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2014 DIGILAW 1203 (PNJ)

Amandeep Singh v. State of Punjab

2014-08-20

JITENDRA CHAUHAN

body2014
Jitendra Chauhan, J. 1. The present appeal has been filed against the judgment/order dated 20.12.2006, whereby the learned Special Judge, Rupnagar, convicted and sentenced the accused-appellant to undergo rigorous imprisonment for a period of one and half year and to a pay fine of ` 1000/-; in default of payment of fine, to have further undergo RI for two months, under Section 7 read with Section 13(2) of the Prevention of Corruption Act. The facts necessary for adjudication of the matter as narrated in para 2 of the impugned judgment are as under:-- "As per the allegations of the prosecution on 24.1.2000, Gurnam Singh son of Jaswant Singh suffered statement before Shri Malwinder Singh Sidhu, DSP Vigilance Bureau, Ropar alleging that he has 6/7 acres of land and has electric motor. The transformer from which they were taking electricity supply has burnt due to some defect and on 21.1.2000 he had met Amandeep Singh JE of the Illaqa for change of transformer who asked that he should collect some money from all the motor owners and should pay t 2000/- to him as illegal gratification but on his request that he is a poor person, the deal was struck for ` 1000/-. When he told this fact to Narinder Singh son of Bhajan Singh, he stated that they should make complaint to the Vigilance department against Amandeep Singh JE. Accordingly, his statement Ex. PA was recorded by DSP Malwinder Singh Sidhu upon which he made endorsement Ex. PA/2 on the basis of which FIR Ex. PA/3 was recorded. At the time Gurnam Singh visited the office of DSP he produced ten currency notes in the denomination of ` 100/- each before the DSP, the DSP treated them with phenolphthalein powder (for short P-powder) and after making it sure that nothing remains with the complainant, these currency notes were handed over to him after noting its numbers with a direction that these currency notes are to be given to Amandeep Singh JE in case he demands the same and Nirmal Singh was appointed as shadow witness with a direction to hear the conversation between Amandeep Singh and Gurnam Singh and in case any illegal gratification is demanded by Amandeep Singh, then he will give the signal to the raiding party. Its memo Ex. PC was prepared. Its memo Ex. PC was prepared. Demonstration of P-powder was also given by taking a glass of water in which sodium carbonate was mixed and on stirring, there was no change in the colour, then some P-powder was put on a piece of paper and it was put in the glass of water and its colour changed to light pink and after that the said solution was destroyed and its memo Ex. PB was prepared. Then raiding party was organized, Dr. Surjit Kumar and Harjit Kumar were joined as official witnesses and the raiding party left for Chakaur Sahib. The complainant and shadow witness were sent to the office of accused and after some time raiding party received the signal from shadow witness. Then the raiding party went there and DSP Malwinder Singh gave his identity to the accused and apprised the accused about the vigilance raid against him. The officials of Vigilance caught hold of Amandeep Singh from his arms and the complainant told that the accused after taking illegal gratification has put the currency notes in the pocket of his pant. Then a glass of water was called in which sodium carbonate was put and on stirring, there was no change in the colour of water and then the accused was asked to dip fingers of his hand in that water as a result of which the colour of the water changed to light pink, it was put in a nip, sealed with the seal MSS and taken into police possession vide memo Ex. PE. From the personal search of the pant of accused from left side pocket, ten currency notes of denomination of ` 100/- each were recovered, these were handed over to Dr. Surjit Kumar who tallied the numbers of currency notes with already prepared memo which were taken into police possession vide memo Ex. PD. Then a trouser was arranged and left side pocket of pant of the accused was put in the solution of sodium carbonate and on washing its colour changed to light pink. The solution was put in a nip, sealed with the seal MSS and taken into police possession vide memo Ex. PF. From the personal search of the accused currency notes of `800/- and other articles were recovered which were taken into police possession vide memo Ex. PG, site plan of the place of recovery was prepared Ex. The solution was put in a nip, sealed with the seal MSS and taken into police possession vide memo Ex. PF. From the personal search of the accused currency notes of `800/- and other articles were recovered which were taken into police possession vide memo Ex. PG, site plan of the place of recovery was prepared Ex. PW-11/A, SDO was called for and he told that the officials are on strike and the record will not be available today, then the room in which the record was lying was sealed by the DSP and its memo Ex. PW-11/B was prepared, then another letter was sent to SDO Ram Saran Bangar to report whether the transformer of complainant has been changed or not and Harwinder Singh JE made a report that no transformer has been changed at the spot on the application Ex. PW-11/D. Then another application Ex. PW-11/E was given to report whether JE Amandeep Singh was on strike or not, on which JE Sada Ram made a report that he was not on strike. On the next day, accused was again taken to Chamkaur Sahib and in the presence of Karnail Singh SDO and Bahadur Singh peon and in the presence of SDO Karnail Singh seal was broken by peon Bahadur Singh and from the Almirah SR and SRW book were recovered and there was report about burning of transformer. In register SR on its page No. 44 there was entry about issuance of transformer vide road voucher to get new transformer and voucher was issued on 21.1.2000. These documents were taken into police possession vide memo Ex. PW-5/D. Then service record of accused was taken. The nips were went to FSL Punjab Chandigarh who vide their report Ex. PG found that contents of nips are that of sodiumn ions, carbonate ions and phenolphthalein, prosecution sanction of accused was obtained and on completion of investigation, report under Section 173Cr.P.C. was filed in the Court." 2. The accused -appellant was charged for the commission of offence punishable under Section 7 read with Section 13(2) of the Act, to which, he did not plead guilty and claimed trial. 3. The accused -appellant was charged for the commission of offence punishable under Section 7 read with Section 13(2) of the Act, to which, he did not plead guilty and claimed trial. 3. In order to substantiate the charge, the prosecution has examined as many as eleven witnesses i.e. PW1 Gurnam Singh, complainant, PW2, Nirmal Singh, who corroborated the version of the complainant, PW3, Constable Sajjan Singh, a formal witness, who took the sample nip to the office of FSL, Punjab Chandigarh, PW4 Dr. Surjit Kumar, Medical Officer, member of the police party and shadow witness, PW5 Karnail Singh, SSE, Grid Maintenance, PW6 Mehar Singh LDC, PSEB, Ropar, PW7 Ramesh Kama, Senior Assistance in the office of GM, Ropar Thermal Plant, who produced the service record of Amandeep Singh, PW8 Shashi Kumar, Senior Assistant, Office of Chief Engineer, Operation PSEB, Patiala, who proved the sanction for the prosecution of the accused, PW9 C. Sham Lal, formal witness, PW10 HC Gurbhej Singh, formal witness, PW11 Malwinder Singh Sidhu, Investigating Officer, and closed its evidence. 4. When examined under Section 313 of the Code of Criminal Procedure, the accused-appellant stoutly denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded false implication stating that it was a case of theft of electricity and fine of ` 700/- was imposed upon the complainant, therefore, the complainant had been nursing a grudge against the accused. In defence, he examined DW1 Salim Mohamad, RA Operation, PSEB, Chamkaur Sahib, DW2 Tarsem Lal Chaudhary, SDO, DW3 Gurmit Singh, DW4 Harvinder Singh SDO, DW5 Chetan Kumar, Cashier, PSEB, Chamkaur Sahib and DW6 Gurnam Singh, Cashier of office of Chief Director, Vigilance Bureau, Punjab Chandigarh. 5. After analysing the entire evidence and hearing the learned counsel for the parties, the learned Trial Court rejected the pleas raised by the counsel for defence and convicted and sentenced the accused-accused-appellant, as noticed at the outset. 6. The present appeal was admitted by this Court vide order dated 9.1.2007. 7. Learned counsel for the appellant submits that there are material contradictions in the statements of the prosecution witness, which have been ignored by the learned trial Court. It is contended that the complainant and shadow witness are inimical towards the accused-appellant, as he had conducted the checking of their electric connections and had imposed penalty upon them for theft of electricity. It is contended that the complainant and shadow witness are inimical towards the accused-appellant, as he had conducted the checking of their electric connections and had imposed penalty upon them for theft of electricity. The evidence led by the prosecution is not sufficient to prove the demand and acceptance of illegal gratification by the appellant. The Investigating Officer did not offer his personal search before conducting the search of the accused. Thus, the case of the prosecution is highly doubtful. 8. On the other hand, the learned counsel appearing for the respondent-State submits that the case of the prosecution is proved beyond reasonable doubt, the learned trial Court has rightly convicted and sentenced the appellant. 9. I have heard the learned counsel for the parties and perused the record carefully. 10. As per the allegations of the prosecution case, the transformer from which the complainant had been drawing electricity, had been burnt and, the accused-appellant allegedly demanded a sum of ` 2000/- for replacement of the same, as illegal gratification, but the deal was settled for a sum of `1000/-. From the deposition of Gurnam Singh, PW1 complainant, it reveals that the transformer got damaged on 21.1.2000. On the same day, he alongwith Nirmal Singh met the accused, who was posted as J.E. of the area. But in his cross-examination, Gurnam Singh, complainant has deposed that on 21.1.2000, Taran Singh of his village accompanied him to the accused's office. In the next breath, he has deposed that Nirmal Singh was not present, when the accused had raised a demand of ` 2,000/-. Though in his deposition, he denied the suggestion that he was not having any grudge against the accused, but it is apparent from the deposition of DW5 Chetan Kumar, Cashier, PSEB, Chamkaur Sahib that a penalty of ` 450/- was imposed upon Harkirat Singh, cousin of Gurnam Singh, complainant, on the basis of checking report dated 7.10.1999. This witness further deposed that by the appellant a penalty of ` 685/- was imposed upon Nirmal Singh, a witness of prosecution for excess load of electricity consumed by him. Therefore, the possibility of Nirmal Singh being an interested witness cannot be ruled out. This witness further deposed that by the appellant a penalty of ` 685/- was imposed upon Nirmal Singh, a witness of prosecution for excess load of electricity consumed by him. Therefore, the possibility of Nirmal Singh being an interested witness cannot be ruled out. As per the deposition of Gurnam Singh, PW1, Taran Singh accompanied him to meet the accused for getting the transformer replaced and in his presence, the deal was settled for a sum of ` 1000/- as illegal gratification for replacement of the transformer, but said Taran Singh neither was cited as a witness, nor was he examined. Similarly Gurnam Singh, complainant in his cross-examination deposed that on 21.1.2000, in the evening, he and Jagdeep Singh came to the office of DSP Ropar and narrated the matter to him, but said Jagdeep Singh was also neither cited as a witness, nor examined. In his deposition PW11, Malwinder Singh Sidhu, DSP, stated that the locked room was opened, from the Almirah of the accused one register SRW was found, and at page No. 20 dated 21.1.2000, of the register there was a report about the burnt transformer. Then there was another register SR and on its page No. 44, there was an entry about this burnt transformer. There was one road voucher to get a new transformer. That voucher was also issued by the SDO on 21.1.2004. This fact also stands corroborated from the testimony of PW5 Karnail Singh, SSE Grid Maintenance 66 KV, (Ghulala), Samrala. 11. From the bare perusal of the testimonies of above these two witnesses, it appears that the transformer had already been issued by the SDO and a road voucher was already made. If the appellant wanted bribe, then he would not have got issued transformer on the same day. The explanation given by the accused for not installing the transformer was that that was a holiday being Sunday and on the next days, there was a strike of employees i.e. on 23.1.2000 and 24.1.2000, respectively. This fact is fully established from the deposition of PW5, Karnail Singh. DSP Malwinder Singh in his cross-examination deposed that he had seen the complainant and the shadow witness for the first time in his office and he specifically denied that they had met him on 21.1.2000, but the complainant in his examination, deposed that he alongwith Nirmal Singh met the said DSP on 21.1.2000. DSP Malwinder Singh in his cross-examination deposed that he had seen the complainant and the shadow witness for the first time in his office and he specifically denied that they had met him on 21.1.2000, but the complainant in his examination, deposed that he alongwith Nirmal Singh met the said DSP on 21.1.2000. There is no evidence that he made any request/complaint to any higher authority i.e. SDO/XEN of the department in this regard. Nirmal Singh PW2, in his cross-examination deposed that the police obtained his signatures on 6/7 papers after about one hour from the place, the accused was first apprehended. The police did not tell the contents of the documents to him. The accused never demanded any bribe from the complainant in his presence at any point of time. There were 10/12 persons present at the time when the money was given to the accused, but none of them was cited nor examined as a witness. PW4 Dr. Surjit Singh, who was also a member of the raiding party and accompanied the DSP, in his cross-examination deposed that accused did not meet the complainant in his presence. When they reached at Chamkaur Sahib the police had made two parties. One raiding party alongwith the shadow witness went with the complainant, whereas he went with DSP Malwinder Singh and stayed away at some distance and was at a distance of 4/500 yards from the other raiding party which had gone earlier and arrested the accused and they took the accused to the back side of the building. This witness further stated that the accused was not searched in their presence. That party had already recovered the money and took in its possession. He and the said DSP had gone to the back side of the building after about fifteen minutes of the arrest of the accused. From the statement of PW4 Dr. Surjit Kumar, it appears that the recovery is highly doubtful. 12. DW2, Tarsem Lal Chaudhary deposed that in October, 1999, the meter of consumer was checked by meter inspector and the seals of the meter were found to be broken for which a penalty of ` 450/- was imposed upon Harkirat Singh, which was deposited by him. He further deposed that at that time, Harkirat Singh to whom, this witness earlier knew, was requesting not to impose the penalty. He further deposed that at that time, Harkirat Singh to whom, this witness earlier knew, was requesting not to impose the penalty. He further deposed that thereafter, said Nirmal Singh threatened that he is member of Kisan Union and the officials had to face its consequences. From the testimony of DW2, Tarsem Lal Chaudhary, it is established that the complainant, Gurnam Singh had motive to falsely implicate the appellant in this case. 13. In this case, the defence version furnished by the accused appears to be probable. From the evidence on record it is apparent that the complainant had a grudge against him for detecting the excess load of electricity, and theft of electricity by the complainant, for which the compounding fee was imposed upon and recovered from the complainant. Where there are two parallel versions, one the prosecution version and the other the defence version, if the defence version appears more probable than the prosecution version, the weight must be given to the defence version. In this case, the cross-examination of Dr. Surjit Kumar weakened the prosecution case. The defence version is found to be believable and probable. So the benefit is to go to the accused-appellant. Keeping in view the above discussion, this Court is of the view that the prosecution has failed to prove its case against the accused-appellant beyond reasonable doubt. Resultantly, this appeal is allowed, judgment of conviction and order of sentence dated 20.12.2006, passed by learned Special Judge, Rupnagar are set aside and the accused appellant is acquitted of the charge framed against him by giving him the benefit of doubt.