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2013 DIGILAW 1661 (PNJ)

Balkar Singh v. State of Punjab

2013-12-12

SABINA

body2013
JUDGMENT Mrs. Sabina, J.: - Vide this judgment, above mentioned two appeals would be disposed of as the appellants have challenged their conviction and sentence as ordered by the Trial Court vide judgment/order dated 18.9.2004/21.9.2004 under Section 7 and 13(2) of Prevention of Corruption Act, 1988 (‘Act’ for short) in FIR No. 60 dated 23.11.1999, registered at Police Station Vigilance Bureau, Jalandhar. 2. Prosecution story, in brief, is that complainant Surinder Singh had purchased 30 marlas of land in village Begowal. Agreement qua sale of 35 marlas of land was executed between the complainant and Jasbir Singh. In June 1997, complainant moved an application for demarcation of the land before Sub Divisional Magistrate. The said application was marked to the Tehsildar. Appellant Kulwinder Singh was working as Kanungo at the relevant time whereas appellant Balkar Singh was working as a Patwari. Complainant requested appellant Kulwinder Singh to demarcate the land but he demanded Rs. 25,000/- for doing the needful. Complainant was informed that out of the said amount, Rs. 15,000/- would be paid to the Tehsildar whereas the remaining amount of Rs. 10,000/- would be equally shared by both the appellants. Deal was settled at Rs. 20,000/-. The demand was made by the appellants on 22.11.1999. Complainant then approached the Vigilance office along with Madhu Soodan. On the basis of the statement of the complainant, formal FIR was registered by Gurmeet Singh, Deputy Superintendent of Police (‘DSP’ for short). Complainant handed over 40 currency notes in the denomination of Rs. 500/- each to the DSP, who returned the same to the complainant after application of phenolphthalein powder (‘P-Powder’ for short). Complainant was instructed to hand over the said currency notes to the appellants on demand. Madhu Soodan was instructed to act as a shadow witness and was directed to give a signal to the raiding party after the bribe money was accepted by the appellants on demand. Ram Kishan was joined as an official witness. Demonstration with regard to working of P-Powder was shown to the witnesses. Thereafter, the raiding party left for the raid. Complainant as well as the shadow witness met the appellants at the agreed spot i.e. Kapil Hotel, Begowal. Complainant and the shadow witness were taken by the appellants to a room of the hotel. Complainant handed over 10 currency notes in the denomination of Rs. Thereafter, the raiding party left for the raid. Complainant as well as the shadow witness met the appellants at the agreed spot i.e. Kapil Hotel, Begowal. Complainant and the shadow witness were taken by the appellants to a room of the hotel. Complainant handed over 10 currency notes in the denomination of Rs. 500/- each to appellant Balkar Singh and remaining 30 currency notes in the denomination of Rs. 500/- each to appellant Kulwinder Singh. On receipt of signal from the shadow witness, DSP along with the remaining members of the raiding party reached the spot. On seeing the police party, appellant Kulwinder Singh threw the currency notes on the ground whereas appellant Balkar Singh was still holding the currency notes in his hand. When the fingers of the appellants were dipped in separate solutions of sodium carbonate, the colour of the solutions turned pink. The said solutions were put in separate nips and were made into sealed parcels and were taken in possession. The tainted currency notes were taken in possession. 3. After completion of investigation and necessary formalities, challan was presented against the appellant. 4. Charge was framed against the appellants under Section 7 and 13(2) of the Act. 5. In order to prove its case, prosecution examined 7 witnesses during trial. 6. Appellant Kulwinder Singh when examined under Section 313 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’ for short), after the close of prosecution evidence, prayed as under:- “I was posted as Kanungo, Begowal in the month of November, 1999. I had my office at Begowal. I had no office at Bholath. I received application moved by Surinder Singh complainant for demarcation of land, reportedly, purchased by him. The application was made to S.D.M., Bholath and was received by me through Tehsildar, Bholath on 13.9.1999 and on 21.9.1999, I issued notices for summoning the parties and for their presence at the spot on 24.9.99 in connection with demarcation of the land. Notices were sent to Balkar Singh, Patwari and he got the same served through Devi Ditta, Chowkidar. Surinder Singh, as reported by the chowkidar, refused to receive the notice. However, he came present on 24.9.1999. I and patwari Balkar Singh reached the spot for demarcation. Notices were sent to Balkar Singh, Patwari and he got the same served through Devi Ditta, Chowkidar. Surinder Singh, as reported by the chowkidar, refused to receive the notice. However, he came present on 24.9.1999. I and patwari Balkar Singh reached the spot for demarcation. The moment we started doing the demarcation Ravel Kaur wife of Amar Singh and Surinder Kaur daughter of Amar Singh snatched the measurement (Jareeb) from the hands of patwari and threw that away. Atmosphere became tense and there was apprehension of breach of peace. On that account, demarcation, as asked for by Surinder Singh, could not be done. I made a report to Tehsildar and the latter approached the Deputy Commissioner, Kapurthala through S.D.M., Bholath for police help, for demarcation. Deputy Commissioner, Kapurthala referred the matter to the Senior Superintendent of Police, Kapurthala vide letter No. 1072 dated 18.10.1999 for providing police help. Surinder Singh insisted for the demarcation according to the surrounding/boundaries as given in the sale deeds. But that was not possible as the land in question was joint property and the same had not been partitioned. I also sought advice from the Tehsildar on this score. I again issued notices on 11.11.99 for summoning Surinder Singh complainant to came present and I and Balkar Singh reached the spot for demarcating the land purchased by Surinder Singh complainant. But before starting proceedings of demarcation, Joginder Singh son of Amar Singh produced order issued by the Civil Court staying the demarcation, and to maintain status quo. Accordingly, report was submitted to the Tehsildar, under intimation to the parties. But Surinder Singh refused to sign the report. Tehsildar made report to S.D.M. The latter recorded statements of Surinder Singh and Joginder Singh and passed order dated 30.5.2000 that till the land in dispute was partitioned and stay order was vacated, its demarcation may not be given. Surinder Singh also made an application to the Deputy Commissioner, Kapurthala on 10.5.2000 against Tehsildar for not giving the demarcation. That application, after doing the enquiry, was also disposed of vide order dated 30.5.2000. On 22.11.1999 I had been specially deputed for duty in village Raipur Peer Baksh in connection with verification of old age pension sanctioned to the elderly persons of that village. I remained in village Raipur Peer Baksh throughout the day on 22.11.1999. That application, after doing the enquiry, was also disposed of vide order dated 30.5.2000. On 22.11.1999 I had been specially deputed for duty in village Raipur Peer Baksh in connection with verification of old age pension sanctioned to the elderly persons of that village. I remained in village Raipur Peer Baksh throughout the day on 22.11.1999. On 23.11.1999 he tried to pass on some currency notes to be saying that he was faithful servant and requested that his land be demarcated. I pushed back the notes again telling him that in existence of the stay order issued by the Court, the demarcation forcibly could not be effected. The notes fell on the ground outside the Kapil Hotel, near the office of the Patwari Begowal. The police got collected the notes through me and Balkar Singh Patwari from the ground and forcibly took me and Balkar Singh in the office of the manager of the Hotel and falsely involved me and Balkar Singh in this case. I did my duty with honest zeal and took all required steps for demarcation of land before 22/23.11.99. There was no occasion to ask for illegal gratification, as the demarcation possibly could not be done after issuance of the stay order. Surinder Singh felt annoyed and nursed grudge as he could not be obliged by giving the demarcation according to boundaries specified in the sale deeds. He deceitfully concealed all the facts from the police, and got me falsely involved by making absolutely false report. I made representation to Chief Director, Vigilance Bureau, Punjab, Chandigarh, against my false involvement. Sh. R.K.Sharda, Superintendent of Police, Vigilance Bureau, verified the investigation and he concluded the case against me to be false. Even that has been held from the Court, and the appointing authority.” 7. Appellant Balkar Singh took up the similar plea when examined under Section 313 Cr.P.C., after the close of prosecution evidence. 8. Appellants examined four witnesses in their defence. 9. Learned counsel for the appellants has submitted that appellants had no occasion to demand or accept bribe from the complainant on 22.11.1999 as on 16.11.1999, appellant Kulwinder Singh had made a report to the higher officials that demarcation could not be done as Joginder Singh had produced copy of the stay order issued by the Civil Court to the effect that status quo with regard to land in question was liable to be maintained. Further on 24.9.1999, appellants were present at the spot for demarcation proceedings but Surinder Kaur and Ravel Kaur has snatched the measuring tape from appellant Balkar Singh and had thrown it away. In this regard, report was made by appellant Kulwinder Singh to the District Magistrate. Request was also made for police help. Ultimately, order dated 30.5.2000 (Ex. D5) was passed by the Sub Divisional Magistrate-cum-Collector that demarcation could not be made till the final order was passed by the Civil Court vide which parties had been ordered to maintain status quo. 10. Learned State counsel, on the other hand, has opposed the appeals and has submitted that prosecution had been successful in proving its case. 11. In the present case, complainant Surinder Singh while appearing in the witness box as PW-6 has deposed as per the prosecution case. PW-1 Ram Krishan and DSP Gurmeet Singh PW-7 have corroborated the statement of the complainant with regard to recovery of the tainted currency notes from the appellants. The said witnesses have also deposed that when the fingers of the appellants were dipped in the solutions of sodium carbonate, the colour of the solutions had turned pink. The shadow witness, however, could not be examined during trial as he had died. 12. Although, in the present case, the official witness and the DSP have deposed as per the prosecution case but in view of the evidence led by the appellants in their defence, prosecution case is rendered doubtful. DW-1 Samittar Singh has deposed that Surinder Singh had applied for demarcation of the land on the basis of the sale deed. Application moved by Surinder Singhcomplainant was marked to appellant Kulwinder Singh. Appellant Kulwinder Singh issued summons to the parties concerned and also to the Patwari. Kulwinder Singh and Balkar Singh remained present for demarcation proceedings which were fixed for 24.9.1999. However, on that day, Surinder Kaur and Ravel Kaur snatched the measuring tape from the Patwari and threw it away. In this regard, report was duly made which was signed by complainant Surinder Singh also. Appellant Kulwinder Singh requested for police help for demarcation of the property. Report was sent by appellant Kulwinder Singh to District Magistrate. Ex. D3 is the letter written by the District Magistrate to the Senior Superintendent of Police requesting for police help. In this regard, report was duly made which was signed by complainant Surinder Singh also. Appellant Kulwinder Singh requested for police help for demarcation of the property. Report was sent by appellant Kulwinder Singh to District Magistrate. Ex. D3 is the letter written by the District Magistrate to the Senior Superintendent of Police requesting for police help. Appellant Kulwinder Singh issued summons to the parties for demarcation to be carried out on 16.11.1999. Summons were sent to appellant Balkar Singh for service. On 16.11.1999, appellants reached the spot for demarcation. Demarcation could not be carried on that day as Joginder Singh produced copy of the stay order granted by the Civil Court. In this regard, report Ex. D4 was duly made by the appellants which were signed by the parties except complainant Surinder Singh who had refused to affix his signatures. He proved the copy of the order Ex. D5 passed by the Sub Divisional Magistrate. 13. Statement of DW-1 is in consonance with the plea taken by the appellants in their examination under Section 313 Cr.P.C. 14. Although, the complainant in his examination-in-chief has not deposed qua the facts stated by DW-1 or the plea taken by the appellants in their examination under Section 313 Cr.P.C. but in his cross-examination complainant has corroborated the statement of DW-1. 15. Complainant in his cross-examination deposed that he had gone to the spot for demarcation on 24.9.1999. Wife of Amar Singh and his daughter had come present there. Appellants were also present there for the purposes of demarcation. When the Patwari tried to effect demarcation, Ravel Kaur and Surinder Kaur snatched the measuring tape and threw it away. He was informed by appellant Kulwinder Singh that he had sent a report to the Tehsildar that there was apprehension of breach of peace and police assistance was necessary. Appellant Kulwinder Singh also told him that he had sent a report to the Tehsildar. He admitted his signatures on Mark D. He further admitted that appellant Kulwinder Singh had sent a report to the Tehsildar and the Tehsildar had moved to the Deputy Commissioner for police help. Notice dated 11.11.1999 was issued to him qua demarcation to be effected on 16.11.1999. On 16.11.1999, he went to the spot and the parties were also present there. Notice dated 11.11.1999 was issued to him qua demarcation to be effected on 16.11.1999. On 16.11.1999, he went to the spot and the parties were also present there. At that time, appellants had come to the spot for the purposes of demarcation on the basis of his application. Kulwinder Singh appellant told him that since a stay order had been issued by the Court, he could not effect the demarcation. He admitted that his statement was recorded by the Sub Divisional Magistrate on 23.5.2000. The Sub Divisional Magistrate had also ordered that no demarcation could be carried out as the stay order had been granted by the Court. He admitted that he had not informed the DSP that he had been told by appellant Kulwinder Singh that demarcation could not be conducted as stay order had been granted by the Civil Court. On 24.9.1999 or 16.11.1999 when the appellants had come for demarcation, there was no talk with regard to demand of bribe money from him by them. 16. Thus, from the statement of DW-1 as well as cross-examination of the complainant, it is evident that the appellants had visited the spot for the purposes of demarcation on 24.9.1999 but on that day Ravel Kaur and Surinder Kaur had quarreled with the Patwari. Due to this reason, appellants had requested for police help. Report in this regard has been proved on record as Ex. D2. Thereafter, vide Ex.D3, request was made by the District Magistrate to the Senior Superintendent of Police that police help be provided for demarcation. Thereafter on 16.11.1999 again demarcation proceedings were to be carried out at the spot. Appellants as well as the parties including the complainant were present. A perusal of Ex. D4 reveals that on the said day, stay order, from the Civil Court, was produced by Joginder Singh and due to this reason, demarcation could not be carried out. Appellants made a report in this regard Ex. D4. The fact that the said report had been made by the appellants, was duly informed to the complainant. Ex.D5 is the order passed by the Sub Divisional Magistrate-cum-Collector on 30.5.2000 to the effect that as the status quo order had been passed by the Civil Court, demarcation of the land could not be done till the final decision of the Civil Court. 17. Ex.D5 is the order passed by the Sub Divisional Magistrate-cum-Collector on 30.5.2000 to the effect that as the status quo order had been passed by the Civil Court, demarcation of the land could not be done till the final decision of the Civil Court. 17. Since the appellants had already made a report on 16.11.1999 that the land could not be demarcated in view of passing of the status quo order by the Civil Court, there was no occasion for the appellants to have demanded or accepted bribe thereafter on 22.11.1999 as alleged by the complainant. It appears that the complainant was unhappy because the demarcation of the land had not been done by the appellants and due to this reason, he falsely involved the appellants in this case. Although, in the present case appellants were allegedly caught red handed while accepting bribe but as the appellants had no occasion to demand or accept bribe from the complainant as on the day of demand of bribe or day of raid, the demarcation proceedings were no longer pending with the appellants, the prosecution case is rendered doubtful. 18. It is a settled proposition of law that whenever there is doubt in the prosecution story, the benefit of the same has to be extended to the accused. In the present case, prosecution had failed to prove its case against the appellants beyond the shadow of reasonable doubt. 19. Accordingly, both the appeals are allowed. The impugned judgment/order dated 18.9.2004/21.9.2004 of conviction and sentence of the appellant are set aside. Consequently, appellants are acquitted of the charges framed against them.