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2013 DIGILAW 121 (PNJ)

Dharambir Yadav v. State of Haryana

2013-02-05

SABINA

body2013
JUDGMENT Mrs. Sabina, J.: - By way of this appeal, appellant has challenged his conviction and sentence as ordered by the Special Judge vide judgment/order dated 27.5.2011/30.5.2011 under Section 13(1)(e) of the Prevention of Corruption Act, 1988 (‘Act’ for short) in FIR No. 24 Dated 31.5.2002, registered at Police Station SVB, Gurgaon. 2. Prosecution story, in brief, is that appellant, who had remained as Minister, had accumulated property beyond the sources of his income. Appellant had purchased 80/90 acres of land in District Yamuna Nagar and 14 acres of land in village Jhal in his name and in the name of his relations. Appellant was having 6-7 cars. During enquiry, it was found that from the year 1996 to 1999, appellant had remained a member of Legislative Assembly and Minister in Haryana Government. Appellant had 6 Kanals 12 Marlas of agricultural land in village Jhal. He had purchased a 300 square yards plot in his name and had constructed a house thereon. Son of the appellant had purchased a plot measuring 216 square yards vide sale deed dated 5.11.1996 for Rs. 5,17,500/-. In the year 1997, appellant had purchased 4 Biswas of land in village Wajirabad for Rs.1,40,633/- vide sale deed dated 18.12.1997. Appellant had also constructed a house in village Kanhai by spending Rs.32,56,072/-. Appellant had purchased a Maruti car by taking a loan of Rs.2,00,000/-. Thus, the appellant had amassed movable and immovable properties worth Rs.51,52,540/- beyond the sources of his known income. A loan was given to the appellant by Raj Khanna on 5.11.1996 to the tune of Rs.4,60,000/-. Appellant had drawn salary to the tune of Rs.2,27,442/- in the check period. Thus, there was difference in expenditure and income of the appellant to the tune Rs.38,51,580/-. 3. After completion of investigation and necessary formalities, challan was presented against the appellant. 4. Charge was framed against the appellant under Section 13(1)(e) of the Act. Appellant did not plead guilty to the charge framed against him and claimed trial. 5. Prosecution led its evidence in support of its case during trial. 6. Appellant when examined under Section 313 of the Code of Criminal Procedure, 1973, after the close of prosecution evidence, pleaded as under:- “The case is false. The assessments carried out to show any disproportionate assets are not only wrong but also were made out in order to involve me in a false case for political reasons. 6. Appellant when examined under Section 313 of the Code of Criminal Procedure, 1973, after the close of prosecution evidence, pleaded as under:- “The case is false. The assessments carried out to show any disproportionate assets are not only wrong but also were made out in order to involve me in a false case for political reasons. The complaint made earlier was enquired into and the same was also found to be false and after that this case was again made out to involve me falsely. My son is a grown up boy and functions independently. Any agreements of purchase or sale by him do not relate to me at all nor do they fall in the category of my assets or income. The case against me is also washed out by the income shown in my name during the three years from 1996 to 1999 as against the proof of disproportion of my assets. I have by education done doctorate in geography. The house in Kanhi is my ancestral house and was made and constructed by my ancestors including my father who was a retd. Army officer. The cost of construction of the house shown was also arbitrarily done without having made any enquiry from anyone as to when it was built. The cost of construction allegedly of the house in the year 1999 is also arbitrary and without any satisfactory explanation therefor. I am innocent. The case against me is false.” 7. Appellant examined 17 witnesses in his defence. 8. Learned senior counsel for the appellant has submitted that prosecution had miserably failed to prove it case. The house in dispute in village Kanhai had been constructed way back in the year 1983 to 1986. Without any material on record, the year of construction of the said house had been taken as 1997-1998. Consequently, the assessment of the said house had been made at an exorbitant rate. So far as sale deed Ex. PQ is concerned, the same was dated 19.3.1996 and does not relate to the check period. The sale deed Ex. PR dated 5.11.1996 was in the name of the son of the appellant. The son of the appellant was working independently and at the time of execution of the said sale deed, loan had been taken from Raj Khanna. Sale deed dated 18.12.1997 had not been proved on record. 9. The sale deed Ex. PR dated 5.11.1996 was in the name of the son of the appellant. The son of the appellant was working independently and at the time of execution of the said sale deed, loan had been taken from Raj Khanna. Sale deed dated 18.12.1997 had not been proved on record. 9. Learned State counsel, on the other hand, has submitted that the prosecution had been successful in proving its case. The appellant had amassed wealth much beyond the known sources of his income during the check period. 10. After hearing the learned senior counsel for the appellant and the learned State counsel, I am of the opinion that the instant appeal deserves to be allowed. 11. In the present case, PW-2 T.S.Phogat and PW-3 Suresh Mohan are the star witnesses of the prosecution. The said witnesses had prepared the assessment reports with regard to the house of the appellant in village Kanhai. 12. PW-2 T.S.Phogat deposed that on 19.4.2000, he had visited the houses of the appellant in village Kanhai and Jhal. He had prepared technical report/assessment of the houses of the appellant. Assessment of the building in village Kanhai was Rs.12,49,906/- and the year of construction was taken from 1983 to 1986 as told by the appellant. The school building, school rooms, sheds, generator room, boundary walls, temporary rooms, old bank building, chowkidar hut and tubewell had been constructed from the year 1968 to 1993 as reported by the appellant. The house situated in village Jhal had been constructed in the year 1995- 1996 and the assessment of the said house was Rs.9,59,585/-. On 23.11.2001, he prepared a revised assessment on the basis of letter dated 23.11.2001 received from Rajpal Inspector stating therein that the year of the construction be taken as 1997-1998. Hence, the revised assessment of house at Kanhai was made at Rs.21,62,441/-. In his cross examination, he deposed that he did not conduct any test or verify on scientific basis with regard to year of construction of the house. In his revised assessment, he had not added any construction and had prepared the report on the basis of construction mentioned in the initial report by taking the year of construction as 1997-1998 in stead of 1983 to 1986. He had not visited the house for preparing the revised assessment. 13. In his revised assessment, he had not added any construction and had prepared the report on the basis of construction mentioned in the initial report by taking the year of construction as 1997-1998 in stead of 1983 to 1986. He had not visited the house for preparing the revised assessment. 13. PW-3 Suresh Mohan deposed that on 23.8.2001, he had inspected the basement of the house of the appellant in village Kanhai. The house was in the name of Saroj Yadav, wife of the appellant. The total assessment of the basement came to Rs.2,09,231/-. At the request of the Vigilance Inspector Rajpal Singh, he had prepared the revised assessment to the tune of Rs.6,75,769/-. In his cross-examination, he deposed that the accused had given to him in writing that the construction had been raised in the year 1982-1983 and he had made the assessment accordingly. However, later on he made the assessment by taking the year of construction as 1997-1998. He did not conduct any test or verify on any scientific basis regarding the year of construction of the assessment in question. 14. Thus, from the statements of the above witnesses, it is evident that they had prepared the assessment reports initially on the basis of the information supplied to them by the appellant with regard to the year of construction. Thereafter, on the instructions of PW-13 Inspector Rajpal Singh, they prepared revised assessments by treating the year of construction as 1997-1998. 15. Let us examine as to whether the prosecution has led any evidence to substantiate its case that the construction had been raised in the year 1997-1998. 16. In this regard statement of PW-13 Inspector Rajpal Singh is very relevant. The said witness deposed that in the year 2001, he had investigated the case and had sent his report to the senior officers. In his cross-examination, he deposed that he had not associated wife or son of the appellant during investigation. He had no technical qualification. He did not take in possession any revenue record from the Patwari to verify the ownership of the land situated in village Kanhai. He did not verify the record pertaining to the electric connection, water connection, telephone connection and sewer connection as to when they had been taken. He did not verify the account of the accused from the bank. He did not take in possession any revenue record from the Patwari to verify the ownership of the land situated in village Kanhai. He did not verify the record pertaining to the electric connection, water connection, telephone connection and sewer connection as to when they had been taken. He did not verify the account of the accused from the bank. He had assessed the age of the house on the basis of the statement of the villagers as well as the factum of taking of loan from the Government when the accused was a Minister. He had told the Vigilance Sub Divisional Engineer to treat the year of construction of the building as 1997-1998. He did not exempt the construction raised on 6 Kanals 18 Marlas of land belonging to the wife of the appellant which was exempted from acquisition in village Kanhai. Thus, from the cross-examination of the said witness, it is evident that he has taken the date of construction of the house as told to him by the villagers. However, none of the said villager has been examined during trial. Appellant has been denied the opportunity to cross-examine the said witnesses. 17. From the combined statements of PW-2, PW-3 and PW-13, it is evident that the year of construction of the house has been taken as 1997-1998 without there being any relevant evidence on record. Appellant has taken the plea that the construction was raised much before the check period. DW-4 Mohinder Singh deposed that Saroj Yadav, wife of Dharambir Yadav, was owner of the land since the year 1989 on the basis of a Civil Court decree and mutation was sanctioned in her favour on 1.6.1990. In his cross examination, he deposed that as per record, there was house built on the land. DW-6 Harish Kumar Patwari deposed that the land of wife of the appellant, measuring 17 Kanals 12 Marlas, situated in village Kanhai had been acquired. The remaining land was left from acquisition as there were residential houses in the same which had been constructed before the year 1990. 18. Thus, in the present case so far as the sale deed dated 19.3.1996 Ex. PQ is concerned, the same cannot be taken in consideration as it relates to before the check period. Sale deed dated 5.11.1996 Ex. PR was executed in favour of Mohit Kumar son of the appellant to the tune of Rs.5,17,500/-. 18. Thus, in the present case so far as the sale deed dated 19.3.1996 Ex. PQ is concerned, the same cannot be taken in consideration as it relates to before the check period. Sale deed dated 5.11.1996 Ex. PR was executed in favour of Mohit Kumar son of the appellant to the tune of Rs.5,17,500/-. In this regard PW-16 Raj Khanna had advanced loan to Mohit Kumar son of the appellant. The said witness admitted in his cross-examination that Mohit Kumar was aged 26 years and was independently working as a property dealer. In this situation, the sale deed Ex. PR, vide which the son of the appellant had purchased property in November 1996, fails to advance the prosecution case. So far as sale deed dated 18.12.1997 is concerned, the same was not proved during trial. The prosecution case mainly rests on the construction of the houses in village Kanhai and Jhal. However, the reports prepared by PW-2 and PW-3 fail to advance the prosecution case as they had prepared the assessment report by treating the construction of the house in village Kanhai in the year 1997-1998 without there being any material evidence on record to substantiate the prosecution case that the construction of the house in village Kanhai had been raised during the check period. Thus, the prosecution had failed to establish its case beyond the shadow of reasonable doubt. 19. Accordingly, the appeal is allowed. Appellant is acquitted of the charges framed against him. Consequently, the impugned judgment/order of conviction and sentence of the appellant dated 27.5.2011/30.5.2011, are set aside.