge Fategarh Sahib (hereinafter referred to as "Trial Court"), thereby convicting the accused - appellant for committing offence punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as `the Act) and sentencing him to undergo imprisonment for a period of two years and to pay a fine of Rs. 2,000/- for the offence under Section 7 of the Act and in default of payment of fine, to further undergo rigorous imprisonment for six months. The accusedappellant was also sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 2,000/- for the offence under Section 13 (2) of the Act and in default thereof, to further undergo rigorous imprisonment for six months. Both the sentences were ordered to run concurrently. 2. The brief facts of the case, as set up by the prosecution in para 2 of the judgment of learned Trial Court, are that : "Mukhtiar Singh son of Banta Singh, resident of village Badla Kotla was joint in cultivation with his father and two brothers and for the purpose of raising a loan for tractor they required copy of the Jamabandi for which they approached the accused on 18.3.1996 who demanded Rs. 500/- as illegal gratification for supply of the copy of the Jamabandi. The complainant insisted that he is not in a position to pay such a huge amount and ultimately bargain was settled for Rs. 200/-. The accused after making false promise to the accused left the office of the accused with the assurance to the accused that he will bring the aforesaid amount. The complainant then came to Lachhman Singh son of Labh Singh resident of Lohar Majra and narrated the episode to him who told the complainant that such a corrupt official should not be spared. Then the complainant and Lachhman Singh came to the office of Vigilance Bureau, Fatehgarh Sahib, where Raghbir Singh DSP was found present and the complainant produced currency notes worth Rs. 200/-. DSP Raghbir Singh recorded the statement of the complainant (Ex. P11). Then the complainant and Lachhman Singh came to the office of Vigilance Bureau, Fatehgarh Sahib, where Raghbir Singh DSP was found present and the complainant produced currency notes worth Rs. 200/-. DSP Raghbir Singh recorded the statement of the complainant (Ex. P11). DSP Raghbir Singh noted down the numbers of the currency notes in the superdagi memo and after applying phenolphthalein powder to the currency notes which were of the denomination of Rs. 100/- each, handed over the same to the complainant. There was no other money with the complainant. According to the plan prepared, the complainant was directed to pay the aforesaid notes on demand whereas Lachhman Singh was asked to act as a shadow witness. Lachhman Singh was asked to hear the conversation between the complainant and the accused and when the money is passed on he should pass a signal to the raiding party. The demonstration was also given to the complainant. DSP Raghbir Singh took a glass of water in which sodium carbonate was put and its colour did not change but thereafter the paper smeared with phenolphthalein powder was dipped, the colour became light pink and the solution was destroyed and demonstration memo (Ex.P13) was prepared. DSP Raghbir Singh then gave endorsement on the statement of the complainant and sent the same to Vigilance Bureau Patiala and FIR was registered accordingly in Police Station Vigilance Bureau, Patiala. A raiding party was organized and they all left for the office of the accused. On the way, ADO Kirandeep was joined and said ADO Kirandeep was introduced to Mukhtiar Singh and Lachhman Singh and was told the purpose of his joining in the raiding party. Thereafter, they went to village Badla Kotla. The complainant and the shadow witness went to the office of the accused. On reaching there, the complainant asked the accused about the work and the accused again demanded Rs. 200/- from him. The complainant told that he has brought the money and the money was paid to the accused. The shadow witness flashed a signal to the raiding party who was stationed at some distance outside the office of the accused. After that the police party reached the office and apprehended the accused. 200/- from him. The complainant told that he has brought the money and the money was paid to the accused. The shadow witness flashed a signal to the raiding party who was stationed at some distance outside the office of the accused. After that the police party reached the office and apprehended the accused. DSP procured a glass of water and sodium carbonate was added in it but the colour of the water did not change and then the fingers of both the hands of the accused were got washed in that solution the colour of the solution became light pink and it was put in a nip and made into a sealed parcel which was sealed with the seal of DSP Raghbir Singh bearing impression RS and it was taken into possession vide memo Ex. P14 attested by the PWs-Accused then produced the currency notes from his left front side pocket of his shirt and their numbers were got tallied with the entrustment memo by ADO Kirandeep and they were duly tallied and these were taken into possession vide memo Ex. P12 attested by the PWs. The pocket of the shirt was also got washed in the solution and its colour became pink and it was also put into a nip and it was also sealed with the seal `RS and taken into possession vide recovery memo attested by the PWs. Rs. 457/-, one fountain pen, one wrist watch were also recovered from the personal search of the accused and these were taken into possession vide memo Ex.P10, attested by the PWs. The Investigating Officer also prepared rough site plan with correct marginal notes. Statements of the witnesses were also recorded. After completion of the investigation, the accused was challaned to face his trial for the aforesaid offences by DSP Harbans Singh Vigilance Bureau, Patiala." 3. Accused-appellant was charge sheeted for the offence punishable under Section 7, 13(2) of the Act to which he pleaded not guilty and claimed trial. 4. In order to substantiate its case against the accused, the prosecution examined as many as seven witnesses, viz., Jaspal Singh, Bill Clerk as PW 1; Constable Sarabjit Singh as PW 2; Mukhtiar Singh as PW 3; Lachhman Singh as PW 4; DSP Raghbir Singh as PW 5; Mukhtiara Lal as PW 6 and Head Constable Gurcharan Singh as PW 7. 5. 5. Jaspal Singh, Clerk of the office of Tehsildar Khamani, PW1, has proved on record Posting Orders, Exhibit P1, of the accused-appellant working in Circle Badla. 6. Complainant Mukhtiar Singh, PW3, has deposed that he along with his brothers wanted to raise loan for the purchase of tractor and they required a copy of Fard from the Patwari. He further deposed that on 18.3.1996, he went to the house of Nahar Singh, Patwari, the accusedappellant, and requested for supply of Fard for the year 1992-93. He asked complainant to come again on 20.3.1996 and also demanded gratification of Rs. 500/- for supply of copy of Fard and ultimately after negotiations, the matter was settled at Rs. 200/- and, thus, corroborated the version of the prosecution. 7. Statement of PW3 is further fully corroborated from the testimony of Lachhman Singh, PW4, who is the shadow witness. The statement of PW4 revealed that the accused-appellant had demanded and accepted illegal gratification for the supply of copy of the Fard which otherwise was required to be supplied by him to the complainant. 8. Mukhtiara Lal, PW6, proved sanction order, Exhibit P22, vide which the District Magistrate accorded sanction to prosecute the accusedappellant. 9. Head Constable Gurcharan Singh, PW7, is formal witness and he proved his affidavit, Exhibit P24. 10. In the statement recorded under Section 313 of the Code of Criminal Procedure, the accused denied all the allegations and incriminating evidence against him and pleaded his innocence and also false implication in this case due to long drawn enmity. 11. After hearing the learned counsel for the parties, the learned trial Court convicted and sentenced the appellants as noticed in para No. 1 of this judgment. 12. The present appeal was admitted on 8.3.2000 by this Court. 13. Learned counsel for the appellant has argued that the appellant has been falsely implicated in the present case on account of old enmity with the father and brother of the shadow witness named Lachhman Singh, PW4. He has further argued that grandfather of Lachhman Singh also filed a civil suit against the father of the appellant which was dismissed. In this regard, he has made a reference to the copies of judgments Exhibits D1 to D8, urging that in view thereof, Lachhman Singh is not an independent witness. 14. He has further argued that grandfather of Lachhman Singh also filed a civil suit against the father of the appellant which was dismissed. In this regard, he has made a reference to the copies of judgments Exhibits D1 to D8, urging that in view thereof, Lachhman Singh is not an independent witness. 14. Learned counsel has further argued that it is not clear as to why Lachhman Singh, PW4, was included in the raiding team and made shadow witness, although he is neither a relative of the complainant, Mukhtiar Singh, PW3, nor a co- villager. He has also argued that there are material contradictions in the statements of Mukhtiar Singh, PW3 and Lachhman Singh, PW4. Moreover, ADO Kirandeep, a member of the raiding party, has not been examined as one of the prosecution witnesses. It is further submitted that the appellant had unblemished service record of nearly 40 years. 15. On the other hand, learned State counsel has argued that there is no inconsistency in the statements of complainant PW3 and Lachhman Singh, PW4. The posting of appellant at village Badla Kotla stands proved from the testimony of Jaspal Singh, PW-1. Learned counsel has further referred to the sanction order, Exhibit P-22, issued by the District Magistrate for prosecuting the appellant. The statements of the official witnesses to the effect that the case property was duly deposited with the malkhana so the same was not tempered with. 16. I have heard the learned counsel for the parties and also perused the record with their able assistance. 17. The present case revolves around the unsubstantiated plea of old enmity between the appellant and the shadow witness Lachhman Singh, PW4. On scrutiny of the documents, Exhibits D1 to D8, it would reveal that this litigation came to be ensued when Lachhman Singh was still a minor. It is hard to believe that any grudge would be kept alive and carried out for so long to falsely implicating the appellant at some later stage. The alleged previous litigation pertained to the year 1981. The testimony of Lachhman Singh, PW4, corroborates the prosecution case only, which stands proved beyond reasonable doubt by the testimony of Mukhtiar Singh, PW3 and DSP Raghbir Singh, PW5 and the attending facts which conclusively prove that the appellant demanded and received illegal gratification amounting of Rs. 200/-. 18. The alleged previous litigation pertained to the year 1981. The testimony of Lachhman Singh, PW4, corroborates the prosecution case only, which stands proved beyond reasonable doubt by the testimony of Mukhtiar Singh, PW3 and DSP Raghbir Singh, PW5 and the attending facts which conclusively prove that the appellant demanded and received illegal gratification amounting of Rs. 200/-. 18. As regards the plea of learned counsel for the appellant to the effect that Lachhman Singh, PW-4, was an interested witness is negatived from the fact that complainant Mukhtiar Singh, PW-3 was in no way related to him (Lachhman Singh, PW4) and in this behalf, no explanation from the defence has come forward to show that Mukhtair Singh, PW3, was to simply help Lachhman Singh, PW4 in settling the old scores. The connecting evidence in the instant case is fully reliable. There are no allegations of either any tempering of the case property or that the sealed parcels, which were sent to FSL. It is proved that on the date of occurrence, the appellant was posted in village Badla Kotla. Sanction order, Exhibit P-22, issued for the prosecution of appellant by the competent authority, is duly proved. 19. As regards the contention of learned counsel for the appellant that ADO Kirandeep Singh was not examined as prosecution witness and as such an adverse inference should be drawn, against the prosecution would not carry much weight because of the reason that from the record, it is made out that ADO Kirandeep Singh had a minor role to play in as much as he had only tallied the currency notes recovered from the appellant with the entrustment memo. Those currency notes were taken into possession vide separate memo with seal intact. 20. Moreover, no arguments has been advanced by the learned counsel for the appellant in connection either to assail the report of FSL or to allege that the sealed parcels containing the solution wherein hands and shirt of of the appellant were washed/put, was tempered with or prepared falsely. 21. In the instant case, the appellant demanded and received illegal gratification from the complainant, therefore, the allegation of demand and acceptance is fully proved. The FSL report corroborates the case of the prosecution in this behalf. The testimony of DSP Raghbir Singh, PW5, is also trustworthy and completely supports the case of the prosecution. 22. 21. In the instant case, the appellant demanded and received illegal gratification from the complainant, therefore, the allegation of demand and acceptance is fully proved. The FSL report corroborates the case of the prosecution in this behalf. The testimony of DSP Raghbir Singh, PW5, is also trustworthy and completely supports the case of the prosecution. 22. In view of the foregoing discussions, the present appeal is dismissed. The judgment and order dated 25.2.2000 passed by the learned Trial Court is maintained. 23. However, as on date, the appellant is more than 70 years of age, as is evident from the attested copy of his matriculation examination issued by the Panjab University. The appellant has been suffering from the mental agony of facing protracted trial for more than 14 years. Learned counsel for the appellant prays that in view of the old age and protracted trial the appellant is released on probation. The appellant is not keeping good health and is under treatment. 24. In the instant case, the appellant, by now, has suffered protracted trial for more than 14 years coupled with the fact that he is not keeping good health as he is 70 years of age, therefore, I am of the considered view that it is a fit case, in which the sentence awarded to him, should be set aside, and he be released on probation. 25. For the reasons mentioned above, the present appeal is partly allowed. The impugned judgment of conviction is maintained. However, the order of sentence is set aside, and the appellant is ordered to be released on probation of good conduct, on furnishing a personal bond, in the sum of Rs. 1,00,000/- with one surety, in the like amount, to the satisfaction of the Chief Judicial Magistrate, Fatehgarh Sahib, for a period of three years, to appear and receive sentence, as and when called upon to do so, during this period, and in the meantime, to keep the peace, and be of good behaviour, and also furnish an undertaking not to commit, such an offence, during the said period. The appellant shall furnish the probation bonds and pay the costs of the proceedings to the tune of Rs. 10,000/-, which shall be remitted to the State within a period of three months from the date of receipt of certified copy of the judgment, by the concerned Court. 26. The appellant shall furnish the probation bonds and pay the costs of the proceedings to the tune of Rs. 10,000/-, which shall be remitted to the State within a period of three months from the date of receipt of certified copy of the judgment, by the concerned Court. 26. In case of failure of the appellants to furnish the probation bonds and deposit the costs of proceedings, with the period stipulated, shall entitle the Court of the Chief Judicial Magistrate, Fatehgarh Sahib, to comply with the judgment, in accordance with law, with due promptitude. 27. With the above modification, the present appeal is disposed of.