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2011 DIGILAW 1419 (PNJ)

Chandan Lal v. State of Haryana

2011-07-19

L.N.MITTAL

body2011
JUDGMENT Mr. L.N. Mittal, J.: (Oral) - Learned Special Judge, Gurgaon vide judgment dated 10.9.2001 convicted accused Chandan Lal under sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988 (in short, the Act) and after hearing the parties on quantum of sentence, vide order dated 12.9.2001, sentenced the convict to undergo rigorous imprisonment for one year and to pay fine of Rs 1000/- and in default thereof, to undergo further rigorous imprisonment for one month, for each of the two offences. Both the substantive sentences have been ordered to run concurrently. Feeling aggrieved, the convict has preferred the instant criminal appeal. 2. Prosecution case in brief may be stated as under:- On 8.12.1999, Shahid brother of Ilyas was caused injuries by Ibrahim etc. The matter was reported to Police Station Nagina where accused Chandan Lal was posted as Sub Inspector/Station House Officer. On 14.12.1999, complainant Ilyas along with his mother’s sister’s son Jamil went to Police Station Nagina where the accused demanded Rs 4000/- as illegal gratification for proceeding further in the aforesaid case. The complainant gave Rs 2000/- to the accused then and there and promised to pay the remaining amount of Rs 2000/- later on. On 16.12.1999, the complainant along with Jamil went to the house of Yogender Singh Nehra, Deputy Superintendent of Police (Headquarters), Gurgaon and made application Ex. PB narrating the aforesaid facts. The complainant gave two currency notes of Rs 500/- denomination and ten currency notes of Rs 100/- denomination i.e. amount of Rs 2000/- to the DSP who noted the numbers thereof on a sheet of paper and affixed his initials ‘YN’ on the currency notes and applied phenolphthalein powder to the currency notes. Then currency notes were handed over to complainant by preparing memo. Jamil was made shadow witness. Necessary instructions were given to the complainant and the shadow witness. The raiding party comprising of the complainant, the shadow witness, the DSP and his Reader Attar Singh Head Constable went to Nagina. The complainant and the shadow witness were sent to the Police Station whereas the DSP and his Reader stayed a little away. Accused was present inside the Police Station. The complainant gave him tainted currency notes. The accused put the same in left pocket of his shirt of uniform. The shadow witness gave requisite signal. Thereupon, the DSP and his Reader went inside the Police Station. Accused was present inside the Police Station. The complainant gave him tainted currency notes. The accused put the same in left pocket of his shirt of uniform. The shadow witness gave requisite signal. Thereupon, the DSP and his Reader went inside the Police Station. On search of pocket of shirt of the accused, the tainted currency notes bearing initials of the DSP were recovered. Their numbers were tallied with the numbers mentioned on the sheet of paper and in handing over memo. Hand wash of the accused turned the solution of sodium carbonate into pink. Pocket wash of the shirt of the accused also gave the same result. The solutions were sealed in separate nips. The said solutions as well as the tainted currency notes and shirt of the accused were seized by the police. Necessary investigation was conducted at the spot. Rough site plan was prepared. Statements of witnesses were recorded. The accused was arrested. After obtaining sanction for prosecution of the accused and on completion of investigation, the accused was sent for trial under sections 7 and 13 of the Act. Charge under sections 7 and 13(1)(d) of the Act was framed against the accused. He pleaded not guilty and claimed trial. 3. To prove its case, the prosecution examined 11 witnesses. Constable Naresh Kumar, Draftsman PW1 proved scaled site plan prepared by him. 4. HC Manohar Lal PW2 stated that he recorded formal FIR in the case. He also tendered his affidavit in evidence. Constable Vijay Singh PW3 is also formal witness and tendered his affidavit Ex. PE in evidence. 5. ASI Rajesh Kumar PW4 proved sanction order Ex. PF for prosecution of the accused. 6. ASI Anshi Lal PW5 proved copy of daily diary report Ex. PG dated 8.12.1999 recorded on the statement of one Rustam regarding injuries caused to Shahid. 7. ASI Lal Singh PW6 stated that the accused was posted as SI/SHO of Police Station Nagina since 4.7.1999 to 21.12.1999. 8. Jamil Ahmad PW7 shadow witness stated that on 16.12.1999 complainant Ilyas met him at Gurgaon and told that the accused was demanding bribe in the aforesaid case. Both of them went to the office of Superintendent of Police (SP), Gurgaon where Ilyas made complaint. The SP sent 2/3 police officials with them. 8. Jamil Ahmad PW7 shadow witness stated that on 16.12.1999 complainant Ilyas met him at Gurgaon and told that the accused was demanding bribe in the aforesaid case. Both of them went to the office of Superintendent of Police (SP), Gurgaon where Ilyas made complaint. The SP sent 2/3 police officials with them. They went to Police Station Nagina where they i.e. complainant and the shadow witness sat outside the Police Station whereas police officials went inside the Police Station and came out after about half hour along with accused. Then all of them were brought to the office of SP, Gurgaon. Jamil Ahmad stated that he did not see Ilyas giving any money to the accused. The witness stated that Ilyas remained with him outside the Police Station. The witness was declared hostile and was cross-examined by the Public Prosecutor, but the witness denied the prosecution version. 9. Ilyas complainant PW8 has also turned hostile. He stated that he had gone to Police Station, Nagina to lodge report regarding injuries caused to his brother. Police official present in the Police Station demanded money for taking action. The witness also stated that he kept on visiting the Police Station but no action was taken without payment of money. The witness came to Gurgaon and met Jamil. The complainant further stated that he did not know the name of the police official who demanded money in Police Station Nagina but Chandan Lal accused present in the court had not made the said demand of money from him. The witness was declared hostile and was cross-examined by Public Prosecutor, but the witness denied the prosecution version. 10. DSP Lal Chand PW9 partly investigated the case and stated about the same. 11. DSP Yogender Singh Nehra PW10 and HC Attar Singh PW11 broadly stated according to the prosecution version. 12. The accused in his examination under section 313 of the Code of Criminal Procedure (in short, the Cr.P.C.) admitted that he was posted as SI/SHO of Police Station Nagina but denied all other incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. Accused stated that due to communal tension between Hindus and Meos in the area, he had made representation to SP that Meo police officials of Police Station Nagina be posted out of the said Police Station. No evidence was led by the accused in his defence. Accused stated that due to communal tension between Hindus and Meos in the area, he had made representation to SP that Meo police officials of Police Station Nagina be posted out of the said Police Station. No evidence was led by the accused in his defence. 13. Learned Special Judge vide judgment dated 10.9.2001 and order dated 12.9.2001 convicted and sentenced the accused as already noticed hereinbefore. Feeling aggrieved, the convict has preferred the instant criminal appeal. 14. I have heard learned counsel for the parties and perused the case file with their assistance. 15. Learned counsel for the appellant contended that both the material witnesses i.e. Jamil shadow witness PW7 and Ilyas complainant PW8 have turned hostile and have not supported the prosecution case. It was submitted that there is no evidence of demand and acceptance of the bribe money by the accused. It was also pointed out that HC Attar Singh PW11 has not stated that the DSP had offered his own search before searching the accused. It was also submitted that the DSP did state that he had offered his search before searching the accused but even the DSP admitted that this fact has not been mentioned in any document. It was also canvassed by the counsel for the appellant that no independent witness was jointed in the raiding party. It was also argued that Attar Singh PW11 stated that the DSP had himself applied phenolphthalein powder to the currency notes and had spread the same with his fingers and search of the accused was also conducted by the DSP and hand wash of the accused and pocket wash of his shirt was also done by the DSP on whose fingers phenolphthalein powder already existed because he had applied the same to the currency notes. It was accordingly contended that prosecution case is not proved against the accused. 16. On the other hand, learned counsel for the State vehemently contended that recovery of tainted currency notes from the accused is fully established from the statements of the DSP and his Reader. It was accordingly contended that prosecution case is not proved against the accused. 16. On the other hand, learned counsel for the State vehemently contended that recovery of tainted currency notes from the accused is fully established from the statements of the DSP and his Reader. It was also submitted that the accused was posted as Station House Officer of the Police Station and therefore, the tainted currency notes could not be forcibly planted on him or thrust in the pocket of his shirt nor the accused has explained in his statement under section 313 Cr.P.C. as to how the tainted currency notes came into the pocket of his shirt. It was also argued that recovery of the tainted currency notes from the accused is corroborated by his hand wash and pocket wash of his shirt. 17. I have carefully considered the rival contentions. There is practically no evidence to prove the demand and acceptance of bribe money by the accused although there is evidence of recovery of the tainted currency notes from the accused. Both material witnesses of the prosecution i.e. Jamil shadow witness PW7 and Ilyas complainant PW8 have turned hostile. According to prosecution version, the complainant along with Jamil had gone to the Police Station on 14.12.1999 when initial demand of bribe was allegedly made by the accused, but according to statements of both these witnesses made in the court, Jamil met Ilyas complainant on 16.12.1999 at Gurgaon. They did not state that Jamil also accompanied Ilyas to Police Station Nagina on 14.12.1999. 18. Jamil Ahmad stated that on 16.12.1999, Ilyas told him that Chandan Lal was demanding money in the matter. However, this is only here-say statement of Jamil Ahmad. This statement carries no probative value because Ilyas complainant himself has not made any such statement. On the other hand, Ilyas stated that it was some other police official and not the accused Chandan Lal who had demanded money from him. 19. Both Jamil and Ilyas have completely resiled regarding the trap laid by the police. They have stated that they kept sitting outside the Police Station whereas the police officials accompanying them from Gurgaon went inside the Police Station Nagina. Both these witnesses have not stated that complainant gave the tainted currency notes to the accused and thereafter the shadow witness gave necessary signal to the raiding party. They have stated that they kept sitting outside the Police Station whereas the police officials accompanying them from Gurgaon went inside the Police Station Nagina. Both these witnesses have not stated that complainant gave the tainted currency notes to the accused and thereafter the shadow witness gave necessary signal to the raiding party. It is, thus, manifest from their statements that there is no evidence to depict that the accused ever demanded any illegal gratification from the complainant. Consequently in the absence of said essential ingredient of the offences in question, the accused cannot be held guilty thereof. 20. In the aforesaid context, it is also significant to notice that according to the prosecution version, the accused demanded Rs 4000/- as bribe on 14.12.1999 out of which the complainant paid Rs 2000/- then and there and the balance amount of Rs 2000/- was promised to be paid later on. However, Jamil and Ilyas have completely denied the demand and payment of the bribe money. Even Yogender Singh Nehra DSP and Attar Singh HC have stated about demand of Rs 2000/- only as the illegal gratification and they did not state that the accused had demanded Rs 4000/- out of which the complainant had already paid Rs 2000/-. 21. It is also significant to notice that ordinarily in Haryana, some gazetted officer of some other department is associated in such raids, but in the instant case, only the DSP and his Reader formed the raiding party along with the complainant and the shadow witness. No gazetted officer of some other department was joined in the raiding party. In fact no official from any other department nor any public person was joined in the raiding party. There is no explanation for the same. Consequently, the prosecution case becomes suspicious for this reason as well. 22. The DSP also did not offer himself for search before searching the accused. Attar Singh PW11 did not state that the DSP had offered himself for search before searching the accused. The DSP himself, of course, stated in the court that he offered his own search and thereafter searched the accused. However, even the DSP admitted that this fact that he had offered his own search, was not mentioned in any document. Attar Singh PW11 did not state that the DSP had offered himself for search before searching the accused. The DSP himself, of course, stated in the court that he offered his own search and thereafter searched the accused. However, even the DSP admitted that this fact that he had offered his own search, was not mentioned in any document. Contemporary documents were prepared regarding the proceedings and in the said documents, it has not been mentioned that the DSP had offered his own search before searching the accused. This circumstance would also go against the prosecution. This circumstance itself would not be sufficient to cast doubt on the prosecution case, but when considered cumulatively with other circumstances of the case, this circumstance would also add to the suspicion about the prosecution case. 23. It is also significant to notice that the DSP himself had applied phenolphthalein powder to the currency notes in question as stated by HC Attar Singh PW11. It was also the DSP who searched the accused and did his hand wash and pocket wash of his shirt. However, hands of the DSP already had phenolphthalein powder because he had applied the powder to the currency notes while handing over the same to the complainant. Consequently, hand wash of the accused and pocket wash of his shirt done by the DSP would not advance the prosecution case in view of the aforesaid circumstance. 24. It may also be noticed that Jamil Ahmad PW7 (shadow witness) and Ilyas PW8 (complainant) even in their statements under section 161 Cr.P.C. Ex. PM and PN respectively did not specifically state about any demand of illegal gratification made by the accused from the complainant at the time of trap. They rather stated that the complainant gave the tainted currency notes to the accused. For this reason also evidence regarding demand of illegal gratification by the accused, which is essential ingredient of the offences in question, is lacking entitling the accused to benefit of doubt. 25. Keeping in view all the aforesaid circumstances, mere recovery of the currency notes from the accused as stated by the DSP and his Reader would not be sufficient to prove guilt of the accused beyond reasonable doubt. 25. Keeping in view all the aforesaid circumstances, mere recovery of the currency notes from the accused as stated by the DSP and his Reader would not be sufficient to prove guilt of the accused beyond reasonable doubt. It was for the prosecution to prove the guilt of the accused beyond reasonable doubt and omission of the accused to explain in his statement under section 313 Cr.P.C. as to how the tainted currency notes reached his pocket cannot be used to convict the accused when the prosecution has failed to bring home the charge against the accused beyond reasonable doubt. 26. For the reasons aforesaid, I conclude that the prosecution has not been able to prove guilt of the accused beyond reasonable doubt. On the other hand, the prosecution case is doubtful entitling the accused to benefit of doubt. 27. As a necessary corollary, the instant criminal appeal is allowed. Impugned judgment of conviction and order of sentence passed by learned Special Judge are set aside and the accused-appellant stands acquitted of the charge against him giving him benefit of doubt. Fine amount paid by the accused-appellant shall be refunded to him. Bail bonds furnished by the accused-appellant stand discharged.